HOUSE WOOD PRODUCTS COMPANY

OSHRC Docket No. 11167

Occupational Safety and Health Review Commission

February 3, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Marshall H. Harris, Regional Solicitor, USDOL

Paul A. McGlone, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

The decision of Administrative Law Judge William E. Brennan in this case has been ordered for review before us pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., [hereinafter referred to as "the Act"] upon the granting of respondent House Wood Products Company's petition for review.

The only issue raised by the petition is whether Judge Brennan erred in weighing the evidence when he affirmed item 3 of the citation for nor-serious violation of section 5(a)(2) of the Act. This item concerned three swing cut-off saws alleged to be not adequately guarded.

Respondent operates a plant located at Mansfield, Pennsylvania, where it manufactures wooden pallets. On October 21 and 22, 1974, its plant was inspected by a compliance officer for the Department of Labor. Subsequently on November 14, 1974, a citation for violation of section 5(a)(2) of the Act was issued. Item No. 3 of the citation alleged a failure to comply with the standard at 29 CFR [*2] 1910.213(g)(1) in that the lower-exposed part of the blades of three Heston and Anderson model 55 cut-off saws were not guarded by a device that automatically adjusted itself to the thickness of the stock being cut. n1

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

n1 The cited standard provides:

1910.213 Woodworking Machinery Requirements

* * *

(g) Swing Cutoff saws.

The requirements of this paragraph are also applicable to sliding cutoff saws mounted above the table.

(1) Each swing cutoff saw shall be provided with a hood that will completely enclose the upper half of the saw, the arbor end, and the point of operation at all positions of the saw. The hood shall be constructed in such a manner and of such material that it will protect the operator from flying splinters and broken saw teeth. Its hood shall be so designed that it will automatically cover the lower portion of the blade, so that when the saw is returned to the back of the table the hood will rise on top of the fence, and when the saw is moved forward the hood will drop on top of and remain in contact with the table or material being cut (emphasis added).

[*3]

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

Respondent argued that the operation of the saws with the utilized guard created a hazard in itself. It relied on the provision of 29 CFR 1910.212(a)(2) (last sentence) entitled "General Requirements for All Machines" which requires that "the guard shall be such that it does not offer an accident hazard in itself."

Judge Brennan rejected this argument. He found that respondent had installed one guard temporarily but that it was removed immediately because of the employees' "verbalized fears." He held that respondent had not met its burden of proving that the new guards constituted a hazard to the exposed employees.

The quoted provision of 29 CFR 1910.212(a)(2) is actually the prescription of a duty rather than a regulatory defense. Buckeye Industries, Inc., No. 8454 (December 22, 1975). n2

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

n2 In any event, the respondent's contentions were not proved. It argues that its foreman's testimony outweighs that of the compliance officer because the foreman had experience operating one saw with a guard. Respondent's foreman had testified that based upon his 20 years' experience he was of the opinion that the one guard that was installed was "really dangerous" because he thought that wood chips would fly back into the guard and jam inside when cutting 4 X 6 lumber. He conceded, however, that he did not know if the chips would fly back into the guard and that he did not cut any 4 X 6 lumber during the part of the one day the saw was operated with the guard. Respondent also contends that the compliance officer's only knowledge of the operation consisted of familiarity with the words of the regulation. But the compliance officer testified that guards were used "in a lot of plants" and that an Ingersole-Rand plant was one that immediately came to mind. He also testified that "many, many" manufacturers make guards for the type of saw used by respondent.

We would agree with Judge Brennan's assessment of this evidence. No substantial amount of cutting was done with the guards in place. During the part of one day the guard was used, respondent's foreman did not cut any 4 X 6 lumber. His objections to the guards were based on cutting that size of lumber. If the noted defense were available here, we would therefore agree to adopt the Judge's finding that respondent failed to prove that the guards presented a hazard.

[*4]

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

Item 3 of the citation is therefore affirmed. So ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

It is my opinion that Item 3 of the citation should be vacated for two primary reasons. First, the standard published at 29 C.F.R. 1910.213(g)(1) was improperly promulgated and should therefore be held invalid and unenforceable. Secondly, the complainant failed to establish, as required by 29 .C.F.R. 1910.212(a)(2), that respondent's saws could be equipped with guards which did not "offer an accident hazard in [themselves]."

910.212(a)(2). Proof that compliance with the requirements of a standard creates greater [*5] hazards to employees than noncompliance is a valid defense under the Act. See Secretary v. American Bridge, Division of U.S. Steel Corp., 12 OSAHRC 22 (1974); Secretary v. Industrial Steel Erectors, Inc; 6 OSAHRC 154 (1974). Contrary to the conclusion of the majority, respondent did prove that equipping the saws with lower guards made the machines more hazardous.

The majority finds that respondent failed to establish its defense because: (1) it did not use the saws extensively with the guards installed and, therefore, did not demonstrate that actual hazardousness resulted from compliance and (2) complainant's evidence that the guards were used in the industry outweighed respondent's evidence that they could not be safely installed in this particular plant. Those conclusions are contrary to the record.

The respondent removed the guards so soon after installation because its employees refused to use the saws with the lower guarding. They refused because the guard would throw wood chips "like shrapnel." Not only did Mr. House, the foreman referred to in the majority opinion and an operator of the saws, testify to the dangerousness of the guarding, so did another [*6] foreman and a second saw operator. Though Mr. House did not personally run a machine with the guarding, the operators did, and they stated vehemently that use of the guard created greater hazards than those it was designed to prevent.

The Commission's opinion essentially holds that respondent was required to run the machines with the guards in place even though the experienced employees of the company knew the guarded machines were dangerous. It is incredible that my colleagues, ostensibly committed to making worksites safe for employees, would require an employer to expose its employees to known hazards in order to prevail on its defense. One of the operators, admitting under cross-examination that he had not seen the chips fly because the guard was removed shortly after installation, suggested that the complainant's men should try running the machine when guarded so they could see how the chips would fly. I sympathize with his view. No Act designed to promote employee safety should be so interpreted that employees must be guinea pigs for testing unproved safety devices.

Finally, the majority's reliance on the government safety inspector's testimony that the guards were [*7] successfully used in other establishments in order to establish the safety inspector's expertise and to show that respondent also could comply is misplaced. Respondent's witnesses readily admitted that with other types of cutting operations the hazards would not occur and that, therefore, the guards could successfully be used by other employers. It is immaterial what the conditions were at other establishments since respondent proved that - for the work it did at the site involved in this case - guarding its saws in the manner prescribed by the inspector was extremely dangerous.

Therefore, not only did the complainant fail to establish that respondent's saws could be safely guarded, a necessary element of his case, but the respondent proved the contrary.

Since this decision does not deal with all the matters covered in Judge Brennan's decision, the same is attached hereto as Appendix A.

APPENDIX A

DECISION AND ORDER

Louis Weiner, Regional Solicitor and Thomas H. Tobin, U.S. Department of Labor

Paul A. McGlone, for the Respondent

Brennan, W.E.; A.L.J.

This action arises under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. [*8] 659(c) (hereinafter the Act), to review a Citation for eleven alleged Nonserious Violations of Section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2) and penalties proposed thereon, issued pursuant to Sections 9(a) and 10(a) of the Act, 29 U.S.C. 658(a) and 659(a) on November 14, 1974 by the Secretary of Labor through the Area Director for Region III of the Occupational Safety and Health Administration (hereinafter Complainant), to House Wood Products Company of Mansfield, Pennsylvania (hereinafter Respondent), following an inspection of its wooden pallet manufacturing plant located at Lutes Avenue in Mansfield, Pennsylvania (hereinafter worksite) on October 21 and 22, 1974.

Pursuant to Section 10(c) of the Act, 29 U.S.C. 659(c), Respondent, through a letter dated November 26, 1974 from its President, noted its timely contest of the Citation and proposed penalties.

After the filing of the Complaint and Answer herein, this case came on for trial pursuant to notice on February 26, 1975 in Scranton, Pennsylvania. Both parties were represented by counsel. No affected employees or representative thereof desired party status.

Both parties were invited to submit post-trial findings, conclusions [*9] and briefs. Said documents were received from Complainant on May 14, 1975. None were received from Respondent.

Having considered the entire record herein, the testimony and demeanor of the witnesses, the exhibits, stipulations, representations and admissions of the parties, it is concluded that the substantial, reliable and probative evidence of this record considered as a whole supports the following findings of fact and conclusions of law.

The citation for alleged Nonserious Violations sets forth the following:

Standard

Description of alleged violation

Abatement Date

Item No. 1

29 CFR 1910.23

The open-sided floor(s) and/or

November 29,

(c)(1)

platform(s), in the following

1974

location(s), which was/were four

feet or more above adjacent floor/

ground level was/were not guarded

by standard railings(s) (or the

equivalent) and/or toeboard(s)

where required:

(a) Storage Platform above the

restroom - west side of mill

Item No. 2

29 CFR 1910.133(a)

Eye and/or face protection was not

November 29,

(1)

worn by employee(s), in the follow-

1974

ing location(s), where machinery of

operation(s) presented a hazard:

(a) General Mill Area - operators

of the band saws, plainer [sic]

and swing cutt [sic] off saws,

were not wearing side shields

on their safety glasses for

protection from the hazard

of flying wood chips

Item No. 3

29 CFR 1910.213(g)

The sides of the lower-exposed por

December 30,

(1)

tion of the blade(s) of cutoff

1974

saw(s), in the following loca-

tion(s), were not guarded by a

device which automatically adjusted

itself to the thickness of the stock

being cut:

(a) Heston and Anderson Model

Number 55 serial number 50024

- at the south end of the

building

(b) Heston and Anderson, Model

Number 55, serial number

600201 - at the south end of

the building

(c) Heston and Anderson, Model

Number 55, serial number

401958, at the south end of

the building

Item No. 4

29 CFR 1910.213(i)

That portion of the blade of the

December 30,

(1)

bandsaw(s), in the following loca-

1974

tion(s), between the sliding guide

and upper-saw wheel guard, was not

provided with self-adjusting guard(s):

(a) McDonough Band Saw, serial

number 54-1073, at the east

end of the mill

(b) McDonough Band Saw, serial

number 54917, at the east

end of the mill

Item No. 5

29 CFR 1910.219(b)

The flywheel(s) of the following

January 30,

(1)

machinery was/were not guarded in

1975

accordance with the requirements

of this sub-paragraph:

(a) McDonough Band Saw, serial

number 54-1073, east end of

mill. Approximately 10% of

the fly-wheel at shoulder

height and immediately in

front of the operatorwere [sic]

not guarded.

Item No. 6

29 CFR 1910.219(e)

The mechanical power-transmission

January 30,

(1)(i) and 29 CFR

apparatus, drive belts and V-belt

1975

1910.219(e)(3)(i)

Drives of the following machinery,

was/were not enclosed by guard(s):

(a) Crescent planning [sic] machine,

Mill Area, south end of mill

(b) Heston and Anderson Cut-off Saw,

serial number 50024, at the

south end of the mill

(c) Heston and Anderson Cut-off Saw,

serial number 600201, at the

east end of the mill

(d) Heston and Anderson Cut-off Saw,

serial number 401958, south

west and east end of building

(e) Powermatic plainer, serial

number 2240051, upper end of

mill - east side

(f) Cornell Blower, upper east side

of Mill

(g) Ingersoll-Rand Compressor, serial

number 25465, east side of Mill

(h) McDonough Band saw, serial

number 541073 east side of Mill

(i) McDonough band saw, serial number

54917, east side of mill

Item No. 7

29 CFR 1910.242(b)

Compressed air, used for cleaning

December 30,

purposes in the following loca-

1974

tion(s), was being operated at a

pressure greater than the allowable

30 p.s.i.:

(a) Throughout the Mill

Item No. 8

National Electric

Disconnecting means, in the follow-

December 16,

Code, NFPA 70-1971,

ing location(s), were not legibly

1974

Section 110-22, as

marked to indicate their purpose

adopted by 29 CFR

nor, alternatively, were they so

1910.309(a)

located that their purpose was

evident:

(a) Main disconnect (3 phase 220

volts) to the crescent plainer [sic],

south end of Mill

(b) McDonough band saws, serial

numbers 54-1033 & 54917, at

east end of Mill

(c) Daito Machine at east side of

upper Mill

Item No. 9

National Electric

The electrical disconnecting means,

December 16,

Code, NFPA 70-1971,

in the following locations, were

1974

Section 110-21 as

not marked to indicate their voltage:

adopted by 29 CFR

(a) General Mill complex

1910.309(a)

Item No. 10

National Electric

The switch boxes, in the following

November 29,

Code, NFPA 70-1971,

location, had holes through which

1974

Section 503-4 as

exterior accumulation of flying

adopted by 29 CFR

(saw dust) might be ignited:

1910.309(a)

(a) Switch boxes on Panner Board,

in upper Mill: heavy accumu-

lation of saw dust inside the

boxes

Item No. 11

National Electric

The exposed noncurrent-carrying

December 16,

Code, NFPA 70-1971,

metal parts of the following fixed

1974

Section 250-42, as

equipment, likely to become ener-

adopted by 29 CFR

gized, were not electrically ground-

1910.309(a)

ed:

(a) The crescent planning [sic]

machine, Mill Area at the

south end of the building

[*10]

Penalties in the following amounts were proposed:

Item No. 1

$ 0

Item No. 0

$ 0

Item No. 2

$60

Item No. 8

$40

Item No. 3

$70

Item No. 9

$40

Item No. 4

$70

Item No. 10

$40

Item No. 5

$55

Item No. 11

$40

Item No. 6

$75

The following matters were stipulated by the parties:

The Respondent company is a sole proprietorship owned by Mr. Eugene F. House. At the time of the alleged violations it shipped its product in interstate commerce.

No employee was injured at the time of the alleged violations nor at any other time as a result of any condition set forth in the Citation herein. Respondent considers itself a "medium-sized" wooden pallet manufacturer in its geographical area with total sales for 1973 of $774,762. It has twelve employees on the average. It has no history of prior violations of laws or regulations affecting the health or safety of its employees (Tr. 5, R. p. J-3).

Based upon these stipulations it is concluded that Respondent is an employer engaged in a business affecting commerce having employees within the meaning of Section 3(5) of the Act, 29 U.S.C. 652(5). Further, that the Act applies to the employment performed at Respondent's [*11] worksite (supra) within the meaning of Section 4(a) of the Act, 29 U.S.C. 653(a). The Review Commission has jurisdiction of this matter under the provisions of Section 10(c) of the Act, 29 U.S.C. 659(c).

On Friday, October 18, 1974, Compliance Officer Lark went to Respondent's plant to conduct an inspection pursuant to the provisions of Section 8 of the Act, 29 U.S.C. 657. Mr. House, the owner, after being informed by Mr. Lark of his purpose, refused to allow the inspection.

On Monday, October 21, 1974, Mr. Lark, accompanied by Compliance Officer Mason again appeared and requested of Mr. House entry into his plant to conduct an inspection. Upon a second refusal, a warrant was served upon Mr. House and the inspection was begun. However, entry was gained near the end of the work shift for that day so the Compliance Officers suspended the inspection for that day, returning the following day, October 22, 1974 at the beginning of normal work hours. This inspection was completed that day at approximately 3:30 p.m., within normal work hours (Tr. 9-15, 114).

Upon this evidence, which is unchallenged in this record, it is concluded that the inspection conducted at Respondent's plant [*12] was reasonable and in conformity with the requirements of Section 8 of the Act, 29 U.S.C. 657.

At the outset of the hearing, Respondent's counsel noted for the record an objection to the ". . . proceeding in its entirety . . ." based essentially upon the alleged unconstitutionality of the Act and proceedings brought pursuant to it. This objection was noted for the record and all available evidence was taken concerning the alleged violations upon the authority of Secretary of Labor v. American Smelting and Refining Co., 4 OSAHRC 445, 447 (August 17, 1973), aff'd at 501 F.2d 504, (CA 8, 1974), which held inter alia, that neither the Commission nor its Judges have the authority to rule upon constitutional issues arising under the Act. n1

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

n1 See also: P.U.C. v. United States, 355 U.S. 534, 539 (1958); Engineers Public Service v. S.E.C., 138 F.2d 936, 951-53; (D.C. 1943), cert. den. as moot 332 U.S. 788; Secretary of Labor v. Divesco Roofing & Insulation Co., 4 OSAHRC 339, (August 13, 1973); Panitz v. Dist. of Columbia, 112 F.2d 39 (D.C. Cir., 1940).

[*13]

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

As to the substantive issues remaining, each Item of the Citation will hereinafter be treated seriatim.

Item No. 1

The Standard allegedly violated provides:

29 C.F.R. 1910.23(c)(1)

(c) Protection of open-sided floors, platforms, and runways.

(1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a toeboard wherever, beneath the open sides.

(i) Persons can pass,

(ii) There is moving machinery, or

(iii) There is equipment with which falling materials could create a hazard.

This Item involves the roof of a small room located within Respondent's steel plant building which houses restrooms. The roof of this room measured approximately 10 feet long by 6 feet wide and was about 7 1/2 feet up from the surrounding plant floor. Spare band saw blades were stored on pallets on this roof as were a small amount of unused metal duct [*14] pipe. (See Exhibits C-3, C-4.)

Mr. House testified that the coiled spare saw blades were placed upon and taken down from this storage area by one of his company's three forklift trucks and the other stored equipment was placed there by employees standing on portable stepladders. (See Exhibits R-6 through R-9.) He further testified that neither he nor his employees go up onto this platform as he has given them orders not to go onto it, and that it is used exclusively as a storage area, no work of any kind being performed upon it (Tr. 184-191).

Neither Mr. Lark nor Mr. Mason, the two Compliance Officers, saw anyone on this platform during their inspection.

The obvious purpose of the cited Standard is to protect employees from falling from a floor or platform, upon which they are performing work or are walking, which is four or more feet above adjacent floor or ground level, and to protect employees beneath such an area from the hazard of falling objects.

Subpart "D" of the cited Standard, entitled "Walking-Working Surfaces," sets forth the following definition:

(4) Platform. A working space for persons, elevated above the surrounding floor or ground, such as a balcony or platform [*15] for the operation of machinery and equipment.

It is similarly obvious that the storage area involved in this Item, is not a "floor." It is the "roof" of the restrooms, used exclusively for storage, not a "working space for persons," nor do employees walk along it.

It is concluded that the storage area here involved does not fall within the contemplated coverage of the cited Standard and Item No. 1 must be vacated. No penalty was proposed for this Item.

Item No. 2

The Standard cited for the alleged violation provides:

29 C.F.R. 1910.133(a)(1)

(1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards.

The Citation alleges that operators of band saws, swing cutoff [*16] saws and planers ". . . were not wearing side shields on their safety glasses for protection from the hazard of flying wood chips."

It is Complainant's position that the terms "Suitable eye protectors . . ." in the cited Standard means safety glasses with one of a variety of available "side shields" affixed thereto. Respondent argues that "side shields" are not specifically mentioned in this Standard and therefore it should not be held in violation of this vague Standard. n2

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

n2 This argument is not without merit. However, I do not decide this question as this Item must be vacated on other grounds.

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

The evidence reveals that all of the equipment cited under this Item direct or throw the sawdust caused by their use away from the operators thereof. A number of employees were observed during the inspection wearing glasses without side shields. The Compliance Officers did not determine if the observed glasses were or were not safety glasses. One machine in this plant, the chipping or daito machine, not cited in this [*17] Item, was acknowledged to cause chips to fly. However, safety glasses with side shields were provided by Mr. House and used by employees operating this machine prior to the inspection herein. Mr. House testified that prior to this inspection he did not know, under the wording of cited Standard, that side shields were required on safety glasses as no employee of his, during the 23 years he has operated this business, had ever sustained any eye injury. There is no evidence to the contrary in this record. The Compliance Officers did examine Respondent's accident reports, which at least for the period during which they have been maintained, confirm the absence of eye injuries. In addition, Respondent received a 35% return of its Workmen's Compensation premium for 1974 as a result of its lack of claims (Exhibit R-18). At the time of the inspection, Mr. House testified that a number of safety glasses were available for employees at the office adjacent to the work areas, and had been so available for over one year.

Under the plain wording of the cited Standard, protective eye equipment must be required ". . . where there is a reasonable probability of injury that can be prevented [*18] by such equipment."

The evidence of this record fails to establish that there was a "reasonable probability of eye injury." To the contrary, it establishes that there have been no eye injuries. It is therefore concluded that a violation of 29 C.F.R. 1910.133(a)(1) has not been established. Item No. 2 and the $60 proposed penalty must be vacated. n3

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

n3 As a result of the closing conference, Mr. House immediately purchased safety glasses with side shields for all production employees in his continuing efforts to eliminate any possibility of eye injuries in his plant.

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

Item No. 3

The Standard cited for this Item provides:

29 C.F.R. 1910.213(g)(1)

(g) Swing Cutoff saws.

The requirements of this paragraph are also applicable to sliding cutoff saws mounted above the table.

(1) Each swing cutoff saw shall be provided with a hood that will completely enclose the upper half of the saw, the arbor end, and the point of operation at all positions of the saw. The hood shall be constructed in such a manner and of such [*19] material that it will protect the operator from flying splinters and broken saw teeth. Its hood shall be so designed that it will automatically cover the lower portion of the blade, so that when the saw is returned to the back of the table the hood will rise on top of the fence, and when the saw is moved forward the hood will drop on top of and remain in contact with the table or material being cut.

This Item involves three swing cutoff radial saws in Respondent's plant which were not equipped with guards on the lower portion of the blades, only the top portions thereof being guarded. (See Exhibit C-7, C-8, C-9 and C-10.) This condition was admitted to by Respondent. At or shortly after the closing conference, Mr. House ordered a new type of guard for each of the three cutoff saws from his supplier in Fairfield, Iowa. When the new guards were received, they were examined by Mr. House and his employees. In their opinion the new guard would present an additional hazard because when squaring off some of the stock used in manufacturing wooden pallets, the 4-inch by 6-inch stringers, narrow chips are produced, which both Mr. House and the employees feared might be thrown up into [*20] the new guard which in turn might result in some undefined additional hazard.

Respondent defends against this alleged violation relying upon the "General Requirements for All Machines" standard set forth at 29 C.F.R. 1910.212(a)(2), which provides, inter alia, that "the guard shall be such that it does not offer an accident hazard in itself."

The evidence reveals that upon receipt of the three new guards, (see Exhibit R-10), one was installed but was removed immediately because of the employees' verbalized fears. No substantial amount of cutting was accomplished with the new guard in place (Tr. 195-201). They had not been used in production up to the time of the hearing.

In order to qualify for an exemption to the mandatory provisions of the Standard cited, (29 C.F.R. 1910.213(g)(1)) under the general requirement relied upon, 29 C.F.R. 1910.212(a)(2), Respondent must prove that compliance with the specific Standard "offers" or produces an accident hazard in itself. The Respondent herein has not proven such, as the evidence of increased hazard is merely the verbalized fears of employees and as such is too conjectural to satisfy this burden. No evidence was presented that [*21] wood chips had been thrown up into the new guard while cutting any sized stock despite the testimony that one of the new guards had been installed on one saw for a brief period. n4 Further, other types of lower blade guards are available from various manufacturers and have been used successfully (Tr. 76-78).

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

n4 See: Secretary of Labor v. Garrison & Associates, Inc.;    OSAHRC   , Docket No. 4235 (Comm. Dec. April 22, 1975).

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

Thus it is concluded that the violation alleged in Item No. 3 of the Citation herein has been established.

Item No. 4

The cited Standard provides:

29 C.F.R. 1910.213(i)(1)

(i) Bandsaws and band resaws.

(1) All portions of the saw blade shall be enclosed or guarded, except for the working portion of the blade between the bottom of the guide rolls and the table. Bandsaw wheels shall be fully encased. The outside periphery of the enclosure shall be solid. The front and back of the band wheels shall be either enclosed by solid material or by wire mesh or perforated metal. Such [*22] mesh or perforated metal shall be not less than 0.037 inch (U.S. Gage No. 20), and the openings shall be not greater than three-eights inch. Solid material used for this purpose shall be of an equivalent strength and firmness. The guard for the portion of the blade between the sliding guide and the upper-saw-wheel guard shall protect the saw blade at the front and outer side. This portion of the guard shall be self-adjusting to raise and lower with the guide. The upper-wheel guard shall be made to conform to the travel of the saw on the wheel, and the top member of the guard should have at least a 2-inch clearance outside the saw and be lined with smooth material, preferably metal. Effective brakes should be provided to stop the wheel in case of blade breakage.

The gravamen of this alleged violation is the absence of a self-adjusting guard between the pulley and table of two of Respondent's band saws. Photographic Exhibit C-13, purportedly depicts this condition.

The evidence of record establishes however, that photograph C-13 was taken of the back side of one of the two band saws involved, showing the side opposite from the operator's position. The individual shown in this [*23] photo is not at the operator's station. Further, Mr. House testified that all moving parts of these saws are guarded as lumber is fed into these saws through four vertical rollers which constitute an effective guarding of the blade (Tr. 202-206).

Upon this state of the evidence it is concluded that there is a lack of substantial and reliable evidence establishing a violation as alleged in Item No. 4 of the Citation. This Item and the $70 proposed penalty based thereon must be vacated.

Item No. 5

The Standard involved provides:

29 C.F.R. 1910.219(b)(1)

(b) Prime-mover guards.

(1) Flywheels. Flywheels located so that any part is seven (7) feet or less above floor in platform shall be guarded in accordance with the requirements of this subparagraph:

(i) With an enclosure of sheet, perforated, or expanded metal, or woven wire;

(ii) With guard rails placed not less than fifteen (15) inches nor more than twenty (20) inches from rim. When flywheel extends into pit or is within 12 inches of floor, a standard toeboard shall also be provided;

(iii) When the upper rim of flywheel protrudes through a working floor, it shall be entirely enclosed or surrounded by a guardrail and [*24] toeboard.

(iv) For flywheels with smooth rims five (5) feet or less in diameter, where the preceding methods cannot be applied, the following may be used: A disk attached to the flywheel in such manner as to cover the spokes of the wheel on the exposed side and present a smooth surface and edge, at the same time providing means of periodic inspection. An open space, not exceeding four (4) inches in width, may be left between the outside edge of the disk and the rim of the wheel if desired, to facilitate turning the wheel over. Where a disk is used, the keys or other dangerous projections not covered by disk shall be cut off or covered. This subdivision does not apply to flywheels with solid web centers.

(v) Adjustable guard to be used for starting engine or for running adjustment may be provided at the flywheel of gas or oil engines. A slot opening for jack bar will be permitted.

(vi) Wherever flywheels are above working areas, guards shall be installed having sufficient strength to hold the weight of the flywheel in the event of a shaft or wheel mounting failure.

This Item alleges that ". . . approximately 10% of the flywheel at shoulder height and immediately in front of [*25] the operator were not guarded" on both of Respondent's band saws.

Complainant produced the same photograph, Exhibit C-13, to establish this alleged violation.

However, as alluded to under the prior Item, this photograph shows the back side of the band saw, the operator station being on the side not depicted in the photo.

As explained by the operator of this saw for 8 years, and as is discernible in the photographic exhibit, the pulley (i.e., flywheel) is completely guarded from the operator's station, as a piece of sheet metal extends on the operator side down below that portion of the pulley guard on the rear of this saw as shown in Exhibit C-13.

It is therefore concluded that there is a total failure of proof of this alleged violation. Item No. 5 and $55 penalty proposed therefore must be vacated.

Item No. 6

The two Standards cited for this alleged violation provide:

29 C.F.R. 1910.219(e)(1)(i)

(e) Belt, rope, and chain drives.

(1) Horizontal belts and ropes.

(i) Where both runs of horizontal belts are seven (7) feet or less from the floor level, the guard shall extend to at least fifteen (15) inches above the belt or to a standard height (see Table 0-12), except [*26] that where both runs of a horizontal belt are 42 inches or less from the floor, the belt shall be fully enclosed in accordance with paragraph (m) and (o) of this section.

29 C.F.R. 1910.219(e)(3)(i)

(3) Vertical and inclined belts.

(i) Vertical and inclined belts shall be enclosed by a guard conforming to standards in paragraphs (m) and (o) of this section.

Nine specified pieces of equipment, two planers, three cutoff saws, two band saws, one Cornell blower and one compressor are listed in the Citation herein as not having adequate guarding on their drive belts.

The testimony of the Compliance Officer concerning this Item is rather confused (Tr. 32-40). However, photographic exhibits establish the absence of adequate guarding, as charged, as to the Crescent planer (Item 6(a)); Exhibits C-2, 22; two of the three cutoff saws (Items 6(b), (c)); Exhibits C-5, 6, 7, 8, 9 and 11; (Tr. 34-37); and the Cornell blower (Item 6(f)), Exhibit C-14. As to the remaining specified items of machinery in this Item, there is a lack of any direct, intelligible and hence substantial evidence to establish any violation. Thus Items numbered 6(d), 6(e), 6(g), 6(h) and 6(i) must be vacated.

Item [*27] No. 7

The cited Standard provides:

29 C.F.R. 1910.242(b)

(b) Compressed air used for cleaning.

Compressed air shall not be used for cleaning purposes except where reduced to less than 30 p.s.i. and then only with effective chip guarding and personal protective equipment.

The allegation is that compressed air, in excess of 30 p.s.i. was used throughout the plant for cleaning purposes.

Compliance Officer Lark testified to observing a number of employees throughout Respondent's plant, using air hoses to clean machines. He further testified that he read the air pressure gauge on the Ingersoll Rand air compressor, the source of the air used for cleaning, and found it to be 220 p.s.i. Additionally, no reduction fittings were observed on the hoses used for cleaning, which type of fitting is the only way that the air pressure from the compressor could be reduced. Mr. House confirmed the use of air hoses with cleaning nozzles, which do not reduce air pressure, for the daily cleaning of machines and that compressed air is routinely used in his plant to drive nailing guns and stapling machines.

Upon this state of the evidence the violation as alleged in Item No. 7 has been established. [*28] Thus this Item will be affirmed. No penalty was proposed, and based upon the absence of any evidence of injury connected with this condition, no penalty is appropriate.

Item No. 8

The section of the National Electrical Code alleged to have been violated in this Item provides:

Article 110-22

Identification. Each disconnecting means required by this Code for motors and applicances, and each service, feeder or branch circuit at the point where it originates, shall be legibly marked to indicate its purpose unless located and arranged so the purpose is evident. The marking shall be of sufficient durability to withstand the environment involved.

It is alleged that the electrical disconnecting means for the Crescent planer, the two band saws and a daito machine in Respondent's plant were not legibly marked to indicate their purpose nor were they so located and arranged so that their purpose was evident.

The evidence fully supports this allegation (Tr. 42-50) and in fact, Mr. House admitted the absence of legible markings (Tr. 242-245).

This Item therefore will be affirmed as established by the substantial evidence of record.

Item No. 9

Section 110-21 of the National [*29] Electrical Code, cited for this Item, provides:

Article 110-21

Marking. The manufacturer's name, trademark, or other descriptive marking by which the organization responsible for the product may be identified, shall be placed on all electrical equipment. Other markings shall be provided giving voltage, current, wattage, or other ratings as are prescribed elsewhere in this Code. The marking shall be of sufficient durability to withstand the environment involved.

The gravamen of this alleged violation is that the "electrical disconnecting means," i.e., main electrical panel boxes or junction boxes, throughout the plant were not marked to indicate their voltage. Photographic Exhibit C-12 is relied upon to establish this violation together with Mr. Lark's testimony to that effect (Tr. 42-43). Mr. House's testimony that he believed all the start-stop switches for his equipment were required to be and hence were marked with appropriate voltage, (Tr. 224-225) does not rebut Mr. Lark's testimony that the electrical junction boxes were not so marked. It is therefore concluded that this violation has been established and this Item will be affirmed.

Item No. 10

Underlying this [*30] Item is Article 503-4 of the National Electrical Code, which provides:

Article 503-4

Switches, Circuit Breakers, Motor Controllers and Fuses, Class III, Divisions 1 and 2. Switches, circuit breakers, motor controllers and fuses, including push buttons, relays and similar devices, shall be provided with tight metal enclosures designed to minimize entrance of fibers and flyings, and which shall: (1) be equipped with telescoping or close fitting covers, or with other effective means to prevent escape of sparks or burning material, and (2) have no openings (such as holes for attachment-screws) through which, after installation, sparks or burning material might escape, or through which exterior accumulations of fibers or flyings or adjacent combustible material might be ignited.

This alleged violation involves the panel or junction box depicted in Exhibit C-12, which had a hole in the lower right corner thereof which allowed flying sawdust to accumulate within this box (Tr. 43-44).

Mr. House testified that the electrical junction boxes are cleaned approximately "every couple" of weeks but that it is impossible to maintain these boxes dust-free at all times in his woodworking plant. [*31] He has never had a sawdust fire, as this material is rather difficult to ignite, nor had he ever heard of such an accidental fire (Tr. 225-226).

Upon this state of the record it is concluded that a technical violation, as alleged, has been established which involves an extremely low order of hazard. This Item will therefore be affirmed but no penalty is appropriate because of the very miniscule hazard involved.

Item No. 11

The section of the National Electrical Code cited in this last Item provides:

Article 250-42

Fixed Equipment, General. Exposed noncurrent-carrying metal parts of fixed equipment that are likely to become energized under abnormal conditions shall be grounded under any of the following conditions:

(a) Where within 8 feet vertically or 5 feet horizontally of ground or grounded metal objects and subject to contact by persons.

(b) Where located in a wet or damp location and not isolated.

(c) Where in electrical contact with metal.

(d) Where in a hazardous location as covered by Articles 500 through 517.

(e) Where supplied by a metal-clad, metal-sheathed, or metal-raceway wiring method.

This charge involves the Crescent planer, which was not electrically [*32] grounded. (This machine is shown in Exhibit C-22.)

The evidence reveals that electrical power was conveyed to this machine by a metal-clad conduit running from an unidentified source to an electrical outlet. A metal-clad conduit from the machine was then plugged into this outlet. The outlet with the machine conduit plugged into it, was suspended in mid-air by a long insulated wire affixed to a structural beam overhead. This jury-rig is depicted in Exhibit R-4.

Respondent defends this allegation asserting that the insulation on some of the wires within the metal-clad conduit had been removed and connected to some bared wire within the strand of insulated wire used to suspend this connection over the employees' heads. The insulation an the other end of the wire used to hold this connection was likewise removed and the bared wire affixed to the metal beam of the building. Therefore, this type of arrangement resulted in grounding the Crescent planer because the building is a metal building.

Respondent's defense is wholly without merit. Even if the outlet box and plug were "grounded" according to Respondent's argument, i.e., through the metal building (the existence of any wire [*33] with insulation removed being controverted by both Compliance Officers who observed this condition), such a lash-up does not constitute an effective or acceptable means of grounding the fixed Crescent planer under either the National Electrical Code or any other code or regulation to which the writer's attention has been directed.

It is therefore concluded that the substantial and reliable evidence of record (Tr. 114-116), establishes the violation as alleged in this Item and it will be affirmed. n5

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

n5 Respondent's motion for dismissal of Items numbered 8 through 11 based upon the provisions of 29 C.F.R. 1910.309(b), taken under advisement at trial, (Tr. 107-109) is denied. The provisions of 29 C.F.R. 1910.309(a) make applicable the articles of the National Electrical Code cited in each of these Items.

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

There remains for determination the matter of appropriate penalties for those violations herein found to exist at Respondent's worksite.

Compliance Officer Mason testified at great length to the standard method routinely [*34] utilized by Complainant in computing the proposed penalties herein (Tr. 123-153). In this computation the mandatory considerations of Section 17(j) of the Act, (29 U.S.C. 666(i)) of the size of Respondent's business, the gravity of the violations, the good faith of and absence of any history of prior violations by this Respondent were given due consideration, with the exception of the penalties proposed for Items numbered 6 and 10.

As to Item No. 6, sub-items numbered 6(d), (e), (g), (h), and (i) must be vacated because of failure of proof as to those items of machinery. Sub-items numbered 6(a), (b), (c) and (f) are affirmed. Thus the proposed penalty of $75 for the entire Item must be reduced to $ 25.

As to Item No. 10, because of the extremely low order of gravity involved, no penalty is appropriate.

After my independent consideration of the factors set forth at 29 U.S.C. 666(i), it is concluded that all other other proposed penalties are appropriate.

Based upon the foregoing findings and conclusions and pursuant to the provisions of Sections 10(c) and 12(j) of the Act (29 U.S.C. 659(c) and 661(i)), it is hereby,

ORDERED: that

1. Items numbered 1, 2, 4, 5, 6(d), (e), [*35] (g), (h), and (i), are set forth in the Citation for Nonserious Violations herein, and the penalties proposed thereon are VACATED.

2. Items numbered 3, 6(a), (b), (c) and (f), 7, 8, 9, 10 and 11, as set forth in said Citation are AFFIRMED.

3. The following penalties are assessed:

Item No. 3

$ 70

Item No. 6(a), (b), (c) and (f)

25

Item No. 7

0

Item No. 8

40

Item No. 9

40

Item No. 10

0

Item No. 11

40

Total

$215

WILLIAM E. BRENNAN, Judge, OSAHRC

Dated: July 15, 1975

hy