SOUTHEASTERN ALUMINUM PRODUCTS

OSHRC Docket No. 13823

Occupational Safety and Health Review Commission

January 12, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, USDOL

Paul S. Johnson, Vice President, Southeastern Aluminum Products, for the employer

James L. Stine, Office of the Solicitor, U.S. Department of Labor, on behalf of complainant

Mr. Paul S. Johnson, on behalf of respondent

STATEMENT OF THE CASE

BRADY, Judge: This proceeding is brought pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq., 84 Stat. 1590 (hereinafter referred to as the Act) to contest a citation issued by the Secretary of Labor (hereinafter referred to as the Secretary) pursuant to section 9(a) of the Act. The citation, which was issued May 29, 1975, alleges that as a result of an inspection of the respondent's workplace at 6701 Sumac Place, Jacksonville, Florida, respondent violated section 5(a)(2) of the Act by failing to comply with specific occupational safety and health standards promulgated by the Secretary pursuant to section 6 thereof. A notice of proposed penalty was issued with the citation.

Southeastern Aluminum Products, Inc., has a place of business [*2] in Jacksonville, Florida, where it is engaged in the manufacture of aluminum screens and bath enclosures. The hearing was held October 16, 1975, in Jacksonville, and no additional parties sought to intervene.

EVIDENCE

At the commencement of the hearing, the parties stipulated that the two issues to be resolved in this proceeding related to whether two twelve-inch Rockwell cut-off machines, equipped with saw blades for cutting non-ferrous metal, came within the machine guard provisions of the standard at 29 C.F.R. 1910.215 or the standard at 29 C.F.R. 1910.212, and whether the proposed penalty is reasonable.

The parties further stipulated that the machines depicted in complainant's exhibit number one, and respondent's exhibit numbers one and two, are the same machines involved in this proceeding. Section B1 of the Rockwell industrial machinery catalogue was received in evidence as a joint exhibit to further describe the type of machines in question.

It is alleged in the citation that the standard at 29 C.F.R. 1910.212(a)(1) was violated in that the respondent failed to provide adequate machine guarding to protect the operator and other employees in the machine area [*3] from hazards created by ingoing nip points, point of operation, rotating parts, flying chips, and sparks on the two twelve-inch Rockwell metal cut-off saws.

It is contended by the respondent that the cut-off machine can be used with either an abrasive wheel or a metal cutting blade, therefore, the machine guarding involved should come within the purview of 29 C.F.R. 1910.215, entitled "Abrasive Wheel Machinery," and (b)(5) thereunder, entitled "Surface grinders and cutting-off machines."

Complainant asserts section 29 C.F.R. 1910.215 is concerned with anrasive wheel machinery; therefore, cut-off machinery with metal blades comes within the guarding provision of 29 C.F.R. 1910.212, which is headed "General Reguirements For All Machines, (a) "Machine guarding."

The respondent concedes that the machines are not used with an abrasive wheel, however, they have not been altered and are operated with the standard guards provided. Therefore, it is contended that since the machines are equipped with the standard guards supplied by the manufacturer there is every reason to assume such guarding was adequate and proper. This contention is supported by joint exhibit number one wherein [*4] it is stated that standard equipment on all models includes wheel and belt guards. Respondent's exhibit number three indicates that the manufacturers is also under the belief that the machine guarding provisions of 29 C.F.R. 1910.215 are applicable to the subject machine.

There is no question in this case that 29 C.F.R. 1910.212(a)(1) applies to the guarding of machines generally, and that 29 C.F.R. 1910.215(5) applies specifically to the guarding of abrasive wheel machinery. The machines in question apparently can be used for the dual purpose of abrasive wheel cutting or for cutting non-ferrous metal with a saw blade. The evidence shows that the cut-off machines were provided with guards.

Considering all the facts of record, it must be held that the respondent, upon purchasing a cut-off machine equipped with guards, could reasonably rely upon the manufacturer to provide adequate guarding to meet safety standards. This is particularly true when the manufacturer makes such acknowledgment.

The respondent is charged with a failure to provide adequate machine guarding pursuant to the standard at 29 C.F.R. 1910.212(a)(1), which seems applicable to the facts of this case. [*5] The complainant, however, does not show in what manner the guarding provided on the cut-off machine is inadequate for the protection of employees involved. Nor is it shown that different type guards are required when cutting with an abrasive wheel or cutting with a saw blade.

The record does not disclose what specifically the respondent has failed to do or what it should be called upon to do in order to comply with the standard it allegedly violated. The record does reveal that the cut-off machines are guarded in a manner consistent with the provisions of 29 C.F.R. 1910.215(a)(5), and no hazards are presented, nor has respondent's employees sustained any injuries as a result of operating the machines so constituted.

Therefore, it must be held that the complainant has failed to carry its burden in establishing that respondent has violated an occupational safety and health standard in failing to provide adequate guard protection on the machines in question.

FINDINGS OF FACTS

1. Southeastern Aluminum Products, Inc., is a corporation doing business in Jacksonville, Florida, where at all times hereinafter mentioned, it was engaged in the manufacture of aluminum screens and [*6] bath enclosures.

2. On May 21, 1975, authorized representatives of the Secretary conducted an inpsection of respondent's aforementioned workplace. As a result of such inspection, a citation was issued May 29, 1975, with notice of proposed penalty.

3. On May 21, 1975, two Rockwell twelve-inch cut-off machines were in operation at the aforesaid workplace. The cut-off machines could be used for abrasive cutting or for the cutting of non-ferrous metal.

4. The cut-off machines were provided with guards as standard equipment by the manufacturer.

5. The evidence does not show that the type of guarding provided was inadequate for the protection of employees from hazards as a result of their operation.

CONCLUSIONS OF LAW

1. Southeastern Aluminum Products, Inc., at all times pertinent hereto, was an employer engaged in business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties in the subject matter, herein, pursuant to section 10(c) of the Act.

2. Respondent is, and at all times pertinent hereto, required to comply with safety and health regulations promulgated by the [*7] Secretary pursuant to section 6(a) of the Act.

3. On May 21, 1975, respondent was not in violation of the standard at 29 C.F.R. 1910.212(a)(1).

Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, it is ORDERED:

That part of the citation alleging violation of the standard at 29 C.F.R. 1910.212(a)(1) is hereby vacated.

Dated this 26th day of May, 1976.

PAUL L. BRADY, Judge

OPINION:

DECISION

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 [*8] 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 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.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.

APPENDIX A

DECISION AND ORDER