Docket No. 1315

HODGDON SHINGLE & SHAKE COMPANY

OSHRC Docket No. 1315

Occupational Safety and Health Review Commission

September 30, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order directing review of Judge Jerry W. Mitchell's decision to assess a penalty of $0 for an admitted serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). On the facts of record, Judge Mitchell determined that a penalty would serve no useful purpose since it was unnecessary for the purpose of obtaining future compliance. In view of the apparent mandatory nature of the language of section 17(b) n1. I directed review on the issues raised by the judge's assessment of a penalty of $0.

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n1 Section 17(b) is as follows:

Any employer who has received a citation for a serious violation of the requirements of section 5 of this Act of any standard, rule, or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, shall be assessed a civil penalty of up to $1,000 for each such violation (Emphasis added).

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The facts of the case are these: Respondent (Hodgdon) operated a shake and shingle mill in Tillamook, Oregon. To that end he used approximately 5 saws for the purpose of manufacturing shingles. Specifically, a bolter saw having a diameter of 6 feet was used to cut bolts; n2 two shingle saws having 36 inch diameter blades were used to cut shingles from the bolts, and trim saws were used to trim up the shingles. Hodgdon's business was small in that he employed 12 employees in 1972 and had gross sales of $120,000 that year.

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n2 According to Webster's Seventh New Collegiate Dictionary (1970) a "bolt" in this sense is "a block of timber to be sawed or cut (as into shingles or staves)."

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On July 19, 1972, the Secretary, through his authorized representative, inspected Hodgdon's mill. At that time the saws were guarded to the extent known to the shake and shingle industry. Nevertheless, the parties agree that the saws were not guarded as [*3] required by 29 C.F.R. 1910.212(a), and they agree that there was a substantial probability for serious physical harm to Hodgdon's employees.

Following the inspection, Hodgdon abated the alleged violation by discontinuing the production of shingles and use of the saws. And he sold one of his "shingle machines" four months after the inspection. In addition, he then filed for a temporary variance (29 U.S.C. 655(b)(6)) which application was thereafter consolidated with a similar application filed in November, 1972 by the Joint Labor-Management OSHA Coordinating Committee of the Shake and Shingle Industry. n3 According to the application employers in Hodgdon's position have been unable to comply with the cited standard because there is no known supplier of conforming guards. The application points out that the machines used by the industry were all manufactured prior to World War II and new machines are unavailable. Used machines become available only when a shingle manufacturer retires from business. A manufacturer has been engaged to design and produce appropriate guards. By joining in the request for an abatement order in terms of the relief requested by the variance [*4] application the Secretary apparently agrees with the representations made in the application. n4

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n3 The Secretary's trial counsel stipulated that an interim order (29 C.F.R. 1905.10(c)) as requested in the application would issue by March 14, 1973, and he requested that we issue an abatement order in accordance with the anticipated interim order. We have examined available sources and find no indication in the Federal Register that the Secretary has acknowledged receipt of the variance application (see 29 C.F.R. 1905.14(b)(1)(a)), nor do we find evidence of any other action having been taken by the Secretary.

n4 See note 3.

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Finally, in a response to the direction for review Hodgdon represents that he has sold his shingle manufacturing equipment and is out of the business. His work force has been reduced by 8 employees. He also states that other mills are continuing to operate with equipment of the type he used, and he feels that he has been discriminated against.

On review, the Secretary asks that we assess the [*5] $500 penalty he proposed. The penalty will serve, he says, as an example to other employers. And his point may be well taken but only in some other case. In this case, Hodgdon has employed drastic means to abate the violation, and we believe the means are example enough for the industry. We are left to wonder if Hodgdon would have resorted to such means had the Secretary acted on the variance application according to his counsel's representations.

Turning now to the matter of an appropriate penalty we agree with Judge Mitchell's conclusion that the violation was very grave within the meaning of section 17(j). Normally, it would warrant the assessment of a reasonably high penalty. But in this case Hodgdon's good faith, as demonstrated by the facts, must be given overriding consideration. In addition, we note that Hodgdon is a very small employer and has no history of previous violations.

Judge Mitchell assessed a penalty of $0 saying that a penalty was not necessary to secure compliance. We agree. But in view of the mandatory nature of section 17(b) we will assess a nominal penalty of $1.00.

Accordingly, the judge's decision is modified to assess a penalty of [*6] $1.00 and is affirmed as modified. It is so ORDERED.

CONCURBY: MORAN

CONCUR:

MORAN, CHAIRMAN, concurring: I agree with this disposition.

If it were not for the fact that this case was submitted upon stipulated facts which conceded the existence of a violation as alleged, I would find no violation here because of the impossibility of compliance with the regulation.

There simply were no guards in existence which could have been purchased or installed by this respondent. The complainant is here seeking to force respondent to do the impossible. It is like citing an employer because his electric light bulds give off heat when they are in use, despite the fact that there is no place such an employer could buy or otherwise obtain an electric light bulb which will remain cold while it is giving off light.

This case is a classic demonstration of the inflexibility and unreasonableness of complainant's enforcement efforts.

Complainant maintains that we should assess a $500 penalty because the employer was unable to do the impossible. And he claims this will serve as an example to others that they had better do the impossible or they will face similar punishment. If this were the way [*7] to achieve technological breakthroughs, we could cure cancer simply by threatening medical doctors with monetary penalties.

One other thing is worthy of comment. Complainant proposed a penalty in the amount of $500 because that was the lowest amount it could propose for a violation it classified as serious pursuant to its own penalty assessment methodology. We pointed out -- in considerable detail -- that this formula was arbitrary and inconsistent with the Act in a unanimous decision which was issued on February 7, 1972. n5 Yet this case was initiated by an inspection took place over five months subsequent to that ruling and the same discredited formula was utilized. It seems to me that some explanation is in order here.

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n5 Secretary v. Nacirema Operating Company, Inc. 1 OSAHRC 33 (1972).

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[The Judge's decision referred to herein follows]

MITCHELL, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter called [*8] the Act) contesting a Citation for Serious Violation issued by the Secretary of Labor (Complainant) against Hodgdon Shingle & Shake Company (Respondent) under the authority vested in Complainant by Section 9(a) of the Act.

A workplace described as a "shingle mill" located at 385 Hodgdon Road, Tillamook, Oregon, and allegedly under the ownership, operation or control of Respondent, was inspected on July 19, 1972 by a Compliance Safety & Health Officer (CSHO). During the inspection certain alleged violations were noted. Citations were issued on August 8, 1972 alleging Respondent's failure to comply with three specific occupational safety and health standards on July 19, 1972. One of the violations is alleged to be a serious violation and the other two not serious. The standards allegedly violated were promulgated by the Secretary of Labor pursuant to Section 6 of the Act by publication in the Federal Register. They are now codified at Title 29, Code of Federal Regulations, Part 1910. (Respondent has only contested the Citation for Serious Violation.)

The alleged serious violation is described in the Citation as follows:

29 CFR 1910.212(a)(1):

The following listed [*9] wood cutting circular saws used in the manufacture of cedar shingles are not provided with any kind of protective devices or guarding equipment to protect the fingers and hands of workmen, or to prevent contact of fingers and hands of workmen, with the moving saw blades.

A. The Bolter saw, a circular saw of approximately six (6) feet in diameter that is used to do freehand cutting of the shingle bolts.

B. Two (2) approximately 36 inch diameter circular saws that cut the shingles from the blocks. The operator stands about 18 inches from these saws with his left hand being used to pick the shingle directly from the saw blade.

C. Two (2) trim saws approximately 18 inch diameter located directly in front of the shingle weaver that are hand fed to trim the edge of the shingle and make it square. These 2 saws are type of "Jump" saw.

Date on which alleged violation must be corrected: "October 9, 1972"

The specific standard allegedly violated by Respondent provides:

29 CFR 1910.212. General requirements for all machines.

(a) Machine guarding -- (1) Types of guarding. One or more methods of machine guarding shall be provided to protect th operator and other employees [*10] in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are -- barrier guards, two-hand tripping devices, electronic safety devices, etc.

Pursuant to the enforcement procedure provided in Section 10(a) of the Act, Respondent was duly advised by a "Notification of Proposed Penalty" dated August 8, 1972 of the proposal to assess a penalty of $500 in connection with the serious violation described above. The "Notification" also proposed a penalty of $25.00 in connection with Item 1 of the non-serious citation and $0 in connection with Item 2.

In a timely manner Respondent contested the Citation For Serious Violation and the penalty proposed therefor. A Complaint was filed. The affected employees, through the Washington-Oregon Shingle Weaver's District Council, submitted a letter directly to OSAHRC setting forth their views concerning the alleged violations. Respondent filed an answer in which it admitted inter alia that it is engaged in a business affecting commerce within the meaning of Section 3 of the Act.

Formal hearing was initially set for December 7, 1972. [*11] That hearing was postponed to December 18 on Complainant's motion because of the unavailability of the CSHO to testify on December 7. Prior to December 18, Respondent moved for an "indefinite" postponement of the hearing pending disposition of its request for a temporary variance. The request for temporary variance was based on the unavailability of machine guards adequate to meet the requirements of the cited standard. Complainant did not dispute the factual situation presented by Respondent but requested that within 15 days after Respondent's receipt of the ruling on the temporary variance, Respondent be required to elect between withdrawing its notice of contest as suggested in paragraph 7 of its motion or go to formal hearing. OSAHRC granted a 60 day postponement of the hearing.

The case was assigned to the undersigned judge on January 23, 1973 with hearing set for February 21, 1973. That hearing was postponed to March 14 on the joint request of counsel and because of the representation that they anticipated submitting the case on a stipulation of fact. The March 14 hearing was postponed pending consideration of the stipulation. The stipulation was filed on March [*12] 14 after being signed by counsel for each party and by a union representative on behalf of the affected employees. Pursuant to agreement in the stipulation, Respondent filed a brief on March 23. Complainant filed its brief on March 26. There has been no filing by the representative of the affected employees nor on their behalf except for their original letter to OSAHRC.

DISCUSSION

Rather than go to a formal hearing in this matter, the parties have submitted the case for decision on the basis of a stipulation of facts. In addition to being signed by counsel for each of the parties, the stipulation is signed by the Executive Secretary of the Washington-Oregon Shingle Weavers District Council as employee representative. An affidavit executed by the owner and operator of Hodgdon Shingle & Shake Company is attached to the stipulation. The parties agree in the stipulation that the affiant, if called as a witness, would testify as set forth in his affidavit. A copy of a "Request for Temporary Variance from 29 CFR 1910.212(a)" dated November 22, 1972 is also attached to the stipulation as Exhibit A. Exhibit B is a copy of a letter sent to OSAHRC by the employees representative. [*13]

The stipulation and attached exhibits provide the basic facts necessary for preparation of findings and conclusions herein. However, two issues remain for discussion and resolution here.

APPROPRIATENESS OF PENALTY

Without question -- the violation involving each of the three different types of saws did exist at the time of the inspection (Stipulation Items 4, 6 & 7). Under the criteria established in Section 17(k) of the Act this violation was a serious one (Stipulation Items 9 & 10). In view of the gravity of the exposure and danger here, as clearly demonstrated by the photos attached to the stipulation, it appears that a base penalty of $1000 is fully warranted. Any slight slip, distraction or error by an employee while handling the irregular and cumbersome blocks of wood as he presents them to the rapidly spinning saw will bring his fingers and hands into contact with the saw. The injury which will probably result is rather obvious.

Complainant, in arriving at the proposed penalty of $500 in connection with this serious violation, started with a base of $1000. The base penalty was then reduced in accordance with the guidelines established by Complainant and promulgated [*14] in the Compliance Operations Manual. Respondent was credited with the maximum deductions allowed in the Manual -- 20% for no history of previous violations; 20% for good faith; and 10% for the size of the business. No other allowance is granted in connection with the serious violations under the procedures promulgated in the Manual. Respondent has thus received the maximum reduction of the base penalty under Complainant's established evaluation procedures.

Respondent argues for vacation of the entire penalty under the circumstances here and urges the following reasons in support of its argument:

(a) Smallness of Respondent's business -- 12 employees with an annual gross business in 1971 and 1972 of approximately $150,000 and $120,000 respectively with net returns of $16,000 and $11,000 respectively.

(b) Respondent's halting of use of the saws when compliance became impossible by the abatement date set in the citation.

(d) Respondent's filing of a request for a temporary variance and Respondent's joining with the industry in seeking the variance [*15] and urging development of appropriate guards.

(e) Relative high estimated cost of $3,900 per machine to install guards when they become available later this year.

On the other hand, Complainant argues for affirmation of the proposed penalty. Complainant's argument rests on the "extreme hazard to the machine operators at the point of operation" and the long time period which elapsed between publication of the cited standard and Respondent's attempts to obtain suitable machine guards following the inspection.

Two points require comment. First -- in connection with Complainant's argument involving Respondent's alleged long delay in seeking adequate guards it should be noted that all of the guards available in the industry were installed and in use on Respondent's shingle machines at the time of the inspection. It is true that this does not excuse Respondent's violation of the specific standard but this fact is certainly entitled to consideration in mitigation and carries considerable weight in this regard. It demonstrates Respondent's good faith in that prior to the inspection he had installed and was using the guards available. Second -- Respondent has incurred considerable [*16] economic loss in that he has not used the shingle machines in nearly six months. As a result the number of his employees have been reduced from twelve to two, a reduction of almost 85%. Surely his economic position has suffered drastically.

Giving due consideration to the arguments of the parties and weighing the facts established by the stipulation and affidavit, I conclude that Complainant's arguments are overcome. After consideration of the criteria set forth in Section 17(j) of the Act and giving appropriate weight to each I find that, in this particular case, there is no need to impose a penalty in order to secure compliance with the Act. The purpose of the Act -- to assure Respondent's employees a safe workplace -- has been achieved through halting use of the inadequately guarded saws. Imposition of a monetary penalty will only serve to further reduce Respondent's economic position without any salutary encouragement toward compliance. The penalty is therefore vacated.

ABATEMENT DATE

When Respondent's workplace was inspected on July 19, 1972 the CSHO observed five saws that were not in compliance with the cited standard. The guards in use on the saws did not [*17] protect the user at the point of operation. The instant Citation was issued on August 8, 1972 requiring correction of the violation by October 9, 1972. Prior to the abatement date it became apparent that the required guards were unavailable from industry sources. Respondent halted use of the saws in October 1972 and has not used them since that time. Respondent has not manufactured any shingles since that date.

Subsequently Respondent filed a Request for a Temporary Variance and the issuance of an interim order pending development, testing and manufacture of effective guards. Respondent's request has since been consolidated with a similar request filed by a Joint Committee representing the shingle industry in Oregon and Washington. The industry request remains pending without any decision by the Secretary of Labor.

The Joint Committee has also engaged an engineering firm to develop adequate guards for the saws used in the shingle industry. That firm prepared revised designs for the guards and submitted them to the Joint Committee in January 1973 for industry review. The designs are now being refined by the engineering firm in anticipation of making the resulting guards available [*18] in June 1973. The estimated cost of the guard for each shingle machine is $3,900.

The reason for setting an abatement date is to give an employer a reasonable time, by way of a deadline which he must meet, to correct the cited hazard. In this way, the employer is encouraged to bring his workplace into compliance with the Act so as to provide his employees a safe and healthful place to work. Actually this is exactly what has occurred here, even though it is by indirection. Abatement has been accomplished in the sense that Respondent is no longer using the offending saws. So as to the violation covered by the Citation. Respondent is for all practical purposes in compliance. But such compliance will only last so long as Respondent does not use the unguarded saws. Alternatively of course, Respondent can install guards which are adequate to meet the requirements of the standard and resume operations. Another alternative arises if the Secretary of Labor issues a temporary variance order -- Respondent can comply with its requirements and resume operations.

In the stipulation the parties suggest that the abatement date should be the date set by the Secretary of Labor [*19] in the temporary variance order yet to be issued or alternatively that the violation be abated by June 30, 1972. In view of the foregoing discussion, I conclude that a fair and reasonable abatement date here is the date granted in any temporary variance order issued in regard to that standard set forth at 29 CFR 1910.212(a) but not later than June 30, 1973. This means that if Respondent wants to resume use of the saws covered by the Citation he must have appropriate guards installed unless the Secretary of Labor sees fit to permit a variance, in which case Respondent must comply with the variance order if the saws in question are to be used.

Accordingly, based upon the Stipulation and attached documents and after full review of the file, I reach the following:

FINDINGS OF FACT

Respondent, Hodgdon Shingle & Shake Company, maintains a place of business and employment at Tillamook, Oregon. On July 19, 1972 Respondent employed approximately twelve employees in various capacities at the aforesaid workplace in the production of shingles and shakes (Stipulation -- Item 1).

II.

At all times material hereto Respondent was engaged in the production, distribution and sale [*20] of shakes and shingles which are shipped directly and indirectly to points outside the state of Oregon. Respondent was also engaged in the use of law materials, machinery and other goods brought directly or indirectly to Respondent from points outside the state of Oregon. Respondent utilizes the mails, telephone and other facilities of interstate commerce (Stipulation -- Item 2).

III.

As the result of an inspection of Respondent's workplace on July 19, 1972, Respondent was issued a Citation for Serious Violation dated August 8, 1972 alleging violation of a standard promulgated pursuant to the Act and codified at 29 CFR 1910.212(a)(1). The violation is in the manner set forth above at page 2 (Stipulation -- Item 4).

IV.

As the result of the July 19, 1972 inspection of Respondent's workplace, Respondent was also issued a Citation for other than serious violations dated August 8, 1972 alleging violation of two standards, 29 CFR 1910.213(a)(9) and 1910.23(c)(3) respectively (File and Stipulation -- Item 4).

On August 8, 1972 Respondent was issued a Notification of Proposed Penalty proposing the assessment of a penalty of $500 for the serious violation and $25 and [*21] $0 respectively for the two nonserious violations (File and Stipulation -- Items 4 and 11).

VI.

On August 16, 1972 a representative of the Secretary of Labor received a timely notice from Respondent wherein Respondent contested the Citation for and the penalty in connection with the serious violation (File).

VII.

Respondent did not contest the Citation or the penalties proposed for the other than serious violations. Respondent has paid the $25 penalty proposed for the other than serious violations (Stipulation -- Item 12).

VIII.

On July 19, 1972 the five woodcutting saws described in the Citation for Serious Violation herein were in use at Respondent's workplace with certain guards in place. These saws were not adequately guarded at the point of operation and were thus in violation of 29 CFR 1910.212(a)(1) (Stipulation -- Items 6, 7 and 8 and Exhibits 1-10 attached to the Stipulation).

IX.

The violation found in Finding VIII is a serious violation within the meaning of Section 17(k) of the Act (Stipulation -- Items 9 and 10).

The Citation for Serious Violation established an abatement date of October 9, 1972 (File). In October 1972 Respondent shut down use [*22] of its shingle machines involving the subject saws and has not used them since that time. Since October 1972 Respondent has only had two employees (Affidavit -- Item 5.)

XI.

Respondent filed a request for Temporary Variance from the provisions of 29 CFR 1910.212(a). Subsequently a Joint Committee representing the shingle industry in Oregon and Washington filed a similar request. Respondent's request was consolidated with the industry request. The request remains pending decision by the Secretary of Labor (Stipulation -- Item 13 and Affidavit -- Item 3).

XII.

Guards adequate to meet the requirements of 29 CFR 1910.212(a) are unavailable to the shingle industry for installation on the saws in question (Affidavit -- Item 2).

XIII.

Through a Joint Committee, the shingle industry in Oregon and Washington has engaged an engineering firm to design and produce guards which will meet the requirements of 29 CFR 1910.212(a). It is anticipated that such guards will be available in June 1973 at an approximate cost of $3,900 per shingle machine (Affidavit -- Items 4 and 6).

XIV.

Taking into account the gravity of the violation, the size of Respondent's business, Respondent's [*23] exceeding good faith and lack of history of previous violations, all of which are conceded by Complainant, (Stipulation -- Item 11) the reasonable and appropriate penalty assessed here is $0. Under the circumstances involved there is no need to assess a penalty in order to effectuate the purpose of the Act.

XV.

Respondent's halting of the use of the saws involved in the seroius violation herein constitutes abatement of the violation so long as their use without adequate guards is not resumed.

CONCLUSIONS OF LAW

Respondent, Hodgdon Shingle & Shake Company, is an employer engaged in business affecting interstate commerce within the meaning of Section 3 of the Act. The Occupational Safety and Health Review Commission has jurisdiction over the parties and subject matter of this proceeding.

On July 19, 1972, at its workplace in Tillamook, Oregon, Respondent violated the safety and health standards promulgated at 29 CFR 1910.212(a)(1), 1910.213(a)(9) and 1910.23(c)(3).

III.

The violation of 29 CFR 1910.212(a)(1) is a serious violation within the meaning of Section 17(k) of the Act. The Citation therefor is affirmed. The other two violations are other than serious. [*24]

IV.

The other than serious violations and corresponding penalties and abatement dates were not contested by Respondent. They are thus a final order of the Commission pursuant to the provisions of Section 10(a) of the Act.

The purpose of the Act has been accomplished in that use of the saws involved has been halted. Respondent's workplace is safe with regard to the cited violation. There is no need to impose a monetary penalty in connection with the serious violation found in Conclusion III. The proposed penalty is vacated.

VI.

Respondent has abated the serious violation here through halting the use of the inadequately guarded saws. However, if Respondent desires to resume use of the saws, a reasonable abatement date is found to be such date as the Secretary of Labor may establish in any temporary variance order issued in connection with 29 CFR 1910.212(a)(1) but not later than June 30, 1973.

ORDER

Based upon the foregoing Findings and Conclusions and for good cause shown, it is hereby

ORDERED that the Citation for Serious Violation herein be, and the same is hereby AFFIRMED; the penalty proposed in connection therewith is hereby VACATED; and it is further [*25]

ORDERED that if Respondent resumes use of the subject saws the said violation must be abated by the date established in any temporary variance order issued by the Secretary of Labor in connection with 29 CFR 1910.212(a) but not later than June 30, 1973.