UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY
OF LABOR, |
|
Complainant, |
|
v. |
OSHRC
DOCKET NO. 10096 |
THE
GOULD-MERSEREAU CO., INC., |
|
Respondent. |
|
July 21, 1976
DECISION
BEFORE BARNAKO, Chairman; MORAN and CLEARY,
Commissioners.
MORAN, Commissioner:
A
decision of Review Commission Judge James D. Burroughs, dated March 31, 1975,
is before this Commission for review pursuant to 29 U.S.C. § 661(i).
Having
examined the record, the Commission finds no prejudicial error therein.
Accordingly, the Judge’s decision is hereby affirmed in all respects.
FOR THE COMMISSION:
William S. McLaughlin
Executive Secretary
DATED: JUL 21, 1976
CLEARY, Commissioner, DISSENTING:
What is before us is Item No. 2 of a citation for
nonserious violations for the alleged failure of respondent to guard the point
of operation of a horizontal milling machine as required by 29 CFR §
1910.212(a)(1). The guarding was absent. The majority however finds no error in
the Judge’s holding that the evidence does not support a determination that the
point of operation of the machine exposed employees to injury.
The evidence establishes only a remote possibility of
injury. Under these circumstances and consistent with Commission precedent, the
violation should be characterized as de minimis. Van Raalte Company, Inc.,
4 BNA OSHC 1151, 1975–76 CCH OSHD Para. 20,633 (No. 5007, 1976).
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY
OF LABOR, |
|
Complainant, |
|
v. |
OSHRC
DOCKET NO. 10096 |
THE
GOULD-MERSEREAU CO., INC., |
|
Respondent. |
|
March 31, 1975
DECISION AND ORDER
Appearances:
Diane Zwerling, Esquire, Office of the
Solicitor U. S. Department of Labor, New York, N. Y., on behalf of complainant.
Jacob Fogelson, Esquire, New York, N. Y.,
on behalf of respondent.
STATEMENT OF CASE
BURROUGHS, Judge:
This
is a proceeding under section 10(c) of the Occupational Safety and Health Act
of 1970, 29 U.S.C. 651 et seq., 84 Stat. 1590 (hereinafter ‘Act’). Respondent
seeks review of items 2, 11 and 12 of a non-serious citation issued to it on
September 3, 1974, pursuant to section 9(a) of the Act. Review is also sought
of the penalties proposed for items 1, 2, 3, 5, 9 and 13 of the citation. No
penalties were proposed for the other items set forth in the citation.
The
citation and notification of proposed penalty were issued as the result of an
inspection conducted on August 22, 1974, of respondent’s manufacturing plant
located at 35 West 44th Street, New York, New York. It is engaged in the
manufacture of drapery hardware.
The
citation alleges that respondent violated section 5(a)(2) of the Act by failing
to comply with thirteen standards promulgated under the Act. The respondent, by
letter dated September 20, 1974, and received by complainant on September 23,
1974, timely advised complainant that it desired to contest the citation and
proposed penalties. At the hearing, respondent conceded all of the alleged
violations except for items 2, 11 and 12. (Tr. 4–5).
The
non-serious citation issued to respondent alleges that the contested items
violated the standards indicated and were described as follows:
Item
No. |
Standard |
Description |
2 |
1910.212(a)(1) |
Machine
guarding was not provided to protect the operator and other employees in the
machine area from the hazards of operation: A.
Rolling Mill Dept. 1.
No nip point guard on feed rollers of Yoder Mill Ser. #7986 2.
No foot pedal guard on Bliss Power press 0–18 B.
Sub-Assembly Dept. 1.
No point of operation guard on eight (8) Chicago Riveting Machines 2.
No point of operation guard on Detroit screwdriver C.
Brown & Sharpe horizontal milling machine Ser. #3814 in tool room, no
cutter guard. D.
Power Press Dept. 1.
No point of operation guard on two (2) Chicago Riveting Machines 2.
No protection for other employees on ring saw |
11 |
1910.215(b)(5) |
Safety
guard was not provided to cover the periphery and side of the abrasive
grinding wheel on the Boyar-Schultz surface grinder in tool room in
accordance with figure 0–12. |
12 |
1910.213(p)(4) |
Belt
sander in tool room was not provided with: 1.
Guards at each nip point where the sanding belt runs on to a pulley. 2.
Guard for the unused run of the sanding belt. |
Sub-item
A of item 2 and sub-item 1 of item 12 was conceded by respondent. (Tr. 4–5).
The abatement date for item 2 as it applies to the riveting machines was also
placed in issue by the respondent. (Tr. 93). The citation specified an
abatement date of October 25, 1974, for item 2.
All
penalties proposed in the notification of proposed penalties issued to
respondent on September 3, 1974, were contested. In addition to item 2 which
was contested, penalties were proposed for items 1, 3, 5, 9 and 13. These uncontested
violations involved standards and were described by the citation as follows:
Item
No. |
Standard |
Description |
1 |
1910.242(b) |
Compressed
air used for cleaning purposes was in excess of 30 psi and without effective
chip guarding: 1.
One air gun in rolling mill dept. 2.
Two (2) air guns in tool room |
3 |
1910.22(b)(2) |
Permanent
aisles and passageways in the work and storage areas were not designated by
appropriate markings. |
5 |
1910.22(a)(1) |
Rolling
mill dept. was not kept in a clean and orderly condition. Materials are
stored throughout dept. |
9 |
1910.107(e)(9) |
Fifty-five
gallon drum of lacquer thinner was not bonded to the smaller can into which
it is being dispensed. |
13 |
Nat’l
Electric Code NFPA 70–1971 as adopted by 1910.309(a) Article 250–42 |
Exposed
noncurrent-carrying metal parts of fixed equipment within 5 feet horizontally
or 8 feet vertically of grounded metal objects was not grounded: 1.
Two (2) fans in assembly area 2.
Stapler in assembly area 3.
Walker-Turner drill press #1944 in sub-assembly 4.
Fan in sub-assembly 5.
Fan near Storage area (flammables) |
A
hearing was held in this case on November 26, 1974, in New York, New York. No
additional parties desired to intervene in the proceeding.
JURISDICTION AND ISSUES
Respondent
concedes that all times material to this proceeding it was engaged in a
business affecting commerce within the meaning of the Act and that the
Commission has jurisdiction of the parties and of the subject matter herein.
(Pars. I, III, Complaint and Answer; Tr. 4).
The
following issues are pertinent to a disposition of this case:
1.
Did respondent violate section 5(a)(2) of the Act by failing to comply with the
standards published at 29 CFR 1910.212(a)(1), 29 CFR 1910.215(b)(5) and 29 CFR 1910.213(p)(4)?
2.
Was October 25, 1974, a reasonable abatement date for the correction of 29 CFR
1910.212(a)(1) if a violation is determined to have existed?
3.
What penalties, if any, should be determined for any violation of 29 CFR
1910.212(a)(1) that might be determined and for the uncontested violations of
items 1, 3, 5, 9 and 13 of the citation issued on September 3, 1974?
FINDINGS OF FACT
The
evidence of record has been carefully considered and evaluated in its entirety.
The facts hereinafter set forth are specifically determined in resolving the
issues in this case:
1.
Respondent, Gould-Mersereau Company, Inc., is a New York Corporation with its
principal office located at 35 West 44th Street, New York, New York. It is
engaged in the manufacture of drapery hardware. (Par. II, Complaint and Answer;
Tr. 4, 7).
2.
Respondent’s total annual gross revenues is two million dollars. The average
daily employees during 1974 was approximately 50. (Stipulated, Tr. 4).
3. On
August 22, 1974, the complainant, through a duly authorized compliance officer,
conducted an inspection of respondent’s plant located on 44th Street, New York,
New York. (Tr. 7).
4.
Respondent’s manufacturing facilities are housed in three interconnected brick
buildings which provide approximately 60,000 square feet of space. (Tr. 7, 44).
5.
Three air guns in the plant contained an air pressure from 80 to 85 pounds per
square inch. (Tr. 14). The guns were operational and were generally used by
approximately four persons. The guns were generally in constant use.
6.
Eight Chicago Riveting Machines in the sub-assembly department did not have the
point of operation guarded. Employees were observed operating the machines.
(Tr. 9, 20, 21–22). One employee operates the machine. (Tr. 91).
7. Two
Chicago Riveting Machines were located in the power press department. They did
not have the point of operation guarded. (Tr. 11).
8.
Three of the riveting machines were in operation at the time of the inspection.
All of the machines were used at various times. (Tr. 63, 64). Generally, two or
three of the machines are operated at any given period of time. (Tr. 91,
96–97).
9.
The riveting machines are activated by a foot pedal. They are mechanically
operated. The employee places two small pieces of metal into the machine on a
locating pin and activates the foot pedal. (Tr. 20, 21, 52, 53, 84, 89).
10.
The employee inserts the pieces with one hand and holds them with the other
hand while the foot pedal is activated. (Tr. 21, 22, 53–54). The pieces
inserted were short, round pieces. (Tr. 24, 52). The operator’s hands were from
one to three inches from the point of operation of the machines during the
riveting process. (Tr. 53).
11.
Chicago Riveting Machine Company and others manufacture guards and devices for
the riveting machines utilized by respondent. (Tr. 23, 24–25, 47–48, 88–89).
12.
Respondent devised a safety device which prevents an operator from activating
the machine when the fingers of the operator are in contact with the riveting
points. (Tr. 87–88). An outside electrician had to be employed to install the
device. (Tr. 87).
13.
Respondent has ordered a conversion kit to convert the machines from a
mechanical to an electrical operation so that the safety device can be
installed. The machines have to be converted to electricity prior to installing
the safety device. (Tr. 89, 97).
14.
During the year 1973, respondent had three injuries resulting from the use of
the riveting machines. One injury involved a rivet going through the index
finger of an employee. (Tr. 9, 47, 99).
15. A
pneumatic screwdriver located in the sub-assembly department did not have its
point of operation guarded. (Tr. 9).
16. A
horizontal milling machine was located in the tool room. It had no point of
operation guard on the cutter. (Tr. 10, 27). The machine was not being used by
an employee during the inspection. (Tr. 27, 54–55).
17.
The horizontal milling machine is used to out and shape parts. (Tr. 55). A
piece of metal is placed on a table which moves back and forth through the
points of operation whenever it is activated. The cutter is stationary and cuts
the metal as the table moves. (Tr. 27, 28, 31–32, 33, 56, 72). The cutter
automatically shaves off small pieces of metal until the desired shape or size
is achieved. (Tr. 30, 32–33, 72). The employee does not use his hands to push
the metal under the cutter. (Tr. 33).
18.
The horizontal milling machine is operated only by an experienced toolmaker.
(Tr. 74). His hands are close to the cutter when the piece of metal is set on
the table but are not closer than two feet to the cutter during the actual
operation. (Tr. 55, 73).
19.
Guards are available for a horizontal milling machine. (Ex. 1; Tr. 48–51).
20. A
table ring saw in the power press department contained no guard on the bottom
of the table. (Tr. 11).
21.
There were no aisles and passageways marked in the rolling mill department,
assembly department and the basement. Materials were stored throughout the
aisles. (Tr. 17, 18).
22.
Raw materials were stored in portions of the permanent aisles in the rolling
mill department. Empty boxes and paper were thrown on the floor. (Tr. 65–66).
23. A
fifty-five gallon drum of lacquer thinner stored in the flammable storage room
of the spray room was not bonded to the smaller can into which it was being
dispensed. The drum was grounded. (Tr. 18, 67). Two persons were observed in
the spray room. (Tr. 67).
24. A
Boyar-Schultz surface grinder was located in the tool room. The grinder was
being used at the time of the inspection without a guard to sharpen a tool.
(Tr. 11, 40, 60).
25.
The guard for the surface grinder was laying next to it. The guard was replaced
while the compliance officer was at the machine and the employee continued
sharpening the tool. (Tr. 11, 40, 60).
26.
Respondent’s assistant manager ordered the employee to replace the guard and to
keep it on at all times during the operation. The assistant manager had not
previously been aware of the removal of the guard. (Tr. 61).
27. A
horizontal belt sander located in the tool room did not have a guard for the
bottom and sides of the belt. The sander consisted of two rollers with a belt
going around the rollers. The belt was made of an abrasive material. There was
no guard for the nip points where the belt ran onto a pulley. (Tr. 10, 35, 37,
62, 77). The sander was in operation at the time of inspection. (Tr. 37–38).
28.
The upper or top portion of the belt was being used by employees in the tool
room. The sides and the bottom were not being used. The bottom of the belt was
an inch above the table. (Tr. 35, 38, 76–77, 81). The belt sander is used to
smooth parts. (Tr. 76).
29.
The unused portion of the belt run had been guarded by respondent at the time
of the hearing. (Tr. 77).
30.
Six pieces of equipment located in various areas were not grounded. The pieces
included five pedestal type fans and a stapler. (Tr. 19, 67, 68). Respondent’s
representative informed the compliance officer that the machines would be
grounded. (Tr. 40–41).
31.
The tool room is a separate department within the plant. It contains
approximately 2,000 square feet of space and is located in a separate walled
area which is accessible by doors. (Tr. 36, 51). Two employees work in the tool
room. (Tr. 36, 58, 81). No other employees were observed in the tool room. (Tr.
37, 59, 60).
32.
Respondent employed at least three persons in the rolling mill department and
approximately six persons in the assembly department. (Tr. 45, 46).
33.
No accident has occurred in respondent’s tool room in at least 47 years. (Tr.
77).
34.
Respondent has no history of previous violations under the Occupational Safety
and Health Act (Stipulated, Tr. 4).
35.
In arriving at the proposed penalties, complainant allowed a 5 percent
reduction for size, a 10 percent reduction for good faith and a 20 percent
reduction for previous history. (Tr. 15). A further 50 percent reduction was
allowed for abatement. (Tr. 15–16, 17, 18, 19).
LAW AND OPINION
Respondent
has challenged the applicability of three standards to its operations and all
of the penalties proposed by complainant. The abatement date specified for the
guarding of riveting machines, if such machines are required to be guarded, is
also placed in issue by respondent.
I. ALLEGED VIOLATIONS
A.
Alleged Violation of 29 CFR 1910.212(a)(1)
Section
1910.212(a)(1) of 29 CFR provides as follows:
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.
Complainant
alleges that respondent failed to guard the following machines which are
contested by the respondent: (1) Chicago Riveting Machines; (2) Detroit power
screwdriver; (3) Brown & Sharpe horizontal milling; and (4) ring saw.
The
standard set forth at 29 CFR 1910.212(a)(1) requires machine guarding to
protect the operator and other employees in the machine area from hazards such
as those created by point of operation. This provision must be construed with
29 CFR 1910.212(a)(3)(ii) which states, in part, as follows:
The point of operation of machines whose
operation exposes an employee to injury, shall be guarded . . . . (underlining
added)
It is
clear that the intent of 29 CFR 1910.212 is to require point of operation
guarding where an employee is exposed to injury. The standard does not require
that every point of operation be guarded regardless of exposure to injury.
There must be a showing that employees are exposed to an injury from an
unguarded point of operation before guarding is required.
Chicago
Riveting Machines
Respondent
had a total of 10 Chicago Riveting Machines located in the sub-assembly and
power press departments. None of the machines had point of operation guarding.
The evidence is also clear that guards and devices are available to protect the
operator from the point of operation.
Three
of the riveting machines were in operation at the time of the inspection. The
operators were placing small pieces of metal on locating pins and activating
the machines with a foot pedal. During the riveting process, the operator’s
hands were from one to three inches from the point of operation. The close
proximity of the hands of the operator to the point of operation exposed the
operator to a possible injury. An inch from the point of operation is
insufficient to properly protect the operator from injury. This conclusion is
supported by the fact that three injuries occurred in 1973 from the operation
of the machines. The violation has been established.
Detroit
Power Screwdriver
The
evidence with respect to the Detroit screwdriver is insufficient to establish a
violation. The compliance officer testified as follows with respect to the
issue: (Tr. 9, lines 20–24).
‘Q. Did you observe anything else in the
sub-assembly department?
‘A. I have observed a pneumatic
screwdriver in the same situation, no point of operation guards.’
This
constitutes the evidence of record on this issue. There are no facts
surrounding the issue upon which a valid determination can be made. There is no
evidence to reflect how or when the screwdriver was used or whether the point
of operation exposed the operator to an injury.
The
only evidence of record on the issue is the statement of the compliance officer
that the point of operation was not guarded. The Commission must base its
determination of the issues on facts and not on conclusions of the compliance officers.[1] The burden was on
complainant to establish the facts which required that the point of operation
of the screwdriver be guarded. He has failed in this burden. The issue must be
determined for respondent.
Brown
& Sharpe Horizontal Milling Machine
A
horizontal milling machine was located in the tool room. The point of
operation, which was at the cutter, was not guarded. The machine was used to
cut and shape parts. The metal to be cut or shaped is placed on a table which
moves back and forth through the point of operation whenever it is activated
and automatically shaves off small pieces of the metal. The operator does not
hold the part as it goes back and forth through the point of operation. The
part is on the table which moves automatically. The operator’s hands are not
closer than two feet to the cutter during the actual operation.
When
the piece of metal is placed on the table the machine is not running. The
machine is activated after the piece of metal has been properly placed on the
table. Since the operator does not handle the piece of metal after it is placed
on the table, his hands or any other part of his body is not exposed to injury
from the point of operation. The location of the hands at least two feet from
the point of operation is sufficient to protect the operator. This is
especially true since the operator has nothing to do with the process while the
piece moves through the point of operation.
The
compliance officer conceded that there was little probability of the operator
suffering an injury from his operation of the machine. (Tr. 32). However, he
raises the possibility that the operator could walk away from the machine while
it was running and someone not employed in the tool room could enter and
accidentally contact the cutter. (Tr. 32, 57). This is pure speculation. Only
two experienced toolmakers work in the tool room. The tool room is located in a
separate walled area of the plant. The compliance officer did not observe any
employees other than the toolmakers in the room. There is no evidence to
indicate other employees had occasion to enter the tool room. There has not
been an accident in the tool room in at least 47 years. This is an indication
that the employees in the tool room operate in a safe and careful manner. The
evidence does not support a determination that the point of operation of the
machine exposed employees to injury. The issue is decided for respondent.
Ring
Saw
A
table ring saw in the power press department contained no bottom guard. The
compliance officer testified: (Tr. 11, lines 16–22).
‘Q. After you inspected the tool room,
what did you observe?
‘A. I went into the power press department
and I have observed two more Chicago Riveting Machines, same situation, no
point of operation guard. I also saw a table with the ring saw with no guard
on the bottom of the table.’ (underlining added)
The testimony of the compliance officer is the only
evidence on the issue.
As in
the case of the power screwdriver, the evidence does not establish the facts
upon which to make a determination of whether guarding was necessary to prevent
employees from being exposed to injury. The burden of proof was on the
complainant. He failed to sustain his burden. The issue must be decided for
respondent.
B.
Alleged Violation of 29 CFR 1910.215(b)(5)
Section
1910.215(b)(5) of 29 CFR provides:
‘Guarding of abrasive wheel machinery—(1)
Cup wheels. Cup wheels (Types 6 and 11) shall be protected by:
(i) Safety guards as specified in
sub-paragraphs (1) through (10) of this paragraph . . ..’
‘(5) Surface grinders and cutting-off
machines. The maximum angular exposure of the grinding wheel periphery and
sides for safety guards used on cutting-off machines and on surface grinding
machines which employ the wheel periphery shall not exceed 150°. This exposure
shall begin at a point not less than 15° below the horizontal plane of the
wheel spindle. (See Figures 0–12 and 0–13).’
Complainant
alleges that a Boyar-Schultz surface grinder located in the tool room did not
contain a safety guard to cover the periphery and side of the abrasive grinding
wheel.
A
Boyar-Schultz surface grinder was being used by an employee at the time of
inspection to sharpen a tool. There was no safety guard on the grinder to cover
the periphery and sides of the grinding wheel. The standard requires guarding
of abrasive wheel machinery.
The
guard for the surface grinder was laying next to it. The assistant manager, who
accompanied the compliance officer on the inspection, ordered the employee to
replace the guard and to keep it on at all times during the operation. The
guard was replaced and the employee continued sharpening the tool.
The
assistant manager had not been aware of the removal of the removal of the
guard. In Secretary v. Standard Glass Company, Inc., 1 OSAHRC 594, 596
(1972), the Commission stated:
‘An employer cannot in all circumstances
be held to the strict standard of being an absolute guarantor or insurer that
his employees will observe all the Secretary’s standards at all times.
‘An isolated brief violation of a standard
by an employee which is unknown to the employer and is contrary to both the
employer’s instructions and a company work rule which the employer has
uniformly enforced does not necessarily constitute a violation of section
5(a)(2) of the Act by the employer.’
While
the assistant manager was unaware of the removal of the guard, the other
factors required to determine there was no violation by respondent are not
contained in the evidence of record. The violation is sustained.
C.
Alleged Violation of 29 CFR 1910.213(p)(4)
Section
1910.213(p)(4) of 29 CFR provides as follows:
‘Belt sanding machines shall be provided
with guards at each nip point where the sanding belt runs on to a pulley. These
guards shall effectively prevent the hands or fingers of the operator from
coming in contact with the nip points. The unused run of the sanding belt shall
be guarded against accidental contact.’
Complainant
alleges that a belt sander in the tool room did not contain a guard for the
unused run of the sanding belt.
A
belt sander was located in the tool room and was in operation at the time of
the inspection. The sander consisted of two rollers with a belt going around
the rollers. The belt was made of an abrasive material. The top portion of the
belt was being used by employees in the tool room. The sides and the bottom
were not being used. The bottom of the belt was an inch above the table.
The
standard requires that the unused run of a belt on a sanding machine shall be
guarded against accidental contact. The bottom of the belt was only one inch
above the table. There was little likelihood that an employee would make
accidental contact with the bottom of the belt. Accidental contact was possible
with the sides of the belt. The sides should have been guarded. The belt sander
utilized by respondent was not guarded as required. The violation has been
established.
II.
ABATEMENT DATE
Respondent
has challenged the reasonableness of the abatement date as specified for the
Chicago Riveting Machines. The citation specified an abatement date of October
25, 1974.
Respondent
had devised a safety device and installed it on one machine at the time of the
hearing. It estimated that it would take approximately six months from the date
of hearing to provide the safety devices for all of the machines. The riveting
machines are mechanically operated and must be converted to electricity before
the device can be installed. Conversion kits are necessary for this purpose and
the services of an outside electrician are required. Complainant introduced no
specific evidence which is directly in opposition to the additional time
requested by respondent. The compliance officer stated that safety devices
could not be secured in a short period of time. (Tr. 42–43).
The
hearing was held in this case on November 26, 1974. A six months extension from
the hearing date would be May 26, 1975. The citation was issued on September 3,
1974, and specified October 25, 1974, as the abatement date. The citation
allowed a total of 52 days from its issuance for abatement.
Respondent’s
request for an extension of the abatement date is considered reasonable. The
abatement date is extended to sixty days following this decision becoming a
final order of the Commission.
III.
PENALTIES
The
Commission is the final arbiter of penalties if the complainant’s proposals are
contested. In such an event the complainant’s proposals merely become advisory.
Secretary of Labor v. Occupational Safety and Health Review Commission and
Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). In assessing penalties,
the Commission is required by section 17(j) of the Act to find and give ‘due
consideration’ to the size of the employer’s business, the gravity of the
violation, the good faith of the employer and the history of previous
violations. Secretary v. Nacirema Operating Company, Inc., 1 OSAHRC 33
(1972). The principal factor to be considered is the gravity of the offense. In
determining the gravity of a violation, several elements must be considered,
including but not necessarily limited to the following: (1) the number of
employees exposed to the risk of injury; (2) the duration of the exposure; (3)
the precautions taken against injury, if any; and (4) the degree of probability
of occurrence of an injury. Secretary v. National Realty and Construction
Company, Inc., 1 OSAHRC 731 (1972), reversed on another issue, 489 F.2d
1257 (D. C. Cir. 1973).
Item
1 of the citation pertains to three air guns which contained compressed air in
excess of 30 pounds per square inch. The guns contained an air pressure from 80
to 85 pounds per square inch. The guns were used by approximately four persons
and were generally in constant use. A penalty of $35 is assessed for the
violation.
Item
2 of the citation pertains to the violation with respect to the ten riveting
machines and the uncontested violations with respect to the lack of a nip point
guard on feed rollers of Yoder mill and the lack of a foot pedal guard on the
Bliss power press. Generally two or three of the riveting machines were always
in use. The operator’s hands were from one to three inches within the point of
operation of the machines. Employees had occurred injuries in the past from
operating the machines. A penalty of $50 is assessed for the violations.
Item 3 pertains to the absence of appropriate markings
for permanent aisles and passageways. A penalty of $40 was proposed for the
violation. The absence of markings was not likely to cause employees an injury
if the aisles were kept clear. The evidence indicates materials were stored in
the aisles. Item 5 pertains to the improper storage of materials in the aisles
of the rolling mill department. A penalty of $35 was proposed for item 5. Due
to the interconnection of items 3 and 5, it is concluded that only one penalty
should be assessed for the two violations. Accordingly, no penalty is assessed
for item 3. A penalty of $35 is assessed for item 5.
Item
9 pertains to the lack of the smaller can being bonded to the fifty-five gallon
drum of lacquer thinner stored in the flammable storage room of the spray room.
Two persons were observed working in the spray room. There is no evidence that
the lacquer was being transferred from one container to another. The compliance
officer simply testified that the drum and smaller can were not bonded and that
they were stored in the flammable storage room of the spray room. The standard[2] requires bonding ‘whenever
flammable liquids are transferred from one container to another.’ No penalty is
assessed since the evidence does not show any exposure to the hazard.
Item
13 pertains to five ungrounded pedestal type fans and a stapler. There is no
indication of how many employees were exposed to the hazards or the duration of
exposure. A penalty of $25 is assessed for the violation.
Full
credit has been allowed respondent for good faith. Action was taken to correct
those items not contested and there is no evidence of record to indicate that
respondent did not cooperate or act in good faith. Complainant’s reason for
denying full credit for good faith indicates the respondent was acting in good
faith. The compliance officer testified: (Tr. 15).
‘Q. And good faith?
‘A. Good faith, a ten percent credit has
been given to the company.
‘Q. Why?
‘A. Since the company did provide some
safety measures, they did get wash for their plating room and although it was
not installed at the time and the power presses were guarded, therefore, a ten
percent credit for good faith and safety was given to the company.’
CONCLUSIONS OF LAW
1.
The respondent was at all times material hereto engaged in a business affecting
commerce within the meaning of section 3 (5) of the Act.
2.
The respondent was at all times material hereto subject to the requirements of
the Act and the standards promulgated thereunder. The Commission has
jurisdiction of the parties and of the subject matter herein.
3.
Section 1910.212(a)(1) of 29 CFR requires the point of operation of machines to
be guarded where employees are exposed to injury. On August 22, 1974, employees
of respondent were exposed to injury from the operation of ten Chicago Riveting
Machines which did not have their point of operation guarded in violation of
1910.212(a)(1).
4. A
horizontal milling machine in the tool room did not expose an employee to the
possibility of an injury from not having the point of operation guarded. The
evidence is insufficient to show that employees were exposed to the possibility
of injury from having the point of operation on a ring saw and Detroit
screwdriver unguarded. There was no violation of 1910.212(a)(1) as to these
items.
5. On
August 22, 1974, an employee was using a Boyar-Schultz surface grinder which
did not have a safety guard covering the periphery and sides of the abrasive
grinding wheel as required by 29 CFR 1910.215(b)(5).
6. On
August 22, 1974, respondent had in operation a belt sander in the tool room
that did not have the unused run guarded as required by 29 CFR 1910.213(p)(14).
7.
After consideration of factors specified in section 17(j) of the Act, the
following penalties are assessed in lieu of the penalties proposed:
Item No. |
Penalty Assessed |
1 |
$35 |
2 |
5- |
3 |
None |
5 |
35 |
9 |
None |
13 |
25 |
ORDER
Upon
the basis of the foregoing findings of fact and conclusions of law, it is
ORDERED:
(1) That items 1, and 3 through 13 of the citation issued to respondent on
September 3, 1974, are affirmed;
(2)
That item 2 is affirmed except as to that part of item 2 pertaining to the
horizontal milling machine, ring saw and Detroit screwdriver which is vacated;
and
(3)
That items 1, 2 and 5 of the notification of proposed penalty issued respondent
on September 3, 1974, are affirmed; that items 3 and 9 are vacated; and that
item 13 is modified to assess a penalty of $25.
Dated this 31st day of March 1975.
JAMES D. BURROUGHS
Judge, OSAHRC
[1] The statement of the compliance officer does not say that the point of operation of the screwdriver must be guarded but only that it was not guarded. The assumption is that he was of the opinion that it should have been guarded.
[2] 29 CFR
1910.107(e)(9) provides:
Whenever flammable or combustible liquids are transferred from one container to another, both containers shall be effectively bonded and grounded to prevent discharge sparks of static electricity.