HEDGES NEON SALES, INC.

OSHRC Docket No. 14567

Occupational Safety and Health Review Commission

January 26, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Counsel for Regional Litigation, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor

Charles J. Hedges, Hedges Neon Sales Inc., for the employer

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 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 [*2] 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.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The citation, as amended, should be vacated because complainant failed to prove, as required by the charge and cited standard, 29 C.F.R. 1910.212(a)(3)(ii), that there was an appropriate standard prescribing a particular guarding device or that one could be designed to provide respondent's multi-purpose machine with the protection required by that standard. Secretary v. K & T Steel Corporation, OSHARC Docket No. 5769, February 24, 1976 (dissenting opinion). Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, ecember 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 my colleagues do not address any of the matters covered in Judge Wienman's decision, his decision is attached hereto as Appendix A so that the law in this case may be known. [*3]

APPENDIX A

DECISION AND ORDER

DANIEL J. MICK, U.S. Department of Labor, Office of the Solicitor, for the Secretary of Labor

CHARLES J. HEDGES, President and Owner, Hedges Neon Sales, Inc., pro se

Wienman, Judge, OSAHRC:

STATEMENT OF THE CASE

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a portion of a citation issued to respondent August 12, 1975. The citation alleged on the basis of an inspection July 23, 1975, of a workplace at 616 Reynolds, Salina, Kansas, that the respondent violated the Act by failing to comply with certain occupational safety and health standards. Respondent timely contested item 5 of the citation and the $250 penalty proposed for said item.

Item 5 was set forth on the citation in the following form:

Standard regulation

Item

or section of the Act

No.

allegedly violated

Description of alleged violation

5

1910.217(c)(1)(i)

There were no point of operation guarding

provided on the following listed station

of the Wysong, No. 100 Universal steel-

worker, SS# SW1-181, located on the south

side of the metal department whose

operation exposes employee(s) to injury:

(a) The front and rear sides of the

flat shears located on the north side

of the steelworker.

(b) The V-notcher located on the north

side of the steelworker.

(c) The punch located on the south

side of the steelworker.

[*4]

After complaint and answer were filed by the parties, hearing was held at Salina, Kansas, on November 19, 1975, with complainant and respondent attending and participating.

Prior to the taking of testimony complainant moved to amend its pleadings by substituting an allegation that respondent violated occupational safety regulation 29 CFR 1910.212(a)(3)(ii) rather than regulation 29 CFR 1910.217(c)(1)(i). Respondent lodged no objection to the amendment, and the motion to amend was granted (T. 6). Regulation 29 CFR 1910.212(a)(3)(ii) provides:

"(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle."

THE ISSUES

No jurisdictional issues are in dispute, the respondent having admitted facts, pursuant to Commission rule 52(a), indicating that it was an employer engaged in a business affecting commerce within the meaning of the Act.

Also, respondent raised [*5] no issues relative to either the validity of 29 CFR 1910.212(a)(3)(ii) or its applicability to the machine described in item 5 of the citation, but defended on the theory that the machine was provided with guards in compliance with occupational safety regulations.

Thus, the issue for resolution is whether three points of operation (flat shears, V-notcher, and punch) on the Wysong No. 100 Universal Steelworker machine were adequately guarded.

SUMMARY OF THE EVIDENCE n1 AND DISCUSSION

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n1 It should be noted at the outset that this was an extremely difficult record to summarize fairly and accurately. Most of the difficulty stemmed from the fact that Charles J. Hedges, president and owner of the respondent company, appeared pro se. Mr. Hedges impressed the undersigned judge with his candor and the bona fides of his belief that there was no OSHA violation, but at times confounded the record with his presentation. The confusion was not limited to the oral testimony. While steadfastly maintaining in his Notice of Contest and Answer that the various stations were guarded, respondent nevertheless answered a Request for Admissions so as to indicate that the points of operation of both the flat shears and the punch were unguarded. Placed in the context of the entire proceedings, the admissions were treated as inadvertent. In a similar fashion unintelligible portions of testimony and argument were excluded from consideration as a basis for findings or conclusions.

[*6]

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

Three witnesses testified relative to the extent of guarding on the Wysong Ironworker machine which is the subject of citation item number 5. The witnesses, Compliance Officer Ernest E. Prather, machine operator Edward P. Young, and his employer, Charles J. Hedges, all differed in their description of the guards present on the machine.

Mr. Young testified that he inspected respondent's manufacturing facility July 23, 1975, in the company of Albert Hedges, the production supervisor. The Wysong No. 100 Universal Steelworker machine was not in operation, but Mr. Hedges instructed Albert Young, the operator, to answer the Compliance Officer's questions about the machine (T. 11).

From his inquiries Mr. Prather concluded that the machine performed three operations on metal stock -- shearing, punching, and making a V-notch in angle iron -- with no guarding to protect the operator (T. 11-16). Prather noted cover guards on the V-notcher and flat shears, but it was his understanding that the stations could not be used when the cover guards were in place (T. 16). He testified the operator's fingers approached [*7] within two or three inches of the various points of operation, and an inadvertent motion could result in amputation (T. 18-25). He believed guards could be designed to prevent injury to the operator at the three stations, and complainant introduced drawings of recommended guarding devices as exhibit G-6.

Edward P. Young, the machine operator, testified that the machine was equipped with moveable guards at the time of the inspection. The swing guard at the punch station could be positioned to keep the operator's hands from inadvertently coming into the point of operation unless he deliberately poked his finger through a hole (T. 41-42).

The shears could be operated with the guard up or down, but the guard could not be used when shearing 4" or larger pieces of metal (T. 51). Mr. Young at first testified that the swing guard at the V-notcher station had to be in a raised position to operate (T. 44), but on cross-examination testified the V-notcher guard did not have to be raised to operate the station (T. 56-57).

Charles J. Hedges, respondent's president, testified that the machine was equipped with guards at all three operating stations, but candidly admitted that the machine [*8] frequently was operated without use of guards (T. 75).

Mr. Hedges introduced correspondence from the manufacturer asserting the opinion that the guards on the machine would satisfy OSHA requirements if the machine were equipped with a guard to cover the treadle to prevent accidental tripping (Exhibit R-2). Mr. Hedges testified that the guards referred to in the manufacturer's letter had been present on the machine since it was purchased thirteen years ago (T. 92). The machine had been operated without injury, and he disputed the Compliance Officer's observation that the various guards illustrated in Exhibit G-6 would be functional on the machine.

The necessary conclusion from the testimony is that on the day of the inspection the machine was equipped with moveable "swing" or "flip" guards which could be positioned at the operator's discretion. The guards did not absolutely bar physical contact with the point of operation, but would substantially reduce hazards to the operator if used.

The crux of the dispute is whether discretionary or moveable guarding satisfies the dictates of regulation 29 CFR 1910.212 (a)(3)(ii). We see no reason why moveable guarding cannot be employed [*9] provided all operations are actually performed with the guards (or equivalents) in place. The instant record illustrates a twin failure to comply with the standard despite the presence of the guards. First, the operators were permitted to exercise discretion and bypass the guards at their will. Second, when operations were performed on larger stock which necessitated removal of the guards, no special hand tools or any other means of protecting the operator were employed in lieu of guarding.

We therefore conclude that the operation of the three stations, as described by both Young and Hedges, constituted a violation of 29 CFR 1910.22(a)(3)(ii). The availability of guarding, coupled with a perfect safety record during 13 years operation of the machine, is persuasive that the probability of an injury was not great. This factor, together with employer's small size, and good faith, renders the proposed penalty of $250 inappropriate. We would affirm the citation item and assess a $50 penalty thereon.

FINDINGS OF FACT

Having held a hearing and considered the entire record herein, it is concluded that a preponderance of the reliable, probative, and substantial evidence supports [*10] the following findings of fact:

(1) Respondent, Hedges Neon Sales, Inc., is a corporation with a principal office and place of business at 617 Reynolds, Salina, Kansas. Respondent is and was at all times material hereto engaged in the business of fabricating, erecting and servicing neon and plastic signs.

(2) On July 23, 1975, at respondent's workplace a Wysong No. 100 Universal Steelworker machine was not provided with point of operation guarding for the flat shears, the V-notcher, and the punch stations. Moveable guards present on the machine did not prevent the operator from having any part of his body in the danger zone during the operating cycle.

(3) During operation the operator's fingers and hands approached within two or three inches of point of operation of the aforesaid stations thus exposing the operator to the danger of amputation.

CONCLUSIONS OF LAW

(1) At all times material hereto respondent was an employer within the meaning of section 3 of the Occupational Safety and Health Act of 1970.

(2) Jurisdiction of this proceeding is conferred upon the Occupational Safety and Health Review Commission by section 10(c) of the Act.

(3) On July 23, 1975, respondent [*11] violated occupational safety and health standard 29 CFR 1910.212(a)(3)(ii).

(4) The aforesaid violation was a serious violation within the meaning of section 17(k) of the Act. Due consideration having been given to the evidence of record, it is concluded that a penalty in the amount of $50 is appropriate.

ORDER

Based on the above findings of fact and conclusions of law, it is hereby ORDERED that item 5 of the citation for serious violation issued to respondent on August 12, 1975, is affirmed, and a penalty in the sum of $50 is assessed thereon.

Alan M. Wienman, Judge, OSAHRC

Date: May 10, 1976