GENERAL ELECTRIC COMPANY, INC.  

OSHRC Docket No. 11344

Occupational Safety and Health Review Commission

May 19, 1977

  [*1]  

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Reg. Sol., USDOL

Roger A. Boucher and Roland C. Radice, General Electric Company, for the employer

John Mangino, Business Agent, Int'l Union of Electrical Radio & Machine Workers, Local 301, IUE, AFL/CIO, for the employees

Boren Chertkov, IUE Legal Dept., Local 301, for the employees

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A decision of Review Commission Judge James A. Cronin, Jr., dated August 6, 1975, is before this Commission for review pursuant to 29 U.S.C. §   661(i).   That decision, which is attached hereto as Appendix A, n1 vacated two citations which alleged that respondent had violated 29 U.S.C. §   654(a)(2) by failing to comply with the occupational safety standards codified at 29 C.F.R. § §   1910.212(a)(3)(ii) and 1910.309(a).   In addition, respondent was held to be in violation of 29 U.S.C. §   654(a)(1), the so-called general duty clause, and 29 U.S.C. §   654(a)(2) for failure to comply with 29 C.F.R. §   1910.23(c)(1).   For the reasons set forth below, we affirm.

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n1 Chairman Barnako does not agree to this attachment.

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The charges in this case resulted from an inspection of respondent's worksite by an authorized representative of the Department of Labor.   Respondent was issued a total of 18 citations as a result of that inspection. All allegations were timely contested.   At the hearing thereon, the parties reached agreement on all but four of the citations.   The four citations remaining in issue were considered by Judge Cronin in his subsequent decision.

Review of the Judge's decision was thereafter directed on the following issues:

"(1) Whether the Judge erred in vacating citation No. 3 (a) by concluding that 29 C.F.R. §   1910.212(a)(3)(ii) is inapplicable to the Radiac Cut-Off as a matter of law;

(b) by failing to amend the pleadings under rule 15(b) of the Federal Rules of Civil Procedure to allege non-compliance with the standard at 29 C.F.R. §   1910.215 (b)(5); and

(c) by failing to amend the pleadings under rule 15(b) of the Federal Rules of Civil Procedure to allege non-compliance with section 5(a)(1) of the Act?

(2) Whether the Judge erred in concluding [*3]   that respondent's non-compliance with section 5(a)(1) of the Act was not willful?

(3) Whether the Judge erred in concluding that respondent's non-compliance with 29 C.F.R. §   1910.23(c)(1) was willful and/or repeated as alleged?

(4) Whether the Judge erred in finding compliance with 29 C.F.R. §   1910.309(a) and Article 400-4(1) of the National Electrical Code, NFPA 70-1971, and if so, whether the violation was willful and/or repeated as alleged? n2

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n2 In his review brief, complainant concedes that Judge Cronin properly vacated citation number 11 alleging noncompliance with 29 C.F.R. §   1910.309(a) for the reasons stated in his decision.   Although the authorized employee representative continues to seek affirmance of this charge, it only reargues the evidence and does not direct us to any evidence which the Judge failed to consider.   Under these circumstances, we will not disturb the Judge's finding.

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We agree with the vacation of citation number 3, but for reasons other than those advanced by the Judge.   Judge Cronin [*4]   held that the cited standard, 29 C.F.R. §   1910.212(a)(3)(ii), was inapplicable to the radiac cutoff machine involved because a more specific standard, 29 C.F.R. §   1910.215(b)(5), applied.   He would not, however, amend the pleadings pursuant to Rule 15(b) of the Federal Rules of Civil Procedure to allege either a violation of the latter standard or a violation of 29 U.S.C. §   654(a)(1), because those violations had not been tried by the consent of the parties.

It is unnecessary to address the issue of whether the Judge erred in failing to amend because we find that the cited standard is applicable to the alleged hazard, whereas §   1910.215(b)(5) is not.   Section 1910.215(b)(5) provides, in pertinent part, as follows:

"The maximum angular exposure of the grinding wheel periphery and sides for safety guards used on cutting-off machines . . . shall not exceed 150 degrees."

The citation, however, pertains to the alleged inadequate guarding of "the point of operation of [a] radiac cutoff" machine. It is apparent that §   1910.215(b)(5) does not address a point of operation hazard.

Section 1910.215(b)(5) is derived from American National Standards Institute (ANSI) standard B7.1-1970, Safety [*5]   Code for the Use, Care, and Protection of Abrasive Wheels. 29 C.F.R. §   1910.221.   It is identical to its source standard found at §   4.33 of B7.1-1970, which describes the maximum exposure angles of surface grinders and cutting-off machines. As is indicated by the explanatory information accompanying B7.1-1970, the maximum exposure angles are designed to protect the operator from the flight of broken wheel pieces.   It is clear, therefore, that the guards required by §   1910.215(b)(5) shield the periphery of the wheel to prevent contact with flying objects.   They do not protect the operator from the hazards of contacting the point of operation, which is defined at 29 C.F.R. §   1910.212(a)(3)(i) as "the area on a machine where work is actually performed upon the material being processed." In other words, the point of operation is an actual contact point, the guarding of which will prevent actual physical contact.

Complainant has cited the appropriate standard for the alleged hazard. Respondent has, however, complied with the requirements of 29 C.F.R. §   1910.212(a)(3)(ii) by providing guards for the machine in question.   That standard provides:

"The point of operation of machines whose [*6]   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."

As we noted in Secretary v. Paccar, Inc., 17 OSAHRC 595, 597-598 (1975), with respect to a similar general machine guarding standard, the standard cited does not specify a particular type of guarding method.   It does, however, require some means of protection against the point of operation hazard. As described in Judge Cronin's findings of fact numbers 14 and 15, the positioning of the safety guards and spacer device offered the necessary protection to satisfy the standard's requirements.

Citation number 7 alleged, and Judge Cronin held, that respondent had violated 29 U.S.C. §   654(a)(1), the Act's general duty requirement, by operating a lathe which contained cracked jaws. The evidence indicates, however, and the Judge so found, that respondent had made numerous attempts, ableit unsuccessful, to locate the cracked jaws after the hazard   [*7]   was reported by union representatives.   These numerous attempts establish that respondent's failure to correct the condition was not an act done voluntarily with either an intentional disregard of, or plain indifference to, the Act's requirements.   Therefore, the violation is not willful within the meaning of the Act.   Secretary v. Alpha Poster Service, Inc., OSAHRC Docket No. 7869, November 30, 1976; Secretary v. Graven Brothers and Company, OSAHRC Docket No. 2538, March 26, 1976.

We similarly agree with Judge Cronin that respondent's violation of §   1910.23(c)(1) (citation number 8) was not willful in nature.   Respondent argued that the guardrail requirements of 1910.23(c)(1) did not apply to the top of the bake oven involved.   In fact, the authorized representative of the Secretary of Labor who conducted the inspection in this case testified that respondent did not believe this area to be a platform within the meaning of the cited standard.   We cannot say that respondent's view at the time of the violation charged herein was so unreasonable to the point of showing bad faith. n3 See Secretary v. Western Waterproofing Co., Inc., OSAHRC Docket No. 9225, February 24,   [*8]   1977.

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n3 Although in another case involving this respondent, Secretary v. General Electric Company, Inc., 17 OSAHRC 49, 68 (1975), we stated that the purpose of the Act would best be served by a broad construction of the term "platform", that decision was issued after the inspection in the instant case.   We also stated therein that a willful violation could not be found where respondent dispute the standard's applicability in good faith.   17 OSAHRC at 73. We also note in this regard that respondent had installed railing along a portion of the top of the bake oven as a good faith gesture prior to the inspection involved herein.

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Our determination that respondent's failure to comply with 29 C.F.R. §   1910.23(c)(1) resulted from a good faith dispute as to the standard's applicability is also dispositive of the issue regarding the repeated nature of the charge.   In rejecting the Review Commission test of "repeatedly," which did not consider an employer's state of mind, n4 the United States Court of Appeals for the   [*9]   Third Circuit incorporated a "flaunting of the Act" requirement as proof for establishing a repeated violation, n5 as the Commission itself had done in Secretary v. General Electric Company, Inc., 17 OSAHRC 49 (1975). No such finding can be made on this record.   Thus there was no error in the Judge's conclusion that the violation was not repeated. n6

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n4 Secretary v. Bethlehem Steel Corporation, 20 OSAHRC 227 (1975).

n5 Bethlehem Steel Corporation v. OSAHRC and Brennan, 540 F.2d 157 (3d Cir. 1976).

n6 Because of our ruling on this issue, it is unnecessary to reconsider our previous holding in Secretary v. General Electric Company, Inc., supra, on the divisional accountability argument again raised by respondent, nor is it necessary to consider the union's res judicata/collateral estoppel argument in this regard.

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Accordingly, the Judge's decision is affirmed.  

CONCURBY: BARNAKO; CLEARY (In Part)

CONCUR:

BARNAKO, Chairman, Concurring:

I concur in the disposition of the citations alleging violations for failure to [*10]   comply with 29 C.F.R. 1910.212(a)(3)(ii) and 309(a) for the reasons stated in the lead opinion.   I further agree that the judge properly affirmed the remaining two citations. n1 However, in view of the nature of the case and in particular the arguments of the parties before us on review, I cannot join in the entirety of Commissioner Moran's discussion of the willful and repeated issues.

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n1 Among other things, Respondent contends that the judge erred in finding that it had failed to comply with 29 U.S.C. 654(a)(1) and 29 C.F.R. 1910.23(c)(1).   Assuming that this question is before us on review, I would affirm this portion of the judge's decision for the reasons he assigns.

I also note that these violations were alleged as willful and/or repeated but not as serious in nature.   Nevertheless they were affirmed as serious violations.   That disposition is not erroneous for the record plainly shows that the seriousness of the violations was tried by the consent of the parties.   Todd Shipyards Corp., No. 8500, 5 OSHC 1012, 1016, 1976-77 OSHD para. 21,509 at 25,813 (R.C., Feb. 1, 1977) and cases cited therein.

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I particularly disagree with footnote 6 of Commissioner Moran's opinion.   In the circumstances this case cannot be properly decided without consideration of the manner in which safety responsibility is delegated within Respondent's worksite, both generally and specifically on the facts of the case.   While the pertinent evidence on this question is well stated in Judge Cronin's decision, I believe a brief summary will be helpful.

Both violations in issue occurred in the Small AC Motor Department (SAC), which is one of 64 separate operating departments at Respondent's worksite in Schenectady, New York.   This complex consists of as many as 100 buildings at three different locations,the largest of which covers approximately 600 acres.   Overall there are about 27,000 amployees.   The compliance officer himself considered it the second largest worksite in New York state.

Departments are included within divisions which in turn are organized into groups.   SAC is part of the AC Motor and Generator Division.   The safety responsibility is decentralized; each department manager has full safety responsibility within [*12]   his department.   Each supervisor including department managers is accountable and reports only to his immediate supervisor in a vertical fashion such that safety responsibility does not cross department or division boundaries.   In SAC, this responsibility, including the responsibility to establish safety policy, has been delegated to Sweeney, the safety engineer, who testified that he would not consult as to safety policy with anyone outside his department.   Keast, the union's safety consultant and former safety director, knew that each department had its own safety personnel and testified that he would discuss safety matters with the specific individual responsible.

Alleged Violation of 29 U.S.C. 654(a)(1)

As Judge Cronin found, Respondent made numerous attempts to locate the cracked jaws reported by the union safety representatives.   Sweeney, as well as Dunbar, the acting superintendent of the building in which the lathe in question was located, and Rooney, SAC's manager of employee relations, all participated in these efforts, which included among other things discussion with a union shop steward, two lathe operators, and the assistant to the union's business agent whose   [*13]   duties include the negotiation and process of grievances.

On the facts as found I agree that a violation condition existed but that Respondent's failure to detect or correct the condition was not shown to be a conscious and deliverate act so as to be willful in nature.   Western Waterproofing Company, No. 9225, 5 OSHC 1064, 1067, 1977-78 OSHD para. 21,572 at 25,882 (R.C. Feb. 24, 1977); Kent Nowlin Construction, Inc., Nos. 9483 et al., 5 OSHC 1051, 1054-55, 1977-78 OSHD para. 21,550 at 25,862-63 (R.C., Feb. 15, 1977) and cases cited therein.

Nevertheless the union argues that the violation is willful because Respondent "did not really want to know where the jaws were located," and because it did not wish to establish communication with the union safety committee; in its view the judge erred in finding Respondent's efforts to be sincere.   Its specific contentions in support of these conclusions are speculative and argumentative in nature; the record plainly is to the contrary. n2

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n2 Specifically, the union asserts that management did not confer directly with the union safety committee.   The facts are, however, that among other things the union safety director was informed that management had been unable to locate the cracked laws.

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In this regard, the union contends that its conclusions are implicit in our prior decision involving this Respondent, General Electric Company, 17 OSAHRC 49, 3 OSHC 1031, 1974-75 OSHD para. 19,567 (1975), rev'd in part on other grounds, 540 F.2d 67 (2d Cir. 1976), which involved a previous inspection at the Steam-Turbine Generator Products Division of the Schenectady plant.   In that case a divided Commission stated, among other things, that Respondent had not acted in good faith in that its safety officials failed to maintain direct contact with their union counterparts.   We determined that one union official had overall safety responsibility; we found unrefuted his testimony that he understood Respondent had one central safety director.   On the other hand, in the case now before us the issue of the corporate safety structure was thoroughly litigated; plainly the facts show not only that the responsible management personnel were involved but also that they in good faith intended to detect and eliminate the violation condition. n3

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n3 I was not a member of this Commission when the prior case was decided.   Even assuming the factual context of the violations at issue in this case is similar, I would be reluctant to accept the union's argument in view of the labor-management relation overtones it necessarily raises.   See 17 OSAHRC at 83-85 n.45, 3 OSHC 1051-52 n.6, 1974-75 OSHD para. 19,567 at 23,375-76 n.6 (dissenting opinion).

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Alleged Violation of 29 C.F.R. 1910.23(c)(1)

It is alleged that Respondent failed to guard the edge of a work platform about 11 feet high above dip and bake ovens thereby exposing maintenance employees to the hazard of a fall. n4 The facts as found by the judge show that prior to the inspection by the Department of Labor, the union reported an unguarded "catwalk" in the dip and bake area.   Although a ladder provided access to the top of the ovens, Sweeney determined that the surface was not a platform requiring guardrails because it was only used for maintenance of the ovens as opposed to their operation and such use is infrequent.   He reported his conclusion to Rooney, who in   [*16]   turn informed the union that in management's opinion no "catwalk" existed and that the standard had not been violated.   However, it was agreed that a railing would be installed as a sign of good faith to the union.

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n4 This standard in pertinent part requires that "(e)very open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing . . . on all open sides . . . ." Section 1910.23(e)(1) provides that a "standard railing" consists of a top rail and intermediate rail; under certain conditions 1910.23(c)(1) also requires a toeboard.   A "platform" is defined at 1910.21(a)(4) as a "(a) working space for persons, elevated above the surrounding floor or ground; such as a balcony or platform for the operation of machinery and equipment."

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Subsequently, a guardrail, midrail, and toeboard were installed along the length of a nonskid grating extending from the access ladder which in Sweeney's view constituted the "catwalk" reported by the union.   The remainder of the edge [*17]   was left unguarded, although maintenance work is performed within 18 inches of the edge in the unguarded area.   However, when the union reinspected the building in question prior to Labor's inspection, it did not include the unguarded edge as an alleged violation in its follow-up report.

Respondent did not contest previous citations alleging violations of this standard; those citations became final orders of the Commission prior to the inspection now in issue.   We also affirmed a previous citation for violation of this standard in our prior decision which was issued subsequent to that inspection. The previous citations all concerned violations at departments other than SAC and indeed within a different division.   As I have said, our prior decision also involved an entirely different division.

The record shows that the ovens are a part of Respondent's production operation and that their top surface is used for the performance of normal maintenance work incident to that operation.   As we indicated prior to the inspection in this case guardrails are required in such circumstances.   Ventre Packing Company, 4 OSAHRC 544, 1 OSHC 1287, 1973-74 OSHD para. 16,475 (1973). See   [*18]   Weyerhaeuser Company, Nos. 1231 and 1758, 4 OSHC 1972, 1983-84, 1976-77 OSHD para. 21,465 at 25,756-58 (R.C., Jan. 3, 1977).

It is also clear, as both the Secretary and the union argue, that Respondent knew of the requirements of the standard, knew that the existing conditions did not comply with those requirements, and yet deliberately decided not to correct the conditions based on its own opinion that compliance was not necessary.   Moreover, its opinion is contrary to the abovenoted Commission precedent.   I therefore do not agree that Respondent's belief can be characterized as reasonable.   In the usual case, we would consider such conduct to constitute a willful violation.   E.g., Western Waterproofing, supra, n5 Kent Nowlin Construction supra.

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n5 Commissioner Moran reads Western Waterproofing simply to say that a good faith dispute as to a standard's applicability will negate willfulness.   However, our statement was qualified; we indicated that there must be a legitimate basis for the difference in opinion.   See 5 OSHC at 1076 n.8 and accompanying text, 1977-78 OSHD para. 21,572 at 25,882 and 25,885 n.8. The same may be said for our prior General Electric decision.   There the question was whether the platforms in issue were governed by the general guardrail standard as cited or by the less stringent requirements of specific scaffolding standards and whether the cited standard applied to a product being manufactured.   The Commission members who formed the majority in General Electric thereafter took divergent views when similar questions were presented in other cases.   Compare Ceneral Electric, supra, with General Supply Co., No. 11752, 4 OSHC 2039, 1976-77 OSHD para. 21,503 (R.C., Jan. 25, 1977) and Allis-Chalmers Corp., 76 OSAHRC 50/F8, 4 BNA 1227, 1975-76 OSHD para. 20,666 (1976). On the other hand, the case now before us presents a different issue on which the Commission precedent is clear.

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However, this case is somewhat different from the usual.   Notwithstanding Respondent's opinion it did install a standard railing and toeboard, albeit incompletely.   And while its actions were inadequate to comply with the standard as to the entire work surface they did accord with Respondent's reasonable understanding of the scope of the union's complaint and thereafter the union appeared satisfied.   In these circumstances I would not consider the violation willful. Williams Enterprises, Inc., No. 4533, 4 OSHC 1663, 1976-77 OSHD para. 21,071 (R.C., Sept. 8, 1976).

As to the question whether the violation is repeated in nature, the Secretary and the union ask that we find a repeated violation based on the fact of uncontested prior citations for violation of the same standard at the Schenectady complex as well as on the violation adjudicated in the prior case.   In this regard, the union argues that our prior decision establishes as a matter of collateral estoppel or res judicata that the entire complex constitutes one worksite for purposes of determining repeated violations.   Respondent, on the other [*20]   hand, argues that the facts of this case are different and show a decentralized corporate structure so far as responsibility for decisionmaking is concerned.

Without addressing the parties' arguments Commissioner Moran joins Judge Cronin in strictly adopting a requirement that a subsequent violation be shown to have been committed with an actual intent to "flaunt" the requirement, of the Act.   He would vacate for failure to prove this element based solely on Respondent's supposed good faith belief that it need not comply.

For the reasons stated in my separate opinion in George Hyman Construction Company, No. 13539 (April 26, 1977), I do not agree that "flaunting" must be shown, nor do I agree that the test is one of the employer's actual mental state.   Rather, in my view a repeated violation is established by proof of objective facts from which it can be inferred that the employer's conduct has been of such nature to constitute disregard of the Act's requirements.   The circumstances must show that an employer who has committed a prior violation has failed to take appropriate steps to prevent recurrences of substantially similar violations.

Accordingly, I consider the realities [*21]   of corporate control and decision-making to be pertinent.   The Secretary establishes a prima facie case that a violation is repeated, which the employer may rebut, when he shows that a violation which has been cited has become a final order and the a substantially similar violation occurs under the control of a supervisor who had responsibility for abating the first violation.   The relevant level of supervision, moreover, will vary according to the nature of the violation.   I would generally consider a local and transitory violation repeated only when the same first-line supervisor is responsible for the prior violation or violations, whereas if a violation is such to require the authority of a higher level of supervision for its correction, the Secretary may make his case by showing that both the initial and subsequent violations occurred within the area of responsibility of the higher level of supervision.

Applying these tests to the facts before us, I would conclude that the Secretary failed to establish his case.   It is plain that the previous violations all occurred under front-line supervision different from that in this case.   They also involve different higher levels of supervision [*22]   because they occurred in other operating departments which are completely autonomous one from another so far as safety matters and in fact safety policy are concerned.   Moreover, they occurred in different divisions which are unrelated on a still higher supervisory level.

In the circumstances, particularly considering the nature of the violation, n6 the evidence fails to show that the violation in issue had occurred within the control of the same supervisor with authority to abate the prior violations.

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n6 Guardrail violations normally are easily corrected and without great expenditure.   In the absence of evidence to the contrary, I would conclude that the unguarded oven top could been corrected at a relatively low supervisory level.

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In view of what I have said, Respondent plainly is not estopped as the union argues from relitigating the question of its corporate safety structure.   At the time when our prior decision was issued there was little case law concerning the proof necessary to show a repeated violation,   [*23]   and virtually the only guidance to employers was that presented by the Secretary's enforcement policy and Commission and court decisions concerning willful violations.   Subsequent to that decision, the Commission members expressed their differing views on the nature of a repreated violation including my view that the allocation of supervisory responsibility in safety matters is of prime concern.   George Hyman, supra. In such circumstances, the doctrine of collateral estoppel should not applied.

As the Supreme Court has stated:

A taxpayer may secure a judicial determination of a particular tax matter, a matter which may recur without substantial variation for some years thereafter.   But a subsequent modification of the significant facts or a change or development in the controlling legal principles may make that determination obsolete or erroneous, at least for future purposes. . . .   (Collateral estoppel) is designed to prevent repetitious lawsuits over matters which have once been decided and which have remained substantially static, factually and legally.   It is not meant to create vested rights in decisions that have become obsolete or erroneous with time, thereby   [*24]   causing inequities among taxpayers. n7

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n7 Commissioner v. Sunnen, 333 U.S. 591, 599 (1948) (emphasis supplied).

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Clearly Respondent did not have a fair opportunity in the prior case to litigate the elements of a repeated violation as we subsequently defined them.   See Scooper Dooper, Inc. v. Kraftko Corporation, 494 F.2d 840, 845 (3d Cir. 1974); Jones v. United States, 466 F.2d 131, 136 (10th Cir. 1972), cert. denied, 409 U.S. 1125 (1973); James Talcott, Inc. v. Allahabad Bank, Ltd., 444 F.2d 451, 459 n.8, 461 (5th Cir.), cert. denied, 404 U.S. 940 (1971). Accordingly, I would reject the union's argument and find the violation not repeated for the reasons I have given.  

DISSENTBY: CLEARY (In Part)

DISSENT:

CLEARY, Commissioner, CONCURRING IN PART AND DISSENTING IN PART:

I concur in vacating the citation alleging a failure to comply with 29 CFR §   1910.309(a) for the reasons stated by the Judge.   I dissent from the disposition of the other items.   I would affirm citation No. 3 alleging a serious violation for [*25]   failure to comply with 29 CFR §   1910.212(a)(3)(ii).   I would affirm citation No. 7 alleging a willful violation of section 5(a)(1) of the Act for using cracked jaws on a lathe. I would also affirm citation No. 8 as a repeated violation for failure to comply with 29 CFR §   1910.23(c)(1).

I.

Citation No. 3 alleged noncompliance with §   1926.212(a)(3)(ii) n8 for failure to guard the point of operation of a radiac cutoff machine used to cut bundles of insulated wire three inches in diameter.   I agree that §   1910.212(a)(3)(ii) is the applicable standard.   I disagree, however, with the majority's conclusion that the radiac cutoff machine was guarded in conformance with the standard's requirements.

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n8 The standard reads:

§   1910.212 General requirements for all machines.

(a) Machine guarding

* * *

(3) Point of operation guarding

* * *

(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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The cutting wheel of the radiac cutoff is housed in a hood-type guard that encloses about three-fourths of the wheel. The exposed portion is located directly in front of the operator.   Between the operator and the cutting wheel is a movable work tray upon which the bundles of insulated wire to be cut are placed.   The operator places her hands on each end of the wire bundles, and then slides the tray and bundles toward the cutting wheel. During the cutting operation, the operator's hands and fingers come as close as three inches from the exposed portion of the cutting wheel.

My colleagues rely on the Judge's findings of fact numbered 14 and 15 to support their conclusion that "the positioning of the safety guards and spacer device offered the necessary protection to satisfy the standard's requirements".   I submit that the Judge's findings support precisely the opposite conclusion.

The Judge's finding of fact No. 14 simply states that three-quarters of the cutting wheel's periphery was enclosed, and that the portion remaining exposed was needed in order to perform the cutting operation on the wires.   [*27]   Finding of fact No. 15 reads:

A metal spacer device . . . was attached to the top lips of the work tray . . . at a point in front of, and in direct line with, the cutting wheel slot.   This device is designed to provide some protection to an operator by indicating where he should place his hands during the cutting operation in order to avoid accidental physical contact with the cutting wheel . . . .   A steel guard, with plexiglass insert, is affixed to the cut - off machine . . . and is positioned in direct line with the cutting wheel. This guard is designed to protect the operator's body and face from flying sparks, dust, and splinters created during the cutting operation. This guard, the work tray, and spacer device, all move towards the cutting wheel as one unit and remain in the same spatial relationship at the time the material is cut by the wheel . . . (transcript citations omitted) (emphasis added).

It is clear that the plexiglass insert was not intended to, and did not, serve as a point-of-operation guard. Nor does the "spacer bar", in front of which the operator's hands were placed, "prevent the operator from having any part of [her] body in the [*28]   danger zone during the operating cycle," as is required by the standard.   In fact, the Judge recognized that the hood enclosure, the plexiglass shield, and the spacer did not provide the protection required by the standard.   In his finding of fact No. 16, he stated:

The guarding devices in use in October, 1974, provided some, but not complete protection against the point of operation hazard . . . (emphasis added).

The majority ignores this finding.   The supporting evidence shows that the operator of the radiac cutoff was not protected from the hazard of serious injury posed by the unguarded point of operation. n9 The citation should therefore be affirmed.

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n9 I agree with the statement in the union's brief that the adage that "pictures speak louder than words" is borne out in this instance.   A reference to the photographs marked as the Secretary's exhibits S-4 and S-5 illustrates the error of the majority's holding that the operator was "protected" from the point of operation hazards involved.

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II.

The majority [*29]   affirms the Judge's conclusion that respondent violated section 5(a)(1) of the Act by permitting cracked "jaws" to be used in conjunction with the operation of a certain lathe. They refuse, however, to find that this violation was willful. A disagree.

The Secretary's inspection of respondent's facilities took place on October 4, 1974.   During the course of this inspection, the compliance officers observed three cracked jaws on lathe No. 48620.   It is not denied that this is the same lathe which the union's safety committee reported to respondent as early as August 1, 1974, as having three cracked jaws!

As the Judge correctly found, use of a cracked jaw could result in a failure which could cause fragments of the jaw to fly off from centrifugal force and seriously injure the lathe operator and nearby personnel. Nevertheless, more than two months after this serious safety hazard had been reported to the appropriate management personnel, the jaws remained in use, without having been examined adequately by respondent.   My colleagues conclude, however, that because the management personnel to whom the hazard was reported made "numerous unsuccessful attempts" to locate the cracked   [*30]   jaws, the violation existing on the date of inspection cannot be considered willful. I do not agree.

The Commission has adopted the test for a "willful" violation set forth in Intercountry Constr. Co. v. O.S.H.R.C., 522 F.2d 777 (4thCir. 1975), cert. denied, 96 S.Ct. 854 (1976). Kent Nowlin Constr., Inc., 5 BNA OSHC 1051, 1977-78 CCH OSHD para. 21,550 (Nos. 9483 et al., 1977).   As stated in Intercounty, a violation is "willful" if it results from an intentional disregard of the Act or a plain indifference to its requirements, or if the employer knows that the actions taken might violate the Act.   522 F.2d at 780. In my view, it is also enough to show that the violation resulted from a "reckless disregard" of a known hazard. Amulco Asphalt Co., 3 BNA OSHC 1396, 1975-76 OSHD para. 19,873 (No. 3258, 1975) (Cleary, Commissioner, dissenting).

I submit that the manner in which respondent's management representatives responded, or more precisely failed to respond, to the union's report of the cracked jaws can be fairly characterized as demonstrating "plain indifference" to, or "reckless disregard of, a serious hazard. That respondent was unable to determine [*31]   with certainty in a two-month period whether three jaws on a specific lathe were or were not cracked, is incredible.   As the Judge found, if respondent had used either of two known test procedures, "it could have easily located the jaws and determined that lathe No. 48620 was being operated with cracked, jaws." n10

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n10 Judge's Finding of Fact No. 31.

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III.

I agree that the violation for failure to comply with 29 CFR §   1910.23(c)(1), concerning the inadequate guarding of the platform over the dip and bake ovens, cannot properly be found to be "willful" for the reasons stated in General Electric Co., 3 BNA OSHC 1031, 1974-75 CCH OSHD para. 19,567 (No. 2739, 1975), rev'd on other grounds, 504 F.2d 67 (2d Cir. 1976), decided subsequent to the issuance of the citation in this case.

I dissent, however, from my colleagues' refusal to find that the violation is "repeated".   The Secretary established that respondent had been cited for prior violations of the cited standard at the Schenectady plant.   These [*32]   citations were not contested and become final Commission orders by operation of law.   Therefore, the proof in the instant case that respondent again violated the same standard at the same plant, is sufficient to establish a repeated violation although I would suggest supplementary briefing on the exact amount of an appropriate penalty.   See my separate opinion in George Hyman Constr. Co., (No. 13559, April 26, 1977).