UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-138
ALLIANCE ENCLOSURES, INC.,
Respondent.

April 27, 1977

DECISION

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge’s decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge’s decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge’s decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975–76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975–76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge’s decision is accorded the significance of an unreviewed Judge’s decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975–76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

Dated: APR 27, 1977

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

(SEAL)

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I agree with my colleagues’ affirmance of Judge Fier’s vacation of the charge alleging that respondent failed to comply with the requirements of 29 C.F.R. § 1910.213(h)(3). However, vacation of that charge, as well as the charge alleging that respondent failed to comply with the requirements of 29 C.F.R. § 1910.213(h)(1), is warranted because the standards codified at 29 C.F.R. § 1910.213 were improperly promulgated and are therefore invalid: See Secretary v. Noblecraft Industries, Inc., OSAHRC Docket No. 3367, November 21, 1975 (dissenting opinion). Also, vacation of all charges is required because complainant failed to establish that any employees of respondent were actually exposed to any hazard as a result of the alleged noncomplying conditions. See Secretary v. Gilles & Cotting, Inc., OSAHRC Docket No. 504, February 20, 1976 (dissenting opinion).

Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges. Since my colleagues do not address any of the matters covered in Judge Fier’s decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-138
ALLIANCE ENCLOSURES, INC.,
Respondent.

July 12, 1976

Apperances:

Francis V. LaRuffa, Regional Solicitor

U.S. Department of Labor

1515 Broadway, Room 3555

New York, New York 10036

Attorney for complainant

by Louis D. DeBernardo, Esq.

Allan Richard Henis, Esq.

295 Madison Avenue

Eleventh Floor

New York, New York 10017

Attorney for respondent

DECISION AND ORDER

FIER, Judge:

PRELIMINARY STATEMENT

This is a proceeding pursuant to section 659 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., hereinafter called the Act), wherein the respondent contests the citation and penalty for three serious violations. The citations dated December 10, 1975, were based on an inspection conducted December 5, 1975. The citation and proposed penalties were issued pursuant to sections 9(a) and 10(a) of the Act.

Pursuant to section 10(c) of the Act (29 U.S.C. § 659(c)) respondent, through a letter dated December 23, 1975 from its attorney, noted its timely contest of the violations and proposed penalties.

The citation for the alleged serious violations set forth the following:

CITATION NO. 1

Item No.

Standard

Violation

29 CFR 1910.212(a)(1) page 23712 as specified in 1910.213(h)(1) and 1910.213(h)(3) page 23714

The 16 inch De Walt radial arm metal saw serial no. 32600205 located at the approximate center of the shop was not equipped with a guard which covered the lower exposed sides of the blade to their full diameter and would automatically adjust itself to the thickness of the stock and remain in contact with the stock being cut so as to give maximum protection. The saw also was not provided with an adjustable stop to prevent forward travel of the blade beyond the position necessary to complete the cut in repetitive operations.

A penalty of $500.00 was proposed.

CITATION NO. 2

Item No.

Standard

Violation

29 CFR 1910.212(a)(3)(ii) page 23712

A 10 foot Chicago, Dreis Krump Power Brake serial no. 18044 and a 10 foot Wysong Power Shear serial no. 32923 located at the N/W and S/W areas of the shop respectively, were not provided with point of operation guarding that would prevent the operator from placing his hand or fingers in the danger zone when the ram descended.

A penalty of $500.00 was proposed.

CITATION NO. 3

Item No.

Standard

Violation

29 CFR 1910.217(c)(1)(i) as specified in 1910.217(c)(3)(i) page 23725

4 power presses located adjacent to the center of the west wall of the shop were not provided with point of operation guarding to prevent entry of the operator’ hands and fingers into the danger zone during the operating cycle or closing of the dies. They were:

A 50 ton Russell E serial no. 14243 model 66

A 5 ton press adjacent to the wall (identification not discernible)

A 10 ton Continental Can Co. type 133p No 2321

A Havir 5 ton press (identification numbers obscured)

A penalty of $500.00 was proposed.

STANDARDS AS PROMULGATED

29 CFR § 1910.212 General requirements for all machines.

(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.

(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.

29 CFR § 1910.213 Woodworking machinery requirements.

(h) Radial saws. (1) The upper hood shall completely enclose the upper portion of the blade down to a point that will include the end of the saw arbor. The upper hood shall be constructed in such a manner and of such material that it will protect the operator from flying splinters, broken saw teeth, etc., and will deflect sawdust away from the operator. The sides of the lower exposed portion of the blade shall be guarded to the full diameter of the blade by a device that will automatically adjust itself to the thickness of the stock and remain in contact with stock being cut to give maximum protection possible for the operation being performed.

(3) An adjustable stop shall be provided to prevent the forward travel of the blade beyond the position necessary to complete the cut in repetitive operations.

29 CFR § 1910.217(c) Safeguarding the point of operation—(1) General requirements. (i) It shall be the responsibility of the employer to provide and insure the usage of ‘point of operation guards’ or properly applied and adjusted point of operation devices on every operation performed on a mechanical power press. See Table O–10.

(3) Point of operation devices. (i) Point of operation devices shall protect the operator by:

(a) Preventing and/or stopping normal stroking of the press if the operator’s hands are inadvertently placed in the point of operation; or

(b) Preventing the operator from inadvertently reaching into the point of operation or withdrawing his hands if they are inadvertently located in the point of operation, as the dies close; or

(d) Requiring application of both of the operator’s hands to machine operating controls during the die closing portion of the press stroke; or

*3 (e) Locating single cycle operating controls so that the slide completes its downward travel before the operator’s hands can inadvertently reach into the point of operation.

ISSUES

1. Whether the respondent violated the Occupational Safety and Health Act as alleged.

2. Whether the respondent failed to comply with 29 CFR 1910.212(a)(1), 1910.213(h)(1) and 1910.213(h)(3); 29 CFR 1910.212(a)(3)(ii); 29 CFR 1910.217(c)(1)(i) and 29 CFR 1910.217(c)(3)(i); if so, did it violates section 29 U.S.C. § 654(a) of the Act.

3. If the respondent is shown to have violated the standards as alleged, what penalties, if any, are appropriate.

STATEMENT OF THE EVIDENCE

The respondent through testimony and stipulation admitted that it does work occasionally outside of New York State. It also receives goods manufactured from other states. The respondent is a corporation organized under the laws of New York (Tr. 6–10).*

On December 5, 1975, John Brennan, a compliance officer (hereafter referred to as C.O.) for the Department of Labor, made an inspection of premises of Alliance Enclosures Inc., the respondent (hereafter referred to as Alliance). During the walk-around inspection, in the company of the office manager and the acting shop steward, the C.O. observed four workers on the premises who were identified as respondent’s employees (Tr. 23, 24). The C.O. observed a 16-inch DeWalt radial arm metal saw which was not equipped with a guard over the lower exposed sides of the blade (Tr. 18–20). In addition, the saw was also not provided with an adjustable stop to prevent the saw from going beyond the limits of the work being cut (Tr. 18, 19). The respondent takes issue with the C.O.’s observations as to the adjustment controls. It contends that since the saw was not in use and it sometimes is necessary to use extension tables, the adjustment on the arm of the saw was probably adjusted to the last cut (Tr. 51).

The respondent readily admitted that a guard for the lower part of the blade was not on the saw and introduced Exhibit R–1 to show that it has since been ordered from the manufacturer (Tr. 52). A penalty of $500.00 was proposed for the two violations.

The C.O. next observed that a 10-foot Wysong Power Shear was not provided with a point of operation guard to protect the employee’s hands or fingers from amputation (Tr. 25). In addition, a 10–foot Chicago power brake machine lacked a point of operation guard (Tr. 30). The hazard here to the employees, is the possibility of loss of hands or fingers (Exh. C–2). A penalty of $500.00 was proposed for the above serious violation.

Finally, the C.O. observed four power presses that were not with point of operation guarding to prevent injury to the operators’ hands or fingers (Tr. 37–42). The evidence indicated that in all of the above matters the machines were capable of being used, and in fact, two employees were actually observed using some of the machines (Tr. 66). The respondent testified that the guards were not on the machines because the machinery was being cleaned (Tr. 62). The respondent also asserts that the two people using the machines were field employees and not shop people (Tr. 66). It is also asserted that the respondent had reduced his workforce by 95% because of a work stoppage (Tr. 62). Alliance alleges that no work was being performed but only a cleaning operation was observed (Tr. 62).

OPINION

The respondent readily admits that there was no guarding device on the lower sides of the saw. The evidence sufficiently establishes that the power brake and power shear were also without the guard devices. Respondent admits that it has the guards but they were not mounted because the machinery was being cleaned. This is essentially the same circumstance in the third citation for the absence of guards on the four power presses. All of the machines were located in an accessible work area and two of respondent’s employees actually did use the machines. As for the adjustments of the power-saw, the respondent indicated that there were adjustable stops on the arm of the saw (Tr. 51). The C.O. did not refute this. The explanation given regarding the operation of the saw beyond the limit of the work being cut, creates a doubt sufficient to justify vacating that portion of the citation. The remainder of the three citations must be affirmed.

As to the assessment of penalties, the evidence indicates that the respondent has no prior history of violations. In addition, the explanation that 95% of the employees were not working at the time, demonstrates that the exposure to the cited hazards were reduced considerably. Finally, the respondent’s statement that the machines were being cleaned at the time and the guards necessarily removed, to effectuate, this cannot be totally discounted. It thus appears that the penalty in the first citation should be reduced to $100.00. The penalty for the second citation should be reduced to $200.00. The penalty in the third citation should be reduced to $200.00. The criteria set forth in section 17 of the Act have been considered.

FINDINGS OF FACT

The credible evidence and the record as a whole establishes preponderant proof of the following facts:

1. Respondent, Alliance Enclosures Inc., is a corporation organized under the laws of the State of New York. It does work across state lines. It also uses materials manufactured and shipped from other states.

2. Respondent’s employees were exposed to the hazard of injury by the use of a radial arm metal saw that was not equipped with a guard to cover the lower portion of the blade.

3. The respondent’s radial arm saw was equipped with an adjustable stop to prevent the saw from traveling beyond the cutting position.

4. The respondent’s power brake machine and power shear did not have guards at the point of operation at the time of inspection.

5. The respondent’s four power presses did not have guards at the point of operation at the time of inspection.

CONCLUSIONS OF LAW

1. The respondent is and was at all times herein engaged in a business affecting commerce within the meaning of section 3 (5) of the Occupational Safety and Health Act of 1970.

2. The Occupational Safety and Health Review Commission has jurisdiction over the subject matter and parties to this action.

3. Respondent did not fail to comply with 29 CFR 1910.213(h)(3).

4. Respondent violated 29 U.S.C. 654(a)(2) by failing to comply with following standards 29 CFR 1910.212(a)(1) as specified in 29 CFR 1910.213(h)(1); 29 CFR 1910.212(a)(3)(ii); 29 CFR 1910.217(c)(1)(i) as specified in 29 CFR 1910.217(c)(3)(i).

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is hereby ORDERED that;

Citations numbered one, two and three are affirmed as modified. Penalties of $100.00, $200.00 and $200.00 respectively, are assessed for a total penalty of $500.00.

SEYMOUR FIER

JUDGE, OSHRC

Dated: July 12, 1976

New York, New York