SHELVIE SUMMERLIN, d/b/a A & S MILLWORKS AND RENTALS
OSHRC Docket No. 15052
Occupational Safety and Health Review Commission
December 15, 1977
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Before: CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Bobbye D. Spears, Reg. Sol., USDOL
Larkin M. Fowler, Jr., for the employer
OPINION:
DECISION
BY THE COMMISSION: A decision of Review Commission Judge James D. Burroughs dated July 14, 1976, is before the Commission for review pursuant to 29 U.S.C. § 661(i). That decision affirmed item 1 of a nonserious citation which alleged that the respondent had violated 29 C.F.R. § 1910.213(d)(1) n1 by failing to provide blade guards on two 10-inch hand-fed crosscut table saws. The Judge assessed a $25 penalty for this violation. n2
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n1 This standard requires that hand-fed crosscut table saws shall be guarded by a hood which shall meet the following requirements in 29 C.F.R. § 1910.213(c)(1):
Each circular hand-fed ripsaw shall be guarded by a hood which shall completely enclose that portion of the saw above the table and that portion of the saw above the material being cut. The hood and mounting shall be arranged so that the hood will automatically adjust itself to the thickness of and remain in contact with the material being cut but it shall not offer any considerable resistance to insertion of material to saw or to passage of the material being sawed. The hood shall be made of adequate strength to resist blows and strains incidental to reasonable operation, adjusting, and handling, and shall be so designed as to protect the operator from flying splinters and broken saw teeth. It shall be made of material that is soft enough so that it will be unlikely to cause tooth breakage. The material should not shatter when broken, should be nonexplosive, and should be no more flammable than wood. The hood shall be so mounted as to insure that its operation will be positive, reliable, and in true alignment with the saw; and the mounting shall be adequate in strength to resist any reasonable side thrust or other force tending to throw it out of line.
n2 The Judge also vacated item 4 of the citation. That item alleged a nonserious violation of 29 C.F.R. § 1910.215(a)(1). Since no party has taken issue with the Judge's disposition of this item, it will not be reviewed. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976); Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976). The portion of the Judge's decision pertaining to this item is accorded the significance of an unreviewed Judge's decision. Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).
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The respondent contends on review that the Judge's affirmance of item 1 should be reversed and the citation vacated because the use of guards on the saws would be "impractical and hazardous." For reasons that follow, these contentions are rejected, and the Judge's decision is affirmed.
There is no defense of impracticability. General Steel Fabricators, Inc., 77 OSAHRC 166/E14, 5 BNA OSHC 1768, 1977-78 CCH OSHD para. 22,104 (No. 13646, 1977). This Commission has recognized, however, that impossibility of performance is an affirmative defense. See, e.g., Taylor Building Associates, 77 OSAHRC 27/A10, 5 BNA OSHC 1083, 1977-78 CCH OSHD para. 21,592 (No. 3735, 1977); Rob't W. Setterlin & Sons, Inc., 76 OSAHRC 53/D8, 4 BNA OSHC 1214, 1975-76 CCH OSHD para. 20,682 (No. 7377, 1976); Universal Sheet Metal Corp., 74 OSAHRC 44/D7, 2 BNA OSHC 1061, 1973-74 CCH OSHD para. 18,163 (No. 657, 1974).
The Commission has also recognized the "greater hazard" defense. To establish this defense a respondent must prove that (1) compliance with the cited standard will diminish, rather than enhance, [*3] employee safety, (2) alternative means of protecting the operators of the saws are unavailable, and (3) a variance application under 29 U.S.C. § 655(d) is inappropriate. See, e.g., Sun Outdoor Advertising Co., 77 OSAHRC 35/E8, 5 BNA OSHC 1159, 1977-78 CCH OSHD para. 21,632 (No. 13334, 1977); Cornell & Co., Inc., 77 OSAHRC 18/D10, 5 BNA OSHC 1018, 1976-77 CCH OSHD para. 21,532 (No. 9353, 1977); Russ Kaller, Inc., T/A Surfa Shield, 76 OSAHRC 130/F10, 4 BNA OSHC 1758, 1976-77 CCH OSHD para. 21,152 (No. 11171, 1976).
After carefully reviewing the evidence, Judge Burroughs found that the respondent had not established that the installation of guards was impossible or that they would create a hazard greater than unguarded saws. Those findings will not be disturbed since they are consistent with the above-cited Commission precedents. Furthermore, the Commission notes that the respondent also has not established the second and third elements of a greater hazard defense.
The respondent's basic argument is that standard saw guards cannot be used for all the types of cuts it makes with the saws, such as dado cuts and moulding cuts. The Secretary's standards recognize [*4] that standard saw guards cannot be used for all types of cuts, and require that alternative safety devices be used in such situations. 29 C.F.R. § 1910.213(a)(15); n3 see Turnbull Millwork Co., No. 15047 (Nov. 28, 1977). In this case, however, the record shows that standard guards were not used even during those operations for which their use was possible. The respondent therefore failed to comply with 29 C.F.R. § 1910.213(d)(1).
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n3 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.
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Accordingly, the Judge's decision is affirmed.