GEM-TOP MFG., INC.
OSHRC Docket No. 2795
Occupational Safety and Health Review Commission
April 7, 1975
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter presents the precise question we decided in Irvington Moore, Division of Natural Resources, Inc., Respondent (hereinafter "Gem-Top") manufactures metal canopy type tops for pickup trucks. Following an inspection of Gem-Top's workplace in Clackamas, Oregon, Labor issued a citation for serious violation alleging that Gem-Top was not in compliance with section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ) because it failed to guard the point of operation of two press brakes contrary to the requirements of 29 C.F.R. 1910.212(a)(3)(ii). The issue at trial and before the Commission is whether 29 C.F.R. 1910.212(a)(3)(ii) requires point of operation guarding on press brakes. Judge Jerry Mitchell answered the question in the affirmative, and he reasoned as we did subsequently in Irvington Moore.
Accordingly, for the reasons given in Irvington Moore, a copy of which is attached, and for the reason that there does not appear to be any prejudicial error in the judge's findings [*2] and conclusions, the judge's decision is adopted as the decision of the Commission and it is so ORDERED.
CONCURBY: CLEARY
CONCUR:
CLEARY, COMMISSIONER, concurring: I concur in the disposition ofthis case for the reasons stated in my concurring opinion in Irvington Moore, No. 3116 (April 7, 1975).
DISSENTBY: MORAN
DISSENT:
MORAN, CHAIRMAN, dissenting: I dissent for the same reasons set forth in Secretary v. Irvington Moore, Division of Natural Resources, Inc., 16 OSAHRC 608 (1975).
Additionally, it should be noted that this case exemplifies the unfairness to employers that could result from the Commission decision. Respondent's plant supervisor testified that he and experts advising him had studied the Code of Federal Regulations, had tried to comply with the applicable regulations thereunder, but had concluded that no requirements were made of press brakes because of the exclusion set forth in 29 C.F.R. § 1910.217(c)(5).
It is therefore evident that the decision here not only places an unfair burden on employers, i.e., by requiring them to search the Code for standards that might apply when a standard that does specifically apply contains negative requirements therein, but [*3] it also denies them their due process rights to be appraised of what exactly they must do to comply with the Act. See Secretary v. Tilo Co., Inc., 2 OSAHRC 1391 (1973).
Standards hereunder are difficult enough to understand without the construction the Commission implements today. When a specific standard applies, regardless of the requirements therein, the general standard is not operative.
It is not our function to supersede complainant's judgment as to what manner he wishes to apply it. See Secretary v. The Budd Company, 7 OSAHRC 160, 165 (1974).
[Note: See Secretary v. Irvington Moore, 16 OSAHRC 608.]
[The Judge's decision referred to herein follows]
MITCHELL, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651, et seq. ) (the Act hereinafter) contesting Citations issued by the Secretary of Labor (Complainant) against GEM-TOP MFG., INC. (Respondent) under the authority vested in Complainant by Section 9(a) of the Act.
A workplace described as "manufacture of pick-up tops" located at 8811 S. E. Herbert Court, Clackamas, Oregon was inspected on March 16, 1973 by a Compliance Safety and Health Officer [*4] (CSHO). The workplace was under Respondent's ownership and control. During the inspection certain alleged violations were noted. As a result of the inspection two Citations for Serious Violations alleging Respondent's failure to comply with three separate safety standards were issued on April 6, 1973. A Citation for Non-Serious Violations alleging Respondent's failure to comply with five additional separate safety and health standards listed under five items was also issued on April 6, 1973. The standards allegedly violated were promulgated by the Secretary of Labor pursuant to Section 6 of the Act and are now codified at Title 29, Code of Federal Regulations, Part 1910.
Respondent is contesting the proposed penalty only in connection with Citation for Serious Violation One and the Citation and proposed penalty in Citation for Serious Violation Two. Respondent is not contesting any of the Items or proposed penalties in the Citation for Non-Serious Violations. The three alleged violations at issue herein are described in the Citations in the following language with the pertinent part of each standard quoted immediately thereafter:
Citation for Serious Violation One [*5] --
1910.213(h)(1) A radial saw manufactured by DeWalt, Model 10" builders, and located in the Shipping Department, available for use by two employees, was not equipped with a guard covering the lower portion of the saw blade sides.
1910.213(g)(1) A swing cutoff saw located on the southwest wall of the Shipping department did not have the point of operation nor the lower portion of the saw blade guarded. Saw is manufactured by Irvington Machine Works. The above 2 instances of failure to guard saws, either one of which could alone be considered Serious, have been grouped for citation and penalty purposes to form this one alleged Serious Violation.
ABATE -- May 7, 1973
Standards -- 29 CFR 1910.213(g)(1) and .213(h)(1) --
Subpart O -- Machinery and Machine Guarding 1910.213 Woodworking machinery requirements. (g) Swing cutoff saws. The requirements of this paragraph are also applicable to sliding cutoff saws mounted above the table. (1) Each swing cutoff saw shall be provided with a hood that will completely enclose the upper half of the saw, the arbor end, and the point of operation at all positions of the saw. The hood shall be constructed in such a manner and of such material [*6] that it will protect the operator from flying splinters and broken saw teeth. Its hood shall be so designed that it will automatically cover the lower portion of the blade, so that when the saw is returned to the back of the table the hood will rise on top of the fence, and when the saw is moved forward the hood will drop on top of and remain in contact with the table or material being cut.
(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 the stock being cut to give maximum protection possible for the operation being performed.
Citation for Serious Violation Two --
1910.212(a)(3)(ii) Two 90-ton capacity press brakes being operated by three employees in the [*7] Parts Department are not equipped with point of operation guards. Machines #125 and a "Chicago Dries-Krump," for identification.
ABATE -- May 7, 1973
Standard -- 29 CFR 1910.212(a)(3)(ii) --
Subpart O -- Machinery and Machine Guarding 1910.212 General requirements for all machines.
(a) Machine guarding -- (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.
Pursuant to the enforcement procedure provided in Section 10(a) of the Act, Respondent was duly advised by a "Notification of Proposed Penalty" dated April 6, 1973 of the proposal to assess penalties of $600 in connection with each of the two Citations for Serious Violations and of $0, $0, $0, $30 and $30, in connection with the five Items, respectively, [*8] of the Citation for Non-Serious Violations. In a timely manner Respondent's Plant Superintendent filed a letter dated April 26, 1973, contesting the "penalty only" in connection with the Citation for Serious Violation One and the "violation and penalty" involved in Citation for Serious Violation Two.
Also enclosed with the letter of contest was a check for $60 covering the proposed penalties for Items 4 and 5 of the Citation for Non-Serious Violations. The letter of contest advises that the violations covered by Items 4 and 5 were corrected by the date of the letter.
A complaint was filed by Complainant on May 14th. Respondent filed a letter dated May 21st which Complainant has treated as an answer to the complaint. This letter reaffirms the contest of the panalty in Citation for Serious Violation One and denies that the press brakes are in violation as alleged in Citation for Serious Violation Two. Complainant subsequently filed a Request for Admission of Facts setting forth 37 separate requests. Respondent's Plant Superintendent submitted an unsworn response in letter form admitting the first 7 facts. After request from Complainant for a sworn response, Respondent's [*9] counsel submitted such a response admitting 21 of the facts and denying the remaining 16.
Trial was held at Portland, Oregon on August 1, 1973.
PROCEEDINGS AND EVIDENCE
When the trial convened Complainant and Respondent were each represented by competent legal counsel. There was no appearance by or on behalf of any of Respondent's employees though a union had been designated as authorized employee representative. A few of Respondent's employees were present in the courtroom but did not desire to appear. All documents and notices had been properly posted.
In proceedings on the record in the form of a pretrial conference prior to the introduction of evidence the parties agreed to a stipulation which establishes:
1. That Respondent is an employer with employees engaged in a business affecting commerce;
2. That Respondent's plant was inspected by a CSHO on March 16, 1973;
3. That a Citation for Serious Violation One, Citation for Serious Violation Two and Citation for Non-Serious Violations were issued to Respondent;
4. That the Citation for Non-Serious Violation is not contested and has, therefore, become a final order of the Commission pursuant to Section 10(a) of the [*10] Act;
5. That Respondent's letter of contest contests the penalty only in connection with Citation for Serious Violation One and the violation and penalty in connection with Citation for Serious Violation Two;
6. That the Commission has jurisdiction of this proceeding;
7. That on March 16th there were no guards on the lower portions of either of the 2 saw blades but that such a guard was installed on the radial saw on April 17th and on the swing cutoff saw on April 2nd;
8. That on March 16th, 2 of Respondent's employees used one or both saws on each of two 8 hour shifs to cut lumber for a total of 25 minutes to one hour per shift;
9. The extent of use of each of the saws during the preceding year;
10. That the violation covered by Citation for Serious Violation One is a "serious" violation and that Respondent had knolwedge of the unguarded condition;
11. That on February 26th a State of Oregon safety inspector advised Respondent to get a guard for the lower portion of the blade of the radial saw. Respondent ordered the guard on February 28th and received it on April 16th;
12. That during the inspection on March 16th, 3 of Respondent's employees were operating [*11] 2 of Respoondent's 90-ton press brakes which were not equipped with point of operation guards. Respondent knew that the employees were operating the unguarded machines; and
13. That if Respondent is found to be in violation 29 CFR 1910.212 in this proceeding the said violation will be deemed serious within the meaning of Section 17(k) of the Act.
Complainant called a Compliance Safety and Health Officer (CSHO) as its first witness. He testifies that the inspection was accomplished on March 16, 1973. He met with management on entry to the plant and conducted an opening conference. He was accompanied throughout the inspection by two representatives of the employer.
While inspecting the Parts Department he observed 2 of Respondent's employees operating 1 press brake and 1 employee operating another. The other 3 press brakes were not in use but there were other employees in the department at work on other assignments. The press brakes were in continuous operation. The employees hands moved to within 3 to 6 inches of the danger area at the die space. He did not see any hand tools in use to hold the material being formed.
He testifies that Respondent had a total of 160 employees [*12] at the plant including the clerical staff. He conducted a closing conference at the end of the inspection. He describes the manner in which he computed the penalties allowing 20% credit for no prior history and 20% credit for good faith and no credit for size of business.
Complainant called one of Respondent's employees (Bill Points) who has worked for Respondent for 5 years and is presently Leadman on the swing shift. He has been doing "set-ups" on the 2 machines in question for three years and is familiar with their operation and control. He testifies that the largest die opening with the machine at rest is 4 inches and the smallest 3 inches (no less than 2 3/4") depending on the die in use. In using the two press brakes which are the subject of the Citation herein the operator's fingers are less than 2 inches from the die opening 15 to 20% of the time and within 3 inches 50 to 60% of the time. On some parts the operators fingers are within 1 1/2" of the die opening. The brake is activated by depressing a foot pedal. It takes 3 seconds to make a full cycle -- the ram moving down and back up to rest in that time. If the operator's foot is removed from the foot [*13] pedal the die stops where it is in the cycle -- moving about 1/8 to 1/4 of an inch after release of the foot pedal. There is only one foot pedal per machine.
This witness testifies that there is noise in the plant from other machines surrounding the two press brakes in question which makes it difficult for two men working on the press brake, as in Exhibit 3, to communicate vocally. The safety instructions given to the witness when he commenced operating the press brakes was to keep his fingers out of the die opening. He was also shown various ways to hold and handle the material being formed. He has never seen any hand tools in use while employed by Respondent.
The two brakes are in use on an average of 5 hours in each 8 hours shift. On March 16th one of the brakes was in use for 3 hours and the other 6 1/2 hours. Their capacity in pressure is 90 tons per sqaure inch.
Complainant called another of Respondent's employees (Kenneth Weaver) as a witness. This witness testifies in general in the same manner as the previous witness. He describes the manner in which the material protruding from the die space "whips up" when the upper die presses on the material. More than 90% [*14] of all brake operations involve a material whip uo of more than 20 degrees from the horizontal. He testifies that some of the press brakes in Respondent's shop have two-hand tripping devices, but no other guards. He also describes how on occasion he daydreams when running small parts because of boredom from the repetitious operation.
Complainant called a professional safety engineer with considerable safety engineering experience which qualifies him as a very knowledgeable witness. He is presently employed by the state of Oregon. He describes the dangers in operating press brakes, the causes of injury and the potential injuries involved. He also describes nine (9) devices or systems available on March 16th as guards for press brakes. In addition he describes the use of hand tools to hold the material being formed so as to increase the distance between the operator's hands and the die space.
Respondent's counsel made a short opening statement during which ANSI document "B11.3-1973" was offered in evidence and objected to by Complainant. Respondent's Plant Superintendent was called as Respondent's first witness. He is familiar with and experienced in using the 2 [*15] press brakes in question. He gives Respoondent's accident frequency as 23.2 in 1970-71, 30.2 in 1971-72 and 28.2 in 1972-73. Two accidents involving injuries resulting from use of the 2 press brakes have occurred since 1966. One of these involving serious amputation occurred in 1966. This witness also testifies concerning various steps taken to improve safety about the plant and states that $9,000 was spent for safety improvements during the 6 months preceding the trial. He admits unfamiliarity with the use of hand tools to hold the material being formed in press brakes. He believes that the Citation of Respondent which is the subject of this proceeding is the first Citation issued in Portland for a press brake violation.
Approximately 9 months before the trial Respondent appointed an employee as Safety Director who spends about one-half of his time in safety related activities. He conducts safety meetings which are attended by supervisory peronnel only. The Safety Director also tours the plant and discusses safety with the individual employees.
Respondent's final witness is the Company Personnel Manager who also serves as Safety Director. His experience with use of the [*16] press brakes involves work for Respondent in the summers while he was in college. In his capacity as Respondent's Safety Director he researches safety laws, consults with Respondent's safety consultant from the insurance underwriters, conducts safety meetings with the supervisors and advises Respondent's supervisors of hazards existing in their departments. He describes a brief, casual discussion of point of operation guarding which he participated in with Respondent's insurance safety consultant. A number of photographs taken by this witness to show safety improvements made by Respondent prior to the March 16th inspection were introduced in connection with his testimony.
Complainant recalled Kenneth Weaver in rebuttal. He testifies that the palm button controls on the Wysong press brakes are only used 1% of the time. The foot pedal control is used the other 99% of the time thus negating the safety of the "palm button" system.
At the conclusion of the trial, each party stated that a brief would be filed within 15 days elaborating on whether Respondent's Exhibit A is admissable in evidence. Such a brief was submitted by each party. A subsequent order was entered admitting [*17] Respondent's Exhibit A but limiting the scope of its applicability.
Subsequent to the conclusion of the trial each party submitted Briefs and Complainant submitted a Reply Brief.
DISCUSSION
Violation of 29 CFR 1910.213(g)(1) -- Saws
Citation for Serious Violation One involves the failure to guard the lower portion of the blade on a radial saw and the point of operation and lower blade on a swing cutoff saw. In the discretion of Complainant the two saw-guarding violations were combined and cited as a single serious violation for which Complainant proposes assessment of a penalty of $600. Respondent concedes that each of the saws was used without required guards on March 16th, the day of the inspection, as well as during the preceding year. Respondent also concedes that failure to guard the saws is a serious violation within the meaning of Section 17(k) of the Act. (Stipulation Items 5, 6, 7 and 8).
Respondent's contest in connection with Citation for Serious Violation One only goes to the appropriateness of the penalty proposed for failure to guard the radial saw. Respondent stipulates that a penalty of $300 is appropriate for the swing saw violation and does not contest [*18] assessment of such a penalty. Respondent does, however, contest the appropriateness of a penalty of $300 for failure to guard the lower blade of the radial saw. (Respondent argued and Complainant stipulated that the penalty proposed in connection with the two saws should be equally divided between them.)
Respondent offers two reasons for reducing the penalty of $300 proposed in connection with the radial saw. First -- the saw is only used by one or two employees for approximately 5 minutes on each of two 8 hour shifts per day making exposure very low. Second -- Respondent promptly obtained a guard after a state inspector identified the need. The state inspector advised Respondent of the need for a guard on the lower blade of the radial saw on February 26, 1973. Such a guard was ordered on February 28th but not received until April 16th because of the supplier's inability to deliver at an earlier time. (Stipulation Item 9.) Thus Respondent's good faith is clearly established. Giving due consideration to these reasons and the circumstances involved here in the light of the criteria established by Section 17(j) it is concluded that an appropriate penalty in connection [*19] with the radial saw in this instance is $100.
Violation of 29 CFR 1910.212(a)(3)(ii) -- Press Brakes
This Citation for Serious Violation involves Respondent's failure to have point of operation guards installed and in use on two specific press brakes that were being operated during the inspection on March 16th. The existence of the unguarded condition is established by the stipulation entered as Exhibit 1 at the beginning of the trial. At that time Respondent conceded that:
1. During the inspection conducted by the CSHO three of Respondent's employees were operating two press brakes which were not equipped with point of operation guards designed and constructed so as to prevent the operators from having any part of their body in the danger zone during the operating cycle;
2. Respondent knew that the employees were operating the unguarded machines; and that
3. If Respondent is determined to have been in violation of the standard found at 29 CFR 1910.212, as alleged, with respect to the two press brakes in question, that said violation will be deemed serious within the meaning of Section 17(k) of the Act. (Exhibit 1 -- Stipulation Items 10 and 11.)
The evidence introduced [*20] clearly and fully supports and agrees with the facts stipulated. There were no guards of any kind or description on either of the two press brakes cited. During 50% to 60% of the time the press brakes are in operation the operator's fingers are as close as 2 inches from the danger point (point of operation) where the 90 ton force of the press brake is exerted in forming the metal parts. At times the operator's fingers are within 1 1/2 inches of the danger point while the operator holds certain of the small parts being formed.
Respondent's major contention is contesting this Citation for Serious Violation is that there are no point of operation guarding requirements for press brakes. This contention is based on the argument that a press brake is a power press and, as such, is covered by the standard found at 29 CFR 1910.217 where specific safety standards for power presses are set forth. Respondent then argues that since 1910.217(a)(5) specifically excludes "press brakes" from the "requirements of this section" (1910.217) there are no safety standards applicable to press brakes. This argument is further buttressed, according to Respondent, by the fact that 1910.217 [*21] contains "specific" standards for mechanical power presses whereas 1910.212 (relied on by Complainant) only contains "general requirements" or standards for "all machines." Under the theory of 1910.5(c)(1) that a specific standard takes precedence over a general standard, Respondent concludes that 1910.217(a)(5) removes press brakes from all coverage.
Respondent's conclusion must fail. 1910.212 and 1910.217 must be read together. 1910.212, by its title and content, establishes general machine guarding requirements for all machines. In furtherance of the concept of specific prevailing over general, as set forth in 1910.5(c)(1), 1910.212(a) provides:
. . . . (3)(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. (Emphasis added.)
Then in 1910.212(a)(3)(iv) power presses are listed as one of a number of machines which usually require point [*22] of operation guards thus making 1910.212 applicable to power presses. As noted earlier, a press brake is a power press. Thus we look to the standards for power presses (1910.217) to see if there are any specific appropriate standards for press brakes. 1910.217(a)(5) excludes press brakes from the requirements relating to power presses requiring that we revert to the general standard found in 1910.212(a)(3)(ii) as quoted above which is applicable to all machines. Thus, even though 1910.212 sets forth general requirements, it controls here since there are no specific standards applicable to press brakes. The standard cited by Complainant controls and is to be applied under the circumstances here.
Respondent would buttress its contention that there are no standards applicable to press brakes by referring to "American National Standard safety requirements for the construction, care, and use of power press brakes," "ANSI B11.3-1973" (Exhibit A).
In its foreword, the document states:
Recognizing the need for a safety standard for power press brakes, American National Standards Committee B11 on Safety Standards for Machine Tools established in 1970 Subcommittee B11-3 [*23] to develop the safety requirements for this equipment. (Note that a parenthetical statement at the very beginning of the foreword specifically excludes the foreword from being a part of the safety requirements contained in ANSI B11.3-1973.)
On page 9 of ANSI B11.3-1973 the Purpose of the standard is stated:
1.2 Purpose. The purpose of this standard is to establish safety requirements with respect to the construction, care, and use of power press brakes.
Respondent relies on the foregoing two statements and argues that the implication is that prior to ANSI B11.3-1973 there were no requirements for point of operation guards on press brakes. It may be possible to read such an implication into the above quoted words, but even so, such an implication does not invalidate the standards promulgated by the Secretary pursuant to the Act. The duly promulgated standards take precedence over ANSI B11.3-1973 which was published by an advisory body subsequent to promulgation of the standard.
Respondent's argument that the regulations, if applicable to press brakes, are too vague to support a violation in this instance also fails. The standard, 1910.212(a)(3)(ii), is clear and specific, [*24] rather than vague. Machines whose operation exposes an employee to injury shall be guarded. If this were the sum and content of the standard, Respondent's vagueness argument well might prevail. However, the standard goes on to detail what must be guarded as well as how. There is no vagueness nor ambiguity.
In short -- all of Respondent's arguments fail. There is a valid standard applicable to the press brakes being used during the inspection on March 16th. That standard is 29 CFR 1910.212(a)(3)(ii). It is not vague nor ambiguous. It is applicable here.
Respondent concedes that if a violation of 1910.212(a)(3)(ii) is found, that such violation is serious in nature under the criteria set forth in Section 17(k) of the Act. (Exhibit A -- Stipulation Item 11.) The evidence fully supports this concession. The two press brakes in question exert a pressure of 90 tons per square inch at the point where the parts are formed -- the point of operation. It is rather obvious that any part of the human body unfortunate enough to be in the die space when the upper die descends will be permanently flattened resulting in a serious injury under Section 17nk) of the Act. The two [*25] accidents occurring in connection with operation of the two press brakes in question over the past 7 years resulted in amputation of several fingers in each case. The die space is a minimum of 3 inches and a maximum of 4 inches in height when the upper die is in its raised position at the end of a stroke or cycle. This is obviously more than enough space for the fingers, hands and/or arms of the operator or his helper to be inserted in the die space and be endangered. Any accident occurring will undoubtedly result in a serious injury.
It is to be noted that the one expert witness who testified described nine (9) separate methods or systems which can be used to guard the point of operation on a press brake. Although Respondent argues they cannot be used on the press brakes here involved -- there is no evidence in the record showing impossibility of use.
The penalty proposed by Complainant in connection with this violation is $600. Under the circumstances involved here this penalty is inappropriate. Respondent's operation is relatively large -- involving 160 employees and a gross business of 4 to 5 million dollars annually. However, only 2 employees are exposed to [*26] the danger. The record demonstrates that Respondent has a safety program with one of its supervisory personnel given the responsibility for implementing the program. Prior to the inspection some effort was made to make the work areas safe. Work areas were cleaned up and several unsafe practices corrected. In addition some safety equipment and supplies were purchased. Safety meetings were held with supervisory personnel and some dafety discussions were carried on with individual employees. Press brake operators were given some, but minimal (keep your hands out of the die space), safety instructions when they first started operating them. At this point, we feel constrained to suggest that safety instructions for operators of mahines such as press brakes should be thorough and continuing. Repetitive cautions and instructions would be most likely to clearly remind the operators of the necessity of remaining alert and cautious. Such safety meetings must include the operators -- not just supervisory personnel as they are now constituted. After all it is the operators who are in danger.
After consideration of the foregoing in the light of the criteria established by Section [*27] 17(j) of the Act and under the particular circumstances involved in this instance it is deemed appropriate to assess a penalty of $200 in connection with this violation.
Based upon the evidence adduced and after consideration of all briefs and submissions by the parties, we make the following:
FINDINGS OF FACT
1. Respondent, GEM-TOP MFG., INC., is a corporation maintaining a place of business and workplace at Clackamas, Oregon where 120 employees are employed in the manufacture of metal canopy-type tops for pickup trucks. Another 40 employees are involved at the workplace in related employment. At all times material hereto Respondent was engaged in the sale and distribution of the said canopy-type tops to various locations outside the state of Oregon. Respondent was, and is, an employer having employees engaged in a business affecting commerce within the meaning of Section 3 of the Act. (Exhibit 1, Stipulation Items 1 and 2.)
2. On March 16, 1973 a Compliance Safety and Health Officer (CSHO) inspected Respondent's workplace at Clackamas, Oregon. During the inspection the CSHO was accompanied by two of Respondent's management personnel.
3. During the inspection [*28] on March 16th two saws, a radial arm saw and a swing cutoff saw, were observed while in use by Respondent's employees. Neither saw was equipped with a guard covering the lower portion of the saw blade. On March 16th two of Respondent's employees used and worked with one or both of the unguarded saws on each of two 8 hour shifts to cut lumber for shipping crates. Use of the saws did not exceed 25 minutes to one hour on each shift. Use of the saws without guards on the lower blades is a serious violation of 29 CFR 1910.213(h)(1) (radial saw) and 1910.213(g)(1) (swing cutoff saw) within the meaning of Section 17(k) of the Act. (Exhibit 1, Stipulation -- Items 5, 6, 7 and 8.)
4. On February 26th a state inspector recommended that a guard be obtained for the radial saw. Such a guard was ordered on February 28th and received and installed on April 16th. (Exhibit 1, Stipulation -- Item 9.)
5. During the March 16th inspection three of Respondent's employees were operating two Dreis and Krump 90 ton press brakes with Respondent's full knowledge of such operation. At that time, and at all times pertinent hereto, the press brakes were not fitted with point of operation guards. Said [*29] absence of point of operation guards is a serious violation. (Exhibit 1, Stipulation -- Items 10 and 11.)
6. During the inspection, 5 additional violations of safety and health standards were noted. A non-serious Citation was issued to Respondent covering these violations, but neither the violations nor penalties were contested. (Exhibit 1, Stipulation -- Item 3.)
7. Respondent conducts periodic safety meetings for its supervisory personnel. These meetings do not include employees other than supervisors. Respondent has an established safety program and is making an effort to improve safety in its workplace.
8. As a result of the March 16th inspection of Respondent's workplace Citations for Serious Violations One and Two (saws and press brakes respectively) were issued to Respondent on April 6th. On the same date a notification proposing the assessment of a penalty of $600 in connection with each serious violation was also issued to Respondent. The violations are set forth above at pages 593 and 594.
9. On April 30, 1973 Respondent contested the penalty proposed in connection with the radial saw and the violation and penalty involved with the press brakes. [*30] Respondent did not contest the non-serious violations or penalties. (File -- Respondent's letter dated April 26, 1973; Exhibit 1, Stipulation -- Item 3.)
10. Respondent's annual gross for the year prior to March 16th was four (4) to five (5) million dollars.
CONCLUSIONS OF LAW
1. At all times material hereto, Respondent, GEM-TOP MFG., INC., was an employer engaged in a business affecting commerce within the meaning of Section 3 of the Occupational Safety and Health Act of 1970. On April 30, 1973 Respondent filed a letter contesting the penalty proposed in connection with one of the two saws covered by Citation for Serious Violation One and the violation and penalty in connection with Citation for Serious Violation Two. Respondent thereby brought itself and the subject matter of this proceeding withing the jurisdiction of the Occupational Safety and Health Review Commission.
2. On March 16, 1973 an authorized employee of the Secretary of Labor duly inspected Respondent's workplace at Clackamas, Oregon, in accordance with the provisions of Section 8 of the Act.
3. Failure to equip the radial arm saw and the swing cutoff saw with a lower blade guard is a serious violation [*31] of the safety standards found at 29 CFR 1910.213(h)(1) and (g)(1), respectively. Respondent concedes the appropriateness of a penalty of $300 in connection with the swing cutoff saw. An appropriate penalty to be assessed in connection with the radial arm saw is $100.
4. A press brake is one kind of power press. Safety standards for power presses are codified at 29 CFR 1910.217. Press brakes are specifically excluded from the requirements of 1910.217 and are therefore covered by the general safety standards for all machines codified at 29 CFR 1910.212. Point of operation guarding requirements are set forth at 1910.212(a)(3)(ii).
5. Respondent's failure to equip the two Dreis and Krump 90-ton press brakes with point of operation guarding is a violation of 1910.212(a)(3)(ii) which is serious in nature under the criteria set forth in Section 17(k) of the Act. Under the circumstances here and pursuant to the provisions of Section 17(j) of the Act, a penalty of $200 is deemed appropriate in connection with this serious violation.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law and for good cause shown, it is hereby ORDERED that:
1. Citation [*32] for Serious Violation One be, and the same hereby is, AFFIRMED:
2. The penalty of $600 proposed in connection with Serious Violation One be modified to $400 and as so modified be, and the same hereby is, assessed;
3. Citation for Serious Violation Two be, and the same hereby is AFFIRMED: and that
4. The penalty of $600 proposed in connection with Serious Violation Two be modified to $200 and as so modified be, and the same hereby is, assessed.