HAMILTON LUMBER COMPANY

OSHRC Docket No. 9764

Occupational Safety and Health Review Commission

May 24, 1976

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BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

William S. Kloepfer, Associate Regional Solicitor, U.S. Department of Labor

John V. Griesmer, Hamilton Lumber Company, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This matter is before us pursuant to 29 U.S.C. §   661(i) on review of a report of Administrative Law Judge Donald K. Duvall.   Judge Duvall recommended affirmance of Complainant's notification alleging that Respondent had failed to correct three violations of the Occupational Safety and Health Act of 1970 n1 within the period of time prescribed for their correction, and he would assess an aggregate penalty of $100 therefor.

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n1 29 U.S.C. §   651 et seq., hereinafter "the Act."

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We have reviewed the record, including the parties' submissions before us on review.   Respondent argues as it did before the judge that installation of guards on the lower portion of the blades of its cutoff saws as required by Complainant's woodworking machinery standards would result in increased hazards to its employees [*2]   and that one saw was not shown to have been in use when observed by Complainant's inspector.   Respondent also contends that the penalty the judge would assess does not reflect proper consideration of the criteria specified in the Act.   Lastly, Respondent argues that in any event it is not subject to the Act because it is not engaged in a business affecting commerce. Complainant asks that we adopt the judge's report in its entirety.

With respect to the evidentiary issues raised by Respondent, it is sufficient that Judge Duvall weighed the evidence and that his findings are supported by the preponderance of the evidence. n2 We further agree with the judge that the record is sufficient to show that Respondent's business affects commerce within the meaning of the Act, and we also conclude that he properly disposed of the other issues before him. n3 Finally, the penalty the judge would assess is appropriate in the circumstances. n4

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n2 Respondent argues that the inspector was not qualified to testify concerning the hazards associated with woodworking machinery but did not adduce any evidence in support of its position.   The record shows that this witness has some familiarity with saws similar to those used in Respondent's plant, and the judge found his testimony credible. In the circumstances there is no basis on which to disturb the judge's finding.

n3 Respondent also argues before us an issue relating to the constitutionality of the penalty assessment provisions of the Act.   We have said that we do not have authority to rule on the constitutionality of the Act.   American Smelting & Ref. Co., 4 OSAHRC 445, BNA 1 OSHC 1256, CCH OSHD para. 16,456 (1973), aff'd, 501 F.2d 504 (8th Cir. 1974). In any event, arguments of the kind raised by Respondent have been rejected by the courts.   Dan J. Sheehan Co. v. OSHRC, 520 F.2d 1036 (5th Cir. 1975), cert. denied, 44 U.S.L.W. 3528 (U.S. Mar 22, 1976); Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1215 (3d Cir. 1975) (en banc), cert. granted, 44 U.S.L.W. 3525 (U.S. Mar. 22, 1976); Atlas Roofing Co. v. OSHRC, 518 F.2d 990 (5th Cir. 1975), cert. granted, 44 U.S.L.W. 3525 (U.S. Mar. 22, 1976); American Smelting, supra.

n4 However, we disagree with the judge that Respondent's entitlement to credit for good faith "appears doubtful" because on the facts it demonstrated "clear opposition" to the requirements of the standards.   In our view these conclusions are unsupported by the evidence and do not appropriately characterize Respondent's position.   Moreover, we note that the judge specifically found that Respondent on or prior to the inspection at issue had made some efforts to ascertain the type of lower blade guard available for its cutoff saws and to locate a supplier of such guards. Therefore it cannot be said that Respondent acted in bad faith in this matter.   From the numerous cases which have been before us on this question, we are well aware that in certain situations employers have encountered some difficulty in complying with Complainant's saw-guarding standards.   An application for a variance or a petition for modification of the abatement period pursuant to the Act and the Commission's rules is available in the proper circumstances.

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Accordingly, we adopt Judge Duvall's report.   So ORDERED.  

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

  1910.213 were improperly promulgated.   Accordingly, Judge Duvall's finding that respondent had failed to abate three alleged violations thereof within the time fixed in the original citation should be vacated.   In addition, two of these charges should be vacated because complainant failed to establish that respondent did not abate the hazards alleged therein.

Items 5 and 6 of the original citation alleged that respondent's De Walt radial saw was not guarded and installed as required by 29 C.F.R. §   213(h)(1) and (h)(4), respectively.   That citation fixed an abatement date of August 15, 1974, for both items.   The reinspection which resulted in the instant proceedings was conducted on August 20, 1974, the third working day after the abatement date specified in the original citation.

The evidence shows that at the   [*4]   time of the initial inspection respondent did not possess the necessary material for correcting the alleged defects in the radial saw.   At the time of reinspection, the material was on hand to correct the deficiencies, but it was not installed. The saw, however, was not in operation.   Although, the respondent's president testified that the saw was used approximately four hours per week, he also testified that a week might go by without the saw being used.

Where, as here, the original citation is uncontested and there is a reinspection subsequent to the expiration of the abatement date specified in that citation, a prima facie case of failure to abate must include evidence that: (1) the original citation has become a final order of the Commission, and (2) the condition or hazard found upon reinspection is the identical one for which the respondent was originally cited.     abatement date specified in the original citation.

In the instant case, the evidence fails to establish that the radial saw was used at any time between August 16 and 20, 1974.   Moreover, even if it were assumed that the radial saw was in use during this time, complainant has failed to prove that the saw was not properly guarded during such use.   Since the necessary material for correcting the previously cited condition was available at the time of the inspection it would be just as reasonable to assume that the guard was used as to assume the contrary.   Irrespective of these assumptions, however, the fact remains that the complainant's case does not establish employee exposure to the alleged violative conditions pertaining to the radial saw.   Since the purpose of the Act is to protect employees from work injuries and illnesses, a showing of employee endangerment to a substandard work condition is an essential element of proof of a violation of the Act.   Thus, the affirmance of a failure to abate those conditions in the absence of such evidence is improper.

Since my colleagues rely heavily on Judge Duvall's decision, that decision is attached hereto as Appendix A so that it can   [*6]   be considered on its merits.

APPENDIX A

DECISION AND ORDER

Gregory B. Taylor, U.S. Department of Labor, for Complainant

John V. Griesmer, President, Respondent

DUVALL, D. K., Judge, OSAHRC

This is a proceeding pursuant to sections 9 and 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter "the Act") contesting the penalties proposed in a Notification of Failure to Correct Alleged Violation and of Proposed Additional Penalty, issued by complainant to respondent on August 26, 1974.   Said penalties, in the total amount of $100.00, were based on an OSHA reinspection of respondent's retail lumber yard in Hamilton, Ohio, on August 20, 1974.   The initial OSHA inspection of respondent's workplace on May 15, 1974 resulted in the issuance of a citation for alleged non-serious violation of seven (7) occupational safety and health standards without any proposed penalties therefor, which uncontested citation became a final order of the Commission pursuant to section 10 of the Act.   Violation item numbers 2, 5 and 6 of said citation were alleged to have been uncorrected on the reinspection date and respondent here contests only the penalties of [*7]   $50.00, $25.00, and $25.00 respectively, proposed for respondent's alleged failure to correct these violations.

At the hearing held at Cincinnati, Ohio, on December 4, 1974, respondent admitted that the alleged violation items were uncorrected on the reinspection date, but asserted in defense that the existing guards on the cited cutoff and radial saws were adequate, that the required guards were available although not installed on the reinspection date, and that the cited saws were not in use at the time.   No affected employee or representative of affected employees has asserted party status in this matter.   A post-hearing brief was submitted by complainant.

The issues for decision herein are:

(1) The jurisdictional question of whether on the material dates respondent was an employer engaged in a business affecting commerce within the meaning of sections 5(a)(2) and 3(5) of the Act.

(2) Whether on the reinspection date at the cited workplace respondent was in continuing violation of the occupational safety and health standards set forth at 29 CFR 1910.213(r)(4) (Item 2), 1910.213(h)(1) (Item 5), and 1910.213(h)(4) (Item 6), under sections 5(a)(2) and 6 of the Act.

(3) If violations [*8]   are found, whether the proposed penalties are appropriate under section 17 of the Act.

Respondent's motion, in effect, to dismiss the penalties because the reinspection was unlawfully conducted without a warrant was denied at the hearing on the basis of the applicable law which upholds the constitutionality of warrantless searches in circumstances similar to those present here.   Secretary of Labor v. Buckeye Industries, Inc. and James E. Ledford, 374 F. Supp. 1350 (S.D. Ga., 1974); CCH OSHD, paragraph 17,937 (1973-74); accord, The Youghivgheny and Ohio Coal Company v. Secretary of the Interior, 364 F. Supp. 45 (S.D. Ohio, 1973), CCH OSHD paragrpah 17,020 (1973-74).

Discussion

Respecting the jurisdictional issue, section 5(a)(2) of the Act provides that each employer shall comply with occupational safety and health standards promulgated under the Act.   Employer, as defined in section 3(5) of the Act, means a person engaged in a business affecting commerce who has employees.   Credible testimonial evidence of record clearly establishes that respondent here has employees (Tr. 69) and that substantial amounts of the lumber and woodworking machinery, particularly   [*9]   the saws cited herein, while purchased, used or marketed locally or within the State of Ohio, originated outside of the State of Ohio (Tr. 36, 85-87).   It is beyond dispute that this evidence is ample to show that respondent was "engaged in a business affecting commerce" within the meaning of the Act.   Brennan v. OSAHRC and John J. Gordon Company, 492 F.2d 1027 (2d Cir., 1974, citing, inter alia, NLRB v. Fainblatt, 306 U.S. 601, 604-605 (1939) and United States v. Ricciardi, 357 F.2d 91, 97-98 (2d Cir.), cert. den'd, 384 U.S. 942, 385 U.S. 814 (1966). Use of the phrase "affecting commerce" in section 3(5) of the Act indicates Congress intended the Act to have broad coverage.  

Violation item 2 of the citation specifies two Porter cutoff saws, one in the mill and one in the office (second floor), as lacking lower blade guards in violation of the standard set forth at 29 CFR 1910.213(r)(4), which provides as follows:

"§   1910.213 Woodworking machinery requirements.

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(r) Miscellaneous woodworking machines.

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(4) The mention of specific [*10]   machines in paragraphs (a) thru (q) and this paragraph (r) of this section, inclusive, is not intended to exclude other woodworking machines from the requirement that suitable guards and exhaust hoods be provided to reduce to a minimum the hazard due to the point of operation of such machines."

The specific requirement of paragraph (r) of this standard with respect to "suitable guards" for the cited Porter cutoff saws, which are not specifically mentioned in paragraphs (a) thru (q) of the general 213 standard, is derived from paragraph (g) of the same standard (Tr. 40-44), which provides in pertinent part as follows:

"(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 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   [*11]   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."

The credible unrebutted testimony of compliance officer Bonkowski was that the lower portion of the blades of the two cited Porter cutoff saws were unguarded at both the first and second inspections (Tr. 27-29).   Respondent's president admitted that at least one of the cutoff saws was used by the full-time mill employee and yard employees for a total of about 5 hours per week (Tr. 69, 79-80).   The cited hazard consists of exposure of the saw operator's hands and fingers to the cutting edge of the blade (Tr. 28).   Fingers might also be cut by the saw should the saw swing or drift forward due to a possible malfunction of the spring or counterweight mechanism of the saw (Complainant's Exhibit C-1, p. 1).

Respondent contends that installation of a suitable guard for the lower part of the blade of the cited cutoff saws would make those saws less safe and unworkable because such additional guard would deceive the operator in that the lower blade guard, while appearing to completely shield [*12]   the blade of the saw (Complainant's Exhibit C-2, Fig. 27-5).   Would probably not prevent cutting or amputation of fingers by the blade during operation since the guard would ride up over the material being cut and not protect any thumb or other finger of the operator gripping the material and inadvertently in the cutting blade's line of operation.   It is contended that even if the guard touched the operator's finger an instant before the saw blade, the operator's normal reaction time would probably not save one or more of his fingers from being cut (Tr. 77-79).   Respondent further argues that the required lower blade guard would prevent a clear view of the saw blade at the point of operation thus decreasing the likelihood of risk-awareness and avoidance by persons in clsoe proximity to the operating saw and rendering more difficult the cutting of material along a pre-marked line (Tr. 50-51, 62-63, 81-82).

Respondent also asserts, on the basis of his substantial experience in managing this family-owned lumber yard and contacts within the industry, that use of the cutoff saws without a lower blade guard is not hazardous and that he had never seen the prescribed lower blade guard on [*13]   any cutoff saws and has been unable to fabricate such a guard or to discover a source of supply for obtaining such a guard for its cutoff saws (Tr. 54, 67, 74-76, 83, 99).   Compliance officer Bonkowski stated that in his inspection over a two-year period of some 80 establishments that use saws, he never saw another cutoff saw, much less a lower blade guard on a cutoff saw (Tr. 98-101).   Mr. Griesmer testified that respondent had never had an accident with the cutoff saws, which lumber dealers he talked to considered adequately guarded as shown in the photographs R-1 through R-4 (Tr. 74).

While Mr. Griesmer indicated that the cited standard appeared to omit cutoff saws from the lower guard requirement specified for other types of saws and was at least vague in its wording respecting the guarding required on cutoff saws (Tr. 58, 61), respondent did understand the suitable guard requirement of the standard (Tr. 58, 76-77).   He basically considered it unnecessary or even detrimental from a safety standpoint for the reasons summarized above.   In other words, respondent's contention is that while the cited standard may have put it on notice that "suitable guards" were required on woodworking [*14]   machines other than those mentioned in the subparagraphs under section 1910.213 of the occupational safety and health standards, the lower blade guard required in those subparagraphs specifically for other types of saws, e.g., swing cutoff saw, was not, in respondent's experience, a "suitable" guard for its Porter straight pull cutoff saws, for the reasons previously stated, among others.

The cited standard, like most safety rules, does not purport to provide absolute protection in operating woodworking machines but only suitable guards "to reduce to a minimum the hazard due to the point of operation of such machines." Credible testimonial and documentary evidence submitted by complainant reasonably shows that lower blade guards on the cited cutoff saws would minimize the hazards of likely substantial injury to hands and fingers by reason of contact with the sides or teeth of the saw blade through inadvertence or malfunction of the saws in the course of operation (Tr. 28, 90-91, 97-98; Complainant's Exhibit C-1).   The fact that the required guard would touch a finger or hand in the line of cut of the saw blade barely an instant before the blade, allowing perhaps insufficient reaction [*15]   time for the affected person to withdraw his finger or hand to avoid the hazard, does not, as a matter of law, render such guard unsuitable for the cited cutoff saws.   The instant increment of warning provided by the guard in such a circumstance would tend to minimize the resultant injury, if not avoid it.

The argument that a guard-covered blade not easily visible would decrease risk awareness by those in proximity to the saw is insubstantial since the lower blade guard could be translucent (Tr. 85) or vented for limited visibility (Complainant's Exhibit C-2).   Also, there are other aspects of an operational saw, such as motor noise and switch-on procedures, which usually are risk-alerting to the saw operator or others in the immediate vicinity.

While a lower blade guard on respondent's cutoff saws may make precision cutting more difficult with these saws, the evidence does not establish that such cutting, e.g., along a pencil line, would be impracticable or impossible (Tr. 50-51, 96-97).   Respecting the availability and installation of the specified lower blade guards, Mr. Bonkowski's unrebutted testimony was that two types of such guards are manufactured, one of which, a hinged [*16]   folding type, could be attached to the hood presently on the cited saws (Tr. 92); further, the National Safety Council could direct respondent to specific suppliers of the required guard (Tr. 99-100).

On balance, I find that complainant has sustained its burden of proof that on the reinspection date (August 20, 1974) respondent was in continuing violation of the standard set forth at 29 CFR 1910.213(r)(4).

Respecting item 5 of the Notification of Failure to Correct Alleged Violation and of Proposed Additional Penalty, section 1910.213(h)(1) of CFR Vol. 29 provides:

"(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 stock being cut to give maximum protection possible [*17]   for the operation being performed."

Compliance officer Bonkowski testified that he observed no lower blade guard on the DeWalt radial saw at respondent's workplace both on his first inspection and reinspection over three months later (August 20, 1974) (Tr. 30-31).   Respondent's president conceded that the radial saw was not guarded as alleged, but stated that materials were on hand to correct the deficiency and that the saw was not in operation at the time of the reinspection (Tr. 51, 70-71; respondent's letter to OSHA dated August 29, 1974; Case File, item 3).   While the radial saw was not observed in operation on the reinspection date, Mr. Griesmer testified that it is used about four hours per week, although a week might go by without using this saw (Tr. 73).   He further testified that while he still does not have a high opinion of the lower blade guard on this saw, it was installed a day or two after the reinspection, and is on probably 40% of the time during use due to the different types of work performed with the saw (Tr. 70-71).   The record is clear that sawyers are exposed to the unguarded portion of the saw blade when the saw is used and that amputation of an extremity   [*18]   would be the most probable result of an accident.  

Respecting item 6 here contested, 29 CFR 1910.213(h)(4) provides:

"(h) Radial saws. . .

(4) Installation shall be in such a manner that the front end of the unit will be slightly higher than the rear, so as to cause the cutting head to return gently to the starting position when released by the operator."

Compliance officer Bonkowski testified that on both the first inspection and reinspection of respondent's workplace he observed that the DeWalt radial saw (same saw as in item 5 of the Citation) did not automatically return to its starting position when released (Tr. 31).   Mr. Griesmer stated that the materials necessary to correct this deficiency were on hand at the time of the reinspection, but the saw was not in operation and respondent did not believe the required modification would improve the safety of the saw (Tr. 51; Case File, J-1).   I find no evidence of record to rebut Mr. Bonkowski's testimony that noncompliance with the cited standard increases the hazard of a person's fingers making contact with the rotating   [*19]   saw blade (Tr. 31).   Accordingly, complainant has satisfied its burden of proof on this issue.

Penalty-wise, Mr. Bankowski testified that the proposed additional penalty of $100.00 for failure to correct violation items 2, 5 and 6 was computed as of the reinspection date (August 20, 1974), which was five days beyond the abatement date set for these violations in the citation (Tr. 31-32).   The $100.00 per day additional penalty for each violation prescribed in complainant's Compliance Operations Manual was reduced to a total of $100.00 for all three violations for the entire five-day period on the basis of credits for respondent's good faith in having the materials on hand to correct items 5 and 6, the low operating time of the cited saws, and the small size of the company (Tr. 33-35).

There is no question that serious physical harm can result from the failure to guard saws.   Pack River Lumber Company, supra.   In determining the additional penalties for failure to correct hazards of this gravity, it is reasonable and consistent with section 17 of the Act to consider the low number of violative occurrences and respondent's small size.   In view of the record evidence of respondent's [*20]   clear opposition to the lower guard standard, at least as applied to its cutoff saws, even after the initial citation for the same violation became a final order (Tr. 77), respondent's entitlement to any credit for good faith appears doubtful.   But, on balance, an assessment of a civil penalty in the total amount of $100.00 is not unreasonable.

Findings of Fact

The record herein, as a whole, contains reliable, probative, and substantial evidence to support the following findings of fact:

1.   Respondent, a company engaged in the retail lumber business, maintains a place of employment (workplace) in Hamilton, Ohio, where on or about August 20, 1974, it employed 13 full-time and 2 part-time employees and in 1973 had gross sales of approximately one million fifty thousand dollars.   Respondent's woodworking shop, where the cited saws are located, is small, with only one employee there employed (Tr. 9-10, 21, 69, 85-86; Complaint; Answer).

2.   In its business respondent purchases, processes and markets or uses within the State of Ohio lumber and woodworking machinery, including saws originating outside of the State of Ohio (Tr. 36, 85-87).

3.   On August 20, 1974, complainant's   [*21]   compliance officer reinspected respondent's workplace and observed two Porter cutoff saws and a DeWalt radial saw, all without a lower blade guard. The DeWalt radial saw also was observed to not automatically return to its starting position when released.   These same conditions were observed by the same officer on his initial inspection of respondent's workplace on May 15, 1974, and resulted in complainant's issuance of an earlier citation containing these three violation items, among others, which citation was not contested by respondent (Tr. 11-15, 26-31; Citation; Notification of Failure to Correct Alleged Violation and of Proposed Additional Penalty; Complainant's Exhibits C-1, C-2, C-3 and C-4).

4.   On the reinspection date, respondent had materials on hand to correct violation items 5 and 6 relating to the DeWalt radial saw but they were not installed, nor was the saw being used (Tr. 51, 70-71).

5.   On or before the reinspection date, respondent had made some efforts to ascertain the nature and source of supply of a lower blade guard for its Porter cutoff saws (Tr. 58-67).

6.   The hazard of using cutoff and radial saws without a lower blade guard is possible amputation or [*22]   serious physical harm to extremities, such as fingers. The hazard of a radial saw which does not automatically return to its starting place when released is to increase the exposure to the revolving saw blade (Tr. 28, 30, 61; Complainant's Exhibit C-1).

7.   The cited Porter cutoff saws are used by respondent's mill-hand and some yardmen about five hours a week; the cited DeWalt radial saw is similarly used about 4 hours a week (Tr. 69, 73, 79-80).

8.   In proposing the additional penalties for the alleged three violations contested herein, complainant considered the gravity of the alleged violtions, respondent's history of previous violations and good faith, and the small size of respondent's business (Tr. 33-35).

Conclusions of Law

1.   At all times material hereto respondent was an employer engaged in a business affecting commerce within the meaning of sections 5(a) and 3(5) of the Act, and the Commission has jurisdiction of the parties and the subject matter herein under section 10 of the Act.

2.   At all times material hereto respondent was subject to the requirements of the Act and the occupational safety and health standards promulgated thereunder pursuant to section   [*23]   6 of the Act, including the standards cited herein.

3.   On August 20, 1974, at its workplace, respondent was in non-serious violation of the occupational safety and health standards set forth at 29 CFR 1910.213(r)(4), 1910.213(h)(1), and 1910.213(h)(4) under sections 5(a)(2) and 6 of the Act.

4.   The proposed additional penalty of $100.00 is appropriate under section 17 of the Act, and should be assessed.

5.   The Notification of Failure to Correct Alleged Violation and of Proposed Additional Penalty should be affirmed.

It is so ORDERED.

DONALD K. DUVALL, Judge, OSAHRC

Dated: MAY 1, 1975, Hyattsville, Maryland