PATELOS INDUSTRIES LTD.  

OSHRC Docket No. 1698

Occupational Safety and Health Review Commission

August 2, 1973

 

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

  MORAN, CHAIRMAN: On March 21, 1973, Review Commission Judge James D. Burroughs issued a decision in this case.   Thereafter, pursuant to section 12(j) of the Act, I directed that the decision be reviewed by the Commission.

Upon review the Commission finds that the Judge ruled correctly when he found complainant's system for proposing daily penalties pursuant to section 17(d) to be both arbitrary and inappropriate. The criteria for arriving at penalties set forth in section 17(j) of the Act must be individually considered in every penalty assessment made by this Commission.

Accordingly, it is ORDERED that the Judge's decision is hereby affirmed in all respects.

[The Judge's decision referred to herein follows]

BURROUGHS, JUDGE, OSAHRC.   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 referred to as the Act) contesting a Notification of Failure to Correct Violation and of Proposed Additional Penalty issued by the complainant on October 17, 1972, against respondent pursuant to Section 10(b) of the Act.

The Notification of Failure to Correct Violation and of Proposed Additional Penalty alleges that as a result of a reinspection by complainant on October 4, 1972, respondent failed to abate by September 30, 1972, a violation described in item 3 of a citation issued May 4, 1972, and amended May 25, 1972.   The notification proposed a   daily additional penalty of $100.00 and a total additional penalty of $300.00.

On the basis of an inspection on March 8, 1972 n1, of the workplace under the ownership, operation, or control of the respondent located in Goldsboro, North Carolina it was alleged in a citation issued May 4, 1972, referred to as Citation Number Two, that respondent violated Section 5(a)(2) of the Act by failing to comply with twelve (12) occupational safety and health standards promulgated pursuant to Section 6(a) of the Act.   Item 3 of the citation alleged a violation of the standard set forth at 29 CFR 1910.213(h).   The citation described the alleged violation as follows:

Incomplete blade guards provided for:

(a) Rockwell radial saw in door unit department.

(b) Radial saw in main plant.

(c) Rockwell radial saw and two Dewalt saws in door lite dept.

- - - - - - - - - - - -   - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The citation notes that the violations were observed on April 27, 1972.   This is contrary to testimony of inspecting officer and Area Director.   (Tr. 10, 28-29) Evidence indicates that a second inspection was probably made on April 27, 1972.   (Tr. 54) It is clear that citation was based on March 8, 1972 inspection. The delay in issuing the citation of May 4, 1972, based on the inspection of March 8, 1972, would not be detrimental to respondent under Commission precedent.   See Commission Decision in Silver Skillet Food Products Co.,

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

No penalty was proposed for the alleged violation.   The citation was subsequently amended on May 25, 1972, and the abatement date was eventually extended to September 30, 1972, inclusive.

On November 6, 1972, respondent filed with the complainant notice of its intent to contest the proposed additional penalty of $300.00.   The complainant advised the Commission of the Notice of Contest filed by respondent and a complaint was filed with the Commission.   The   Commission assigned the case to this Judge on January 18, 1973, for purposes of conducting a hearing pursuant to Section 10(c) of the Act.   A hearing was held in Goldsboro, North Carolina on February 14, 1973.   No additional parties desired to intervene in the proceeding.

ISSUES

The primary issue for determination is whether respondent failed to correct the non-serious violation of 29 CFR 1910.213(h) by September 30, 1972.   If respondent failed to correct the violation, a determination must be made as to the additional penalty, if any, which should be assessed for the failure to abate.

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 this proceeding.

1.   Respondent, Patelos Industries, Ltd. is a corporation having a place of business and doing business, among other places, at 501 North Carolina Street, Goldsboro, North Carolina.   It is engaged in the manufacturing of doors and windows and the operation of a building supply store (Par. II, Complaint and Answer, Tr. 48).

2.   Respondent at all times pertinent to this proceeding has been an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.   Jurisdiction of the Commission has been admitted (Pars. I, II, Complaint and Answer).

3.   On March 8, 1972, Complainant, through a safety inspector for the State of North Carolina designated under Section 7(c)(1) of the Act, conducted an inspection of respondent's workplace in Goldsboro, North Carolina (Tr. 10).

4.   On March 8, 1972, the sides of the lower exposed portion of the blade of a Rockwell radial saw located in the   Door Unit Department contained no type of guarding device.   The upper portion of the blade was guarded (Tr. 12).

5.   On March 8, 1972, the sides of the lower exposed portion of the blade of a radial saw located in the main plant contained no type of guarding device (Tr. 12).   In addition the sides of the lower exposed portion of the blades of a Rockwell and two Dewalt radial saws located in the Door Light Department also contained no type of guarding device (Tr. 12,39).

6.   The purpose of the lower guard on the blade of a radial saw is to provide the maximum protection to the operator or anyone else who may come in contact with the saw blade. The lower guard   is a retractable guard that adjusts itself to the work.   It affords coverage of the blade at all times except for the part that is in contact with the work (Tr. 13).

7.   As a result of the inspection of March 8, 1972, respondent was issued a citation on May 4, 1972 (designated as Citation Number Two).   Item 3 of the citation alleged a violation of the standard published at 29 CFR 1910.213(h) for failure to provide lower guards for the blades of five (5) radial saws.   The date upon which the alleged violation was to be corrected was May 24, 1972 (Par, III, Complaint and Answer; Tr. 14).

8.   On May 24, 1972, respondent requested an extension of time within which to abate the conditions described in item 3 of the citation.   An amended citation was issued on May 25, 1972, extending the abatement date to June 30, 1972, inclusive (Par. IV, Complaint and Answer).

9.   No notice of contest was filed by respondent contesting any of the alleged violations set forth in the citation of May 4, 1972, as amended (Par. III, Complaint and Answer).

10.   On June 29, 1972, respondent petitioned for modification of the June 30, 1972, abatement date for item 3.   The petition was forwarded to the Commission and assigned docket number 1366.   The Commission by Order dated September 6, 1972, granted the petition and   extended the period for abatement to September 30, 1972, inclusive (Par. IV, Complaint and Answer).

11.   Immediately after receiving the citation, respondent commenced trying to obtain the retractable guards from the Rockwell Company (Tr. 53-54, 58).   It relied solely on the Rockwell Company to furnish the appropriate guards (Tr. 58).

12.   The first guards shipped by Rockwell would not fit the saws and had to be returned.   One guard was shipped to respondent in May or June, 1972, but delay was experienced in receiving the remaining sets.   An additional two sets were received in August, 1972.   Rockwell explained the delay be claiming there was a great demand for the guards (Tr. 54-55).

13.   Respondent followed up on the two additional sets of guards by phone on September 25, 1972.   It was advised by Rockwell that the guards would be shipped on September 27, 1972.   The two remaining sets of guards were actually shipped on October 2, 1972, and arrived on October 5, 1972 (Tr. 55-56).

14.   Respondent wrote numerous letters and made several phonecalls to Rockwell in   an effort to obtain the guards as soon as possible (Tr. 62).

15.   The three sets of guards received in May or June and August, 1972, were installed on the three saws in the Door Light Department.   The foreman of the department later removed the guards because they were jamming (Tr. 34-35, 56).

16.   Instructions issued by the Rockwell Company state that the retractable guard must be removed on its radial saws on all operations when a saw or dado is used in bevel position (Tr. 36-37, 51-52).

17.   Respondent's radial saws are used primarily for bevel cuts (Tr. 37, 39, 41).

18.   The guards for the lower blade of the radial saws owned by respondent can not be utilized by it when the saws are used in the bevel position (Tr. 34-35, 37, 46-7).   The saws jam whenever bevel cuts are made with the guards attached to the lower portion of the blades (Tr.   62).   The guards operate properly when the radial saws are used for straight cuts (Tr. 37).

19.   Respondent does not presently use the lower guard on the blade of the radial saws when they are used in the bevel position (Tr. 62).

20.   On October 4, 1972, complainant, through the same safety inspector that conducted the inspection of March 8, 1972, reinspected respondent's workplace (Tr. 16).

21.   The reinspection of October 4, 1972, disclosed that the Rockwell radial saw in the Door Unit Department had no type of guard on the sides of the lower portion of the exposed blade. The machine was being used by an employee at the time of the inspection (Tr. 17).

22.   The inspection of October 4, 1972, also disclosed that the radial saw in the main plant had no type of guard on the sides of the lower portion of the exposed blade. The Rockwell radial saw located in the Door Light Department had one side of the lower portion of the exposed blade guarded. No type of guard was attached to the sides of the lower exposed portions of the blades of the two Dewalt radial saws (Tr. 17-18).

23.   As a result of the reinspection of October 4, 1972, a Notification of Failure to Correct Violation and of Proposed Additional Penalty was issued on October 17, 1972 (Tr. 21, 30).   An additional penalty of $300.00 was proposed for the failure to abate item 3 of the citation of May 4, 1972, as amended on May 25, 1972 (Tr. 30).

24.   The total proposed penalty covered the three working days subsequent to September 30, 1972 (Tr. 30-31).   The penalty was set at $100.00 per day pursuant to instructions contained in the complainant's Compliance Operations Manual (Tr. 31-32).

LAW AND OPINION

The basic premise of this proceeding is that respondent is deemed in violation of the safety standard published at 29 CFR 1910.213(h) and set forth as item 3 in the citation of May 4, 1972, as amended.   Since no notice of contest   was filed by respondent with respect to the citation of May 4, 1972, as amended, it became a final order of the Commission pursuant to Section 10(a) of the Act and is now not subject to review.   While the violation of item 3 in the citation is not subject to review, complainant must prove that respondent was in violation of 29 CFR 1910.213(h) at the time of reinspection on October 4, 1972, and that the violation was identical to item 3 of the citation.

The Notification of Failure to Correct Violation and of Proposed Additional Penalty alleges that respondent failed to correct item 3 of the citation issued on May 4, 1972, and amended on May 25, 1972.   Item 3 of the citation, as amended, alleged a violation of the safety standard published at 29 CFR 1910.213(h).   The pertinent part 29 CFR 1910.213(h)   applicable to this proceeding is contained in subparagraph (h)(1) which provides as follows:

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 for the operation being performed.

The evidence is undisputed that five (5) radial saws owned by respondent and used in its business operations contained no type of guard on the sides of the lower exposed portion of the blades at the time of the inspection conducted on March 8, 1972, and at the time of the reinspection conducted on October 4, 1972.   Respondent offered no evidence to refute these facts and does not contend that it corrected the violation.   Respondent emphasizes that it made every effort to obtain the guards and install them by the abatement date of September 30, 1972, and that the guards could not be used when the saws were used to make bevel cuts.

The standard requires that the sides of the lower exposed portion of the blade of a radial saw must be guarded to the full diameter of the blade by a device that automatically adjusts itself to the thickness of the stock and   affords maximum protection for the operation being performed.   The standard does not differentiate to exclude from its coverage any positions a saw might be utilized for cutting purposes.   The pertinent language of the standard is inclusive and is applicable to radial saws when used to make bevel cuts.   Since no type of guard was being used on the lower portion of the saw blades at the time of the reinspection on October 4, 1972, it is concluded that respondent was in violation of 29 CFR 1910.213(h)(1) on the date of reinspection and that the facts of the violation were identical to those applicable to item 3 of the citation.

While the evidence indicates that the guards can not be used on the radial saws when they are used in a bevel position, this fact does not warrant an overriding of the clear import of the standard.   The Commission has no equity powers and has no authority to permit an employer to deviate from the expressed requirements of a standard.   This authority is expressly granted to the complainant through the temporary variance procedure set forth in Section 6(b)(6) of the Act.

The reasonableness of efforts   made to obtain the guards and comply with the safety standard also have no direct importance as to whether the standard was being violated on October 4, 1972.   The fact that reasonable efforts may have been made to comply does not alter the conclusion that respondent was in violation of the standard.   Such a defense is more appropriately directed toward the determination of the amount of additional penalty.

APPROPRIATENESS OF PENALTIES

Once a notice of contest is served, the authority to assess civil penalties under the Act resides exclusively with the Commission.   The Commission, in Section 10(c) of the Act, is charged with affirming, modifying or vacating citations issued by the Secretary under Section 9(a) and notifications issued and penalties proposed by the Secretary under Sections 10(a) and 10(b).   The Commission, by Section 17(j) of the Act, is expressly required 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 in determining the assessment of an appropriate penalty.   See Secretary of Labor v. Nacirema Operating Company, Inc.,

In Nacirema the Commission stated that the four criteria to be considered in assessing penalties cannot always be given equal weight.   It indicated that the principal factor to be considered in assessing an appropriate penalty for a violation is the gravity of the offense.   In Secretary of Labor v. National Realty and Construction Company, Inc.,

The gravity of the violation of 29 CFR 1910.213(h) was originally determined by complainant to be of a level that did not warrant a penalty at the time of the issuance of the citation of May 4, 1972 (Tr. 32).   In proposing a $100.00 per day additional penalty, complainant followed the procedure contained in Section B.8.e. of Chapter XI of his Compliance Operations Manual dated November 15, 1971, and released January 4, 1972 (Tr. 32-33).   Section B.8.e. provides, in pertinent part, as follows:

In those instances where no penalty was initially proposed, the additional daily penalty to be proposed under Section 17(d) of the Act shall be $100 per day.

The use of this procedure resulted in the complainant arbitrarily determining the proposed additional penalty without reference to the factors specified in Section 17(j) of the Act as they related to the failure to abate.

The arbitrary manner used by respondent in determining the proposed additional penalty of $100 per day is inappropriate. It fails to consider any of the factors   specified in Section 17(j) and imposes a penalty regardless of the good faith efforts of the employer.   Where a penalty was not initially proposed, the complainant's method would propose the same penalty against employers regardless of the attempts that might have been made to abate the violation.   An employer who has not been able to abate because of factors beyond his reasonable control would be assessed the same penalty as an employer who simply chose to ignore the abatement dates.

While complainant's manner of determining the proposed additional penalty is not approved, it is concluded that the circumstances of this case warrant a penalty of $100 per day.   Two extensions of the abatement date were granted to respondent so that it had approximately five months from the issuance of the citation of May 4, 1972, to comply.   This length of time should have been adequate for respondent to have abated the violation.   Strict adherence to abatement dates is essential by employers in order to protect the safety and health of employees.

There is no dispute over the fact that respondent made repeated efforts to obtain the guards from the Rockwell Company.   However, a more important fact is that respondent did not use the three sets of guards received by it no later than August, 1972.   It apparently installed the guards and then removed them.   Since it had been cited for not using guards on the blades, it obviously knew it was violating the standard by removing them.

The fact that the guards do not work properly when the saws are used in a bevel position is no excuse for not using them or taking appropriate steps to seek an order from the complainant for a temporary variance.   The respondent was aware that it did not intend to comply with the standard when it found the three installed guards inappropriate and removed them.   The delay experienced in the receipt of the additional two guards had little or no effect on respondent's compliance.   It still does not use the guards when the saws are used in a bevel position (Tr. 46-47).

  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.   Respondent is deemed in violation of 29 CFR 1910.213(h) as set forth as item 3 in the citation issued May 4, 1972, and amended May 25, 1972, since no notice of contest was filed by respondent with respect to that citation.

4.   Respondent was in violation of 29 CFR 1910.213(h), as set forth as item 3 in the citation issued May 4, 1972, as amended, from March 8, 1972, through October 4, 1972.

5.   Respondent failed to correct its violation of 29 CFR 1910.213(h) by September 30, 1972.

6.   Respondent was three days in default of its abatement or correction date for the violation of 29 CFR 1910.213(h).

7.   A penalty of $100 per day is proper and reasonable for failure to correct the violation of 29 CFR 1910.213(h).

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is

ORDERED: That the Notification of Failure to Correct Violation and of Proposed Additional Penalty, which proposed an additional penalty of $300 for the failure to correct, is affirmed.