“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 10096 THE GOULD-MERSEREAU CO., INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 July 21, 1976DECISIONBEFORE BARNAKO, Chairman; MORAN and CLEARY,Commissioners.MORAN, Commissioner:??????????? Adecision 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).??????????? Havingexamined 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. McLaughlinExecutive SecretaryDATED: JUL 21, 1976?CLEARY, Commissioner, DISSENTING:What is before us is Item No. 2 of a citation fornonserious violations for the alleged failure of respondent to guard the pointof 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 inthe Judge?s holding that the evidence does not support a determination that thepoint of operation of the machine exposed employees to injury.?The evidence establishes only a remote possibility ofinjury. Under these circumstances and consistent with Commission precedent, theviolation should be characterized as de minimis. Van Raalte Company, Inc.,4 BNA OSHC 1151, 1975?76 CCH OSHD Para. 20,633 (No. 5007, 1976).\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 10096 THE GOULD-MERSEREAU CO., INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 March 31, 1975DECISION AND ORDERAppearances:Diane Zwerling, Esquire, Office of theSolicitor U. S. Department of Labor, New York, N. Y., on behalf of complainant.\u00a0Jacob Fogelson, Esquire, New York, N. Y.,on behalf of respondent.?STATEMENT OF CASEBURROUGHS, Judge:??????????? Thisis a proceeding under section 10(c) of the Occupational Safety and Health Actof 1970, 29 U.S.C. 651 et seq., 84 Stat. 1590 (hereinafter ?Act?). Respondentseeks review of items 2, 11 and 12 of a non-serious citation issued to it onSeptember 3, 1974, pursuant to section 9(a) of the Act. Review is also soughtof the penalties proposed for items 1, 2, 3, 5, 9 and 13 of the citation. Nopenalties were proposed for the other items set forth in the citation.??????????? Thecitation and notification of proposed penalty were issued as the result of aninspection conducted on August 22, 1974, of respondent?s manufacturing plantlocated at 35 West 44th Street, New York, New York. It is engaged in themanufacture of drapery hardware.??????????? Thecitation alleges that respondent violated section 5(a)(2) of the Act by failingto comply with thirteen standards promulgated under the Act. The respondent, byletter dated September 20, 1974, and received by complainant on September 23,1974, timely advised complainant that it desired to contest the citation andproposed penalties. At the hearing, respondent conceded all of the allegedviolations except for items 2, 11 and 12. (Tr. 4?5).??????????? Thenon-serious citation issued to respondent alleges that the contested itemsviolated the standards indicated and were described as follows: Item No. Standard Description 2 1910.212(a)(1) \u00a0 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 \u00a0 11 1910.215(b)(5) \u00a0 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. \u00a0 12 1910.213(p)(4) \u00a0 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. \u00a0 \u00a0??????????? Sub-itemA 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 alsoplaced in issue by the respondent. (Tr. 93). The citation specified anabatement date of October 25, 1974, for item 2.??????????? Allpenalties proposed in the notification of proposed penalties issued torespondent on September 3, 1974, were contested. In addition to item 2 whichwas contested, penalties were proposed for items 1, 3, 5, 9 and 13. These uncontestedviolations involved standards and were described by the citation as follows:\u00a0 Item No. Standard Description 1 1910.242(b) \u00a0 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 \u00a0 3 1910.22(b)(2) \u00a0 Permanent aisles and passageways in the work and storage areas were not designated by appropriate markings. \u00a0 5 1910.22(a)(1) \u00a0 Rolling mill dept. was not kept in a clean and orderly condition. Materials are stored throughout dept. \u00a0 9 1910.107(e)(9) \u00a0 Fifty-five gallon drum of lacquer thinner was not bonded to the smaller can into which it is being dispensed. \u00a0 13 Nat?l Electric Code NFPA 70?1971 as adopted by 1910.309(a) Article 250?42 \u00a0 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) \u00a0 ??????????? Ahearing was held in this case on November 26, 1974, in New York, New York. Noadditional parties desired to intervene in the proceeding.JURISDICTION AND ISSUES??????????? Respondentconcedes that all times material to this proceeding it was engaged in abusiness affecting commerce within the meaning of the Act and that theCommission has jurisdiction of the parties and of the subject matter herein.(Pars. I, III, Complaint and Answer; Tr. 4).??????????? Thefollowing 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 thestandards 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 CFR1910.212(a)(1) if a violation is determined to have existed???????????? 3.What penalties, if any, should be determined for any violation of 29 CFR1910.212(a)(1) that might be determined and for the uncontested violations ofitems 1, 3, 5, 9 and 13 of the citation issued on September 3, 1974?FINDINGS OF FACT??????????? Theevidence of record has been carefully considered and evaluated in its entirety.The facts hereinafter set forth are specifically determined in resolving theissues in this case:??????????? 1.Respondent, Gould-Mersereau Company, Inc., is a New York Corporation with itsprincipal office located at 35 West 44th Street, New York, New York. It isengaged 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 averagedaily employees during 1974 was approximately 50. (Stipulated, Tr. 4).??????????? 3. OnAugust 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 brickbuildings 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 persquare inch. (Tr. 14). The guns were operational and were generally used byapproximately four persons. The guns were generally in constant use.??????????? 6.Eight Chicago Riveting Machines in the sub-assembly department did not have thepoint of operation guarded. Employees were observed operating the machines.(Tr. 9, 20, 21?22). One employee operates the machine. (Tr. 91).??????????? 7. TwoChicago Riveting Machines were located in the power press department. They didnot 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 orthree 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 mechanicallyoperated. The employee places two small pieces of metal into the machine on alocating 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 otherhand while the foot pedal is activated. (Tr. 21, 22, 53?54). The piecesinserted were short, round pieces. (Tr. 24, 52). The operator?s hands were fromone to three inches from the point of operation of the machines during theriveting process. (Tr. 53).??????????? 11.Chicago Riveting Machine Company and others manufacture guards and devices forthe riveting machines utilized by respondent. (Tr. 23, 24?25, 47?48, 88?89).??????????? 12.Respondent devised a safety device which prevents an operator from activatingthe machine when the fingers of the operator are in contact with the rivetingpoints. (Tr. 87?88). An outside electrician had to be employed to install thedevice. (Tr. 87).??????????? 13.Respondent has ordered a conversion kit to convert the machines from amechanical to an electrical operation so that the safety device can beinstalled. The machines have to be converted to electricity prior to installingthe safety device. (Tr. 89, 97).??????????? 14.During the year 1973, respondent had three injuries resulting from the use ofthe riveting machines. One injury involved a rivet going through the indexfinger of an employee. (Tr. 9, 47, 99).??????????? 15. Apneumatic screwdriver located in the sub-assembly department did not have itspoint of operation guarded. (Tr. 9).??????????? 16. Ahorizontal milling machine was located in the tool room. It had no point ofoperation guard on the cutter. (Tr. 10, 27). The machine was not being used byan employee during the inspection. (Tr. 27, 54?55).??????????? 17.The horizontal milling machine is used to out and shape parts. (Tr. 55). Apiece of metal is placed on a table which moves back and forth through thepoints of operation whenever it is activated. The cutter is stationary and cutsthe metal as the table moves. (Tr. 27, 28, 31?32, 33, 56, 72). The cutterautomatically shaves off small pieces of metal until the desired shape or sizeis achieved. (Tr. 30, 32?33, 72). The employee does not use his hands to pushthe 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 onthe table but are not closer than two feet to the cutter during the actualoperation. (Tr. 55, 73).??????????? 19.Guards are available for a horizontal milling machine. (Ex. 1; Tr. 48?51).??????????? 20. Atable ring saw in the power press department contained no guard on the bottomof 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 theaisles. (Tr. 17, 18).??????????? 22.Raw materials were stored in portions of the permanent aisles in the rollingmill department. Empty boxes and paper were thrown on the floor. (Tr. 65?66).??????????? 23. Afifty-five gallon drum of lacquer thinner stored in the flammable storage roomof the spray room was not bonded to the smaller can into which it was beingdispensed. The drum was grounded. (Tr. 18, 67). Two persons were observed inthe spray room. (Tr. 67).??????????? 24. ABoyar-Schultz surface grinder was located in the tool room. The grinder wasbeing 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 replacedwhile the compliance officer was at the machine and the employee continuedsharpening the tool. (Tr. 11, 40, 60).??????????? 26.Respondent?s assistant manager ordered the employee to replace the guard and tokeep it on at all times during the operation. The assistant manager had notpreviously been aware of the removal of the guard. (Tr. 61).??????????? 27. Ahorizontal belt sander located in the tool room did not have a guard for thebottom and sides of the belt. The sander consisted of two rollers with a beltgoing around the rollers. The belt was made of an abrasive material. There wasno 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 toolroom. The sides and the bottom were not being used. The bottom of the belt wasan inch above the table. (Tr. 35, 38, 76?77, 81). The belt sander is used tosmooth parts. (Tr. 76).??????????? 29.The unused portion of the belt run had been guarded by respondent at the timeof the hearing. (Tr. 77).??????????? 30.Six pieces of equipment located in various areas were not grounded. The piecesincluded five pedestal type fans and a stapler. (Tr. 19, 67, 68). Respondent?srepresentative informed the compliance officer that the machines would begrounded. (Tr. 40?41).??????????? 31.The tool room is a separate department within the plant. It containsapproximately 2,000 square feet of space and is located in a separate walledarea which is accessible by doors. (Tr. 36, 51). Two employees work in the toolroom. (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 andapproximately 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 Safetyand Health Act (Stipulated, Tr. 4).??????????? 35.In arriving at the proposed penalties, complainant allowed a 5 percentreduction for size, a 10 percent reduction for good faith and a 20 percentreduction for previous history. (Tr. 15). A further 50 percent reduction wasallowed for abatement. (Tr. 15?16, 17, 18, 19).LAW AND OPINION??????????? Respondenthas challenged the applicability of three standards to its operations and allof the penalties proposed by complainant. The abatement date specified for theguarding of riveting machines, if such machines are required to be guarded, isalso placed in issue by respondent.I. ALLEGED VIOLATIONS??????????? A.Alleged Violation of 29 CFR 1910.212(a)(1)??????????? Section1910.212(a)(1) of 29 CFR provides as follows:One or more methods of machine guardingshall be provided to protect the operator and other employees in the machinearea from hazards such as those created by point of operation, ingoing nip points,rotating parts, flying chips and sparks. Examples of guarding methodsare?barrier guards, two-hand tripping devices, electronic safety devices, etc.???????????? Complainantalleges that respondent failed to guard the following machines which arecontested by the respondent: (1) Chicago Riveting Machines; (2) Detroit powerscrewdriver; (3) Brown & Sharpe horizontal milling; and (4) ring saw.??????????? Thestandard set forth at 29 CFR 1910.212(a)(1) requires machine guarding toprotect the operator and other employees in the machine area from hazards suchas those created by point of operation. This provision must be construed with29 CFR 1910.212(a)(3)(ii) which states, in part, as follows:The point of operation of machines whoseoperation exposes an employee to injury, shall be guarded . . . . (underliningadded)???????????? It isclear that the intent of 29 CFR 1910.212 is to require point of operationguarding where an employee is exposed to injury. The standard does not requirethat every point of operation be guarded regardless of exposure to injury.There must be a showing that employees are exposed to an injury from anunguarded point of operation before guarding is required.??????????? ChicagoRiveting Machines??????????? Respondenthad a total of 10 Chicago Riveting Machines located in the sub-assembly andpower press departments. None of the machines had point of operation guarding.The evidence is also clear that guards and devices are available to protect theoperator from the point of operation.??????????? Threeof the riveting machines were in operation at the time of the inspection. Theoperators were placing small pieces of metal on locating pins and activatingthe machines with a foot pedal. During the riveting process, the operator?shands were from one to three inches from the point of operation. The closeproximity of the hands of the operator to the point of operation exposed theoperator to a possible injury. An inch from the point of operation isinsufficient to properly protect the operator from injury. This conclusion issupported by the fact that three injuries occurred in 1973 from the operationof the machines. The violation has been established.??????????? DetroitPower Screwdriver??????????? Theevidence with respect to the Detroit screwdriver is insufficient to establish aviolation. The compliance officer testified as follows with respect to theissue: (Tr. 9, lines 20?24).?Q. Did you observe anything else in thesub-assembly department???A. I have observed a pneumaticscrewdriver in the same situation, no point of operation guards.????????????? Thisconstitutes the evidence of record on this issue. There are no factssurrounding the issue upon which a valid determination can be made. There is noevidence to reflect how or when the screwdriver was used or whether the pointof operation exposed the operator to an injury.??????????? Theonly evidence of record on the issue is the statement of the compliance officerthat the point of operation was not guarded. The Commission must base itsdetermination of the issues on facts and not on conclusions of the compliance officers.[1] The burden was oncomplainant to establish the facts which required that the point of operationof the screwdriver be guarded. He has failed in this burden. The issue must bedetermined for respondent.??????????? Brown& Sharpe Horizontal Milling Machine??????????? Ahorizontal milling machine was located in the tool room. The point ofoperation, which was at the cutter, was not guarded. The machine was used tocut and shape parts. The metal to be cut or shaped is placed on a table whichmoves back and forth through the point of operation whenever it is activatedand automatically shaves off small pieces of the metal. The operator does nothold the part as it goes back and forth through the point of operation. Thepart is on the table which moves automatically. The operator?s hands are notcloser than two feet to the cutter during the actual operation.??????????? Whenthe piece of metal is placed on the table the machine is not running. Themachine is activated after the piece of metal has been properly placed on thetable. Since the operator does not handle the piece of metal after it is placedon the table, his hands or any other part of his body is not exposed to injuryfrom the point of operation. The location of the hands at least two feet fromthe point of operation is sufficient to protect the operator. This isespecially true since the operator has nothing to do with the process while thepiece moves through the point of operation.??????????? Thecompliance officer conceded that there was little probability of the operatorsuffering an injury from his operation of the machine. (Tr. 32). However, heraises the possibility that the operator could walk away from the machine whileit was running and someone not employed in the tool room could enter andaccidentally contact the cutter. (Tr. 32, 57). This is pure speculation. Onlytwo experienced toolmakers work in the tool room. The tool room is located in aseparate walled area of the plant. The compliance officer did not observe anyemployees other than the toolmakers in the room. There is no evidence toindicate other employees had occasion to enter the tool room. There has notbeen an accident in the tool room in at least 47 years. This is an indicationthat the employees in the tool room operate in a safe and careful manner. Theevidence does not support a determination that the point of operation of themachine exposed employees to injury. The issue is decided for respondent.??????????? RingSaw??????????? Atable ring saw in the power press department contained no bottom guard. Thecompliance 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 departmentand I have observed two more Chicago Riveting Machines, same situation, nopoint of operation guard. I also saw a table with the ring saw with no guardon the bottom of the table.? (underlining added)?The testimony of the compliance officer is the onlyevidence on the issue.??????????? As inthe case of the power screwdriver, the evidence does not establish the factsupon which to make a determination of whether guarding was necessary to preventemployees from being exposed to injury. The burden of proof was on thecomplainant. He failed to sustain his burden. The issue must be decided forrespondent.??????????? B.Alleged Violation of 29 CFR 1910.215(b)(5)??????????? Section1910.215(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 insub-paragraphs (1) through (10) of this paragraph . . ..??(5) Surface grinders and cutting-offmachines. The maximum angular exposure of the grinding wheel periphery andsides for safety guards used on cutting-off machines and on surface grindingmachines which employ the wheel periphery shall not exceed 150?. This exposureshall begin at a point not less than 15? below the horizontal plane of thewheel spindle. (See Figures 0?12 and 0?13).????????????? Complainantalleges that a Boyar-Schultz surface grinder located in the tool room did notcontain a safety guard to cover the periphery and side of the abrasive grindingwheel.??????????? ABoyar-Schultz surface grinder was being used by an employee at the time ofinspection to sharpen a tool. There was no safety guard on the grinder to coverthe periphery and sides of the grinding wheel. The standard requires guardingof abrasive wheel machinery.??????????? Theguard for the surface grinder was laying next to it. The assistant manager, whoaccompanied the compliance officer on the inspection, ordered the employee toreplace the guard and to keep it on at all times during the operation. Theguard was replaced and the employee continued sharpening the tool.??????????? Theassistant manager had not been aware of the removal of the removal of theguard. In Secretary v. Standard Glass Company, Inc., 1 OSAHRC 594, 596(1972), the Commission stated:?An employer cannot in all circumstancesbe held to the strict standard of being an absolute guarantor or insurer thathis employees will observe all the Secretary?s standards at all times.??An isolated brief violation of a standardby an employee which is unknown to the employer and is contrary to both theemployer?s instructions and a company work rule which the employer hasuniformly enforced does not necessarily constitute a violation of section5(a)(2) of the Act by the employer.????????????? Whilethe assistant manager was unaware of the removal of the guard, the otherfactors required to determine there was no violation by respondent are notcontained in the evidence of record. The violation is sustained.??????????? C.Alleged Violation of 29 CFR 1910.213(p)(4)??????????? Section1910.213(p)(4) of 29 CFR provides as follows:?Belt sanding machines shall be providedwith guards at each nip point where the sanding belt runs on to a pulley. Theseguards shall effectively prevent the hands or fingers of the operator fromcoming in contact with the nip points. The unused run of the sanding belt shallbe guarded against accidental contact.????????????? Complainantalleges that a belt sander in the tool room did not contain a guard for theunused run of the sanding belt.??????????? Abelt sander was located in the tool room and was in operation at the time ofthe inspection. The sander consisted of two rollers with a belt going aroundthe rollers. The belt was made of an abrasive material. The top portion of thebelt was being used by employees in the tool room. The sides and the bottomwere not being used. The bottom of the belt was an inch above the table.??????????? Thestandard requires that the unused run of a belt on a sanding machine shall beguarded against accidental contact. The bottom of the belt was only one inchabove the table. There was little likelihood that an employee would makeaccidental contact with the bottom of the belt. Accidental contact was possiblewith the sides of the belt. The sides should have been guarded. The belt sanderutilized by respondent was not guarded as required. The violation has beenestablished.??????????? II.ABATEMENT DATE??????????? Respondenthas challenged the reasonableness of the abatement date as specified for theChicago Riveting Machines. The citation specified an abatement date of October25, 1974.??????????? Respondenthad devised a safety device and installed it on one machine at the time of thehearing. It estimated that it would take approximately six months from the dateof hearing to provide the safety devices for all of the machines. The rivetingmachines are mechanically operated and must be converted to electricity beforethe device can be installed. Conversion kits are necessary for this purpose andthe services of an outside electrician are required. Complainant introduced nospecific evidence which is directly in opposition to the additional timerequested by respondent. The compliance officer stated that safety devicescould not be secured in a short period of time. (Tr. 42?43).??????????? Thehearing was held in this case on November 26, 1974. A six months extension fromthe 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 citationallowed a total of 52 days from its issuance for abatement.??????????? Respondent?srequest for an extension of the abatement date is considered reasonable. Theabatement date is extended to sixty days following this decision becoming afinal order of the Commission.??????????? III.PENALTIES??????????? TheCommission is the final arbiter of penalties if the complainant?s proposals arecontested. In such an event the complainant?s proposals merely become advisory.Secretary of Labor v. Occupational Safety and Health Review Commission andInterstate 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 ?dueconsideration? to the size of the employer?s business, the gravity of theviolation, the good faith of the employer and the history of previousviolations. Secretary v. Nacirema Operating Company, Inc., 1 OSAHRC 33(1972). The principal factor to be considered is the gravity of the offense. Indetermining the gravity of a violation, several elements must be considered,including but not necessarily limited to the following: (1) the number ofemployees 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 probabilityof occurrence of an injury. Secretary v. National Realty and ConstructionCompany, Inc., 1 OSAHRC 731 (1972), reversed on another issue, 489 F.2d1257 (D. C. Cir. 1973).??????????? Item1 of the citation pertains to three air guns which contained compressed air inexcess of 30 pounds per square inch. The guns contained an air pressure from 80to 85 pounds per square inch. The guns were used by approximately four personsand were generally in constant use. A penalty of $35 is assessed for theviolation.??????????? Item2 of the citation pertains to the violation with respect to the ten rivetingmachines and the uncontested violations with respect to the lack of a nip pointguard on feed rollers of Yoder mill and the lack of a foot pedal guard on theBliss power press. Generally two or three of the riveting machines were alwaysin use. The operator?s hands were from one to three inches within the point ofoperation of the machines. Employees had occurred injuries in the past fromoperating the machines. A penalty of $50 is assessed for the violations.?Item 3 pertains to the absence of appropriate markingsfor permanent aisles and passageways. A penalty of $40 was proposed for theviolation. The absence of markings was not likely to cause employees an injuryif the aisles were kept clear. The evidence indicates materials were stored inthe aisles. Item 5 pertains to the improper storage of materials in the aislesof the rolling mill department. A penalty of $35 was proposed for item 5. Dueto the interconnection of items 3 and 5, it is concluded that only one penaltyshould be assessed for the two violations. Accordingly, no penalty is assessedfor item 3. A penalty of $35 is assessed for item 5.??????????? Item9 pertains to the lack of the smaller can being bonded to the fifty-five gallondrum 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 thatthe lacquer was being transferred from one container to another. The complianceofficer simply testified that the drum and smaller can were not bonded and thatthey were stored in the flammable storage room of the spray room. The standard[2] requires bonding ?wheneverflammable liquids are transferred from one container to another.? No penalty isassessed since the evidence does not show any exposure to the hazard.??????????? Item13 pertains to five ungrounded pedestal type fans and a stapler. There is noindication of how many employees were exposed to the hazards or the duration ofexposure. A penalty of $25 is assessed for the violation.??????????? Fullcredit has been allowed respondent for good faith. Action was taken to correctthose items not contested and there is no evidence of record to indicate thatrespondent did not cooperate or act in good faith. Complainant?s reason fordenying full credit for good faith indicates the respondent was acting in goodfaith. The compliance officer testified: (Tr. 15).?Q. And good faith???A. Good faith, a ten percent credit hasbeen given to the company.??Q. Why???A. Since the company did provide somesafety measures, they did get wash for their plating room and although it wasnot installed at the time and the power presses were guarded, therefore, a tenpercent 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 affectingcommerce within the meaning of section 3 (5) of the Act.??????????? 2.The respondent was at all times material hereto subject to the requirements ofthe Act and the standards promulgated thereunder. The Commission hasjurisdiction 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 tobe guarded where employees are exposed to injury. On August 22, 1974, employeesof respondent were exposed to injury from the operation of ten Chicago RivetingMachines which did not have their point of operation guarded in violation of1910.212(a)(1).??????????? 4. Ahorizontal milling machine in the tool room did not expose an employee to thepossibility of an injury from not having the point of operation guarded. Theevidence is insufficient to show that employees were exposed to the possibilityof injury from having the point of operation on a ring saw and Detroitscrewdriver unguarded. There was no violation of 1910.212(a)(1) as to theseitems.??????????? 5. OnAugust 22, 1974, an employee was using a Boyar-Schultz surface grinder whichdid not have a safety guard covering the periphery and sides of the abrasivegrinding wheel as required by 29 CFR 1910.215(b)(5).??????????? 6. OnAugust 22, 1974, respondent had in operation a belt sander in the tool roomthat 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, thefollowing 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 \u00a0ORDER??????????? Uponthe 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 onSeptember 3, 1974, are affirmed;??????????? (2)That item 2 is affirmed except as to that part of item 2 pertaining to thehorizontal 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 respondenton September 3, 1974, are affirmed; that items 3 and 9 are vacated; and thatitem 13 is modified to assess a penalty of $25.\u00a0Dated this 31st day of March 1975.JAMES D. BURROUGHSJudge, OSAHRC[1] The statement ofthe compliance officer does not say that the point of operation of thescrewdriver must be guarded but only that it was not guarded. The assumption isthat he was of the opinion that it should have been guarded.[2] 29 CFR1910.107(e)(9) provides:Whenever flammable or combustible liquidsare transferred from one container to another, both containers shall beeffectively bonded and grounded to prevent discharge sparks of staticelectricity.”