ALAMO STORE FIXTURES CORPORATION
OSHRC Docket No. 12870
Occupational Safety and Health Review Commission
November 30, 1977
[*1]
Before CLEARY, Chairman; BARNAKO, Commissioner
COUNSEL:
Baruch A Fellner, Office of the Solicitor, USDOL
Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor
Frank Cohen, Alamo Store Fixtures Corp., for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Commissioner:
The decision of Administrative Law Judge Abraham Gold is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970. n1 The respondent (Alamo) asserts that the Judge erred in finding violations of the safety standards published at 29 C.F.R. section 1910.213(h)(1) and 29 C.F.R. section 1910.218(m)(1)(i). The Judge assessed penalties of $120 for the former violation and $30 for the latter. For the reasons given below, we modify Judge Gold's decision. n2
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 29 U.S.C. 651, et seq.
n2 The Judge also affired a citation alleging that Alamo violated 29 C.F.R. 1918.309(a) and vacated an alleged violation of 29 C.F.R. 1910.213(c)(3). Neither party has taken exception to the Judge's disposition of these items, and they are therefore not before us.
- - - - - - - - - - - - - - - - -End Footnotes- [*2] - - - - - - - - - - - - - - - -
Alamo manufactures wooden store fixtures. Following an inspection on March 25, 1975, Alamo was issued the citations in question. One alleged a repented nonserious violation of 1910.213(h)(l) n3 in that the lower exposed portion of the blade on a redial saw was not guarded. The other alleged a violation of 1910.219(m)(l)(i) n4 in that two horizontal drilling machines and a plastic slitting machine were equlpped with guards constructed out of wood rather than metal.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 1910.213(h)(l) reads in pertinent part:
". . . 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 the stock being cut to give maximum protection possible for the operation being performed."
n4 1910.219(m)(l)(i) reads:
"(m) Stndard guards - general requirements-(l) Materials. (i) Standard conditions shall be secured by the use of the following materials. Expanded metal, perforated or solid sheet metal, wire mesh on a frame of angle iron, or iron pipe securely fastened to floor or to frame of machine."
[*3]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The radial saw was equipped with a guard covering the upper three-quarters of the blade. The lower quarter of the blade, however, was unguarded. Alamo contends that a lower blade guard is unnecessary as the blade is always covered by the wood that it is cutting. Regarding the substitution of wooden guards for metal guards on three machines, Alamo maintains that the wooden guards, which were were made out of three-quarters inch plywood, provided adequate protection, and therefore no violation of the standard occurred.
The Judge correctly rejected Alamo's assertion that the lower portion of the blade on a radial saw need not be guarded. That contention challenges both the validity and the applicability of the standard and has been previously disposed of by the Commission. See Noblecraft Industries, Inc., 75 OSAHRC 5/A2, 3 BNA OSHC 1727, 1975-76 CCH OSHD para. 20,168 (No. 3367, 1975), petition for review docketed, No. 76-1106 (9th Cir. January 9, 1976). However, as to the penalty, the Commission, recognizing Alamo's small size and good faith, coupled with the Judge's finding that the [*4] violation was of a low gravity, concludes that the $120 penalty assessed by the Judge is excessive. A penalty of $60 is deemed appropriate.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 Alamo has an average of four to eight employees.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
As to Alamo's argument that the wooden gunrds on three machines constitute compliance with 1910.219(m)(l)(i), we must reject this assertion. The standard prescribes metal guards. The record shows, however, that the wooden guards were of substantial construction and effectively fulfilled the purpose of the standard. In addition we note that none of Alamo's machines have been involved in an accident during the thirty years of the company's existence. n6 We conclude that the hazard is trifling and that the violation is de minimis. Accordingly, Alamo will not be required to abate the violation. See Alfred S. Austin Constr. Co., 76 OSAHRC 50/A2, 4 BNA OSHC 1166, 1976-77 CCH OSHD para. 20,660, (No. 4809, 1976); General Flectric Co., 75 OSAHRC 50/A2, 3 BNA OSHC 1031, 1974-75 CCH OSHD para. 19.567 (No. 2739, 1975), [*5] rev'd on other grounds, 540 F.2d 67 (2d Cir. 1976). We also take official notice that the Secretary has, as a matter of prosecutorial discretion, provided for greater flexibility in the materials that are used for machine guarding. 7 BNA Occupational Safety & Health Reports, 826 (November 10, 1977).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 This fact is not controlling in the characterization of the violation as de minimis. A hazard may, for example, be found to exist in the absence of any recorded injuries. Arkansas-Best Freight System, Inc. v. O.S.H.R.C., 529 F.2d 649 (8th Cir. 1976). It is merely evidence of whether the safety of the respondent's employees was prejudiced as a result of the failure to satisfy the Secretary's criteria. It is neither the determinative factor nor a legal test. Van Raalte Company, Inc., 76 OSAHRC 48/B8, 5 BNA OSHC 1151, 1152, 1975-76 CCH OSHD para. 20,663 (No. 5007, 1976).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
It is therefore ORDERED that:
(1) The citation for a nonserious violation of section 1910. 213(h)(l) is affirmed and a penalty [*6] of $60 is assessed.
(2) The citation for nonserious violations of 1910.219(m)(l)(i) is affirmed as de minimis, and the proposed penalty is vacated.