OPTICAL DIE & TOOL CORPORATION

OSHRC Docket No. 14751

Occupational Safety and Health Review Commission

February 7, 1977

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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis LaRuffa, Regional Solicitor, USDOL

Louis Rantz, Optical Die & Tool Corp., 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 the significance of an unreviewed [*2]   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 Judge erred in rejecting respondent's defense on the basis that 29 C.F.R. §   1910.215(a)(4) "makes no provision for impossibility of performance." The defense of impossibility of performance is not contingent upon the wording of any standard.   See Secretary v. W.B. Meredith II, Inc., 9 OSAHRC 245 (1974). 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 my colleagues do not address any of the matters covered in Judge Ditore's decision, his decision is attached hereto as Appendix A so that the law in his case may be known.

APPENDIX A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor, United States Department of Labor and Rudolph E. DeMeo, for complainant

Louis Rantz, Treasurer, Optical Die &   [*3]   Tool Corporation, For the respondent

Ditore, J.:

PRELIMINARY STATEMENT

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. §   651, et seq., hereinafter called the Act), contesting a citation for a nonserious violation of an occupational safety and health standard, issued by complainant against respondent under the authority vested in the complainant by section 9(a) of the Act (29 U.S.C. §   658(a)).

The citation * alleges that as a result of an inspection on August 11, 1975, of a workplace located at 60-16 60th Place, Maspeth, New York, and described as "Mfg. Dies for Plastic Frames", the respondent violated section 5(a)(2) of the Act (29 U.S.C. §   654(a)(2)) by failing to comply with an occupational safety and health standard promulgated by the Secretary by publication in the Federal Register on June 27, 1974 (39 F.R. 23503) and codified in 29 CFR §   1910.215(a)(4).

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* The citation alleges fourteen nonserious violations itemized 1 through 14.   Items 2, 4, 7, 8 and 10 carried proposed penalties.   Respondent contested only item 7 which carried a proposed penalty of $40.00 (T. 4).

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The description of the violation and the standard as promulgated are as follows:

Description (Citation 1, item 7)

"Workrests were not provided on the following abrasive wheel machinery:

1.   Stanley pedestal grinder ser. # 687352A in Heat Treating Room

2.   Stanley Handyman pedestal grinder ser. #6003AA 12914 in Shop Area

3.   Bench grinder adjacent to Bridgeport Miller ser. #J82935 in Shop Area"

Standard as promulgated

"§   1910.215 Abrasive wheel Machinery

(a) General requirements - (1) . . .

(4) Work rests.   On offhand grinding machines, work rests shall be used to support the work.   They shall be of rigid construction and designed to be adjustable to compensate for wheel wear. Work rests shall be kept adjusted closely to the wheel with a maximum opening of one-eighth inch to prevent the work from being jammed between the wheel and the rest, which may cause wheel breakage.   The work rest shall be securely clamped after each adjustment.   The adjustment shall not be made with the wheel in motion."

Pursuant to the enforcement procedure set forth in section 10(a) of the Act (29 U.S.C.   [*5]   §   659(a)), the respondent was notified by letter dated August 13, 1975, from the Area Director of the Garden City, New York area, that the Occupational Safety and Health Administration proposed to assess a $40.00 penalty for the nonserious violation of 29 CFR §   1910.215(a)(4).   The action was heard at New York, New York on January 9, 1976.

ISSUES

1.   Whether respondent was in violation of 29 CFR §   1910.215(a)(4) for failing to provide three abrasive wheel grinders with work rests.

2.   If respondent was in violation whether may of its employees were exposed to any hazard created by the violation.

3.   If they were, what, if any, penalty should be assessed against respondent.

STATEMENT OF THE EVIDENCE

Pespondent, Optical Die & Tool Corporation, a New York corporation, manufactures dies for plastic eyeglass frames, and maintains an office and place of business at 60-16 60th Place, Maspeth, New York.   Respondent admits its business affects commerce (complaint, answer).

On August 11, 1975, compliance officer Efraim Zoldan, accompanied by Louis Rantz, respondent's treasurer, observed, during a walk-around inspection of respondent's workplace, three offhand abrasive wheel grinding [*6]   machines without work rests.   Respondent admits the three machines lacked work rests.   The machines were guarded in all other respects (T. 6-12, 14, 16, 17, 26). *

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* Reference key: T. refers to pages of hearing minutes.

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Two of the machines located in respondent's shop room were subsequently installed with work rests, and respondent withdrew its contest to the citation as to these two machines at the hearing (T. 6-7, 30-31; Exhs. R-3, R-4 depict the two machines with work rests attached, T. 23-30).

Respondent continued its contest as to the third offhand grinding machine located in its heat treating room.   This machine was a pedestal type, and its right wheel was 1/8-inch thick at its periphery.   There was no left wheel at the time of inspection. The machine is used exclusively to grind the nasal section of a plastic frame die (T. 6-7, 10-12, 26, 31; Exh. R-1 depicts machine after inspection; Exh. R-2, plastic frame die).

This operation was demonstrated to the compliance officer at the time of inspection, and explained [*7]   by respondent at the hearing (T. 12-14, 32-34).   An operator holds the die (Exh. R-2) in a horizontal position with both hands and works the nasal section of the die against the 1/8-inch abrasave wheel to grind the necessary angles and to clean the nasal section of the die. The die is about 1-1/4-inches high or thick and the nasal section is applied to the center or mid peripheral section of the exposed revolving wheel, the same area where a work rest would be located (T. 31-33).   Respondent contends that this special grinding work could only be performed with difficulty if a work rest was required; and that the grinding of the die would have to be done partly by the machine and partly by hand since there would be insufficient wheel area above the work rest to properly grind angles in the nasal section (T. 14, 18, 31, 33, 35).

The grinder is used for this special work by two employees three or four times a day for 15 or 20 minutes at a time (T. 34, 35).   The operators wear protective eye goggles at all times when using the machine. Respondent has no finger or hand laceration injury record and no wheel breakage with this machine (T. 35, 36).

Officer Zoldan believed that the lack [*8]   of work rests on the three offhand grinding machines, exposed respondent's employees to hand and finger cuts and to injury from wheels breaking if jammed by a tool or other material.   He recommended an adjusted penalty of $40.00 based on the gravity of the violation and credits for good faith, size, prior history and abatement (T. 19-25, 27).

OPINION

Respondent contested item 7 of the citation which charged respondent with a violation of 29 CFR §   1910.215(a)(4) for its failure to have its three offhand grinding machines equipped with work rests.

Respondent admitted that the three machines were not equipped with work rests; that it now has equipped the two machines in its shop room with work rests and will continue to use the two machines with work rests; and that it does not take issue with that portion of the citation (item 7) relating to these two machines.

The remaining issue concerns the third offhand grinding machine in the heat treating room which is used exclusively to grind the nasal section of metal dies for plastic frames.

Respondent does not contend that it is completely impossible to machine grind the dies if a work rest is used, but claims that with a work rest [*9]   it can only perform some grinding work with the machine, the balance of the work would have to be done by hand.   In short, respondent claims a defense of partial impossibility of work performance.

29 CFR §   1910.215(a)(4), in pertinent part, requires the use of work rests on offhand grinding machines and makes no provision for impossibility of performance.

The issue can be resolved by requiring respondent to use a work rest when that portion of its nasal section grinding die work can be accomplished with the work rest in place, and to permit respondent to remove the work rest to complete its grinding work when the workrest would interfere with that work.   The alternative to this resolution is for respondent to seek a variance from the standard from the Secretary, pursuant to section 6(d) of the Act.

PENALTY

Respondent was charged in the citation with thirteen other nonserious violations with proposed penalties for four of the thirteen violations totaling $215.00.   Respondent did not contest the thirteen violations or the four penalties proposed.

The gravity of the violation of standard 29 CFR §   1910.215(a)(4) is low.   The violation as to the two grinders in the shop room was [*10]   immediately abated.   There is no evidence of any injuries from these two machines which were used to sharpen tools and drills.

The grinder in the heat treating room is used by two employees for a period of 15 to 20 minutes, three of four times a day.   The two employees wear protective eye goggles when using the machine. Further, there is no record of any finger or hand injuries by any employee using this machine, and the machine has no record of wheel breakage.

Under all the circumstances of the case including the low gravity of the violation and the other factors of section 17(j) of the Act, the $40.00 proposed penalty is unreasonable and its assessment would serve no purpose in furthering the purposes of the Act.   A zero penalty will be imposed.

FINDINGS OF FACT

The credible evidence and the record as a whole establishes preponderant proof of the following specific findings of fact.

1.   Respondent, Optical Die & Tool Corporation, is a New York corporation with an office and place of business at 60-16 60th Place, Maspeth, New York.

2.   Respondent manufactures metal dies for plastic eyeglass frames, and admits its business affects commerce.

3.   On August 11, 1975, three [*11]   offhand grinding machines at respondent's workplace were not equipped with work rests required by 29 CFR §   1910.215(a)(4).   Respondent admits the three machines lacked work rests.

4.   Two of the grinding machines located in respondent's shop room are now equipped with work rests.   At the hearing, respondent withdrew its contest to the violation as it related to the two shop room grinders.

5.   The third grinding machine without a work rest, located in respondent's heat treating room, is used exclusively and specifically to grind the nasal section of metal dies for plastic frames.

6.   Two employees operate this machine for 15 to 20 minutes, three or four times a day.   Each employee wears protective eye goggles when operating the machine.

7.   A work rest on this grinder would interfere with the complete grinding operation performed on the nasal section of the metal die, and would require respondent's two employees to do some of the grinding work by hand.

8.   The hazard in using an offhand grinding machine without a work rest, is possible finger or hand lacerations from accidental contact with the abrasive wheel of the grinder by an employee-operator.

9.   The gravity of the violation [*12]   is low.

CONCLUSIONS OF LAW

1.   Respondent is, and at all times material herein was, engaged in a business affecting commerce within the meaning of section 3(5) of the Act (29 U.S.C. §   652(5)).

2.   The Occupational Safety and Health Review Commission has jurisdiction over the subject matter and parties to this action.

3.   On August 11, 1975, respondent was in nonserious violation of 29 CFR §   1910.215(a)(4) for its failure to equip two offhand grinders located in its shop room with work rests.   Respondent was also in partial violation of the standard for failing to equip its third offhand grinding machine located in its heat treating room with a work rest when the specialty work of this machine was not interfered with by a work rest.

4.   Under the circumstances of this case with due considerations to the statutory factors of section 17(j) of the Act, the proposed penalty of $40.00 is unreasonable and will be vacated.

ORDER

Due deliberation having been had on the whole record, it is hereby.

ORDERED that the citation (item 7) for a nonserious violation of 29 CFR §   1910.215(a)(4) is affirmed, it is further

ORDERED that the proposed penalty of $40.00 for the nonserious   [*13]   violation of 29 CFR §   1910.215(a)(4) is vacated.

JEROME C. DITORE, JUDGE, OSAHRC

Dated: May 3, 1976

New York, New York