Docket No. 3282

APEX GLASS d/b/a ACME GLASS COMPANY

OSHRC Docket No. 3282

Occupational Safety and Health Review Commission

March 3, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Robert A. Friel, Assoc. Regional Solicitor

Robert D. Austin, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

This case presents the question whether Administrative Law Judge Henry C. Winters erred in vacating a citation for serious violation of 29 C.F.R. 1910.212(a)(3)(ii). n1 We affirm the citation for the reasons that follow.

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n1 29 C.F.R. 1910.212(a)(3)(ii) provides as follows:

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.

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Respondent manufactures and installs aluminum-framed windows. During the inspection, Respondent's employees were using a 12-inch DeWalt radial arm saw to cut the aluminum tubing to size. The [*2] saw had an adjustable hood over the upper half of the blade. The lower half was not guarded, thereby leaving up to 6 inches of the blade exposed at the front and rear. The Secretary alleged that while cutting the tubing, the employees' hands and bodies were exposed to the unguarded blade.

Respondent defends on the ground that the normal operation of the unguarded saw provides sufficient protection from any hazard because the operator is not required to have any part of his body dangerously near the point of operation. We conclude, for the reasons set forth below, that the evidence does not support Respondent's defense.

The record establishes that in order to operate the DeWalt radial arm saw, the operator must stand directly in front of the blade since he must hold both the cutting head and the tubing being cut. Despite this position, the operators pull the blade toward the edge of the table and even forward of it. In addition, the operators hold the tubing at a point only about six inches from the blade. Furthermore, the necessity of keeping one hand on the cutting head while keeping his body out of the path of the blade, physically prevents the operator from holding the [*3] tubing a safe distance from the blade with his order hand. Inasmuch as the normal operation of the saw brings the operator's hand near, and his body in front of, the unguarded blade, we conclude that the operator is not adequately guarded by the position of his hand and body. We note that Respondent apparently recognized that the operators were not guarded by position since it instructed the operators to rotate the upper hood forward and down over the front of the blade, as far as possible.

Subsequent to the inspection, Respondent installed the lower guard manufactured for DeWalt saws, and again used the saw to cut aluminum tubing. Respondent's president and an employee both found that the guard eliminates the suction that normally pulls the shavings to the back of the saw. Thus, the shavings obscure the guideline marking the place to cut. Additionally, the guard itself blocks the operator's view of the guideline. Because of these conditions, the operator must bend over to peer closely at the guideline. As a result, he exposes his eyes and face to the loose shavings.

Respondent contends that because of the hazard presented by these loose shavings, he is exempted from the requirements [*4] of 1910.212(a)(3)(ii). Respondent bases this contention on the language of 1910.212(a)(2) which provides, in pertinent part that "the guard shall be such that it does not offer an accident hazard in itself." We reject Respondent's contention since we do not view 1910.212(a)(2) as providing an employer with a defense. Instead, it imposes an affirmative duty on the employer to either guard the machine, or use the guarded machine, in a manner that does not create a separate hazard to employees.

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n3 Although it is not necessary to our decision and does not form a basis therefor, we do note that there are several ways that Respondent could eliminate the hazard created by the guard without removing it from the saw. The simplest approach would be for Respondent to provide face shields for its saw operators. As an alternative, Respondent could equip the saw with a suction device that is capable of pulling the shavings toward the back of the table. By using the lower blade guard in conjunction with a face shield or suction device, Respondent can protect its saw operators from both the hazard presented by the unguarded saw and the hazard of the loose shavings.

[*5]

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During the hearing, Respondent's president argued that Respondent should not be required to use the guard since it scratches gold-finished and bronze-finished tubing. However, the president testified that the guard does not scratch the finish if the tubing is first taped. Therefore, it is clear that Respondent can use the guard when cutting gold-finished or bronze-finished tubing.

Having rejected Respondent's defenses, we conclude that Respondent was in violation of 1910.212(a)(3)(ii). Inasmuch as Respondent had actual knowledge that the blade was unguarded and the unguarded blade presents a hazard of severe lacerations or amputation of a hand or finger, we conclude that the violation was serious.

We turn now to the assessment of an appropriate penalty. Respondent has no history of prior violations, is small to medium in size, and its good faith is not questioned. Although a severe injury could result, the gravity of the violation was moderate since only approximately two employees were exposed. On balance, we find that a penalty in the amount of $200 is appropriate for the serious violation. [*6]

Accordingly, the citation for serious violation of 1910.212(a)(3)(ii) is affirmed and a penalty of $200 is assessed. It is so ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

I disagree with my colleague's decision for three primary reasons and would, therefore, affirm the Judge's decision.

First, complainant failed to show that the employees of respondent were exposed to any hazard that would not remain after installation of the lower guard on the saw. The Judge carefully considered the record and correctly concluded that complainant did not show that the employees were exposed to any hazard caused by its failure to guard the lower edge of the saw (1) since there was no showing that any employee placed his hands near the unguarded blade and (2) since the evidence did show that the lower guard would not cover the blade while the saw was in operation anyway. Accordingly, I hereby incorporate his decision as part of my dissenting opinion. n4 I would only add that this case is similar to Secretary v. James Tice, d/b/a Tice Industries, 15 OSAHRC 108 (1975), wherein the Commission vacated a § 1910.212(a)(3)(ii) charge because complainant failed to show employee exposure to a correctable [*7] condition.

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n4 The Judge's decision is attached hereto as Appendix A.

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Secondly, the complainant has failed to prove as required by § 1910.212(a)(2) that it was feasible for respondent to operate the saw with the lower guarding and that the guard did not "offer an accident hazard in itself." n5

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Finally, not only do my colleagues erringly place these burdens on respondent but, despite their disclaimer to the contrary, attempt to justify their action by supplying speculative means of abatement not suggested by the record. n6 For example, the unrebutted evidence was that lower guarding created the hazard of the loose shavings described in the lead opinion. [*8] Though complainant in no way contradicted respondent's evidence, my colleagues in disregard of the teaching in National Realty and Construction Company, Inc. v. OSAHRC, 489 F.2d 1257 (D.C. Cir. 1973), provide a rebuttal for him. n7 It is very likely that respondent could have shown the inviability of these measures, but it cannot do so when requirements for abatement are mentioned for the first time at the review level by two members of this Commission whose qualifications as experts on saw guarding techniques have not been established.

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n6 The feasibility of the measures suggested by the majority should have been proved by the complainant at the trial to establish the violation. The Act provides for the Secretary of Labor to be the enforcer of its provisions. The role of the Commission is strictly limited to adjudicatory functions. Dale M. Madden Construction, Inc. v. Hodgson, 502 F.2d 278 (9th Cir. 1974); Secretary v. Wetmore & Parman, Inc., 2 OSAHRC 288 (1973).

n7 In National Realty the Court of Appeals said that the Secretary of Labor is required to "formulate and defend his own theory of what a cited defendant should have done" [emphasis by the Court] and noted

"The Commission suggested that riders and drivers should have been discharged, but the Secretary neither suggested this sanction nor offered testimony on its appropriateness or probable utility. In short, the Commissioners attempted to serve as expert witnesses for the Secretary. This is not their role. The Secretary should have called his own expert or experts at the hearing."

It is clear to me that Messrs. Barnako and Cleary have served as "expert" witnesses for the Secretary of Labor in this case by formulating their own theory of what this respondent should have done.

[*9]

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I cannot assent to such a stacking of the cards against a party in a supposed "adjudicatory proceeding."

APPENDIX A

DECISION AND ORDER

Charles Preston, for Complainant

Robert Austin, for Respondent

Henry C. Winters, Judge

STATEMENT OF THE CASE

This is an action brought by the Secretary of Labor under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq) to affirm two citations, issued May 24, 1973, one alleging a serious violation and the other alleging three non-serious violations; and to affirm civil penalties totalling $525.00.

The citations were issued by the Secretary's area director as a result of an inspection made on May 9, 1973 n1 by a compliance officer at a building construction site at Moscow, Idaho where the Respondent, Apex Glass and Sash, Inc., a corporation doing business as Acme Glass Company, had employees engaged in the fabrication and installation of aluminum framed windows.

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n1 The Respondent has not contended that the citations, issued fifteen days after the inspection, were not issued with reasonable promptness as required by Section 9(a) of the Act.

[*10]

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By notice of contest, dated June 8, 1973, Respondent contested the citations and proposed penalties.

The Secretary in its Complaint, filed July 5, 1973, seeks to have the citations and proposed penalties affirmed. The Respondent in its Answer, filed July 17, 1973., admits the three non-serious violations and the penalties proposed therefor, but denies that the alleged serious violation occurred and that a penalty is appropriate.

This case was heard by this Judge at Spokane, Washington on September 13, 1973. Although afforded the opportunity to submit proposed findings and a brief, the parties chose not to do so.

DISCUSSION

Citation for Serious Violation Number 1 alleges as follows:

		Date on which
Standard or regulation	Description of	alleged violation
allegedly violated	alleged violation	must be corrected
	May 9, 1973

29 CFR 1910.212(a)(3)(ii)	Failure to guard the	June 25, 1973
	point of operation
	of the Dewalt radial
	arm saw, serial number
	644997, whose operation
	exposes employees to
	injury.

By Notification of Proposed Penalty, issued May 24, 1973, a penalty of $500.00 was [*11] proposed for the alleged serious violation.

The standard alleged to be violated, as well as other pertinent provisions, provide as follows:

1910.212 General Requirements for all Machines.

(a) Machine guarding.

(1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are -- barrier guards, two-hand tripping devices, electronic safety devices, etc.

(2) General requirements for machine guards. . . . The guard shall be such that it does not offer an accident hazard in itself. (Emphasis supplied.)

(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 [*12] from having any part of his body in the danger zone during the operating cycle.

On the date of the inspection, an employee of Respondent was operating a twelve-inch DeWalt radial arm saw to cut aluminum window framing material. The saw was equipped with a special circular blade suitable for cutting metal. There was installed on the cutting head an adjustable upper hood which completely enclosed the upper portion of the blade down to a point which included the end of the saw arbor. The saw had other factory-equipped safety features. The framing material being cut on this job was rectangular aluminum tubing with cross-sectional measurements of 2 3/4 inches by 7 1/2 inches. The tubing originally came in lengths varying from 16 to 24 feet. This tubing was then cut into smaller pieces to exact specifications, the smallest piece being some 16 inches long. Not only were straight 90 degree cuts made but other cuts, ordinarily referred to as miter cuts or bevel cuts, were regularly being made. The saw was in use 40 percent of a working day.

The compliance officer, an electrical engineer, expressed the opinion that the point of operation of the radial saw was not properly guarded [*13] because there was no guard to prevent an operator's hand or arm from coming into contact with that part of the blade which is below the upper hood and not buried in the material being cut. When asked by this Judge whether in effect it was his position that a metal cutting radial saw should be provided with the same kind of lower guard as 29 CFR 1910.213(h) requires for a wood cutting radial saw, he replied that he was being a bit more general than that and that this is a metal-cutting saw and he thought special consideration has to be given to the material being utilized. (TR 33). He further expressed the opinion that the aforementioned type of lower guard would be adequate, adding (TR 34):

. . . Had I seen that kind of a guard on the saw, I would have acknowledged that the saw was in compliance with our standard. But there are different types of extrusions that are being cut, aluminum extrusions that I would have to consider, depending on the situation.

The compliance officer expressed the opinion that if the operator's body comes into contact with the rotating blade, severe lacerations or amputations can occur. When asked in what manner would an operator possibly come in contact [*14] with this saw, he testified (TR 20):

When the saw is used, the material is placed against a fence, in general, and the saw is pulled forward through the material. There is a possibility that the operator's hand could slip and move into the path of the saw. There is always the possibility that after the saw has cut the material, that the material being adjusted before the saw is returned to the starting position, if there is an adjustment made while the saw is extended, again the employee would be exposed to the blade.

When asked by the Judge if he could give an example of an incident in connection with the operation of a radial arm saw which he knew occurred but which would not have occurred if the aforementioned type of lower guard were installed, the compliance officer replied (TR 56):

Again I would have to speculate. In a situation that was pointed out to me, the man came in at about a 45-degree angle to the saw blade and he apparently wasn't aware of how he was approaching the saw, the first thing he contacted or touched was the saw blade. He withdrew his hand, but he still sustained a severe cut on the hand. Had there been a guard there, he would have undoubtedly touched [*15] the guard the same way but he would have withdrawn his hand after striking the guard. (Emphasis supplied.)

During the actual cross-cutting operation, the operator of the radial arm has one hand on the material being cut and the other hand on the handle attached to the cutting head. There is a switch attached to the handle of the cutting head by which the motor driving the saw is activated. Before the cutting is commenced, the cutting head is pushed back behind the fence. The switch is turned on and the cutting head is pulled through the fence and through the material being cut. When as here, the smallest piece being cut is 16 inches long, there is no occasion for the operator to have any part of his body in front of or near the cutting edge of the blade during the actual cutting operation. Nor is there any reason for the hand holding the material to exert force in the direction of the spinning blade, either to the front, side or rear of it.

The following testimony was elicited from the compliance officer concerning his idea of a type of factual situation which would give an operator reason to put his hand near the blade (TR 63, 64):

Q. In your observation of the operation [*16] of radial arm saws, do you have any knowledge of whether or not, at the time the operator pulls the saw out past the material being cut, there is any need to sometimes reach behind the saw -- in particular when metal is being cut?

A. Sometimes when metal is being cut the burrs and pieces of metal that have been cut don't always clear the cut, and I've had metal workers tell me that before they push the saw back through the material they will sometimes clear the path on the meterial that has been cut. If it is not done, I was told that these burrs and pieces of material can be caught and thrown back as the saw is pushed back through the material.

Judge Winters: Before we go to another subject, didn't they also tell you that they turn the blade off and let it stop before they reached in and cleared the material?

The Witness: No sir, they didn't tell me that. That would be the safe thing to do.

* * *

Q. (Judge Winters). Or else use some instrument like a long brush?

A. Yes.

Respondent's president, who has been in the window construction business since 1959 and who is affiliated with other companies in the same business, had never prior to the inspection heard of a lower [*17] guard for a radial arm saw. Respondent has since the inspection installed a lower guard on the saw here involved which would appear to meet the objections of the compliance officer. In the opinion of this official, this lower guard does not prevent the operator from having any part of his body in the danger zone during the operating cycle so as to satisfy the apparent literal requirements of the standard. This official is of the opinion that no such guard can be designed. He believes the guard creates additional hazards because it interferes with the vision of the operator and because the guard lessens the suction to the rear so that "you don't have as much vacuum and shavings come out of each side of it more so than it did without the guard." (TR 104). In the opinion of this official who has had 45 years of mechanical experience, the saw is more dangerous with the lower guard attached.

An employee of Respondent who has operated radial saws for more than 15 years had prior to the inspection never heard of a lower guard such as is now installed on Respondent's saw. In his opinion, the lower guard presently on the saw does not provide additional protection except that perhaps [*18] when the saw is behind the fence and not cutting, the guard provides some protection against contact from the side.

It is the conclusion of this Judge that the Secretary has not convincingly demonstrated that the radial arm saw was not at the time of the inspection so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle. The Respondent had all guards upon the machine that could be reasonably required under a standard using such general language.

The features of a radial arm saw which make it relatively safe to operate in a cross-cutting operation are the fact that the material being cut remains stationary and the fact that it keeps both hands of the operator occupied in such a way that they cannot slip and go accidentally into the point of operation. The fact remains, however, that a radial arm saw is a dangerous instrumentality. As long as it is capable of being used as a power saw, it will remain a dangerous instrumentality, despite the installation of barrier-type guards. On the basis of the record in this case, this Judge is unable to conclude that the saw in question could be made safer by [*19] the installation of additional guarding. The Secretary's case is weakened because the language neither of the citation nor of the standard informs the Respondent precisely what it must do to be in compliance. The compliance officer is sincere and candid but his opinions are based to a large extent upon speculation and unsubstantiated hearsay. He is an electrical engineer and does not purport to be a specialist in the field of saw guarding. This Judge is unable to conclude that the installation of a lower guard such as is described in 29 CFR 213(h) would not create an accident hazard in itself. The standard at 29 CFR 1910.212(a)(2) prohibits the use of a guard which creates an accident hazard in itself.

The citation for serious violation and the proposed penalty of $500.00 should be vacated.

There is a serious question as to whether 29 CFR 1910.212 has application to power tools used in construction, such as the radial arm saw here involved. Paragraph 1 of Secretary's Complaint alleges and Respondent's Answer admits that at the time of the inspection the Respondent was engaged in construction work as defined in 29 CFR 1910.12(b). The provisions of 29 CFR 1910.12(a) state that [*20] the standards prescribed in Part 1926 shall apply to every employment and place of employment of every employee engaged in construction work. It may be that the provisions of 29 CFR 1926.300(b)(1), relating to general guarding requirements of power tools, are more appropriately applicable than the standard relied upon by the Secretary. Because this issue was not raised or discussed by the parties, the Judge has not considered it in rendering this decision.

The Judge finds that Citation Number 1, consisting of Item Numbers 1, 2 and 3, and the penalties proposed therefor should be affirmed; and that Citation for Serious Violation Number 1 and the penalty proposed therefor, should be vacated.

In view of the findings made herein, IT IS ORDERED:

(1) Citation Number 1, issued May 24, 1973, be and it is hereby affirmed;

(2) Citation for Serious Violation Number 1, issued May 24, 1973, be and it is hereby vacated; and

(3) Notification of Proposed Penalty, issued May 24, 1973, to the extent that it proposes penalties for the violations alleged in Item Numbers 1, 2 and 3 of Citation Number 1 be and it is hereby affirmed; and to the extent that it proposes a penalty for the violation [*21] alleged in Citation for Serious Violation Number 1 be and it is hereby vacated.

Dated at Seattle, Washington this 1 day of April, 1974.

HENRY C. WINTERS, Judge