LOSLI, INC.

OSHRC Docket No. 1067

Occupational Safety and Health Review Commission

May 1, 1974

[*1]

Before MORAN Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge Erwin L. Stuller, dated October 31, 1972, is before this Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590).

The respondent's notice of contest challenged only the penalty proposed by the complainant. Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, the Judge's decision is hereby affirmed in all respects.

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in the Chairman's opinion affirming the decision of the Judge in all respects.

Review was directed on the issue of whether or not the citation was issued with "reasonable promptness" under section 9(a) of the Act. In his brief, the Secretary of Labor argues that the Review Commission had no power to raise this issue because it was not raised at the hearing. The respondent considered the notice of review "confusing," perhaps because it specified an issue that was not raised at the hearing.

The Secretary of Labor's contention has now been sustained [*2] in several cases; e.g., Chicago Bridge & Iron Co., No. 744 (January 24, 1974); Morrison-Knudsen Co. & Assoc., No. 692, (March 28, 1974); and Advance Air Conditioning, No. 1036 (April 4, 1974).

Although the parties were invited to file briefs and exceptions to the Judge's decision, no additional issues were raised or addressed by the parties; and the record indicates that the employer is now complying with the mechanical power press standard involved. Accordingly, there is nothing further before us.

DISSENTBY: VAN NAMEE

DISSENT:

VAN NAMEE, COMMISSIONER, dissenting: Chairman Moran states that the notice of contest was directed only to the proposed penalty. Therefore, and in accordance with the Florida East Coast Properties, Inc., Commissioner Cleary finds a serious violation because only reasonable promptness was briefed. He notes that the employer is now complying with the mechanical power press standard involved. Thus on procedural grounds the majority aligned [*3] themselves with Complainant to make Respondent unique among employers. Losli must comply with a standard that does not apply to it on the facts according to a prior decision of this Commission ( Stevens Equipment Co., OSHA Program Directive No. 100-7, BNA 1 O.S.H.R. 21:8103 (March 24, 1972).

Since the majority has not stated the facts, I will state them. On May 16, 1972, Complainants' representative inspected Respondent's sheet metal fabrication plant in Portland, Oregon. He observed a 5 year old guarded Wysong shear. As described by the representative the shear is comprised of a stationary blade and a moving blade. It is used only for shearing metal sheets. The moving blade travels in a vertical plane and cooperates with the stationary blade to perform the shearing operation. A slotted guard was one half inch in front of the point of operation of the blades, and the opening between the guard and the cutting bed exceeded one half inch. The citation for a serious violation issued because according to the representative the cited [*4] standard only authorizes a one quarter inch opening when the guard is one half inch from the point of operation.

As noted, the shear was 5 years old in 1972. About two months before this inspection was carried out and three months before the citation issued Complainant informed all his representatives that mechanical power presses installed prior to August 21, 1971 are "former installations" within the meaning of 29 C.F.R. 1910.217(a)(2) and need not have point of operation guards under section 217 until August 31, 1974. See OSHA Program Directive No. 100-7, supra. A majority comprising Chairman Moran and former Commissioner Burch agreed with Complainant's views as to the lack of applicability of section 217 in Stevens. n1

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n1 I dissented in Stevens for in my view a point of operation guard is a power press use requirement within the meaning of 29 C.F.R. 1910.217(a)(3). Accordingly, in my view point of operation guards were required under section 217 by February 15, 1972.

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Thus, assuming Respondent's [*5] shear is a mechanical power press Complainant's representative issued a citation in violation of Complainant's own direct order. The representative's error has been compounded in this case by the majority's strict adherence to procedure notwithstanding its own prior decision.

I could rest my case at this point were it not for the fact that the assumption made above is in error. Section 217 was derived from the American National Standards Institute (ANSI) B 11.1-1970 Safety Standard for Construction Care and Use of Mechanical Power Presses. The scope provision of the ANSI standard states that it applies "only to those mechanical powered machines that shear, punch, form, or assemble metal or other material by means of tools or dies attached to slides commonly referred to as mechanical power presses" (emphasis added). Accordingly, in order to qualify as a mechanical power press within the meaning of the standard the machine must be equipped with a slide (ram or plunger) to which tools may be attached. Obviously, a press can be used as a shear by attaching a cutting tool to its slide. But that does not mean a machine whose moving element is a cutting blade is also a [*6] press. It is not if it does not have a slide to which tools may be attached. That is this case. According to Complainant's own representative the only moving element employed by Respondent's machine is a blade. Section 217 does not apply because Respondent's shear is not a mechanical power press. Section 212 would apply but then the question would be whether Respondent's guard protected his employees from the point of operation hazard.

[The Judge's decision referred to herein follows]

STULLER, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter called the Act) contesting a Citation For Serious Violation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. The Citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at 5805 S. W. Hood, Portland, Oregon 97201 and described as follows: Sheet metal fabrication plant, the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health [*7] standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation, which was issued on June 12, 1972, alleges that the violation results from a failure to comply with a standard and codified in 29 C.F.R. 1910.217(c) (2)(i)(1). The description of the alleged violation contained on said Citation states:

The Wysong 12 foot shear was not guarded at the point of operation in a manner that would prevent entry of employees fingers. Existing guard contained 1/2 inch openings 1/2 inch in from blade.

The standard as promulgated by the Secretary provides as follows:

(2) Point of operation guards. (I) Every point of operation guard shall meet the following design, construction, application, and adjustment requirements:

(a) It shall prevent entry of hands or fingers into the point of operation by reaching through, over, under or around the guard.

Simultaneously with the issuance of the Citation For Serious Violation, the Respondent was issued a Citation for seven violations that were not serious. The Respondent was notified by letter dated June 12, 1972 that the Complainant proposed to assess a penalty for the serious violation alleged in the amount of $550.00. [*8]

In the Notice of Contest, the Respondent contested only the $550.00 proposed penalty.

After the Complaint and an Answer had been filed by the parties, the case came on for hearing at Portland, Oregon, on September 8, 1972.

FINDINGS OF FACT

The Respondent corporation is in the business of buying and selling equipment and custom fabricating fine metal products. Its 35 employees are highly trained sheet metal workers, each well qualified to operate the various machines needed to do their work. Among these machines is a Wysong shear that is capable of shearing stainless steel and other metals in widths up to 12 feet and thicknesses up to 1/4 inch. It has a foot tripping device and in operating the machine, the employee is required to position the metal with his hands. This machine is equipped with a point of operation guard set at 5/8 inch above the bed of the table on which the metal to be cut rests and 1/2 inch from the blade. The machine is sometimes used to cut metal with thicknesses of less than 1/4 inch. It makes 50 to 100 cuts each working day, and on rare occasions one man may work with the machine for a full day.

The Respondent does not have a history of prior [*9] violations of the Act. It has an excellent safety record. The hazard concerned here is limited to injury to fingers. Similar machines have caused such injuries.

DISCUSSION

The Respondent repeatedly admitted the violation alleged. The evidence indicates that the point of operation openings exceeded maximum permissable openings listed in Table 0-10 of 29 C.F.R. 1910.217. The violation having been clearly established, only the appropriateness of the proposed penalty remains in issue.

As there is a substantial probability that the use of the improperly guarded machine concerned herein could result in serious physical harm, the violation is found to be serious, thus, requiring a monetary penalty. (Section 17(b) of the Act.).

The Complainant's determination of the Respondent's good faith, size of business and history of previous violations, all of which are favorable to the Respondent, are supported by the evidence. However, the weight given these factors by the Complainant's formula is rejected as being inappropriate. It starts from a position of maximum penalty giving deductions for the three stated factors but providing no credit for variances in gravity. It, therefore, [*10] fails to consider that factor. Section 17(j) of the Act requires the consideration of the gravity of the violation in determining the penalty.

The number of employees exposed to the hazard; the precaution taken to prevent injury (the existing point of operation guard); the limited duration of exposure to the hazard; the degree of probability of occurrence of injury which is reduced by the high level of skill of the employees; and the limited nature of the possible injury (injury only to fingers) are considered in determining the gravity of the violation.

Based on the foregoing considerations, it is found that $100 is a reasonable and appropriate penalty.

Accordingly, it is ORDERED that the Citation for Serious Violation is affirmed, and a penalty of $100 is assessed.