Docket No. 13597

KENNEDY HOUSEBOATS, INC.

OSHRC Docket No. 13597

Occupational Safety and Health Review Commission

January 7, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Henry Mahlman, Regional Solicitor

Bernard J. Kennedy, Pres., Kennedy Houseboats, Inc., for the employer

OPINION:

DECISION

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 [*2] 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.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.

APPENDIX A

DECISION AND ORDER

Donald R. McCoy, for the Complainant

Bernard J. Kennedy, President, for the Respondent

Carlson, Judge, OSAHRC:

This is a proceeding brought under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651, et seq.), hereafter referred to as "the Act". By citation issued May 19, 1975 the complainant Secretary of Labor alleges that as a result of an inspection made on May 7, 1975, respondent, in its houseboat manufacturing operation, was determined to have violated section 5(a)(2) of the Act through noncompliance with several general industry standards published [*3] in 29 CFR, Part 1910. The citation alleged 17 items of violation in all. Respondent's original notice of contest placed each of these in issue, but an amended notice of contest narrowed the dispute as to violation of the 3 parts of item 11 and to part 4 of item 15.

Respondent also challenged all penalties. Complainant had proposed penalties of $25 for item 6, $45 for item 11, $25 for item 14 and $20 for item 15. Additionally, respondent asked for more time in which to abate the violation relating to radial saws alleged as part 4 of item 11. Counsel for complainant, at the outset of the hearing, moved to amend the complaint to permit six months for abatement of that part in lieu of the one month period originally proposed. Such amendment was clearly intended to stand as a stipulated result with respect to the contest of that part. The motion was allowed, and no evidence was heard on the question of the reasonableness of the abatement time.

Complainant further moved to eliminate by amendment part 4 of item 15, but to add the substance thereof to part 3 of item 11. Hence, part 3 of item 11, as it appeared both in the citation and complaint, was modified from "Shear on the Dvorak [*4] Iron Worker in the welding area" to "Shear and punch press on the Dvorak Iron Worker in the welding area."

Complainant also moved to reduce the penalty sought in connection with item 15 of the citation from $40 to $30.

Respondent did not resist the motions and they were allowed. The portions of the citation (in its amended form) which remained contested, either as to violation or penalty amount, were as follows:

Item	Standard Allegedly Violated	Description of Alleged Violation
6	29 CFR 1910.309(a) NEC ar-	The Black and Decker 3/8 inch
	ticle 250-45(d)(3)	drill in the northwest corner
		of the welding area was not
		grounded in that it was energized
		from a flexible cord with the
		ground prong removed.

11	29 CFR 1910.212(a)(3)(ii)	Point of operation guards were
		not provided on the following
		pieces of equipment:
		1. Two double angle saws in the
		production area
		2. Shear blade on the Pexto
		shear
		3. Shear [and punch press] on
		the Dvorak Iron Worker
		in the welding area
		4. Black and Decker radial arm
		saw in the northeast corner of
		the welding area

13	29 CFR 1910.213(h)(1)	The Black and Decker radial arm
		saw in the main production area
		was not equipped with a lower
		blade guard.

15	29 CFR 1910.217(c)(1)(i)	The following mechanical power
		presses were not equipped with
		point of operation guards:
		1. Small punch press used for
		I-beams in the welding area.
		2. Whitney Jensen punch press
		in the northwest corner
		of the welding area
		3. Kenco eight-ton punch press
		in the storage area near the
		welding area

[*5]

The standard alleged to have been violated in the subparts comprising item 11, as amended, reads as follows:

§ 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. n1

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n1 No question was raised by the parties as to the appropriateness of this machine guarding standard, though its applicability could be questionable as to shears and the punch press on the Dvorak Iron Worker. Such machinery is perhaps more specifically covered under the related more specific standard at 29 CFR 1910.217 pertaining to mechanical power presses. I am not inclined to raise the question of applicability sua sponte, however, in view of the precedent established in Secretary v. Consolidated Pine, Inc., 17 OSAHRC 591 (1975). Further, the machines in question may have been included under the general standard because they were hydraulically or pneumatically operated and thus excluded from coverage under the specific power press standard by exemptive provisions contained in 29 CFR 1910.217(a)(5). The evidence did incidentally show, for example, that the Dvorak machine was hydraulic (Tr. 38).

[*6]

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Jurisdiction of the Commission was conceded in respondent's answer. Hearing was held at Aberdeen, South Dakota on October 2, 1975. No affected employees sought party status. Both complainant and respondent filed post-hearing submissions.

CONTESTED VIOLATIONS

As previously mentioned, the issues herein were much reduced and narrowed by the time of trial. Only the first 3 parts of item 11 of the citation remained in contest as to the matter of the existence of violation. These, in turn, were concerned with point of operation guarding on various machines.

Part 1 of item 11 charges that two double-angle saws lacked adequate guarding. These two machines were substantially the same in function and design. Both were used to cut metal, chiefly "I" beams, used in the fabrication of respondent's pontoon boats; and both featured two rotary saw blades, angled to form a "V". The blades are housed behind a "V" shaped metal guard when in their raised position. When activated by the operator by stepping on a pedal, the lower portions of the blades descended to make a mitered cut in the material. [*7] The evidence shows that during the cutting the lower part of the blades are exposed and unguarded, except to the extent that the blade buries itself in the material being cut. From having watched respondent's plant manager operate the saws, the compliance officer was convinced that whereas the material itself might serve as some protection, the operator was necessarily exposed to the danger zone presented by the rotating blades.

Respondent represented that it knew of no guarding devices which would permit the cutting of materials of various sizes without slowing production. The compliance officer, on the other hand, produced a sketch of a prototype lower guard which he asserted would suffice to prevent accidental contact with the blades. A common type of hinged guard was also suggested as workable (Tr. 71). The respondent's view may be summarized by this testimony of Mr. Zens, the plant foreman:

"If a type of guard that somehow can be put on it that you don't have to be changing it and everything every time you put a different metal in it, I would say it's a fair chance that it could be guarded, but as of this time I haven't seen a guard I feel would work." (Tr. 93.)

Part [*8] 2 of item 11 alleges inadequate guarding of a large Pexto shear. The bed upon which the shear blade descends is several feet long and extends out some 1 1/2 to 2 feet on the operator's side. Metal is hand held on the bed for the shearing operation. The blade, which lies behind a massive, vertical metal hold-down, is operated by a treadle. At the time of inspection the hold-down was adjusted to a height which would, in the compliance officer's judgment, have permitted the operator's finger to stray beneath the blade when cutting small pieces. His chief concern, however, was with a series of arch-shaped openings in the hold-down which exposed the blade. These were present to afford the operator a clear view while positioning the material. The plant manager indicated to the inspector, and also at the trial, that a barrier guard had been at one time attached directly to the hold-down (which descends shortly in advance of the blade), but that it was discarded when it pinched the finger of an unwary operator. The compliance officer maintained that a proper barrier device would more properly be secured to a nonmoving part of the machine and specifically suggested it be fashioned [*9] on transparent plastic which would provide a clear view of the blade.

Part 3 of item 11 (as amended) relates on an allegedly improperly guarded shear and punch on a Dvorak Iron Worker - a single hydraulically operated machine which incorporated both devices. The small shear device was adequately guarded for a short distance above the bed by a small-diameter, cylindrical hold-down. As photographs show, however, a considerable open space existed above the hold-down. According to the compliance officer, the operator could inadvertently insert a hand or finger. He asserted that, at minimum, a metal or transparent plastic glass barrier was necessary to provide the protection required by the standard.

Respondent's plant manager agreed, ultimately, that a transparent shield would pose no problem, but questioned the necessity of any guard above the hold-down cylinder.

As to the small punch on the Dvorak machine, the only guarding present was what provided by a stripper which encircled more than half of the circumference of the punch. (See complainant's photograph, ex. C-7). The compliance officer testified that the unencircled portion, however, presented a possibility that an [*10] operator's finger could stray under the descending punch. Respondent pointed out that the metal generally used was of a thickness sufficient to leave no more than 3/8 inch of space below the raised position of the punch.

Upon the evidence presented I must conclude that, as to the points of operation on each of the machines enumerated in item 11, complainant carried its burden of proving that the hands of operating employees were exposed to a genuine danger of injury. It is doubtlessly true that in most instances the materials being handled - whether at the saws, the shears or the punch - were of such dimensions that the employees' hands would remain beyond the danger zone. But respondent did not deny that at other times, close work was required. The "finger pinching" incident when the barrier guard was attached to the Pexto shear serves as a concrete illustration of this fact.

Respondent's evidence relating to unfamiliarity with specific guarding methods or production difficulties did not establish a defense of "impossiblity" under principles laid down in a number of Commission cases. Such a defense is affirmative in character and respondent must prove that no practical means [*11] of guarding (by physical barrier or other techniques) exist. n2 Moreover, complainant in the instant case, has affirmatively demonstrated that barrier guards were feasible. The fact that adequate guarding may diminish production speed does not excuse compliance with the standard.

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n2 See, for example Secretary v. Central Steel and Tank Co., Docket No. 2346 (November 25, 1975).

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PENALTY MATTERS

Evidence relating to those items where only the appropriateness of penalty was in controversy was not extensive. Item 6 involved a hand-held electric drill from which the third or ground prong was missing at the time of inspection. The compliance officer testified that lack of the ground could cause an internal short to deliver an electric shock to the user - its intensity varying with the circumstances. All other portable tools examined in the workplace were properly grounded.

Part 4 of item 11 charged improper guarding of a radial saw used to cut metal. Specifically, the angled saw blade lacked a lower [*12] blade guard. The hazard presented was possible finger injury. Respondent pointed out that nearly all material cut on this saw was of considerable length which would tend to place employee's hands far from the point of operation.

Item 13 charged failure to provide a lower guard on a radial saw used for cutting wood. As was the case with the metal saw mentioned immediately above, the upper part of the blade was guarded. The compliance officer believed the injury potential was less here than with the metal saw.

Item 15 in its various parts (as amended) charged failure to provide adequate guards for three punch presses. Here the evidence again shows that most (but not all) materials punched were weighty and of large size, which meant the operator's hands would tend to be far from the descending punch.

The testimony of the compliance officer as to all of the penalty items, including those in item 11 as to which violation was also contested, was quite uniform. He asserted that cutting injuries could result to hands or fingers from the saw and shear guarding inadequacies, and crushing injuries to the hands were possible at the punch presses. He regarded the probability [*13] and likely extent of all injuries as "moderate". In each instance "maximum" reductions in penalty permissible under complainant's internal guidelines were given for the respondent's size, prior history and good faith.

Only with respect to four of the original 17 items of violation cited were any penalties proposed. As to the largest of these, the $40 proposed for item 11, the amounts total $10 for each part covered thereunder. The same may be said for item 15.

Whereas the physical facts show a possibility of injury as to all guarding violations, that possibility must be regarded as low or remote for several reasons. Most materials handled in respondent's work were large, and an operator's hand would not therefore tend to enter the danger zone. Virtually all machines had some guarding features. Operations in the small plant did not result in use of the machines on a continuous production basis; sometimes they were unused for periods of weeks. In its four years of operation no injury had been suffered at the plant on any cited piece of equipment.

Moreover, the evidence shows that respondent had made every reasonable effort to abate all cited (and ultimately uncontested) violations [*14] with expedition. Giving due consideration to the criteria set forth in section 17(j) of the Act in the light of the above recited considerations, I must conclude that the few small penalties proposed in this case would not tend to further the remedial purposes of the Act and should be vacated. The unfavorable history now existing for respondent's small business should serve as a sufficient deterrent to future violations.

FINDINGS OF FACT

Upon the entire record herein and consistent with the foregoing discussion the following findings of fact are made:

1. Respondent is a corporation which operates a small houseboat manufacturing plant at Miller, South Dakota, and is engaged in a business affecting commerce.

2. On May 7, 1975, when such plant was inspected by an agent of complainant Secretary of Labor, two double angle power saws, the shear blade on a Pexto shear, and a shear and punch press on a Dvorak Iron Worker lacked point of operation guarding sufficient to prevent injury to employees as required by 29 CFR 1910.212(a)(3)(ii).

3. The overall gravity of such violations was low as was the gravity of admitted violations (item 6, 13, 15 and part 4 of item 11) for which [*15] penalties were sought.

4. Respondent is of small size, has demonstrated good faith, and has no significant adverse history.

5. Imposition of penalties in connection with any item of violation herein would serve no worthwhile purpose under the Act.

CONCLUSIONS OF LAW

1. That the Commission has jurisdiction of this cause.

2. That respondent on May 7, 1975 was in violation of 29 CFR 1910.212(a)(3)(ii) as alleged in parts 1, 2 and 3 of item 11 of the citation herein.

3. That no monetary penalty should be imposed with respect to such parts of item 11, or with respect to item 6, part 4 of item 11, item 13, or item 15.

4. That the time permitted for abatement of part 4 of item 11 should be six months.

ORDER

In accordance with the foregoing it is hereby ORDERED that the citation, as contested and as ultimately amended by the complaint, is hereby affirmed; that no monetary penalties are assessed in connection therewith; and that an abatement period of six months is allowed in connection with part 4 of item 11 of the citation.

John A. Carlson, Judge, OSAHRC

Dated: March 11, 1976