LUMB WOODWORKING COMPANY, INC.
OSHRC Docket No. 76-470
Occupational Safety and Health Review Commission
August 4, 1977
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Before: BARNAKO, Chairman; and CLEARY, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor
Peter B. Lumb, Lumb Woodworking Company, Inc., for the employer
OPINION:
DECISION
BY THE COMMISSION: Judge Seymour Fier found the respondent in violation of the standard codified at 29 C.F.R. § 1910.213(d)(1) for failing to guard three table saws. The respondent contends on review that the Judge's decision should be reversed because it is more hazardous for it to operate the saws guarded, as required by the cited standard, than unguarded. The Commission rejects the respondent's contention.
The primary element of a "greater hazard" defense is that the employer must affirmatively show that compliance with a standard will diminish, rather than enhance, the safety of his employees. n1 The only evidence the respondent submitted to fulfill that requirement was the testimony of its president. Although he stated generally that in his opinion guarding was hazardous, his only specific testimony on the issue was the following:
"These employees and the management of Lumb Woodworking feel that guards are not safe. They hide [*2] the blades. They give the impression of a false sense of security. Even the most modern plastic guards attract static electricity and become completely covered with sawdust so that the blades can't be seen. Further, the guards don't work. Material is pushed through them and jams, giving the possibility of the material kicking back at the operator into their fingers before they have a chance to get it under control. We feel that it is better to have no guards at all."
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n1 Russ Kaller, Inc., T/A Surfa Shield, 76 OSAHRC 130/F10, 4 BNA OSHC 1758, 1976-77 CCH OSHD para. 21,152 (No. 11171, 1976); Industrial Steel Erectors, Inc., 74 OSAHRC 2/E5, 1 BNA OSHC 1497, 1973-74 CCH OSHD para. 17,136 (No. 703, 1974). Other elements of this defense require proof that alternate means of protecting employees are unavailable and that a variance application under 29 U.S.C. § 655(d) would be inappropriate. Because of the Commission's disposition on the primary element, it is unnecessary to consider whether respondent established the other elements of the defense.
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The testimony does not explain why the guard would not protect the operator from material that might possibly be kicked back if the machine jammed. The guarding requirements are comprehensive. n2 Furthermore, the testimony does not state what, if any, injuries would result from compliance with the standard. It also does not show that any injuries that might be caused by guarding would be more severe than the injuries of laceration and amputation that could result from failure to guard. Respondent has therefore failed to establish the defense.
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n2 Section 1910.213(d)(1) incorporates by reference the guarding requirements of 29 C.F.R. § 1910.213(c)(1) which provides that:
"Each circular hand-fed ripsaw shall be guarded by a hood which shall completely enclose that portion of the saw above the table and that portion of the saw above the material being cut. The hood and mounting shall be arranged so that the the hood will automatically adjust itself to the thickness of and remain in contact with the material being cut but it shall not offer any considerable resistance to insertion of material to saw or to passage of the material being sawed. The hood shall be made of adequate strength to resist blows and strains incidental to reasonable operation, adjusting, and handling, and shall be so designed as to protect the operator from flying splinters and broken saw teeth. It shall be made of material that is soft enough so that it will be unlikely to cause tooth breakage. The material should not shatter when broken, should be nonexplosive, and should be no more flammable than wood. The hood shall be so mounted as to insure that its operation will be positive, reliable, and in true alignment with the saw; and the mounting shall be adequate in strength to resist any reasonable side thrust or other force tending to throw it out of line."
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Accordingly, the Judge's finding of a repeated serious violation and assessment of a $375 penalty is affirmed.