UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 3460
DIAMOND INTERNATIONAL CORP.,
Respondent.
DECISION
BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
BARNAKO, Chairman:
A February 18, 1975 decision of Review Commission Judge Jerry W. Mitchell is before
this Commission for review pursuant to 29 U.S.C. 661(i). Judge Mitchell would affirm a citation
for nonserious violations of 1910.265(c)(22) and 1910.265(c)(5). He would also find a serious
violation of 1910.213(c)(1) and (h)(1) and assess a total penalty of $280.
Commissioner Moran directed review. He requested submissions on the following:
(1) Was there sufficient evidence to justify the Judge’s decision that the Act was violated
as alleged?
(2) Was the citation issued in accordance with the requirements of 29 U.S.C. § 658(a)?
(3) Do the regulations published at 29 C.F.R. §§ 1910.213(c)(1), 1910.213(h)(1),
1910.265(c)(5)(ii) and 1910.265(c)(2) satisfy
(a) the applicable statutory and constitutional tests for valid regulations under the
Act, and
(b) the requirements of 29 U.S.C. 655(a)?
We have reviewed the record, and we affirm. With respect to issue number I we conclude
that the Judge’s findings are supported by the preponderant evidence. The Judge weighed
conflicting evidence and found that Respondent’s employees including clean up personnel,
maintenance men, and saw operators were exposed to various violative conditions. We normally
will not reweigh the evidence nor will we disturb the Judge’s credibility determinations.
Northeast Stevedoring Co., Inc., 13 OSAHRC 105, BNA 2 OSHC 1332, CCH OSHD para.
19,275 (1974); Okland Construction Co., Docket 3395, BNA 3 OSHC 2023, CCH OSHD para.
20,441 (February 20, 1976;. Respondent relies on the Commission’s decision in Grayson
Lumber Co., Inc., 3 OSAHRC 541, BNA 1 OSHC 1234, CCH OSHD para. 16,171 (1973) for the
proposition that a violation does not exist when only maintenance and clean up personnel are
exposed to hazards. Respondent’s reliance is misplaced. Grayson referred only to maintenance
employees. Moreover, it is distinguishable as to such employees on its facts. In that case
abatement would have prevented maintenance work; that is not this case.
1
Issues 2 and 3 were before the Judge and he has properly disposed of them. His decision
accurately anticipated Commission decisions upholding the validity of the standards at issue.
Noblecraft Industries, Inc., Docket No. 3367, BNA 3 OSHC 1727, CCH OSHD para. 20, 168
(1975); William W. Turnbull, d/b/a Turnbull Millwork Co., Docket No. 7413, BNA 3 OSHC
1781, CCH OSHD para. 20, 221 (1975).
Accordingly, the Judge’s decision is affirmed. So ORDERED.
BY THE COMMISSION:
WILLIAM S. McLAUGHLIN
EXECUTIVE SECRETARY
DATE: Oct. 26, 1976
1
On review, Respondent argues for the first time that the citation was not issued with reasonable
promptness. Even assuming that the issue is timely raised (and normally we would preclude this
defense for being untimely raised), Respondent does not argue prejudice nor unconscionable
delay. We reject the argument.
MORAN, Commissioner, Dissenting:
The foregoing opinion gives rather short shrift to several very compelling reasons why
the disposition ordered herein is erroneous.
Serious citation no. 1 alleges nine separate instances of non-compliance with 29 C.F.R. §
1910.265(c)(22), which requires that ‘construction, operation, and maintenance of mechanical
power-transmission apparatus shall be in accordance with the requirements of § 1910.219.’
Neither the citation nor the complaint set forth any specific provision of section 1910.219 which
was supposedly violated. It has previously been held that complainant’s failure to do so
2
contravenes the particularity requirement of 29 U.S.C. § 658(a) and renders the citation invalid.
Secretary v. Mine Timber, Inc., 3 OSAHRC 701 (1973); Secretary v. Kellogg Transfer, Inc., 3
OSAHRC 676 (1973).
The aforementioned standards were discussed in the Mine Timber case as follows:
‘As stated, each citation alleges failure to comply with 29 C.F.R. 1910.265(c)(22)
and 1910.219. In so doing the citations are insufficient and defective because they
do not contain a reference to the particular regulation alleged to have been
violated. Section 265(c)(22) is not a substantive regulation; it is merely a
connecting link provision making applicable to sawmills the whole body of
regulations contained in section 219. On the other hand, section 219 comprises
more than a hundred paragraphs and over four pages in the Federal Register
setting forth detailed regulations governing the design, construction, location,
operation and guarding of numerous types and kinds of power transmission
apparatus.’
‘The omission from the citation of any reference to the particular regulation
alleged to have been violated renders it insufficient and invalid.’ 3 OSAHRC 702.
That sound precedent requires vacation of serious citation no. 1. The majority’s
perfunctory rejection of that precedent is erroneous. Brennan v. Gilles & Cotting, Inc., 504 F.2d
1244, 1264–1265 (4th Cir. 1974). When the Commission changes an interpretation of the Act ‘. .
. such change must be clearly stated and accompanied by a statement of the reasoning behind the
change.’ Dunlop v. Rockwell International, ——F.2d—— (6th Cir., No. 75–1672, decided
August 26, 1976).
2
That section provides that ‘[e]ach citation . . . shall describe with particularity the nature of the
violation, including a reference to the . . . regulation . . . alleged to have been violated.’
Another reason which justifies vacation of serious citation no. 1 is the total absence of
proof of actual employee exposure to the hazardous conditions alleged in the citation. Actual
3
exposure, not ‘a very remote possibility’ of injury as found by the Judge is the proper test to be
employed when assessing employer liability. See Secretary v. Gilles & Cotting, Inc., OSAHRC
Docket No. 504, February 20, 1976 (dissenting opinion).
Serious citation no. 2 alleges noncompliance with the saw guarding requirements of 29
C.F.R. §§ 1910.213(c)(1) and (h)(1). Respondent has raised, as one of its affirmative defenses,
the improper promulgation of the standards codified at § 1910.213. The majority’s rejection of
this argument is erroneous for reasons expressed in the dissenting opinion in Secretary v.
Noblecaft Industries, Inc., OSAHRC Docket No. 3367, November 21, 1975. That opinion points
out that the Secretary of Labor’s promulgation of section 1910.213 was ultra vires of his
4
statutory authority and that the standards therein are therefore unenforceable. 4 Accordingly, I
would vacate this citation.
Finally, I also disagree with my colleagues’ statements in footnote 1 of the lead opinion
regarding the issue of whether the citation was issued with reasonable promptness. As I have
previously stated, the statutory requirement in 29 U.S.C. § 658(a) for the issuance of citations
within 72 hours after detection of a violation by a Labor Department inspector is not contingent
upon a showing of prejudice or unconscionable delay or on the issue being timely raised by
respondent. It is a positive duty placed on the Secretary of Labor, and in the absence of
exceptional circumstances, a citation not so issued is void. Secretary v. Jack Conie & Sons
Corporation, OSAHRC Docket No. 6794, June 25, 1976; Secretary v. Concrete Construction
Corporation, OSAHRC Docket No. 2490, April 8, 1976 (dissenting opinion). Since the delay is
issuing the citations in this case was more than seven times longer than Congress directed and
the complainant failed to establish that the delay was caused by exceptional circumstances,
vacation of the citations is necessary.
3
The Judge’s decision is incorporated herein by reference and attached hereto as Appendix A.
4
The standards were promulgated under 29 U.S.C. § 655(a) which authorized the Secretary of
Labor to adopt national consensus standards as occupational safety and health standards for a
period of two years without following the procedural safeguards afforded by the Administrative
Procedure Act, 5 U.S.C. § 553. However, the failure to adopt the limitation specified in the
headnote to the source national consensus standard was a substantive change which could not be
made by the Secretary without following the rulemaking procedure provided in 29 U.S.C. §
655(b).
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 3460
DIAMOND INTERNATIONAL CORP.,
Respondent.
DECISION AND ORDER
Appearances:
Charles G. Preston, Esquire, Seattle, Washington for Complainant.
George J. Tichy, Esquire, Spokane, Washington for Respondent.
There was no appearance by or on behalf of Respondent’s employees even though all
notices had been properly posted and the employees were represented by a Union.\
STATEMENT OF THE CASE
Jerry W. Mitchell, Judge.
This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of
1970 (29 U.S.C. § 651 et seq.) contesting Citations issued by the Secretary of Labor
(Complainant) against Diamond International Corporation (Respondent) under the authority
vested in Complainant by Section 9(a) of the Act.
A workplace described as ‘sawmill, dry kilns, planers, and shipping of lumber products’
located 1/2 mile south of Highway 2 at the Idaho-Washington border was inspected on May 14
and 15, 1973 by a Compliance Safety and Health Officer (CSHO) on behalf of Complainant.
During the inspection alleged violations of 20 specific safety standards were noted. As a result of
the inspection, Citation for Serious Violation Number One (9 Items), Citation for Serious
Violation Number Two (2 Items), and Citation Number One (Non-Serious, 17 Items) were
issued to Respondent on June 8, 1973. The standards allegedly violated were promulgated by the
Secretary of Labor pursuant to Section 6 of the Act and are now codified at Title 29, Code of
Federal Regulations, Part 1910.
Respondent has contested Citations for Serious Violation Numbers One and Two and
Item 4 of Citation Number One (Non-Serious). These alleged violations are described in the
respective Citations in the following language with the cited safety standard quoted immediately
thereafter:
Citation for Serious Violation Number One—
‘The following pieces of power transmission equipment are not guarded in
accordance with the requirements of 1910.219:
1) Bull gear 60‘ in diameter and 11‘ pinion gear of burner chain drive in
old sawmill are not guarded.
2) Sprockets and chains of resaw feed roll drive in old sawmill, rotating at
about 80 rpm, are not guarded.
3) Infeed drive idler sprocket of infeed to V.A.G. in old sawmill is not
guarded.
4) Sprocket at end of feed chain to small Stetson-Ross planer on side of
chain opposite feeder is not guarded.
5) Outer sprocket and chain of debarker log deck are not guarded and are
70‘ above ground.
6) Coupling between drive motor and W.B. hog about 12‘ in diameter is
not guarded.
7) Sprockets on each side of transfer chain from headrig to guard are not
guarded.
8) Sprocket and chain drive of infeed rolls to quad on west side at floor
level are not guarded.
9) Sprockets and chain of new stacker hoist drive are not guarded.
THE ABOVE ALLEGED VIOLATIONS, ANY OF WHICH COULD ALONE
BE CONSIDERED SERIOUS, HAVE BEEN GROUPED FOR CITATION AND
PENALTY PURPOSES TO FORM THIS ONE ALLEGED SERIOUS
VIOLATION.’
ABATE—‘July 19, 1973’
Standard—29 CFR
‘Subpart R—Special Industries
1910.265 Sawmills.
(c) Building facilities, and isolated equipment—
(22) Mechanical power-transmission apparatus. The construction,
operation, and maintenance of all mechanical power-transmission
apparatus shall be in accordance with the requirements of § 1910.219.’
Citation for Serious Violation Number Two—
‘In old sawmill carpenter shop:
1) DeWalt radial arm saw with 12‘ blade does not have a guard covering the
sides of exposed lower half of the blade.
2) Table saw with 10‘ blade does ?? have a guard over top of saw blade.
THE ABOVE ALLEGED VIOLATIONS, EITHER OF WHICH COULD
ALONE BE CONSIDERED SERIOUS, HAVE BEEN GROUPED FOR
CITATION AND PENALTY PURPOSES TO FORM THIS ONE ALLEGED
VIOLATION.’
ABATE—‘July 19, 1973’
Standard—29 CFR
‘Subpart O—Machinery and Machine Guarding
1910.213 Woodworking machinery requirements.
(c) Hand-fed ripsaws. (1) 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 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.
(h) Radial saws. (1) The upper hood shall completely enclose the upper
portion of the blade down to a point that will include the end of the saw
arbor. The upper hood shall be constructed in such a manner and of such
material that it will protect the operator from flying splinters, broken saw
teeth, etc., and will deflect sawdust away from the operator. The sides of
the lower exposed portion of the blade shall be guarded to the full
diameter of the blade by a device that will automatically adjust itself to the
thickness of the stock and remain in contact with stock being cut to give
maximum protection possible for the operation being performed.’
Citation Number One (Non-Serious) —Item 4—
‘(1) Stairway behind resaw in old mill has 5 risers and does not have a
handrail.
(2) Stairway to walkway above separator in old mill does not have a
handrail.
(3) Stairway from center of old sawmill basement to saw floor does not
have a handrail on the upper half of the stair which has 16 risers.
(4) Stairs from infeed level of small S-R planer to planer platform has 4
risers and does not have a handrail.
(5) Stairway of Walkover at beaver infeed has 9 risers and does not have
a handrail.’
ABATE—‘July 9, 1973’
Standard—29 CFR
‘Subpart R—Special Industries
1910.265 Sawmills.
(c) Building facilities, and isolated equipment—
(5) Stairways—
(ii) Handrails. Stairways shall be provided with a standard handrail on at
least one side or on any open side. Where stairs are more than four feet
wide there shall be a standard handrail at each side, and where more than
eight feet wide, a third standard handrail shall be erected in the center of
the stairway.’
Pursuant to the enforcement procedure provided in Section 10(a) of the Act, Respondent
was duly advised by a Notification of Proposed Penalty dated June 8th of the proposal to assess
penalties of $600 in connection with each of the two Citations for Serious Violation, $45 in
connection with Item 4 of Citation Number One (Non-Serious) and $0 in connection with all
other Items of Citation Number One (Non-Serious). In a timely manner Respondent filed a letter
dated June 21st contesting Citations for Serious Violation Numbers One and Two and Item 4 of
Citation Number One (Non-Serious). This contest includes the proposed penalties and abatement
periods. A complaint was duly filed and was answered by Respondent. In addition to
substantially denying the allegations of the complaint Respondent’s answer raises six (6)
separately stated Affirmative Defenses based on constitutional grounds. The case was set for trial
and tried at Spokane, Washington on October 16th and 17th.
PROCEEDINGS AND EVIDENCE
When the trial convened each party was represented by competent legal counsel. There
was no appearance by or on behalf of any of Respondent’s employees even though all notices
had been properly posted and the employees were represented by a Union. In preliminary
discussions Complainant amended the Citation and complaint to show that the inspection of
Respondent’s facility occurred on May 14 and 15, 1973. At the same time, the issues were
identified as being Citation for Serious Violation Number One, Citation for Serious Violation
Number Two, and Item 4 of Citation Number One (Non-Serious). The issues involve the validity
of the Citation, the abatement date, and the amount of the proposed penalty. Counsel for
Respondent then moved to amend to show Respondent as Diamond International Corporation,
Albeni Falls Unit. On Complainant’s opposition to the motion it was taken under advisement
with the right reserved to Respondent to renew it in any post-trial brief filed.
The inspecting Compliance Safety and Health Officer (CSHO) (Hoop) was called as
Complainant’s only witness. He describes his inspection of Respondent’s sawmill where he
inspected the old portion on May 14, 1973 and the new portion on May 15th. Representatives of
Respondent and Respondent’s employees attended an opening conference, accompanied the
CSHO on the walk-around inspection, and participated in a closing conference. On the days of
the inspection the CSHO carried a camera and took photographs from time to time. He
mentioned the camera and its purpose to Respondent’s representatives and requested that they
advise him of any portions of the mill which they did not wish photographed. No such portions
were identified during the entire inspection.
The testimony of this witness identifies the various alleged violations observed and
describes each of them, with some descriptions being in much greater detail than are others.
Photographs are identified and connected to specific Items listed in the Citations. He also
describes which of Respondent’s employees would be exposed to any given violation, stating
that Respondent’s maintenance men are working at various places throughout the mill at all
times and are called upon to enter many of the areas for maintenance and lubrication of the
machinery and for clean-up purposes.
Respondent’s Albeni Falls sawmill was one of a number of facilities on a list given to this
witness by OSHA as the facilities to be inspected by him during the time that he was loaned to
OSHA by the state of Idaho. The witness then inspected the various facilities on the list by
geographic areas so as to minimize travel. The Albeni Falls unit was inspected during the second
of two separate periods of service for OSHA.
On cross-examination the work history of this witness was developed to show that he was
employed by Respondent in this particular sawmill for the 7 years immediately prior to 1955.
Following that employment he became a paid union official and was so employed until 1969.
The union of which he was an official represented Respondent’s employees at the Albeni Falls
mill as well as at other of Respondent’s facilities. In this union capacity he negotiated with
Respondent on labor matters affecting the Albeni Falls mill and was serving in such a
negotiating capacity during at least one prolonged labor strike. He visited the mill on many
occasions in connection with this employment by the union. In 1969 he became a safety
inspector for the state of Idaho and was on loan to OSHA from the state under Section 7(c)(1) of
the Act at the time of the inspection on May 14th and 15th. He inspected Respondent’s mill at
Albeni Falls on several occasions prior to May 14th while serving as a state safety inspector.
Some of the violations cited during the instant inspection (old mill only) were observed and cited
while he was inspecting as a state inspector. When Citations were issued as the result of the state
inspections, he cited the Federal safety standards involved in addition to the state standards. This
was done as a courtesy to Respondent so as to advise Respondent of the applicable Federal
standards.
Complainant rested presentation of its case following completion of the testimony of the
CSHO. Counsel for Respondent promptly moved for dismissal of the entire case on the ground
that Complainant had failed to carry its burden of proof. Counsel for Respondent also argued that
the safety standards relied upon by Complainant had not been properly adopted and promulgated.
Following a ruling that Complainant had offered sufficient evidence to require that Respondent
go forward with the case, the motion was taken under advisement in respect to the question of
proper promulgation of the standards.
The Maintenance Supervisor of the Albeni Falls mill (Will) was called as a witness by
Respondent. He testifies concerning the locations and measurements of the various violations.
He also indicates the location of many of the work stations which are nearest to the cited
violations. He describes the guards added to many of the cited machines following the
inspection. It is his testimony that the maintenance men mostly do not work around the machines
while they are in operation. He states that they were having problems with the electronic control
system at the time of the inspection and that such problems are still continuing to a certain extent
at the time of the trial.
Respondent also called the Safety Supervisor (Shobe) for the Northwest Lumber Division
of Diamond International Corporation. His supervision includes the Albeni Falls mill. He has
checked the records of Respondent for the past 10 years and found no record of injuries or
accidents involving any of the cited machines.
Subsequent to receipt of the transcript the time in which to file briefs was extended twice, once
on the request of each party. Each party submitted extensive initial and reply briefs.
DISCUSSION
Facts sustaining jurisdiction are alleged in the complaint and admitted in Respondent’s
answer. Jurisdiction is thus conceded.
Constitutionality of the Act
Counsel for Respondent contends in six (6) separately stated affirmative defenses that the
Act and the enforcement procedures provided for therein are unconstitutional. It is apparent that
these constitutionality issues are raised at this stage of these proceedings so as to preserve
Respondent’s right to pursue them at some future appropriate time—perhaps in the Federal court
of appeals.
The Occupational Safety and Health Review Commission does not have authority to rule
on the constitutionality of the Act. Secretary v. American Smelting and Refining Company,
OSAHRC Docket No. 10 (August 17, 1973). An administrative agency does not have the power
to determine the constitutionality of the statute it administers. Public Utilities Commission v.
United States, 355 U.S. 534, 539 (1958); Engineer Public Service Company v. SEC, 138 F2d
936, 951–953 (D.C. Cir. 1943) cert. denied 332 U.S. 788. In view of this well recognized
principle, I am constrained to hold that resolution of the constitutionality issues are beyond the
authority of this Judge. Respondent’s brief indicates full recognition of this principle.
The Second and Third Affirmative Defenses also contend that the standards involved
here are not uniformly applied and enforced in substantially equivalent situations. It is alleged
that this deprives the employer of the constitutional rights of due process and equal protection
and application of the laws. There is no evidence of record, persuasive or otherwise, that the
enforcement procedures followed by the Secretary of Labor in this case were contrary to the
provisions of the Act. This is particularly true with respect to Sections 8, 9, and 10 of the Act.
When the procedures provided by Section 10 of the Act have been completed in this case,
Respondent will have full opportunity for recourse to judicial review under Section 11 of the
Act. It is important to realize in connection with these contentions that the Review Commission
is given authority under the Act to assess all civil penalties indicated by the facts extant, if the
Commission should determine that there has been a violation of Section 5 of the Act. [See
Section 17(j).]
Particular note should be made at this time that there is no showing in this record that the
Compliance Safety and Health Officer was in any way unfair or acted in a manner prejudicial to
Respondent, either in the method in which the Albeni Falls mill was selected for inspection or in
the inspection procedures followed. The cross-examination conducted by counsel for Respondent
implied that there was something wrong, or at least prejudicial to Respondent, in assigning this
particular CSHO to conduct the inspection of Respondent’s mill at Albeni Falls. The implication
is that the CSHO was somehow contaminated and his testimonial veracity impaired by reason of
his prior employment at this mill and by reason of his prior service as a paid official of the union
representing Respondent’s employees at this particular mill. Counsel for Respondent would not
directly voice this charge, nor would he deny that such was the purpose of his questioning. The
attack on the witnesses’ credibility was by indirection, innuendo and implication. The record
does not sustain such an implication nor does it give the slightest indication that there is even a
small possibility of prejudice. The mill was one of a list of approximately 20 facilities which the
CSHO was assigned to inspect. He did not participate in selecting the facilities identified on the
list. He inspected the facilities on the list by areas of location with the Albeni Falls mill
happening to be one of the last ones inspected. Likewise, the description of the inspection does
not reveal any instance or circumstance which would indicate prejudice to Respondent by reason
of the manner in which the inspection was performed—at least no more prejudice than would
result from any inspection of Respondent’s facilities under the Act.
It should be noted here that, contrary to the implication of counsel for Respondent, there
is no indication that the CSHO delayed his inspection of the Albeni Falls mill until the old
portion was close to being taken out of operation. He does indicate that he anticipated that the
old mill would be shut down, but that this did not influence his choice of the date for the
inspection. This anticipation came from the reading of articles in the local newspapers. The fact
remains that the old mill was in operation on the day of the inspection and for two or three weeks
thereafter. Respondent’s employees were thus exposed to the existing hazards and were subject
to being injured thereby.
In Respondent’s Fourth Affirmative Defense, in addition to the constitutional issues
raised, it is specifically alleged that the standards cited [29 CFR 1910.213(c)(1) and (h)(1) and
1910.265(c)(5)(ii) and (c)(22)] are ‘vague, arbitrary, unreasonable or capricious or incapable of
compliance in a reasonable manner.’ There is no evidence in this record, substantial or
otherwise, which would sustain this contention. The cited standards describe how and under
what circumstances the various pieces of equipment cited shall be guarded as well as the manner
in which handrails shall be placed on stairs. The instances wherein each of these saws, pieces of
power-transmission apparatus (gears, sprockets, chains and couplings), and conditions (handrails
on stairs) located at Respondent’s worksite were not in compliance with the cited standards on
May 14 and 15, 1973 are clearly identified in the Citations. The location of each violation and
the way in which the standard is allegedly violated can be determined by reading the Citation.
There is no indication on this record that Respondent did not understand from the Citation as to
what the alleged violations were and where they were located in the mill. Testimony has been
offered by Respondent in connection with each of the contested violations and photographs of
several of the alleged violations were offered in evidence by Respondent. It was apparent at the
trial that Respondent was very much specifically aware of what had been charged and was able
to fully present his defense. Respondent’s argument is rejected. It is concluded that the Citation
adequately advised Respondent of the violations and their locations.
Respondent also contends that the citation of 29 CFR 1910.265(c)(22) in connection with
the power-transmission violations fails to apprise the employer as to what guarding is deemed
necessary and thus does not give adequate notice to Respondent. This allegation is based on the
reference in this standard to 1910.219 in general rather than to the specific sub-section of
1910.219 allegedly violated. Respondent makes far more of this alleged problem than is
indicated or necessary and specifically alleges a lack of ability of find the standard. The Citation
specifies that the violations involve gears and sprockets, chains, and a coupling. The required
guarding for each of these items of equipment is covered in a paragraph sub-heading of 1910.219
appearing in italics and is therefore easily located in that section by scanning down the columns
of the Federal Register under the heading of the section until the particular piece of equipment is
listed. The applicable standard is thus almost as easily located as it would be if the letter
identification of the sub-paragraph was given. With either key, letter identification or machine
description, it is necessary to scan down the columns of the Federal Register to find the
applicable standard. A person of ordinary intelligence should have no difficulty in locating the
cited standard. Citing by the letter identification would possibly have expedited Respondent’s
finding of the standard to a minor degree but such a minimal benefit to Respondent is not of
sufficient import or prejudice to Respondent to require dismissal of this action as is advocated by
Respondent. The Act only requires that Respondent be given a reference to the standards
allegedly violated. This record clearly indicates that Respondent did receive adequate notice
through the reference given. It does not contain any indication of confusion on Respondent’s part
with regard to the equipment involved and the guards required. The only indication of, or claim
to, such confusion is contained in the comments of Respondent’s counsel. It is concluded from
the convincing evidence of record that the wording of the Citation in connection with the power-
transmission apparatus is sufficiently specific to satisfy the particularity requirements of Section
9(a) of the Act.
A major argument raised by Respondent involves the alleged illegality of the standards
relied upon in this instance. Respondent contends in Article IV of the answer, as well as in the
Fourth Affirmative Defense, that the Secretary of Labor has illegally adopted these standards.
This same argument is also made in Respondent’s brief (pages 6 to 16) where Respondent asserts
that these safety standards were not adopted in accordance with the provisions of Section 6(a) of
the Act and are therefore totally invalid. Respondent argues that in adopting the ANSI (American
National Standards Institute) national consensus standards the Secretary of Labor ‘has omitted
total sections, reworded and rearranged the content of certain provisions, omitted key provisions
essential to the true impact of the provision, and so on.’ Respondent would require the Secretary
to literally adopt the ANSI standards in their ‘precise’ terms without rearrangement or any
alteration of format. Respondent also argues that the change in arrangement involved here is
substantial and material.
Section 6(a) of the Act provides:
‘. . . the Secretary shall, as soon as practicable during the period beginning with
the effective date of this Act and ending two years after such date, by rule
promulgate as an occupational safety or health standard any national consensus
standard, and any established Federal standard, unless he determines that the
promulgation of such a standard would not result in improved safety or health for
specifically designated employees. In the event of conflict among any such
standards, the Secretary shall promulgate the standard which assures the greatest
protection of the safety or health of the affected employees.’ (Emphasis added.)
There is nothing in the wording of this section that would require the Secretary to literally
reproduce all of the wording of an ANSI national consensus standard in promulgating such a
standard as a safety standard under this Act. In fact, a close reading of this section indicates to
the contrary. In choosing between a national consensus standard and an established Federal
standard the Secretary is required to promulgate the standard which assures the greatest
protection for the affected employees. The Secretary is thus charged with the responsibility of
determining which standard is most effective and must promulgate that standard. Congress
obviously intended that the Secretary should make specific choices. Under these circumstances
there is a clear presumption that the Secretary will exercise his wisdom and expertise so as to
carry out the mandate of Congress. The record in this instance is devoid of anything that would
indicate a failure on the part of the Secretary to follow the provisions of the Act.
A thorough perusal of the legislative history of the Act does not sustain any conclusion
different from that discussed above. There is no indication that Congress intended to restrict or
limit the Secretary in exercising his wisdom and expertise in selecting which of the published
ANSI national consensus Federal standards should be adopted for promulgation.
The thrust of Respondent’s argument is that the Secretary has omitted portions of the
basic ANSI source document in some instances and has rearranged the paragraphs in others.
Respondent urges that because of these variations from the basic ANSI document the standards
relied on here are invalid and, therefore, cannot be enforced. As will be seen in the following
discussion, this argument is also fatally defective:
1910.265(c)(22)
The safety standard in this sub-paragraph was cited in connection with the mechanical
power-transmission apparatus covered by Citation for Serious Violation Number One. The
wording of this sub-paragraph, as well as the actual wording of the Citation, refers to 1910.219.
The source of 1910.265(c)(22) is paragraph 3.27 of an ANSI national consensus standard entitled
‘Safety Requirements for Sawmills’ (ANSI 02.1–1969, Exhibit A in evidence and Exhibit A to
Respondent’s brief.) Paragraph 3.27 of the ANSI standard refers to another ANSI document
entitled ‘Safety Code for Mechanical Power-Transmission Apparatus’ (ANSI B15.1–1953,
Exhibit C to Respondent’s brief). In using the ANSI national consensus standards it is necessary
to go to Rules 230, 231 and 261 of ANSI B15.1–1953 in order to find a statement of the safety
requirements. These Rules are the specific sources of 1910.219(f)(1), 1910.219(f)(3), and
1910.219(i)(2), respectively. The applicable promulgated standards found in 1910.219 and relied
on by Complainant in this instance are the same as the respective Rules from which they
originated. Thus the Secretary has indeed complied with the requirements of Section 6(a) of the
Act. Elimination of extraneous material such as paragraph (b) of Rule 261 does not invalidate the
standard. Its deletion has not altered the meaning nor intent of the safety standard dealing with
couplings cited and relied on here. Respondent has not been prejudiced nor misled in this
instance.
1910.213(c)(1) and (h)(1)
The safety standards in these two sub-paragraphs were cited in connection with the two
saw violations covered by Citation for Serious Violation Number Two. The source of these
standards is paragraphs 4.1.2(a) and 4.1.9(a), respectively, of the ANSI national consensus
standard entitled, ‘Safety Code for Woodworking Machinery’ (ANSI 01.1–1954 (R–1971),
Exhibit B in evidence and Exhibit B to Respondent’s brief). Again, the sub-paragraphs relied
upon are identical with the corresponding source paragraphs. The Secretary has only changed the
identifying numbering systems. Respondent has not been prejudiced nor misled thereby.
Respondent attacks the Secretary’s elimination of the ‘Note’ preceding the actual text of
the standards in Section 4 of ANSI 01.1–1954 (R–1971) and argues that the Secretary violates
Section 6(a) of the Act by such elimination. Section 6(a) provides for prompt promulgation of
national consensus standards by the Secretary. It does not require promulgation of material not a
part of the standards. The ‘Note’ involved here is nothing more than an explanatory note. It does
not contain anything that even remotely resembles a safety standard. It tells the users of the
document that the ‘standards given are those which woodworkers have agreed are most generally
useful.’ The ‘Note’ then goes on to indicate a recognition that there may be situations where the
standards are not satisfactory and suggests that the enforcing authority should exercise wide
latitude in allowing the use of other devices which give promise of affording adequate
protection. The Secretary has exercised this latitude in selecting the specific basic safety
standards suggested by the ANSI national consensus group and promulgating them as safety
standards under the authority of Section 6(a) of the Act. The Secretary has thus followed the
exact mandate of Congress. Respondent’s argument is in error.
1910.265(c)(5)(ii)
The safety standard in this sub-paragraph was cited in connection with the stairway
handrail violations covered by Item 4 of Citation One (Non-Serious). The source of this standard
is paragraph 3.5.3 of the ANSI national consensus standard entitled, ‘Safety Requirements for
Sawmills’, (ANSI 02.1–1969). Again, the cited safety standard is identical with the source
paragraph except for the identifying number system.
Another point raised by Respondent in support of its illegality of promulgation argument
(brief pgs 8–10) is that there is no showing that the ANSI source documents are national
consensus standards or that they meet the requirements set forth in the Act for such standards.
This argument is also in error. The legislative history of the Act clearly is to the contrary. It
shows that Congress not only considered that the safety standards produced by ANSI were
‘national consensus standards’ but that ANSI was the greatest source of such standards. (See
‘Legislative History of the Occupational Safety and Health Act of 1970 (S.2193, P.L. 91–596) at
pages 146, 504, 511, 847, 996, and 1036). In addition, the Forward contained in each of the
ANSI source documents referred to indicates that the standards contained in them were
developed in a manner involving discussion and consultation by groups representing large
segment of the industries involved. It is interesting to note that counsel for Respondent was a
member of the standards committee which developed, processed and approved the ‘Safety
Requirements for Sawmills’ standard.
Giving due consideration to all of the foregoing discussion as supported by the record
herein, it is concluded that Respondent’s attack on the legality of the Secretary’s promulgation of
the particular standards relied on must fail. There is nothing of import in this record which
supports Respondent’s argument. The motion to dismiss based on this contention is denied.
Citation for Serious Violation Number One 1910.265(c)(22)
This Citation alleges that Respondent failed to guard power-transmission equipment at 9
separate and distinct locations at its sawmill in violation of the requirements of 1910.219. The
evidence offered by Complainant (testimony of the CSHO and photographs) clearly establishes
that there were no appropriate guards at any of the 9 specific locations. Respondent offers the
testimony of 2 witnesses together with a number of photographs taken after the inspection but
does not offer any evidence indicating the presence of the required guards on the dates of
inspection. Respondent only argues that such guards were unneeded. The absence of the guards
is thus conceded.
Complainant has combined the 9 separate violations into a single citation and classified it
as a Citation for Serious Violation, seeking a penalty of $600 in connection therewith. The
evidence does not justify classification of any one of these 9 instances, nor of all of them
together, as a serious violation. It may be true that a person could possibly be injured if he had
the misfortune of becoming entangled at one of the unguarded points but such an occurrence is
only a very remote possibility. The evidence does not locate any work station in close proximity
to the cited points. In fact, in several instances the work stations are far removed from the danger
point and in some instances are located on the opposite side of the machine from the location of
the violation. The men most likely to be exposed to the existing danger are the maintenance and
clean-up men. These men are usually not exposed to the unguarded locations while the
machinery is in operation. The maintenance men may, and on occasion must, inspect the
machinery while it is in operation but they ordinarily only work on it when it is shut down. As a
rule the cleaning men do their work when the machinery is not running. Under these
circumstances it is concluded that although each of these violations existed they are each non-
serious.
In order to arrive at an appropriate penalty, due consideration must be given to the criteria
set forth in Section 17(j) of the Act. There is no history of any previous violations at this
workplace nor of any injuries on the cited machines—at least in the last 10 years. Respondent’s
business is a rather large one overall with several large sawmills and plants. There were 144
employees working in 2 shifts at this particular facility. Respondent has demonstrated good faith
in that there was full cooperation with the CSHO and prompt installation of several of the
missing guards. The CSHO observed many guards already in place in the more dangerous areas.
The gravity of each of these violations is considered to be very low since there is only a
negligible amount of exposure. Accordingly it is considered that an aggregate penalty of $135 is
appropriate in connection with these 9 non-serious violations and will assist in achieving the
purposes of the Act.
Citation for Serious Violation Number Two 1910.213(h)(1) and (c)(1)
This Citation alleges Respondent’s failure to guard the lower portion of the blade of a
radial arm saw in violation of the safety standard found at 1910.213(h)(1) and failure to have a
guard over the top of the blade of a table saw in violation of 1910.213(c)(1). These two
violations were combined into a single Citation for Serious Violation and a penalty of $600
sought therefor.
The evidence clearly establishes the absence of each of the required guards. Respondent
concedes that there was no lower guard but argues that the upper guard on the radial saw could
be (and usually was) adjusted low enough toward the front to guard the leading edge of the
blade. This does not meet the requirements of the standard which requires that the sides of the
lower exposed portion of the blade be guarded. Such an adjustment exposes the upper trailing
edge of the saw in violation of another portion of the standard which specifically requires an
upper hood covering down to the arbor end. A lower blade guard is also specifically required.
The lower blade was not properly guarded.
Respondent concedes that there was no guard on the table saw but argues that one is
unnecessary. The basis of this argument is that the blade height is always adjusted so that it only
cuts to the thickness of the material being cut and thus does not protrude above. According to
Respondent the material acts as a guard and eliminates the danger. Such an argument is
fallacious. The unguarded blade must protrude at least a small distance above the material while
cutting and is completely and dangerously exposed after the material has passed through the saw.
The absence of the guard is a violation.
A violation is serious under Section 17(k) of the Act if there is a substantial probability
that death or serious physical harm could result from the violative condition. Here it is obvious
that if the saws will cut lumber they will surely amputate fingers, hands, and arms or at least
severely mutilate any such extremities coming in contact with the unguarded blades. Each
violation is serious. Respondent knew of the violation through state citations resulting from prior
inspections of the CSHO while he was serving as a state safety inspector.
Again it is necessary to give due consideration to the Section 17(j) criteria in order to
arrive at an appropriate penalty for these two combined serious violations. The evidence
concerning size, good faith, and previous history is the same as that discussed above. In
connection with the gravity of the violations it is noted that the two unguarded saws are located
in a locked room accessible to two men only. Each of these men is trained and experienced in the
use of the saws. Neither man has suffered any injury on them. Under these circumstances the
gravity is considered to be somewhat less than moderate. Accordingly an aggregate penalty of
$100 is deemed appropriate.
Citation One (Non-Serious)—Item 4 1910.265(c)(5)(ii)
The Item alleges that Respondent failed to have handrails on 5 separate stairways in
violation of the cited standard and seeks a penalty of $45 in connection therewith.
The evidence offered by Complainant clearly establishes the absence of the required handrails in
each instance. Respondent does not contend that the handrails were in place—only that the stairs
in the old sawmill (the first 3 sub-items) did not pose any threat to the safety of the employees
because they were taken out of use about 17 days after the inspection. Respondent also urges that
the stairway at the beaver in the new mill (sub-item 5) had not been completed and is thus
apparently excused from compliance. These arguments are not convincing.
The indications from the evidence are that the stairways were in regular use prior to and
at the time of the inspection. This is particularly true of the stairway at the beaver which, by the
testimony of Respondent’s own witness, was in actual use during the inspection. The fact that
some of the stairs were taken out of use and removed some 17 days after the inspection does not
remove the fact of their use without handrails prior to and during the inspection. Accordingly, it
is obvious that the use of the various stairs without handrails was a violation of the cited standard
in each instance.
Giving due consideration to the Section 17(j) criteria discussed above it is deemed
appropriate to assess an aggregate penalty of $45 in connection with these 5 separate instances of
violation. The gravity is considered to be very low and Respondent’s good faith to be exemplary
here because of the prompt installation of some of the missing handrails and the removal of the
stairs in the old sawmill when it was shut down.
Consequently, based upon the evidence adduced and after full consideration of all
submissions, briefs, arguments and motions, we make the following:
FINDINGS OF FACT
1. On May 14 and 15, 1973 and at all times material hereto, Respondent Diamond
International Corporation, Albeni Falls Unit, was a corporation maintaining a sawmill worksite
and place of business and employment at Albeni Falls, Idaho. The worksite consisted of an old
portion and an entirely new portion. All operations ceased in the old portion on June 2, 1973 and
it was dismantled by September 20, 1973. The new portion of the mill commenced partial
operation on February 20, 1973 and was continuing under partial operation in an effort to
eliminate automation problems at the time of the trial. Respondent employed approximately 144
employees at the worksite at the time of the inspection on May 14th and 15th. Respondent
produces wood products at the worksite and ships most of such products to points outside of the
state of Idaho. Respondent’s business thus affects commerce within the meaning of Section 3 of
the Act (29 U.S.C. § 652). File-Complaint, Articles I and II, Answer, Articles II and III;
Transcript pgs 11–12, 21, 89, 340–341 and 429–431 and Exhibit 11.)
2. On May 14 and 15, 1973 a Compliance Safety and Health Officer (CSHO) inspected
Respondent’s worksite at Albeni Falls, Idaho on behalf of the Secretary of Labor. The old
portion of the plant was inspected on May 14 and the new portion on May 15th. The CSHO
conducted opening and closing conferences with Respondent’s representatives and was
accompanied by representatives of Respondent and of Respondent’s employees throughout the
walk-around inspection. The CSHO advised Respondent’s representatives that he had a camera
and would take photographs during the inspection. He requested that Respondent’s
representatives indicate any portions of the plant which he should not photograph. No portions
were so indicated. (Transcript pgs 18, 24, 28–30, 90, 106–107, 184, 239, 288–290, 319–320,
339, 346 and 362.)
3. At the time of the May 14th and 15th inspection the CSHO was a safety inspector for
the state of Idaho on loan to the Occupational Safety and Health Administration (OSHA) under
Section 7(c)(1) of the Act. When the CSHO reported for federal inspection assignment he was
given a list of facilities to inspect. Some of these were inspected during his first assignment to
OSHA in 1972. He is uncertain as to whether Respondent’s name was on the first list.
Respondent’s name was on the second list received on the occasion of his second assignment to
OSHA in 1973 and was inspected during that tour. The CSHO did not participate in any way in
the selection of the facilities listed for inspection on either the first or second list. (Transcript pgs
18–19, 135, 145–154, 294–295, 306–307, 331 and 344–346.)
4. On May 14 and 15, 1973 the following pieces of powertransmission equipment at
Respondent’s Albeni Falls plant were not fitted with the guards required by the indicated safety
standards:
1) Bull gear 60‘ in diameter and 11‘ pinion gear of burner chain drive in old saw
mill operating at 18 rpms [29 CFR 1910.219(f)(1)] (Transcript pgs 31–33, 50–53,
88–89, 116–117, 171–180, 210–211, 302–303, 308, 333, 347, 363–365, 406, and
Exhibits 1 and 11.);
2) Sprockets and chains of resaw feedroll drive in old sawmill, rotating at about
80 rpms [1910.219(f)(3)] (Transcript pgs 33–34, 53–59, 88–89, 180–185, 210–
211, 308, 365–368, 407–408, 420, 428, and Exhibits 2 and 11.);
3) Infeed drive idler sprocket of infeed to V.A.G. in old sawmill [1910.219(f)(3)]
(Transcript pgs 34–35, 60–67, 88–89, 165–169, 186–192, 210–211, 368–369, and
Exhibits 3 and 11.);
4) Sprocket at end of feed chain to small Stetson-Ross planer on side of chain
opposite feeder [1910.219(f)(3)] (Transcript pgs 35–36, 63–67, 88–89, 193–199,
310, 333–335, 341–343, 370–373, 410–413, 431–432, and Exhibits 4 and 11.);
5) Outer sprocket and chain of debarker log deck 70‘ above ground
[1910.219(f)(3)] (Transcript pgs 36–37, 67–72, 88–89, 203–206, 373–375, 379–
380, 413–417, 431, and Exhibits 5, 11 and E.);
6) Coupling between drive motor and W.B. Hog about 12‘ in diameter
[1910.219(i)(2)] (Transcript pgs 37–39, 72–77, 88–89, 214–222, 339–340, 375–
379, 403, 417–420, 428, and Exhibits 6, 11 & D.);
7) Sprockets on each side of transfer chain from headrig to quad [1910.219(f)(3)]
(Transcript pgs 39–40, 77–80, 88–89, 222–230, 310, 333, 337–339, 342–343,
381–383, 403, 420–423, 427, and Exhibits 7 and 11.);
8) Sprocket and chain drive of infeed rolls to quad on west side at floor level
[1910.219(f)(3)] (Transcript pgs 40–41, 80–83, 88–89, 231–233, 319–320, 383–
386A, and Exhibits 11 and F.); and
9) Sprockets and chain of new stacker hoist drive [1910.219(f)(3)] (Transcript pgs
41–42, 83–89, 234–241, 311–312, 386A–388, and Exhibits 8 and 11.).
Each of the foregoing pieces of power-transmission equipment was easily accessible to, and
closely approached by various of Respondent’s employees from time to time while the
machinery was in operation. Such close approach exposed the employees to some danger to a
minor degree. Respondent’s employees so exposed include its maintenance personnel (sawyers,
mechanics, oilers, clean-up men, etc.) and also the operators from nearby workstations. (See
Transcript citations listed under each of the foregoing Items.)
5. On May 14 and 15, 1973 the sides of the lower exposed portion of the blade of the
DeWalt radial arm saw at Respondent’s workplace were not guarded as required by the safety
standard set forth at 29 CFR 1910.213(h)(1). This saw was located in the carpenter shop which
was locked at all times except when in use. This saw was only used by 2 of Respondent’s
employees, each of whom was trained and experienced in its use. There had been no injuries
resulting from its use, at least in the last 10 years preceding. There was fresh sawdust around this
saw establishing its current use. (Transcript pgs 42–43, 90–94, 102, 246–266, 312–314, 321–
322, 327–329, 389–395, 403–404, 424–427, 434–436, and Exhibits 9, 11, G. H. I and J.)
6. On May 14 and 15, 1973 the table saw at Respondent’s workplace was not equipped
with a guard over the top of the saw blade as required by the safety standard set forth at 29 CFR
1910.213(c)(1). This saw was also located in the carpenter shop which was locked at all times
except when in use and was used by the same 2 employees who used the radial saw. They were
trained and experienced in use of the table saw. There had been no injuries resulting from its use,
at least in the last 10 years. This saw was observed in actual use during the inspection.
(Transcript pgs 43–44, 94–95, 102, 266–271, 313–314, 321–322, 389–403, 425–427, 432–433,
and Exhibits 10, 11, K and L.)
7. On May 14 and 15, 1973 the following stairways at Respondent’s Albeni Falls mill did
not have handrails as required by the safety standard set forth at 29 CFR 1910.265(c)(5)(ii):
1) Stairway with 5 risers behind resaw in old mill. (Transcript pgs 95–96, 105,
274–283, 301–302, 314–316, 343, 346 and 405.);
2) Stairway to walkway above separator in old mill. (Transcript pgs 97, 105, 274–
278, 301–302, 316–317, 323–327, 343, 346 and 405.);
3) Stairway with 16 risers from center of old sawmill basement to saw floor did
not have a handrail on the upper half. (Transcript pgs 98, 105, 274–278, 284–287,
301–302, 317–318, 343, 346, 405, 425, 432 and Exhibit C.);
4) Stairs with 4 risers from infeed level of small Stetson-Ross planer to planer
platform. (Transcript pgs 99, 105, 274–278, 301–302, 318–319, 343, 346 and
405.); and
5) Stairway of walkover with 4 risers at beaver infeed. (Transcript pgs 100, 105,
274–278, 301–302, 343, 346 and 405–406.)
Each of the foregoing stairs were used at various times by Respondent’s
employees. (See the citations under each Item.) None of the cited stairs were
blocked at the top or bottom to prevent access. (Transcript pg 346.)
8. In addition to the violations described in Findings 4, 5, 6 and 7 the CSHO observed
violations of 16 other safety and health standards which were not contested. (File—Citation and
letter of contest and Transcript pgs 10–15.)
9. As a result of the May 14 and 15, 1973 inspection of Respondent’s workplace 2
Citations for Serious Violation and a Citation (Non-Serious) were issued to Respondent on June
8, 1973. At the same time a Notification of Proposed Penalties was also issued to Respondent
(File.)
10. On June 21, 1973 Respondent timely contested the 2 Citations for Serious Violation
and Item 4 of the Citation (Non-Serious) and the accompanying proposed penalties and
abatement times. (File and Transcript pgs 10–15.)
11. The wording of the Citations contested are sufficiently descriptive of the manner in
which each cited standard is allegedly violated to give Respondent notice of, and full opportunity
to defend against, the allegations. There is no showing of prejudice to Respondent in preparing
its defense. It appears from the record that Respondent presented a full defense.
From the foregoing Findings of Fact we now make and enter the following:
CONCLUSIONS OF LAW
1. At all times material hereto, Respondent Diamond International Corporation, Albeni
Falls Unit, was an employer engaged in a business affecting commerce within the meaning of
Section 3 of the Occupational Safety and Health Act of 1970. On June 21, 1973 Respondent filed
a letter contesting certain of the Citations and accompanying proposed penalties issued to
Respondent on June 8, 1973. Respondent thereby brought itself and the subject matter of the
proceeding within the Jurisdiction of the Occupational Safety and Health Review Commission
pursuant to Section 10 of the Act (29 U.S.C. § 659.)
2. The safety standards cited in the Citations and complaint and relied on here [29 CFR
1910.213(c) and (h); 29 CFR 1910.219(f)(1), (f)(3) and (i)(2); 29 CFR 1910.265(c)(5) and
(c)(22)] are, on the basis of the record in this proceeding, in full accord with the definition of a
‘national consensus standard’ set forth in Section 3 (9) of the Act and have been adopted and
promulgated by the Secretary of Labor in accord with Section 6 of the Act.
3. The May 14 and 15, 1973 inspection of Respondent’s workplace at Albeni Falls, Idaho
was conducted by a duly authorized representative of the Secretary of Labor in full accord with
the provisions of Section 8 of the Act.
4. The enforcement procedures followed by the Secretary of Labor in this proceeding are
in full accord with the provisions of Sections 8, 9, 10 and 17 of the Act.
5. The Occupational Safety and Health Review Commission does not have the authority
to rule on the constitutionality of the Occupational Safety and Health Act of 1970.
6. The absence of guards from the 9 pieces of power transmission equipment, as found in
Finding 4, was in violation of the standards cited in connection with each of the 9 Items. The
violations were other than serious (Non-Serious) in nature.
7. The absence of a guard on the lower exposed portion of the blade on the radial arm
saw, as found in Finding 5, is a serious violation of 29 CFR 1910.213(c)(1).
8. The absence of a guard over the top of the saw blade of the table saw, as found in
Finding 6, is a serious violation of 29 CFR 1910.213(h)(1).
9. The absence of handrails from the 5 stairways, as found in Finding 7 was in violation
of 29 CFR 1910.265(c)(5)(ii).
10. The abatement dates proposed by Complainant were reasonable under all the
circumstances involved here and had, for the most part, been complied with by the time of the
trial herein.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law and for good cause shown, it
is hereby ORDERED that:
1. Respondent’s motion to dismiss based on Complainant’s alleged failure to carry its
burden of proof and because of the alleged failure of the Secretary of Labor to duly and
properly promulgate the standards relied on here be, and the same hereby is, DENIED;
2. Citation for Serious Violation Number One is hereby reduced to the classification of a
Citation (Non-Serious) and as so reduced be, and the same hereby is, AFFIRMED;
3. The penalty of $600 proposed in connection with Citation for Serious Violation
Number One (reduced herein to a Non-Serious Violation) be modified to $135 and as so
modified be, and the same hereby is, ASSESSED;
4. Citation for Serious Violation Number Two be, and the same hereby is, AFFIRMED;
5. The penalty of $600 proposed in connection with Citation for Serious Violation
Number Two be modified to $100 and as so modified be, and the same hereby is,
ASSESSED;
6. Citation Number One (Non-Serious) be, and the same hereby is, AFFIRMED; and that
7. The penalty of $45 proposed in connection with Citation Number One (Non-Serious)
be, and the same hereby is, AFFIRMED.
Dated this 18th day of February 1975.
JERRY W. MITCHELL
Judge, OSAHRC