UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 14240

BUILDING PRODUCTS COMPANY,

 

                                              Respondent.

 

 

August 26, 1977

DECISION

Before: BARNAKO, Chairman; and CLEARY, Commissioner.

BARNAKO, Chairman:

            A decision of Administrative Law Judge James A. Cronin, Jr. is before us for review pursuant to 29 U.S.C. 661(i).[1] Judge Cronin in part affirmed and in part vacated a citation which alleged a single serious violation of the Act in that Respondent’s radial saws failed to comply with four requirements of 29 C.F.R. 1910.213(h).[2] The judge assessed an aggregate penalty of $150. The only issue before us is whether he erred in vacating that portion of this citation alleging noncompliance with section 1910.213(h)(1).[3] For the reasons given below we conclude that he did err; we reverse and affirm that portion of the citation.

            Respondent manufactures wooden roof trusses for use in building construction. In this process it utilizes, among other things, three radial saws, which, when originally purchased, had been equipped with lower blade guards. According to Respondent’s president, approximately 85 to 90 percent of the work performed on these saws consists of compound cutting; that is, cutting a single piece of wood twice in opposing directions so as to form an angular cut. Under certain conditions with the guards in place, this type of cutting caused the production and ejection of small wood chips. Respondent’s assistant foreman testified that both he and an employee had been struck by such chips. Accordingly, the lower blade guards were considered unsafe, and the employees removed them.

            Complainant’s area director agreed that use of a lower blade guard in some circumstances could result in injury by ejecting a small wood chip into an employee’s face. However, both he and Complainant’s compliance officer also testified that contact with an unguarded saw blade would be likely to result in severe cuts or amputation. The area director stated that both the ejection hazard and the hazard of contact with the blade could be avoided by installing a lower blade guard only on one side of the blade in the direction from which the operator feeds the wood and removing the guard on the opposite side of the blade. He had suggested this method to another employer and it worked successfully. The record also shows that safety glasses are available for use by Respondent’s employees and Respondent recommends their use in circumstances where it is felt that a hazard to the eyes exists, such as from flying sawdust.

            On these facts Respondent argued before the judge that it should not be required to provide lower blade guards as their use was shown to be more hazardous than nonuse. In this regard, it contended that the lack of such guards was not shown to present a substantial probability of death or serious injury.[4] Judge Cronin found that contact with an unguarded blade could cause serious injury, and he rejected Respondent’s arguments.

            However, the judge determined that while use of the guards would not result in a greater hazard, it would cause a separate accident hazard in certain operations. Therefore he reasoned that compliance with the cited standard might cause Respondent to be in violation of another standard not cited, 29 C.F.R. 1910.212(a)(2).[5] He also reasoned that while the procedure suggested by the area director would eliminate the separate hazard of ejected chips it would be violative of the requirement of the cited standard that all sides of the blade be guarded. Accordingly, he vacated this portion of the citation.

            Complainant argues that the judge erred because his decision places on Complainant the burden to prove that a method of guarding exists which is not hazardous. He argues that Commission precedent does not require Complainant to establish a specific method of abating the violative condition because that method is prescribed by the plain terms of the standard, citing Buckeye Industries, Inc., 75 OSAHRC 21/B3, 3 OSHC 1837, 1975 76 OSHD para. 20,239 (1975), petition for review docketed, No. 76 1467 (5th Cir., Feb. 19, 1976). Lastly, Complainant contends that Respondent has not established the defense that compliance would result in greater hazards as that defense has been defined by the Commission[6] since it failed to show that compliance would cause a greater hazard of being cut and failed to show that alternative means of protection against the hazard of being struck by wood chips were unavailable.

            We agree; the circumstances do not show that compliance with the guarding requirements of the standard would have been more hazardous than noncompliance. And even if we were to assume that the hazard of being struck by a wood chip is a more serious hazard than that presented by contact with an unguarded blade, we still would not vacate absent a showing that no alternative means of protection exist. Roanoke Iron, supra note 6; Weyerhaeuser Company, supra note 4.

            The evidence is that protective equipment is available and could be used to protect against eye injuries. Indeed, we had held prior to Judge Cronin’s decision, in virtually identical circumstances, that compliance with the lower blade guard requirement of section 1910.213(h)(1) is necessary even if such guards would cause the ejection of small pieces of wood. We reasoned that employees could effectively be protected against the latter hazard by wearing appropriate personal protective equipment. Continental Kitchens, Inc., 75 OSAHRC 19/A5, 3 BNA 1859, 1975 76 OSHD para. 20,249 (1975), petition for review docketed, No. 76 1306 (9th Cir., Feb. 12, 1976). See Weyerhaeuser Company, supra. These decisions are dispositive of the issue in this case. They are dispositive as well of the judge’s conclusion that in order to eliminate the ejection hazard Respondent necessarily would have to violate the terms of the cited standard by providing only a partial guard. Plainly, his conclusion is erroneous for it ignores the use of the appropriate equipment as an alternative protective measure.[7]

            The judge also erred in vacating based on the terms of section 1910.212(a)(2).[8] We previously said in Buckeye Industries, supra, that this standard does not provide an employer with a defense but rather imposes an affirmative duty on the employer to guard the machine in a manner which does not create a separate hazard to employees.

            Furthermore, the question in Buckeye Industries and similar cases[9] concerned guarding the point of operation of machinery subject only to the general machine guarding standard at section 1910.212. The case now before us is distinguishable, for it involves woodworking machinery governed by a specific woodworking machinery standard as cited. The provisions of this specific standard therefore displace those of the general standard which might otherwise have been applicable. 29 C.F.R. § 1910.5(c)(1). Accordingly, the judge erred in applying the terms of section 1910.212 to the facts of this case even assuming he properly construed that standard. General Supply company, No. 11752, 4 OSHC 2039, 1976 77 OSHD para. 21,503 (R.C., Jan 25, 1977), petition for review dismissed, No. 77 1614 (5th Cir., June 22, 1977).

            We therefore conclude that the judge erred in vacating that portion of the citation alleging a serious violation of the Act for failure to provide lower blade guards contrary to section 1910.213(h)(1). As previously indicated, he assessed a penalty of $150 for that portion of this citation which is not before us on review. We conclude that no additional penalty should be imposed for the lack of lower blade guarding.

            There is no question that serious injury could easily result in the event of contact with an unguarded blade. We further conclude, as aid the area director, that the other violations of section 1910.213(h) which are not before us could increase the likelihood of injury.[10] However, the only other evidence with respect to the gravity of the violation for lack of guarding is that one of the saws is used by only a few of Respondent’s 20 production employees and such use is limited to about one hour each day per employee. The record further shows that Respondent has a total of approximately 25 employees and gross annual income between $750,000 and $1 million. It has no prior history of violations of the Act, and the circumstances surrounding the violation at issue indicate that Respondent acted in good faith. Considering all these factors, we conclude that a penalty of $150 is appropriate. Hamilton Lumber Company, 76 OSAHRC 58/A2, 4 OSHC 1273, 1976 77 OSHD para. 20,726 (1976); Brady-Hamilton, supra note 4, and cases cited therein.

            Therefore, the judge’s decision insofar as it vacates that portion of the citation alleging failure to comply with section 1910.213(h)(1) is reversed, and the citation is modified accordingly. A penalty of $150 is assessed therefore. So ORDERED.

 

FOR THE COMMISSION:

 

William S. McLaughlin

Executive Secretary

DATE: AUG 26, 1977

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 14240

BUILDING PRODUCTS COMPANY,

 

                                              Respondent.

 

 

February 17, 1976

APPEARANCES

William E. Everheart, Esq. Douglas White, Esq.

For Complainant

 

Robert H. Tips, Esq. Bradford Baker, Legal Intern

For Respondent

 

DECISION AND ORDER

Cronin, Judge, OSAHRC:

            This is a proceeding under section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et, seq., hereafter called the Act) involving an inspection of respondent’s roof truss manufacturing plant at Broken Arrow, Oklahoma, on June 9, 1975. As a result of this inspection, two citations were issued to respondent on June 23, 1975. Citation No. 1 alleges 5 non-serious violations of the Act, and Citation No. 2 alleges violations of four different standards which in combination are alleged to constitute a single ‘serious’ violation of the Act. The Notification of Proposed Penalty, also issued on June 23, 1975, proposes no penalties for items 1 through 4, a $100.00 penalty for item 5 of Citation No. 1, and a $750.00 penalty for Citation No. 2. A timely notice of contest to the citations was received by the Secretary of Labor on July 2, 1975.

            Item No. 1 of Citation No. 1 alleges a violation of 29 C.F.R. § 1904.2(a) as follows:

Occupational Safety and Health Administration OSHA Form #100 or private equivalent was not maintained in the establishment to record all recordable occupational injuries and illnesses for the current calendar year 1975.

 

            Standard § 1904.2(a) as promulgated by the Secretary provides:

(a) Each employer shall maintain in each establishment a log of all recordable occupational injuries and illnesses for that establishment, except that under the circumstances described in paragraph

 

(b) of this section an employer may maintain the log of occupational injuries and illnesses at a place other than the establishment. Each employer shall enter each recordable occupational injury and illness on the log as early as practicable but no later than 6 working days after receiving information that a recordable case has occurred. For this purpose, Occupational Safety and Health Administration OSHA Form No. 100 or any private equivalent may be used. OSHA Form No. 100 or its equivalent shall be completed in the detail provided in the form and the instruction contained in OSHA Form No. 100. If an equivalent to OSHA Form No. 100 is used, such as a printout from data-processing equipment, the information shall be as readable and comprehensible to a person not familiar with the data-processing equipment as the OSHA Form No. 100 itself.’

 

            Item No. 2 of Citation No. 1 alleges a violation of 29 C.F.R. § 1904.6 as follows:

Occupational Safety and Health Administration records were not retained available for review as required i.e., (a) OSHA form 101 for years 1972, 1973 and 1974, (b) OSHA form 102 for the year 1972.

 

            Standard § 1904.6 as promulgated by the Secretary provides:

Records provided for in §§ 1904.2, 1904.4, and 1904.5 shall be retained in each establishment for 5 years following the end of the year to which they relate.

 

            Item No. 3 of Citation No. 1 alleges a violation of 29 C.F.R. § 1910.22(b)(2) as follows:

Permanent aisles and passageways in the work and storage areas were not designated by appropriate markings; i.e., the shop.

 

            Standard § 1910.22(b)(2) as promulgated by the Secretary provides:

(2) Permanent aisles and passageways shall be appropriately marked.

 

            Item No. 4 of Citation No. 1 alleges a violation of 29 C.F.R. § 1910.133(a)(1) as follows:

Suitable protective eye and face equipment was not provided and used; i.e., employees operating the component cutter.

 

            Standard § 1910.133(a)(1) as promulgated by the Secretary provides:

(a) GENERAL. (1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards.’

 

            Item No. 5 of Citation No. 1 alleges a violation of 29 C.F.R. 1910.213(r)(4) as follows:

Component cutter was not provided with suitable guards and exhaust hoods; i.e., (a) component cutter S/N 308097, Clary Corp; (b) component cutter, S/N 840391, General Construction Automatic, Inc.

 

            Standard § 1910.213(r)(4) as promulgated by the Secretary provides:

(4) The mention of specific machines in paragraphs (a) thru (q) and this paragraph (r) of this section, inclusive, is not intended to exclude other woodworking machines from the requirement that suitable guards and exhaust hoods be provided to reduce to a minimum the hazard due to the point of operation of such machines.

 

            Item No. 1A of Citation No. 2 alleges a violation of 29 C.F.R. 1910.213(h)(1) as follows:

Radial saws were not provided with guards to cover the full diameter of the lower portion of the blades and automatically adjust to the thickness of the stock and remain in contact with the stock being cut; i.e., (a) radial saw, Northfield Foundry & Machine Co., S/N 731232–D, located in the shop; (b) radial arm saw, Northfield Foundry & Machine Co., S/N 722598–I in the shop; (c) radial arm saw, Northfield Foundry & Machine Co., S/N 711254–E.

 

            Standard § 1910.213(h)(1) as promulgated by the Secretary provides:

(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 being cut to give maximum protection possible for the operation being performed.

 

            Item No. 1B of Citation No. 2 alleges a violation of 29 C.F.R. 1910.213(h)(2) as follows:

Each radial saw used for ripping was not provided with nonkickback fingers or dogs; i.e., Northfield Foundry & Machine Co. radial arm saw, S/N 722598–I.

 

            Standard § 1910.213(h)(2) as promulgated by the Secretary provides:

(2) Each radial saw used for ripping shall be provided with nonkickback fingers or dogs located on both sides of the saw so as to oppose the thrust or tendency of the saw to pick up the material or to throw it back toward the operator. They shall be designed to provide adequate holding power for all the thicknesses of material being cut.

 

            Item No. 1C of Citation No. 2 alleges a violation of 29 C.F.R. 1910.213(h)(3) as follows:

(3) An adjustable stop was not provided to prevent saw from travel beyond the position necessary to complete cut; i.e., (a) Northfield Foundry & Machine Co. radial arm saw, S/N 731232–D, the adjustable stop was not being utilized; (b) Northfield Foundry & Machine Co. radial arm saw, S/N 722598-I; (c) Northfield Foundry & Machine Co. radial arm saw, S/N 711254–E.

 

            Standard § 1910.213(h)(3) as promulgated by the Secretary provides:

(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.

 

            Item No. 1D of Citation No. 2 alleges a violation of 29 C.F.R. § 1910.213(h)(4) as follows:

Installation of the radial arm saw was not in such a manner that the front end of the unit will be slightly higher than the rear so as to cause the cutting head to return gently to the starting position when released by the operator; i.e., (a) Northfield Foundry & Machine Co., radial arm saw, S/N 731232–D, located in the shop; (b) radial arm saw, Northfield Foundry & Machine Co., S/N 722598–I in the shop; (c) Northfield Foundry & Machine Co., S/N 711254–E.

 

            Standard § 1910.213(h)(4) as promulgated by the Secretary provides:

(4) Installation shall be in such a manner that the front end of the unit will be slightly higher than the rear, so as to cause the cutting head to return gently to the starting position when released by the operator.

 

            The hearing took place on November 11, 1975, and post-hearing briefs were received from both parties.

JURISDICTION AND ISSUES

            Respondent contests jurisdiction of the Commission on the ground that section 10(c) of the Act (29 U.S.C. § 659(c)) is an unconstitutional delegation of judicial power, attacks the constitutionality of the Act on a variety of other bases, affirmatively challenges the validity of certain standards on a number of grounds, and denies complainant’s allegations of violation.

            For respondent to succeed in its broad based attack on the constitutionality of the Act would require this Commission to hold certain sections of the Act to be unconstitutional and unenforceable. But this Commission has no power to declare any portion of its enabling litigation unconstitutional. Montana Chapter Assn. of Civilian Technicians, Inc., v. Young, 514 F. 2d 1165, 1167 (9th Cir. 1975); Secretary v. American Smelting and Refinery Company, Docket No. 10, 4 OSAHRC 445 (1973). Therefore, this Judge declines to consider the merits of respondent’s assertions that the enforcement and recordkeeping provisions of the Act involve an unlawful delegation of power to the Executive Branch or violate the Fourth, Fifth, and Sixth Amendments to the United States Constitution.

            The evidentiary record establishes that respondent is engaged in the manufacturing of wood trusses in the state of Oklahoma and regularly employs 25 employees. Further, respondent’s president testified that some of the materials used by respondent in its manufacturing process are manufactured or produced outside of the state of Oklahoma (Tr. 7–8). On these facts, respondent is found to be an employer engaged in a business affecting commerce, and jurisdiction is conferred on this Commission.

            The following issues are presented by this record:

            1. Whether the respondent was in violation of the cited standards, as alleged, on June 9, 1975, and, if so, what penalties, if any, are appropriate?

            2. Whether this Commission is empowered to determine questions concerning the constitutional validity of standards?

            3. If the Commission has that power, is § 1910.213(r)(4) so vague as to render it unenforceable against the respondent?

            4. Were standards § 1910.213(h)(1), (h)(2), (h)(3), and (h)(4) duly promulgated by the Secretary of Labor pursuant to his authority granted by the Act?

Discussion

A. As to violations

            Items 1, 3, 4, and 5 of Citation No. 1 dated June 23, 1975, will be vacated. Item 2 will be modified, and a violation of § 1904.6 found. Citation No. 1 will be amended to charge a violation of § 1904.7, and, as amended, a violation is found.

            Items 1B and 1D of Citation No. 2 dated June 23, 1975, will be affirmed, Items 1A and 1C of Citation No. 2 will be vacated.

            The respondent’s president was unable to testify that the Form OSHA No. 100 for the year 1975 (Exhibit R–3) was being maintained by respondent, on June 9, 1975, the date of the inspection. However, OSHA 100 forms for the years 1972, 1973, and 1974 had been maintained and retained by respondent, and, therefore, this Judge believes respondent is entitled to the reasonable inference that the Form OSHA 100 for 1975, introduced at the hearing, also was being maintained on June 9, 1975.

            The compliance officer’s testimony that he was not shown Form OSHA No. 100 for 1975 on June 9, 1975, or both of ‘Employer’s First Report of Injury’ forms for 1975 went unrefuted. Respondent’s president conceded that he was not sure what he had shown to the compliance officer (Tr. 172–173), and in its answer respondent admitted that ‘said log was merely temporarily misplaced.’ The failure of respondent to have Form OSHA No. 100 for 1975, or private equivalent, available for inspection, however, constitutes a violation of § 1904.7, rather than a violation of § 1904.2(a).[11] Accordingly, item 1 of Citation No. 1 will be vacated, and Citation No. 1 amended to conform to the proof by charging a failure to have Form OSHA No. 100 for 1975, or private equivalent, available for inspection in violation of § 1904.7.

            Respondent had retained, and available for inspection on June 9, 1975, ‘Employer’s First Report of Injury’ forms for the years 1972 through 1974. Under the provisions of 1904.4, these forms are considered acceptable alternative record to Form OSHA No. 101 because they contain the identical information required by Form OSHA No. 101. Therefore, respondent was not in violation of § 1904.6 on June 9, 1975, for not retaining records provided for in § 1904.4. However, the evidence of record does establish a violation of § 1904.6 because of respondent’s failure to retain Form OSHA No. 102 for 1972, the annual summary record which is provided for in § 1904.5. Unlike Form OSHA No. 101, there is no acceptable alternative record, or private equivalent, to Form OSHA 102 recognized by the standards.

            Due to the nature, and special requirements, of respondent’s manufacturing operation, this Judge is persuaded that the designation of permanent aisles and passageways in respondent’s plant would be impractical and unsuitable. Item 3, therefore, will be vacated.

            Subsequent to the hearing, the Secretary filed a motion for an order permitting him to amend Citation No. 1 by withdrawing item No. 4, which alleges a violation of § 1910.133(a)(1). That motion is granted and item No. 4 is vacated. Although it now is unnecessary to consider the merits of respondent’s contentions made in its brief concerning this item, this Judge would be remiss if he didn’t point out to respondent that the case of Cam Industries, No. 258, 7 OSAHRC 39 (1974), on which respondent primarily relies, has been specifically overruled by General Electric Co., Inc., No. 2739, 17 OSAHRC 49, 64 (April 1975).

            This Judge interprets the general language of § 1910.213(r)(4) to require respondent to provide blade guards for its component cutters that are capable of eliminating, to the extent possible for the operation being performed, the hazards created by the cutters’ points of operation. The evidentiary record establishes that the cutters’ points of operations are located inside the perimeter of the machines, and that two types of guarding devices, especially designed by the manufacturer to reduce the hazards created by the points of operation on the front and rear saws, are provided.

            The ‘red guards’ protect the operator’s hand as he guides the lumber into the feed-through conveyors, and the Secretary’s Area Director and expert, Mr. Knorpp, appears to concede that these guards, when properly positioned, are suitable to perform this function. Without evidence that the cutters were operated with the guards in the raised position, a finding that the guards were improperly positioned cannot be made.

            Although Mr. Knorpp, solely on the basis of his examination of the Secretary’s photographs, contends that the ‘yellow guards’ on the rear saws are too small, and positioned too close to the blade, to properly guard the blades’ points of operation, he agrees that this is a subjective judgment because the standard in question does not contain any specific requirements relating to the size or location of guards, only to their ‘effectiveness.’ The respondent, for its part, introduced credible evidence establishing that operators at the rear of the machine are normally positioned a good two feet, or more, from the blades’ points of operation and when the blades are in operation there is no need for them to reach over, under, or around the ‘yellow guards.’ Also, there is some unrefuted evidence to the effect that, if the guards were larger and positioned lower, the possibility of a separate accident hazard would be presented. After weighing all of the evidence on this issue, this Judge is unable to reasonably conclude that the guards provided by respondent were not suitable to reduce to a minimum, for the operation being performed, the hazards created by the component cutters’ points of operation. Item 5, therefore, must be vacated.

            Because of the vacation of item 5, it is unnecessary to consider respondent’s contentions that § 1910.213(r)(4) is so vague as to render it unenforceable against the respondent.

            The rebuttal testimony of Secretary’s expert, Mr. Knorpp, confirmed respondent’s evidence that, when certain cuts are performed, the lower blade guard designed for, and installed, on respondent’s radial saws create a separate hazard to employees. This same testimony, however, also established that this hazard could be eliminated by guarding only one side of the lower exposed blade. But this recommended procedure does not comply with the standard’s requirement of guarding both sides of the lower exposed blade.

            It is suggested that the respondent employer in this case is placed in a difficult, if not impossible, quandary. If respondent had used the lower blade guards, which are appropriate for some operations but not for others, it could have been in violation of § 1910.212(a)(2), which requires that the ‘guard shall be such that it does not offer an accident hazard in itself.’ See Secretary of Labor v. Buckeye Industries, Inc., No. 8454 (December 22, 1975). On the other hand, if respondent had adopted the procedure proposed by Mr. Knorpp, it still could have been found in violation of § 1910.213(h)(1), as written, for failure to guard both sides of the lower saw blade. Until the Secretary of Labor publishes an interpretation of the standard in question, which would permit employers to guard only one side of the lower exposed portion of a radial saw blade when the guarding of both lower sides would offer a separate hazard, it would be unreasonable to hold employers, such as respondent, for a violation of § 1910.213(h)(1). Item 1A of Citation No. 2, therefore, will be vacated.

            The evidence establishes that the radial saw shown in Exhibit C–6 is used by respondent for ripping and was not provided with a nonkickback device. These facts constitute a clear violation of § 1910.213(h)(2). Respondent is bound by the admissions, knowledge, and actions, of its plant superintendent, and it was under an affirmative duty to assure that each radial saw used for ripping has a nonkickback device located on it. This saw was operating, therefore, it is reasonable to infer, in the absence of evidence to the contrary, that this saw was being used for ripping on June 9, 1975.

            The Secretary’s proof with respect to the alleged violation of § 1910.213(h)(3) (Item 1C) was insufficient because it did not establish by a preponderance of the evidence that the radial saw operating (Exhibit C–6) was making repetitive cuts, or that this saw could travel beyond the position necessary to complete the cuts.

            The record reflects that the compliance officer’s knowledge concerning respondent’s operations and radial arm saws was severely limited. He erroneously testified that adjustable stops were not provided on all three radial saws. Moreover, his opinion that the operator was making ‘repetitive cuts’ was rebutted by respondent’s evidence that repetitive cuts are made on the component cutters, not on the radial saws. Also, this Judge is unable to determine from examining Exhibit C–6 that the adjustable stops were not being used. On this record, item 1C must be vacated.

            The objective of standard § 1910.213(h)(4) is plain—to require employers to install and maintain a radial arm saw unit so as to cause the cutting head to return gently to the starting position when released by the operator. Although the front ends of the radial saw units apparently were being maintained on June 9, 1975, slightly higher than the rear, the cutting head of one of respondent’s saws would not return to its starting position when tested by the compliance officer. Even assuming arguendo that the presence of dust and grease may have been the contributing cause of this failure, that fact would not relieve respondent of its affirmative duty to maintain its radial saw units so that the cutting heads will retract to their starting positions. To adopt respondent’s narrow construction of the standard would defeat its purpose and encourage respondent to continue its admittedly inefficient and ineffective radial saw maintenance schedule. The alleged violation of § 1910.213(h)(4) (Item 1D) will be affirmed.

            The issue of whether standards § 1910.213(h)(1), (h)(2), (h)(3), and (h)(4) were lawfully promulgated by the Secretary of Labor was laid to rest in Secretary v. Noblecraft Industries, Inc., No. 3367 (November 21, 1975), where the Commission recently answered this question in the affirmative with respect to § 1910.213(h)(1).

B. As to penalties

            In view of respondent’s recordkeeping efforts, no penalties for violation of § 1904.6 and § 1904.7 will be assessed. Although the violations of § 1910.213(h)(2) and (h)(4) are considered non-serious, this Judge believes that penalties are warranted in order to encourage respondent to institute procedures to assure the employment of a properly equipped radial saw for ripping and use of radial saws whose cutting heads will return to their starting positions. Because the gravity of respondent’s violation of § 1910.213(h)(2) is greater than its violation of § 1910.213(h)(4), a penalty of $100.00 will be assessed for the former, and a penalty of $50.00 for the latter.

FINDINGS OF FACT

            Upon the credible evidence of record, the following facts are found. Any proposed findings of fact inconsistent with these findings are denied.

            1. When requested on June 9, 1975, to make available for inspection by the compliance officer Form OSHA No. 100 for the year 1975, respondent’s president was unable to produce said form. On June 9, 1975, respondent produced for inspection OSHA #100 forms for the years 1972, 1973, 1974. Respondent also was in possession of two, completed, ‘Employer’s First Report of Injury’ forms which detailed the injuries occurring on January 3, 1975, and May 7, 1975, but only one of these forms was shown the compliance officer. The detailed information contained on respondent’s ‘Employer’s First Report of Injury’ forms includes the identical information required to be reported on Form OSHA No. 100, except for the Injury and Illness Code information. At the time of inspection, respondent was maintaining a Form OSHA No. 100 for the year 1975 as well as acceptable alternative records (Tr. 16, 90–92, 135, 170–173; Exhibit R–3).

            2. On June 9, 1975, respondent did not have available for inspection Form OSHA No. 101 for the years 1972 through 1974, or Form OSHA No. 102 for the year 1972. At the time of inspection, respondent had in its possession ‘Employer’s First Report of Injury’ forms for the years 1972 through 1974, which contain the same information required by Form OSHA No. 101 for the years 1972 through 1974, and these forms were shown to compliance officer. The information required to be reported on Form OSHA No. 102 for the year 1972 can be obtained from Form OSHA No. 100 for the year 1972 (Tr. 17, 135–136; Exhibits R–4, R–5, and R–6; Form OSHA No. 102).

            3. There are no permanent aisles and passageways in respondent’s shop. It would be impractical to designate any permanent aisles or passageways in respondent’s plant for the movement of material by mechanical handling equipment, because respondent’s machinery is subject to relocation, because of storage needs during the manufacturing process, and because the material being moved varies in width from 20 feet down to widths of 8 feet (Tr. 142–145, 173–181).

            4. Personal protective safety eyeglasses, safety goggles, and nasal masks, are made available and issued to respondent employees (Tr. 145–146). Respondent ‘strongly’ recommends to its employees that safety glasses be worn when operators are working on the reverse, or back, side of component cutter, and has asked its employees to use goggles whenever ‘we felt there was a danger of injury.’ (Tr. 166–167) On June 9, 1975, two employees were operating component cutters without safety glasses (Tr. 20, 27, 28; Exhibits C–1, C–2). Other employees were observed wearing safety glasses (Tr. 20, 59). The incident shown in Exhibit C–1 was the sole basis for item No. 4 of Citation No. 1, and in the compliance officer’s opinion this was an ‘isolated case’ (Tr. 21; Exhibit C–1).

            5. The ‘red guards’ designated as 1 and 2 on Exhibit C–4 are suitable blade guards, and, when properly positioned, these guards reduce to a minimum, for the operation being performed, the hazard created by the point of operation of these interior blades (Tr. 120; Exhibit C–4, R–8). Although the component cutter depicted in Exhibit C–4 was in operation on June 9, 1975, there is no evidence that it was being operated at the time the guards were in a raised position.

            6. All guards in place on the component cutters came with the cutters when purchased by respondent in 1973 and 1975. Respondent’s president was informed by the manufacturers that the guards on both component cutters were ‘approved by OSHA.’ (Tr. 120, 149–150, 199–200).

            7. When the component cutters are operating, there is no need for operators to reach over, under, or around the ‘yellow guards.’ If the ‘yellow guards’ were larger and positioned lower, they would impede the cutting operation and possibly cause a hazard (Tr. 22–23, 68–71, 199–200; Exhibits C–1, C–2, C–3, C–4). The hands of an operator stationed at the rear of the machine during the cutting operation are approximately two feet from the point of operation. The operator shown in Exhibit C–3 was positioned more than one foot from the blade (Exhibit C–3).

            8. On June 9, 1975, a respondent employee was observed operating a radial saw that was not guarded on the sides of the lower exposed portion of the blade (Tr. 34–35; Exhibits C–5, C–6, C–7). Lower blade guards had come with three of respondent’s radial saws, when purchased, and these guards were installed upon the saws. Said guards were never removed by the respondent, or at its instruction, but rather they were removed by the employees themselves (Tr. 151–152). With lower guards installed on both sides of the blade, the guards themselves create a separate accident hazard when making certain types of cuts (Tr. 195–196, 205–207). The evidence was insufficient to establish that use of these lower guards resulted in a greater hazard than the hazard created by the absence of said lower blade guards.

            9. Only one per cent of respondent’s cutting operation involves ripping by a radial saw (Tr. 157). No ripping was being performed at the time of inspection (Tr. 75, 157). All of respondent’s ripping is done at a 45–degree angle and, therefore, the use of nonkickback fingers on both sides of the saw would not completely eliminate the possibility of a kickback occurring (Tr. 156–157).

            The radial arm shown in Exhibits C–7 and R–14 is provided with a nonkickback device for ripping (Tr. 157–158, 164). The compliance officer was told by respondent’s plant superintendent at the time of inspection that the radial saw shown in Exhibit C–6, which was being operated, is used for ripping, and that saw did not have nonkickback fingers, or a nonkickback device, on it. He was further told that respondent’s radial saws either, completely lacked nonkickback fingers, or had only broken fingers in place (Tr. 7, 36–37, 73). At one time respondent’s radial saws had nonkickback fingers or ‘dogs’ installed on them (Tr. 156–157).

            10. If the person of an operator of a radial saw was to come into contact with an unguarded lower blade, severe cuts or amputations could result (Tr. 45, 106).

            11. All of respondent’s radial arm saws on June 9, 1975, were provided with adjustable stops capable of preventing the forward travel of the blade beyond the position necessary to complete the cut in repetitive operations (Tr. 158–159; Exhibits R–11, r–12).

            An operator of one radial saw was observed making cuts and ‘putting it beyond the edge of the table’ (Tr. 38, 86–88). There was no evidence indicating that the adjustable stops were not being utilized or that this saw was traveling beyond a position necessary to complete the cut being made. Respondent makes repetitive cuts on its component cutters and non-repetitive cuts on its radial saws (Tr. 156).

            12. The front end of the three radial arm saw units were installed slightly higher than the rear. When cleaned and freshly oiled, the cutting head will retract ‘to a certain extent * * * not as perfect as it ought to’ when released by the operator; when not cleaned or freshly oiled, they ‘will not retract very easily.’ (Tr. 162–163, 186–187; Exhibit R–13). Respondent’s maintenance schedule for radial saws is not always adhered to (Tr. 185).

 

*10 On June 9, 1975, one of respondent’s saws failed to return to its starting position when tested by the compliance officer (Tr. 39–40; Exhibit C–5). The compliance officer checked for the presence of dust and grease and did not observe any (Tr. 84–85).

Conclusions of Law

            1. On June 9, 1975, respondent was in violation of § 1904.6, § 1904.7, § 1910.213(h)(2), and § 1910.213(h)(4), and all of these violations were other than serious.

            2. On June 9, 1975, respondent was not in violation of § 1904.2(a), § 1910.22(b)(2), § 1910.213(r)(4), § 1910.213(h)(1), and § 1910.213(h)(3).

            3. A penalty of $100.00 for respondent’s violation of § 1910.213(h)(2), and a penalty of $50.00 for respondent’s violation of § 1910.213(h)(4), are appropriate. Penalties for respondent’s violation of § 1904.6 and § 1904.7 would not be appropriate.

ORDER

            Based on the foregoing findings, conclusions of law, and the entire record, it is ORDERED that:

            1. Item 1, 3, and 5 of Citation No. 1, issued June 23, 1975, and any proposed penalties based thereon, are VACATED.

            2. Item 2 of Citation No. 1, dated June 23, 1975, as modified by this decision, is AFFIRMED.

            3. Complainant’s motion to withdraw item 4 of Citation No. 1, dated June 23, 1975, is granted, and Item 4 VACATED.

            4. Citation No. 1, dated June 23, 1975, is amended to charge a violation of § 1904.7, and, as amended, a violation of § 1904.7 is AFFIRMED.

            5. Items 1A and 1C of Citation No. 2, dated June 23, 1975, are VACATED.

            6. Item 1B and 1D of Citation No. 2, dated June 23, 1975, are AFFIRMED.

            7. Penalties of $100.00 for item 1B, and $50.00 for item 1D, are ASSESSED.

James A. Cronin, Jr.

Judge, OSAHRC

Dated: February 17, 1976


[1] Section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., hereinafter ‘the Act.’

[2]Specifically, it was alleged that Respondent failed to guard the full diameter of the lower portion of the blades on radial saws, contrary to section 1910.213(h)(1); failed to provide an adjustable stop to prevent unnecessary forward travel of the saw blades contrary to section 1910.213(h)(3); failed to equip each radial saw used for ripping with devices to prevent kickback of the material, contrary to section 1910.213(h)(2); and failed to install the saws in such a manner as to allow the cutting head to return to the starting position when released by the operator, contrary to section 1910.213(h)(4). The judge vacated the first two of these charges and affirmed the latter two. He also in part affirmed and in part vacated another citation alleging nonserious violations of the Act. Neither party objects to his disposition with the exception of that pertaining to section 1910.213(h)(1).

[3] In pertinent part this provision requires that

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.

[4] Among other things, Respondent contended that Complainant’s evidence as to the seriousness of the alleged violation is not persuasive as it consists only of opinion testimony unsupported by statistical evidence. The judge, however, credited this testimony, and there is no contrary evidence. In any event, violations of this kind consistently have been found serious in nature. E.g., Weyerhaeuser Co., Nos. 1231 & 1758, 4 OSHC 1972 at 1977 79, 1976 77 OSHD para. 21,465 at 25,751 52 (R.C., Jan. 13, 1977); petition for review docketed, No. 77 1611 (9th Cir. Mar. 11, 1977); Brady-Hamilton Stevedore Co., 76 OSAHRC 5/D9, 3 OSHC 1925, 1975 76 OSHD para. 20,342 (1976), and cases cited therein.

[5] 29 C.F.R. 1910.212 is entitled ‘General requirements for all machines.’ Paragraph (a)(2) thereof is entitled ‘General requirements for machine guards’ and requires that ‘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’ (emphasis supplied).

[6] We have said that, in limited circumstances, an employer can affirmatively defend against an alleged violation of a standard by showing that compliance would be less safe than the work practice actually used. Roanoke Iron & Bridge Works, Inc., No. 10411, 5 OSHC 1391 (R.C., May 3, 1977); Weyerhaeuser Co., supra; and cases cited therein.

[7] Assuming arguendo that protective equipment would not be feasible the judge still erred. His decision presumes that the Secretary of Labor would not permit use of a partial rather than full guard as suggested by his area director. In circumstances such as these, where it is contended that strict compliance with the terms of a standard would be hazardous, we also require that an employer apply to the Secretary for an order granting a variance from the requirements of a standard pursuant to 29 U.S.C. 655(a) or demonstrate that such an application would have been inappropriate. Roanoke Iron, supra; Weyerhaeuser Co., supra; G.A. Hormel & co., 11 OSAHRC 725, 2 OSHC 1190, 1974 75 OSHD para. 18,685 (1974). The record does not show that Respondent filed for a variance. In view of the area director’s testimony we cannot conclude that such an application would have been inappropriate.

[8] We do not, however, as does Complainant read Judge Cronin’s decision to require Complainant to prove as part of his case the existence of a method of guarding which is not hazardous. Rather, the judge properly determined that Complainant established a prima facie case by showing that the saws were unguarded and that guarding would prevent serious injury. He vacated because, in his view, the prima facie case had been rebutted by evidence showing that compliance with the standard would result in an additional but not greater hazard.

We conclude that in the circumstances of this case the presence of an additional but lesser hazard is not a sufficient defense to the requirements of the standard.

[9] E.g., Apex Glass d/b/a Acme Glass Co., 76 OSAHRC 35/B13, 3 OSHC 2087, 1975 76 OSHD para. 20,489 (1976).

[10] We note that the area director considered only the lack of lower blade guards to be serious in nature. He testified that the other charges which are not before us probably would not have been alleged as serious violations had there been adequate guarding.

[11] The first sentence of § 1904.4 also can be read to require employers to have the log of occupational injuries and illnesses, provided for under § 1904.2, available for inspection.