TURNBULL MILLWORK CO.
OSHRC Docket No. 15047
Occupational Safety and Health Review Commission
November 28, 1977
[*1]
Before CLEARY, Chairman; BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
U.S. Department of Labor Assoc., Regional Solicitor
William W. Turnbyll, Pres., Turnbull Millwark Company, for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Commissioner:
The issue in this case is whether Respondent (Turnbull) violated the Secretary's general industry safety standard at 29 C.F.R. 1910.213(a)(15) n1 by failing to require the use of combs (featherboards) or jigs while performing a dadoing operation on a table saw. n2 Administrative Law Judge Garl Watkins found that Turnbull satisfied the mandate of the standard by providing these devices "at all times and in all places where they might be needed." Therefore, he concluded that Turnbull complied with the standard even though it did not require the use of combs or jigs. For the following reasons, we reverse the judge's decision and find that Turnbull violated 1910.213(a)(15). n3 We assess a penalty of $45.
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n1 This standard provides:
"Combs (featherboards) or suitable jigs shall be provided at the workplace for use when a standard guard cannot be used as in dadoing, grooving, jointing, moulding, and rabbetting."
n2 A dado is a specialized type of wood cut. It is made by attaching a dado blade to a regular table saw. The compliance officer described a comb (featherboard) or jig as a "block of wood that has a serrated edge used for the purpose of pushing the wood over the dado head so it lessens the liklihood of the employee's hand contacting the dado head."
n3 Turnbull originally received one serious, one nonserious, and three repeated nonserious citations for violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. hereinafter "the Act." However, only item 7 of the nonserious citation is before us for review.
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An OSHA compliance officer observed an employee of Turnbull dadoing on a table saw without using combs or jigs. A cabinet maker for Turnbull testified that these devices were available in the shop for dadoing operations. He did not always use them, however, because there were some operations where the protective mechanisms would interfere with his work. Nevertheless, he stated that combs could have been used during the particular operation in question.
Judge Watkins vacated the citation for nonserious violation of 1910.213(a)(15). He concluded that the standard merely requires that "combs (featherboards) or suitable jigs be provided at the workplace for use. . ."; however, it does not require an employer to monitor their use by his employees. He also found that the "devices were in fact used when the need was indicated." The judge cited P & M Sales, Inc., 76 OSAHRC 52/A2, 4 BNA OSHC 1158, 1975-76 CCH OSHD para. 20,673 (No. 3443, 1976).
The Secretary contends that a use requirement is implicit in the standard. He asserts that Section 1910.213(a)(15) recognizes there are certain operations [*3] which cannot be performed with a standard guard in place, and it provides for employee protection during such operations.
We agree with the Secretary that 1910.213(a)(15) should be interpreted to obligate employers to require the use of combs or jigs. Various standards in 1910.213 impose mandatory requirements that saw guards be used. n4 Section 1910.213(a)(15), however, recognizes that there are certain operations during which the required types of guards cannot be used. It, therefore, requires that the employer "provide' combs or jigs "for use when a standard guard cannot be used." The standard contemplates that no gap should exist in employee protection when a standard saw guard cannot be used. Thus, it mandates that combs or jigs be used in such instances.
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n4 See, for example: 1910.213(d)(1) (table saws); (e)(1) (circular resaws); (g)(1) (swing cutoff saws); and (h)(1) (radial saws).
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The case of P & M Sales, Inc., supra, cited by the judge, does not require a different conclusion. In that case, the [*4] issue was whether the word "provide" in a citation gave fair notice that the employer was charged with a failure to assure the use of the protective equipment involved. A divided Commission concluded that the record in that case did not establish that the "use" issue was, in fact, tried. This case, however, involves the interpretation of a standard; and the issue is whether the standard itself, 1910.213(a)(15), imposes a use requirement. We conclude that it does.
Finally, the Secretary contends that Judge Watkins erred in finding that the devices "were in fact used when the need was ndicated." We agree. Because he decided that the standard did not impose a use requirement, the judge felt that discussion of this issue was unnecessary. He therefore did not mention the facts supporting his finding. However, it is clear that the compliance officer observed at least one employee dadoing without a comb or jig twice on the same day. Another employee testified that when it was possible for him to do so, he generelly used these devices. He also stated that combs or jigs could have been used during the particular operation observed by the compliance officer. Therefore, the preponderance [*5] of the evidence establishes that these devices were not always used when necessary and possible.
We reverse Judge Watkin's decision and find Turnbull in nonserious violation of 1910.213(a)(15). However, the record shows that only one employee was exposed to the hazard of dadoing without combs or jigs. In addition, Turnbull exhibited good faith in providing its employees with these protective devices. We consider a penalty of $45 appropriate.
Accordingly, the judge's decision regarding this item of the nonserious citation is reversed; the citation for nonserious violation of 1910.213(a)(15) is affirmed; and a penalty of $45 is assessed.