OSHRC Docket No. 13549

Occupational Safety and Health Review Commission

January 4, 1977


Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  


Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Regional Solicitor, USDOL

John C. Matter, General Manager, C. A. Spalding Company, for the employer



This case is before the Commission pursuant to a sua sponte order for review.   The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review.   Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the   [*2]   significance of an unreviewed Judge's decision.   Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.  



MORAN, Commissioner, Dissenting:

The citation in issue should be vacated because the evidence fails to establish that the alleged violative condition constituted a hazard.   See Secretary v. Alfred S. Austin Construction Company, OSAHRC Docket No. 4809, April 28, 1976 (dissenting opinion).   Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges.

Since this decision does not address any of the matters covered in Judge Osterman's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.



Louis Weiner, Regional Solicitor, U.S. Department of Labor and Matthew Rieder, for Complainant

George W. Kuenhle, for Respondent


This is a proceeding [*3]   initiated by the Respondent pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (hereafter the Act) to contest a Citation and Notification of Proposed Penalty issued to Respondent on May 8, 1975.

The record discloses that on May 6, 1975, an inspection was made of Respondent's plant located at 2254 East Venango Street, Philadelphia, Pennsylvania, where Respondent is engaged in business as a tool and die manufacturer.   Thereafter, on May 8, 1975, a Citation charging one serious and sixteen non-serious violations was issued to Respondent.   The penalties proposed are $650 for the serious violation and a total of $275 for the non-serious violations.   The Notice of Contest was timely filed on May 23, 1975.

At the commencement of the hearing the parties stipulated that the Respondent is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania; that Respondent ships tools and finished products across state lines; that the Citation was not issued as a result of injuries to any of Respondent's employees; that Respondent controls all of the equipment referred to in the Citation; that Respondent is a small employer having only 17 employees;   [*4]   that Respondent has no history of previous violations; and that in 1974 Respondent's gross sales totalled $1,297,000 with an after-tax profit of $5,789.48 (Tr. 3-5).   During the course of the hearing the Secretary withdrew the allegations contained in Item 5 of the Citation (Tr. 45) and the Respondent stated that he would not contest the proposed penalties for the remaining non-serious violations if they are sustained (Tr. 45-47).   The Secretary also amended his Notification of Proposed Penalty with respect to the serious violation by reducing the amount sought from $650 to $600 (Tr. 48-49).

In a second stipulation entered into by the parties and filed on February 12, 1976, it was agreed that the Secretary would amend its Notification of Proposed Penalties issued on May 8, 1975, by reducing the amount sought for the sixteen (16) non-serious violations alleged in Citation No. 2 from $275 to zero and that in consideration therefor Respondent agrees to withdraw its Notice of Contest with respect to all of the non-serious violations.   The non-serious violations charged are thus affirmed by operation of law.   The serious violation charged in Citation No. 1 remains in issue.

The serious [*5]   violation involved herein relates to 29 CFR 1910.217(c)(1)(i) and/or (c)(3).   Those regulations relevant to the instant case require in effect that the employer provide and insure the usage of "point of operation" guards or devices to protect the operator's hands on all mechanical power presses.

The record discloses that Respondent's tool and die shop is engaged in the business of designing and manufacturing pilot metal parts for the automobile industry.   It is not a production shop. Generally, the work involves experimentation for the development of dies which meet a customer's specifications.   The major portion of the work performed involves the slow and careful use of presses which form the parts.   An employee is required to make adjustments and modifications of the work in progress while a press is operating at a slow speed - i.e., "inching down." Testimony indicates that adjustments of metal parts in the press can be made by use of a push stick when the press has stopped or, if the metal part is large enough and extends outside of the press, by manual manipulation using the worker's hand (Tr. 59-62).   There is no evidence that Respondent's employees have ever suffered an accident [*6]   as a result of the operations of the presses.   The possibility exists, however remote, that the press operator's free hand could be carelessly inserted in the press while it is in operation and that an amputation could be the result (Tr. 57).

The Secretary's position is that the said presses should be equipped with two starting buttons which must be depressed simultaneously -- one with each hand -- so that it is impossible for the press operator to have a hand inside the press under any circumstances.   Such devices, which in fact have now been installed, meet the requirement of the standard which requires guarding at the point of operation.


1.   Respondent is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania.

2.   Respondent uses materials and ships products across state lines and is thus engaged in business affecting commerce.

3.   On or about May 6, 1975, the Respondent's employees were permitted to operate mechanical power presses which were not equipped with devices designed to protect an employee's hands at the "point of operation" as required by 29 CFR 1910.217(c)(1)(i) and/or (c)(3).

4.   The violation charged is   [*7]   a "serious violation" as defined by Section 17(k) of the Act.

5.   The penalty of $600 proposed by the Secretary is excessive under the circumstances herein and should be reduced.


1.   Respondent is subject to the jurisdiction of this Commission.

2.   On May 6, 1975, Respondent was in violation of 29 CFR 1910.217(c)(1)(i) and/or (c)(3).


Pursuant to authority granted in Section 10 of the Act and Rule 66 of this Commission's Rules of Procedure it is ORDERED:

1.   That Citation No. 1 be, and the same hereby is, AFFIRMED.

2.   That the penalty of $600 proposed by the Secretary be, and the same hereby is, reduced to $150 and AFFIRMED in the reduced amount.


Dated: MAR. 8, 1976, Hyattsville, Maryland