Docket No. 2218

CHARLES A. DAVISON AND MARGARET S. DAVISON, d/b/a DAVISON WOOD PRODUCTS

OSHRC Docket No. 2218

Occupational Safety and Health Review Commission

December 26, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order directing review of a decision of Judge Joseph L. Chalk. Judge Chalk affirmed certain items and vacated other items of Complainant's citation Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ). No penalties were assessed. We affirm the judge's disposition for the following reason.

Both parties filed exceptions to various aspects of the judge's decision. Review was directed because some of the exceptions appeared to be meritorious. On the other hand it also appears that persuasive arguments in favor of the judge's decision could have been made.

Nevertheless, both parties refused to file briefs on review. Rather, Respondent said he continues to contest, and Complainant said that although he does not concede he also does not believe the issues on review merit extensive briefing and analysis. In these circumstances we are of the view that the parties are essentially satisfied with the Judge's disposition. In any event they are not sufficiently dissatisfied as to want to continue prosecution of their respective viewpoints. [*2] In view of their failure to provide guidance we will leave them where the hearing judge left them.

Accordingly, the judge's disposition is affirmed, and it is SO ORDERED.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER, dissenting: I dissent for reasons similar to those expressed in my dissenting opinion in Bouma Post Yards, Inc., No. 1318 (October 18, 1974).

Respondent, a husband-wife partnership that was represented pro se continued to contest the citation throughout the proceedings, although it declined to file a brief. The Secretary specifically took exception to the Judge's decision when he filed a petition for discretionary review, although he wrote that in his view "the issues presented in this case do not merit extensive briefing and analysis in light of the factual context and legal posture in which they are presented." n1 The Secretary expressly stated that the did not concede the correctness of the Judge's decision. On these facts it is inconceivable how the majority could write that "we are of the view that the parties are essentially satisfied with the Judge's disposition."

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n1 See Letter from the Secretary to the Commission, September 21, 1973.

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The Third Circuit recently addressed the problem of an employer's failure to continue the litigation of a case on judicial review. In Brennan v. O.S.H.R.C. & Hanovia Lamp Div., Canrad Precis. Indus., 502 F.2d 946, 948 (3d Cir. 1974), the court stated:

In this case the employer contested the Secretary's citation for a serious violation throughout the administrative proceedings, but it has filed no response to the Secretary's petition for review. . . . [H]owever, the employer . . . has not withdrawn its contest of the Secretary's citation. Thus we conclude that there is a continuing controversy warranting judicial review even though Hanovia has not responded to the petition for review.

To the same effect, see Brennan v. O.S.H.R.C. & Santa Fe Trans. Co., No. 74-1049 (10th Cir. October 22, 1974).

In the present case there is also a "continuing controversy" and section 557 of the A.P.A., 5 U.S.C. § 557, requires that the Commission's decision be based on the record. The majority's summary disposition of [*4] the case is in derogation of the Commission's statutory obligation.

[The Judge's decision referred to herein follows]

CHALK, JUDGE: Following an inspection of Respondent's woodworking plant in Waterbury, Vermont, on January 4, 1973, by a Department of Labor compliance officer, a Citation for nine alleged nonserious violations of the Occupational Safety and Health Act of 1969, and a Notification of Proposed Penalty were forwarded to Respondent on January 17, 1973. On February 5, 1973, Respondent filed a Notice of Contest to seven of these alleged violations and the penalty of $30.00 proposed for one of them. The pertinent data, as amended, pertaining to the contested allegations are as follows:

Standard -- Description of Alleged Violation -- Propposed Penalty

29 CFR 1910.213(p)(4) -- Belt sanding machines shall be provided with guards at each nip point where the sanding belt runs on to a pulley . . . -- Respondent failed to provide three (3) belt sanding machines with guards at each nip point where the sanding belt runs on to a pulley. -- None.

29 CFR 1910.213(j)(3) -- Each hand-fed jointer with a horizontal cutting head shall have an automatic guard which will cover [*5] all the section of the head on the working side of the fence or gage. . . -- Respondent failed to provide an automatic guard on a handfed jointer . . . which would cover all the second of the head on the working side of the fence or gage. -- None.

29 CFR 1910.213(a)(9) -- All belts, pulleys, gears, shafts, and moving parts shall be guarded in accordance with the specific requirements of § 1910.219. -- Respondent failed to provide guards for V-belts and pulleys for a table saw and a spindle sander. -- None.

29 CFR 1910.213(c)(1) -- Each circular hand-fed ripsaw shall be guarded by a hood which shall completely enclose that portion of the saw above the material being cut . . . Respondent failed to provide a hand-fed ripsaw with a hood which would completely enclose that portion of the ripsaw above the material being cut. -- None.

Art. 110.17(a), NEC, 1971, as adopted by 29 CFR 1910.308(a), and 29 CFR 1910.309(a) -- 110-17. Guarding of Live Parts. (Not more 600 Volts) (a) Except as elsewhere by this Code, live parts of electrical equipment operating at 50 volts or more shall be guarded against accidental contact by approved cabinets or other forms of approved enclosures . . . -- [*6] Respondent failed to provide approved enclosures on live parts of electrical equipment such as a motor lead box on a Walker Turner [sic] bench drill press and oscillating spindle sander lead box and, also, switches hanging by wires were not attached to a wall located in both the woodworking shop and warehouse area. -- None.

29 CFR 1910.107(d)(2) -- General. All spraying areas shall be provided with mechanical ventilation adequate to remove flammable vapors, mists, or powders to a safe location and to confine and control combustible residues so that life or property is not endangered . . . -- Respondent failed to provide adequate mechanical ventilation to remove flammable vapors from the spray booth located in the spray finishing area. -- $30.00.

29 CFR 1910.151(b) -- In the absence of an infirmary, clinic, or hospital in near proximity to the workplace which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid. First aid supplies approved by the consultation physician shall be readily available. -- Respondent failed to provide first aid supplies approved by the consulting physician. -- None.

The hearing [*7] of this case was conducted in Burlington, Vermont, on May 1, 1973.

The parties stipulated that Respondent, a Vermont based husband-wife partnership, purchased supplies from outside the State of Vermont and that it shipped its finished products to retail customers in other states (Ex. C-1). They also stipulated that Respondent grossed § 169,333.77 during the calender year 1971, that it had no history of prior violations of the Act, and that it employed about four employees on a daily basis that were affected by the alleged violations (Ex. C-1).

Mr. Boyd Wilson, a Department of Labor compliance officer, inspected Respondent's workplace at the time and place in question. After conducting the usual opening conference, he went on a walkaround inspection, accompanied by Mr. Charles A. Davison, one of the owners of the business. Mr. Wilson observed the following conditions for which Respondent was ultimately cited:

1. Three belt sanding machines had no guards at the nip point,

2. A hand-fed jointer had no guard to protect an operator from the jointer blade,

3. Belts and pulleys of a table saw and spindle sander had no guards,

4. A hand-fed table saw had no hood guard on the [*8] top of the blade,

5. A fuse box containing exposed live wires contained no cover or door,

6. A metal paint spray booth containing "some baffle plates that help collect overspray" was inadequately ventilated because the exhaust fan moved less than fifty feet of air per minute, instead of a minimum of one hundred feet per minute (Tr. 24), and

7. First aid supplies were not approved by "the consulting physician" (Tr. 27). Mr. Wilson determined that employees operated the various woodworking machines, used the spray booth to spray finish on products, and moved in and about the area where the fuse box was located.

Mr. Wilson proposed a penalty of $30.00 for the paint spray booth allegation. As he considered the gravity of the violation to be in a relatively low range, he started with an unadjusted penalty of $100.00. He allowed Respondent a ten percent reduction for good faith, a ten percent reduction for size, and a twenty percent reduction for the absence of prior violations of the Act. He also allowed a fifty percent reduction on Respondent's agreement to abate the violation. He did not allow a full twenty percent for good faith because he concluded that Respondent [*9] had no formal safety program.

Mr. Davison appeared as the only witness for Respondent. He admitted the existence of all contested violations and stated that he had never made application to the Secretary of Labor for variances with respect to any of them. Personnel are trained "to be safe" and the company has not had so much as "a pinched finger" over a period of about twelve years (Tr. 47). In general, he believed that guards on the various machines were impractical, and would present greater hazards to employees with respect to the jointer and the table saw. In fact, he had removed the guard from the jointer "20-some-odd years ago" because it caused accidents (Tr. 48). The nip points, too, on all machines present only a minor hazard, for a person would have to deliberately insert his finger in the nip point in order to sustain an injury. To accidently do so is "almost impossible." (Tr. 50). The fuse box presented no hazard because materials were stored around it and there was no reason for any employee to go near it. A door has since been installed on this fuse box. He believed that the paint spray booth was adequately ventilated. Originally, the fan "pull[ed] [*10] a vacuum on the men's ears, and it was painfull" (Tr. 53). In order to overcome this problem, a pulley was changed, thereby reducing the fan velocity by about ten percent. The employees wear masks when they use the booth, the motor is explosion-proof, and "there never will be enough concentration in that area to ever explode" (Tr. 53). Finally, the doctor the consulted about the first aid supplies was not aware of any regulation that specifically covered the subject.

Mr. Davison expressed his belief that:

. . . we are being victimized, harassed by unrealistic and impractical standards; and the cause of safety and health is not being served (Tr. 55).

All charges involving the absence of guards on the various machines specified are adequately sustained as a matter of law by this record and were in fact admitted by Respondent. That such guards are impractical, unnecessary or increase the hazards to employees are matters wholly outside the scope of my authority (Sec. 6d, Occupational Safety and Health Act of 1969; Secretary of Labor v. The Jos. Bucheit & Sons Co., Docket No. 295, June 26, 1972). The charges pertaining to the electrical hazard, the spray booth and the first [*11] aid supplies, however, are not legally sustainable for the reasons that follow.

The Citation broadly alleged, without specificity, a violation of the Act in not complying with Article 110.17(a), National Electrical Code, 1971, by not guarding "live parts" of electrical equipment "by approved enclosures" throughout the woodworking shop and storage area. However, in drafting the Complaint, the Secretary amended this allegation by narrowing or limiting it to motor lead boxes on two machines, A Walker-Turner drill press n1 and a spindle sander, and to unspecified switches that were alleged to have been hanging by wires instead of being attached to the wall. Initially, I note that the standard involved in this charge has nothing to do with attaching electrical equipment to a wall. In any event, however, as no evidence was adduced relating in any way to lead boxes or switches, and the fuse box was not a part of the allegations, as amended, the charge in question is not sustainable as a matter of law (see generally Secretary of Labor v. W.B. Meredith II, Inc., Docket No. 810, October 24, 1972 (presently under review by the Commission, but not expressly on the point [*12] in question), and Secretary of Labor v. Keibler Industries, Inc., Docket No. 1689, June 28, 1973).

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n1 During the hearing, the solicitor stated that he decided not to introduce evidence on the lead box of the drill press. He said nothing about the absence of evidence concerning the other lead box or the switches.

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Mr. Wilson cited Respondent under 29 CFR 1910.107(d)(2) because the flow of air in the paint spray booth with the exhaust fan in operation was less than fifty feet per minute, rather than one hundred feet per minute. This charge would be sustained by the evidence if the spray booth was of the type that was equipped with exhaust air filters, for 29 CFR 1910.107(b)(5) does provide for such minimum rate of air flow for that type of spray booth. However, as the spray booth in question was of the type that was equipped with baffle plates (see 29 CFR 1910.107(b)(4)), and no similar minimum air flow is therein specified, Mr. Wilson incorrectly resorted to the wrong standard to determine that a violation [*13] existed. Accordingly, this charge is not sustainable as a matter of law.

In view of the result reached, I need not determine whether 29 CFR 1910.107(d)(2) which utilized the word adequate in prescribing mechanical ventilation is unenforceable because it is too vague.

As 29 CFR 1910.151(b) prescribes that first aid supplies shall be approved by the consulting physician only where there is an absence of an infirmary, clinic, or hospital in the near proximity to the workplace which is used by the employer for the treatment of all injured employees, and the record is totally devoid of any such evidence, the charge is not sustainable as a matter of law.

Based upon the entire record, I reach the following:

FINDINGS OF FACT

1. Respondent is and was at all times in question a Vermont based partnership that shipped its products to customers outside that State.

2. That at the time and place in question, Respondent failed to provide three belt sanding machines with guards at each nip point where each sanding belt runs onto a pulley.

3. That at the time and place in question, Respondent failed to provide an automatic guard on a hand-fed jointer to cover all the section [*14] of the head on the working side of the fence of gage.

4. That at the time and place in question, Respondent failed to provide guards for V-belts and pulleys for a table saw and a spindle sandler.

5. That at the time and place in question, Respondent failed to provide a hand-fed rip saw with a hood to completely enclose that portion of the rip saw above the material being cut.

6. That at the time and place in question, the equipment specified in 2 through 5 above was operated by one or more employees of Respondent.

7. That at the time and place in question, Respondent did not fail to provide approved enclosures on live parts of electrical equipment such as a motor lead box on a Walker-Turner bench drill press and oscillating spindle sander lead box, or to have allowed switches to hang by wires rather than be attached to a wall.

8. That at the time and place in question, Respondent did not fail to provide adequate mechanical ventilation to remove flammable vapors from the paint spray booth.

9. That at the time and place in question, Respondent did not fail to provide first aid supplies approved by a consulting physician because of the absence of an infirmary, clinic, or [*15] hospital in the near proximity to the workplace that is used for the treatment of all injured employees.

CONCLUSIONS OF LAW

1. That this Commission has jurisdiction over the cause.

2. That Respondent was in violation of Section 5(a)(2) of the Act by not complying with 29 CFR 1910.213(p)(4).

3. That Respondent was in violation of Section 5(a)(2) of the Act by not complying with 29 CFR 1910.213(j)(3).

4. That Respondent was in violation of Section 5(a)(2) of the Act by not complying with 29 CFR 1910.213(a)(9).

5. That Respondent was in violation of Section 5(a)(2) of the Act by not complying with 29 CFR 1910.213(c)(1).

6. That Respondent was not in violation of Section 5(a)(2) of the Act by not complying with Article 110.17(a), National Electrical Code, 1971, ad adopted by 29 CFR 1910.308(a) and 29 CFR 1910.309(a).

7. That Respondent was not in violation of Section 5(a)(2) of the Act by not complying with 29 CFR 1910.107(d)(2).

8. That Respondent was not in violation of Section 5(a)(2) of the Act by not complying with 29 CFR 1910.151(b).

9. That the nonassessment of civil penalties for 2 through 5 above is appropriate in light of the entire record and the [*16] size of Respondent's business, the gravity of the violations, and Respondent's good faith and lack of history of prior violations of the Act.

Item numbers 1, 2, 3, and 4 of the Citation are affirmed. No penalties are assessed therefor. Item numbers 5, 6, and 9 of the Citation and the penalty of $30.00 proposed for item number 6 are vacated.

It is SO ORDERED.