MIKEL COMPANY, INC.

OSHRC Docket No. 15257

Occupational Safety and Health Review Commission

March 17, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis LaRuffa, Regional Solicitor, USDOL

Andrew Miklos, President, Mikel Company, 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 the significance [*2] 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 (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I would vacate the serious citation, as amended, as well as item 2 of the nonserious citation because the standards cited, therein, and codified at 29 C.F.R. 1910.213 were improperly promulgated. Secretary v. Noblecraft Industries, Inc., OSAHRC Docket No. 3367, November 21, 1975 (dissenting opinion). Item 3 of the nonserious citation should also be vacated because complainant failed to prove, as required by the cited standard, 29 C.F.R. 1910.212(a)(3)(ii), that guarding of respondent's routers was feasible. Secretary v. Clark Equipment Company, OSAHRC Docket No. 7925, December 22, 1975 (dissenting opinion).

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 [*3] 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 this case may be known.

APPENDIX A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor, United States Department of Labor

Theodore T. Gotsch, for complainant

Andrew Miklos, President, Mikel Company, Inc., 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 citations for serious and nonserious violations of occupational safety and health standards, 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 citations allege that as a result of an inspection on September 2, 1975, of a workplace located at 601 East 137th Street, Bronx, New York, and described as "Furniture Manufacturer", the respondent violated section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) by failing to comply with occupational safety and health standards promulgated by the [*4] Secretary by publication in the Federal Register on June 27, 1975 (39 F.R. 23502) and codified in 29 CFR 1910.213(m)(3), 1910.213(j)(3), 1910.212(a)(3)(ii), 1910.213(c)(1) and 1910.213(d)(1). *

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* Respondent was cited for 10 nonserious violations and two serious violations (citations). Respondent contested the first three items of the nonserious citations, and the serious violations (T. 8-10).

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The descriptions of the violations and the standards as promulgated by the Secretary are as follows:

Serious citation

Description

"The following handfed table saws were observed with inadequate point of operation protection:

a. The Martin Saw on second floor was being operated to rip narrow wood stock with the guard positioned four inches above blade.

b. The multiple saw on second floor was being operated with a fixed guard that left six inches of blade exposed during the cutting cycle.

c. The Delta Table Saw on fifth floor had guard positioned three and one half inches above blade.

d. The Northfield Table [*5] Saw on second floor had guard positioned four inches above blade.

Each blade 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 guard shall be arranged so that it will automatically adjust itself to the thickness of and remain in contact with material being cut."

Standards as promulgated

" 1910.213 . . . .

(c) Hand-fed ripsaws. (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 chickness 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 [*6] 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.

(d) Hand-fed crosscut table saws. (1) Each circular crosscut table saw shall be guarded by a hood which shall meet all the requirements of paragraph (c)(1) of this section for hoods for circular ripsaws."

Item 1 - Nonserious citation

Description

"The root shaper in rear of second floor was being operated with no point of operation protection. The cutting head of each wood shaper, not automatically fed, shall be enclosed with a cage or adjustable guard so designed as to keep the operators hands away from the cutting edge."

Standard as promulgated

" 1910.213 . . . .

(m) Wood shapers and similar equipment. (1) The cutting heads of each wood shaper, hand-fed panel raiser, or other similar machine not automatically fed, shall be enclosed [*7] with a cage or adjustable guard so designed as to keep the operator's hands away from the cutting edge. The diameter of circular shaper guards shall be not less than the greatest diameter of the cutter. In no case shall a warning device of leather or other material attached to the spindle be acceptable."

Item 2 - Nonserious citation

Description

"The jointer in basement was equipped with a guard that lacked any spring tension and did not automatically adjust itself to cover the unused portion of the head and remain in contact with the material at all times."

Standard as promulgated

" 1910.213 . . . .

(j) Jointers. (1) . . . .

(3) Each hand-fed jointer with a horizontal cutting head shall have an automatic guard which will cover all the section of the head on the working side of the fence or gage. The guard shall effectively keep the operator's hand from coming in contact with the revolving knives. The guard shall automatically adjust itself to cover the unused portion of the head and shall remain in contact with the material at all times."

Item 3 - Nonserious citation

Description

"The three routers on second floor lacked point of operation [*8] guards to prevent injuries to employees. The guards shall be designed to prevent the operator from having any part of his body in danger zone during operation."

Standard as promulgated

" 1910.212 General requirements of all machines.

(a)(3) Point of Operation Guarding. (i) . . . .

(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."

Pursuant to the enforcement procedure set forth in section 10(a) of the Act (29 U.S.C. 659(a)), the respondent was notified by letter dated September 18, 1975, from the area director of the New York area, that the Occupational Safety and Health Administration proposed to assess a $650.00 penalty for the serious violation, and penalties of $160.00, $60.00 and $65.00 respectively, for items 1, 2 and 3 of the nonserious citation. * The action was heard at New York, New York on February 24, 1976.

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* Respondent also contested the proposed penalties of $60.00, $45.00, $115.00 and $40.00, for noncontested items 4 through 7 of the nonserious citation (T. 10).

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ISSUES

1. Whether the woodworking machines set forth in items 1, 2 and 3 of the nonserious citation, and in the serious citation violated guarding requirements of the standards cited.

2. If the violations existed whether respondent's employees were exposed or had access to the hazards created.

3. If they were, whether respondent was responsible for the violation or violations.

4. If respondent was responsible whether the penalties proposed for the violation or violations were proper.

5. Whether the proposed penalties for the noncontested nonserious violations (items 4 through 7) were proper.

STATEMENT OF THE CASE

Respondent manufactures high style dining room furniture and breakfronts with authentic designs and intricate shapes and carvings (T. 16-17, 167; Exhs. R-4A, 4B and 4C). * Respondent has its place of business in a one-story and a five-story [*10] building located at 509-603 East 137th Street, Bronx, New York. Respondent admits its business affects commerce (complaint, answer; T. 16-17). On September 2, 1975, respondent's work-place was visited by compliance officer William O'Day, who made a walk-around inspection accompanied by respondent's manager and a shop steward of Furniture Worker's Union, Local 76B (T. 14-19).

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

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Item 1, nonserious citation - 29 CFR 1910.213(m)(1)

Officer O'Day, who is not a woodworker and who has no expertise in this field, observed an employee operating a root shaper without a guard. The employee, standing at the side of the machine, held a jig which was clamped to a piece of wood being molded by the blades of the machine. The jig, a piece of wood eight inches long, guided the wood being worked at the point of operation of the machine. The employee's hands did not touch or hold the wood being molded (T. 19-21, 32, 114, 117).

The root shaper is a machine with fast [*11] moving pre-set blades (illustrated in Exh. C-1, p. 38, bottom left, except that respondent's machine lacked the guard marked "G") (T. 21-22, 25-28, 30, 31). Officer O'Day believed that the two varieties of guards shown in Exh. C-1, p. 38, bottom right and left, could be used on respondent's root shaper (T. 29).

Officer O'Day stated that in operating a root shaper, the operator must use a hold down device in addition to a jig, in order to obtain a proper and uniformly cut wood molding; that a hold down device extends over the wood and blade and holds the wood in place; and that a hold down device is also a guard (such a device is illustrated in Exh. C-1, p. 38, bottom right) (T. 118-122, 158-159).

Officer O'Day's testimony as to whether respondent's root shaper was equipped with a hold down device, was equivocal. He did not remember if the root shaper had one spindle (blade) or two. He did not see a guard but did see a hold down device. He had no recollection of a hold down device. He was confused. He did not see a hold down device (T. 122-125, 131, 132, 157). Exh. R-1 is a stock of wood molded by respondent's root shaper which Officer O'day stated could not be molded unless [*12] a hold down device and a jig were used with the root shaper (T. 125).

Andrew Miklos, respondent's president with 25 years of furniture woodworking experience, stated that the root shaper powered by a 25-horse power motor, is horizontally mounted on a cast iron table 4 feet long, 3 feet deep. The cutting spindles or blades are located in the center of the table about 15 to 18 inches from the edge of the table. The function of the machine is to cut intricate shapes similar to Exh. R-5 which was a component part of a breakfront (Exh. R-4C) being made on the day of inspection. Exh. R-1 was another example of the work done by this machine. The machine has two cutting heads, one for a right hand operation, the other for a left hand operation (T. 168-170, 172).

Neither Exh. R-1 or R-5 could have been cut on the root shaper unless a hold down device was used (T. 172). Mr. Miklos explained that an operator of the root shaper uses a jig, made of 3/4-inch thick hardwood, 24 inches long and 18 inches wide. The jig is clamped to the wood to be cut or molded and through the guidance of the operator, moves the wood to the cutting edge of the machine. The operator must also hold down the [*13] "hold down" device upon the wood being worked in order to assure a uniformly cut mold. At no time can the operator's hands get behind the hold down device to the root shaper's blades (T. 174-177, 207-209). Respondent's root shaper was equipped with hold down device similar to that shown in Exh. C-1, p. 38, lower right, which was bolted to the machine on the day of inspection (T. 177, 178). The root shaper is operated by one employee but three other employees can also operate this machine (T. 184-185).

Officer O'Day believed that an employee using the root shaper was exposed to a finger amputation hazard if his fingers should slip off the jig. He assessed a proposed adjusted penalty of $160.00 after allowing credits * for size, history, good faith and abatement (T. 33-34, 36, 38).

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* Officer O'Day allowed the same credits in arriving at adjusted proposed penalties for the other violations, except for the serious violation for which no abatement credit was given.

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Item 2, nonserious citation - 29 CFR 1910.213(j)(3) [*14]

Officer O'Day observed a jointer (Exh. C-1, p. 38, the lower illustration, similar to respondent's machine) which was not in operation but electrically connected, at the time of inspection. The jointer was equipped with a guard but the guard's spring lacked tension to automatically move the guard to cover the wood to be worked and the cutting edge of the blade (T. 38-43, 133-135, 160-161).

Mr. Miklos stated the jointer had a spring which could be detached from the guard. He did not know why the spring was not working on the day of inspection unless it was removed to permit the jointer's knives to be ground (T. 178).

Officer O'Day believed the hazard was one of finger amputation if the jointer's guard was not properly set. Since a guard was present and could be held in place by an operator's hand, Officer O'Day assessed a proposed adjusted penalty of $60.00 (T. 45, 48).

Item 3, nonserious citation - 29 CFR 1910.212(a)(3)(ii)

Officer O'Day observed three routers each of which had a small cutting knife (Exh. C-1, p. 35, marked with arrow, similar to respondent's routers). The routers were not in operation but were electrically connected. None of the routers were [*15] equipped with guards to protect an operator from the machines' points of operation. The operators use jigs when operating the machines (T. 48-50, 141).

A router is used for wood forming work and is equipped with a whirling knife about 1/4 to 1/2-inch long, in an over-head motor (T. 135-138). Exhibit R-2 is one of respondent's router guard. This guard covers the router blade which protrudes through a hole in the center of the guard (T. 138-139, 141, 164).

Mr. Miklos stated that a router functions similar to a punch machine in that the router knife makes a hole in the wood being worked and when moved sideways the holed wood develops into a panel. The machine makes grooves and panels (T. 179-180.

Two men, as a team, operate the router. Each use a long jig 1-1/2 inches thick to push the wood in different side directions. They stand about 2 to 3 feet from the router. The router knife is 1-1/2 inches long, the stock of wood to be cut about 1/2 inch thick. The use of the 1-1/2 inch thick jig prevents any exposure of the router blades between the 1/2 inch wood stock and the remaining exposed one inch of blade above the stock of wood (T. 183). Respondent has guards for the three [*16] routers (Exh. R-2) but does not use them because they rest on the surface of the wood being cut and when the wood is moved, the guards mar and scratch the wood's surface (T. 181-182).

Serious citation - 29 CFR 1910.213(c)(1), 1910.213(d)(1)

During his inspection Officer O'Day observed four saws with inadequate guarding which he combined to form one serious violation.

1. Martin Saw

Officer O'Day observed this machine being operated by an employee to rip a 1-3/4 by 1-3/4 inch stock of wood. The machine was equipped with a guard which did not automatically adjust to the thickness of the wood but was four inches from the saw's table leaving an exposed blade gap of 2-1/4 inches. Exh. R-3 is an illustration of a Martin Saw similar to respondent's. The saw is used for dimension and edging work (T. 85-87, 146-147, 149, 153).

Mr. Miklos stated that the Martin Saw is not a ripping saw but is used for crosscutting and sizing; that the saw has a guard which does not operate automatically but is pre-set for the different thicknesses of the wood stock used; that the guard could not have been more than 1/8 of an inch higher than the wood being worked; and that he believed [*17] Officer O'Day's recollection was confused as to this saw (T. 187-190, 200, 201).

2. Multiple Saw

Officer O'Day observed an employee standing 12 to 14 inches from the saw's blade, cutting a narrow strip of wood which was clamped down. The saw's guard did not automatically adjust to the thickness of the wood being worked but left exposed about 4 inches of the saw's two blades which protruded from the saw's table (T. 94-96, 153, 155).

Mr. Miklos stated that the multiple saw was a fully automatic miter saw whose movements were synchronized. The saw's blades were operated electrically but other movements of the machine were actuated by air pressure.

Before the machine can be used, its blades must be in an upright position. An operator places a stock of wood, about 4 feet long, at the center of the machine. He then steps on a foot pedal which by air pressure allows clamps to come down and hold the stock of wood. He removes his hands from the stock of wood. After the clamps are in position, two guards come down approximately to the height of the wood covering the saw's two blades. When the guards reach their pre-set height, the saw's two blades come down and cut the wood. [*18] The operator then releases his foot pedal which permits the machine's moving parts to rise in reverse order (blades first) to an upright position. The operator does not have his hands on the machine during the cutting operation (T. 190-193, 201-202).

3. Delta Table Saw

This machine was not in operation but was electrically connected at the time of inspection. The machine's guard did not automatically adjust to the top of the saw table and exposed 3-1/2 inches of the saw's blade (T. 99-100).

Mr. Miklos stated that the saw's safety switch was off, that the saw's guard could be made to, but does not, operate automatically. The guard is adjusted or pre-set to the thickness of the stock to be worked. He did not know why the saw's guard did not completely cover the saw's blade when the machine was not in use (T. 193-194, 203).

4. Northfield Table Saw

This machine was not in operation at the time of inspection but was electrically connected. The machine's guard did not automatically adjust to completely cover the saw's blade (T. 102-103).

Mr. Miklos' testimony as to this saw was identical with that set forth above concerning the Delta table saw (T. 193-195, 203).

The [*19] guard conditions on the four saws were immediately abated during the inspection (T. 93, 96, 100, 106). Officer O'Day considered the four saw guard violations as one serious violation and proposed an adjusted proposed penalty of $650.00 which he based on the hazard of finger amputation created by the inadequately guarded saw blades (T. 88, 90, 96, 100, 105, 108).

Mr. Miklos stated that the guards could be made to operate automatically. They did not operate automatically because contact between the guards and the wood being cut damaged the wood's surface. He knew of no permanent method or device which could be used to prevent wood damage if the guards operated automatically (T. 195, 205, 206).

Respondent has a safety policy and its employees are so instructed that when a machine saw is not in use the blades must be lowered into the machine; and that all safety switches must be in the off position (T. 204, 205). Each of respondent's departments have a foreman who is required to see that these safety rules are followed (T. 195).

Penalties, items 4 through 7, nonserious citation

Item 4 - 29 CFR 1910.22(b)(1)

Based on his observation of a small amount of debris [*20] and scraps of wood in an aisle space on the second and fifth floors of respondent's workplace and of the partial blockage of an aisle space on the first floor by an empty 55-gallon drum, and by a cabinet on the second floor, Officer O'Day believed tripping hazards existed which warranted a $60.00 adjusted proposed penalty. All other areas and aisles at respondent's workplace were in satisfactory condition (T. 61, 64, 65, 66-68).

Mr. Miklos stated that wood scraps on the floor due to the work being performed could not be avoided. Respondent employs three porters whose sole job is to clean up the work area during the work day (T. 186).

Item 5 - 29 CFR 1910.107(g)(3)

Officer O'Day observed 8 to 10 oily rags on the floor in the spray area of respondent's workplace. The rags should have been in proper disposal containers. No such containers were observed in the area. The hazard was fire. He assessed an adjusted proposed penalty of $45.00 for the violation. The spray area does have a sprinkler system (T. 70-72, 143, 144).

Mr. Miklos stated that there were steel drums with water in the area for the deposit of rags; that the rags were not oily; and that the drums are removed [*21] and emptied at 4:30 p.m. each day (T. 186-187).

Item 6 - 29 CFR 1910.106(e)(2)(ii)

Officer O'Day observed nine open five-gallon cans of flammable liquids in respondent's spray area. The spray area was not in use at the time of the inspection. Officer O'Day believed the uncovered cans of flammable liquids exposed respondent's employees to a possible fire hazard. He recommended an adjusted penalty of $115.00 (T. 75-79).

Item 7 - 29 CFR 1910.106(d)(4)(i)

Officer O'Day observed a 6" diameter hole in the ceiling of an inside storage room where flammable material was stored. The room was fireproof. Officer O'Day could not see through the hole, believed it was a foot deep, did not know where it lead or whether it was in the one-story or five-story building (T. 80-82. 83, 84, 145). He did observe a sprinkler head next to the hole (T. 145).

Believing that the fire resistant integrity of the inside storage room was compromised by the ceiling hole, he assessed a proposed adjusted penalty of $40.00 for the possible fire hazard created by the hole (T. 80, 82).

OPINION

Item 1, nonserious citation - 29 CFR 1910.213(m)(1)

This standard requires the [*22] cutting heads of a wood shaper, not automatically fed, to be enclosed with a cage or adjustable guard so designed as to keep the operator's hand away from the cutting edge.

Officer O'Day observed respondent's root shaper being operated without a guard. Respondent claims that a hold down device was bolted to the machine; that the hold down device was a guard; and that the specialized wood work could not be performed unless a hold down device was used.

Complainant admits that a hold down device is a type of root shaper guard recommended by the Occupational Safety and Health Administration (Exh. C-1, p. 38). Officer O'Day's testimony as to whether a hold down device was attached to respondent's root shaper is equivocal and therefore unreliable. Officer O'Day admitted that the work (Exh. R-1, R-5) performed on the root shaper could not have been done unless a hold down device was used.

The evidence fails to establish that respondent's root shaper was not equipped with a guard.

Item 2, nonserious citation - 29 CFR 1910.213(j)(3)

This standard requires a jointer to have an automatic adjustable guard to prevent an operator's hands from coming in contact with the jointer's [*23] revolving knives.

The evidence establishes that respondent's jointer was equipped with a guard but due to either the removal of the guard's spring or to the relaxation of its tension, the guard did not automatically adjust. Respondent could give no reason for the guard's lack of spring tension other than it was possible that at the time of inspection, the jointer's knives were to be sharpened which necessitated the guard's spring to be removed.

The jointer was in violation of standard 29 CFR 1910. 213(j)(3). Respondent was responsible for the violation which exposed the machine's operator to the hazard of finger amputation. It is no defnese that the machine was not operating at the time it was observed. It was operational.

The gravity of the violation is low. A guard was attached to the machine and it could, as stated by Officer O'Day, have been held in place by the operator's hand. Consideration of the gravity and the other factors of section 17(j) of the Act renders a reduction in penalty to $30.00 appropriate.

Item 3, nonserious citation - 29 CFR 1910.212(a)(3)(ii)

It is undisputed that respondent's three routers were not equipped with guards to protect [*24] the operators' hands from the machines' points of operation.

Respondent does have guards for the machines (Exh. R-2) but does not use them because they mar and scratch the wood being worked on the machines. Although two operators are required to work a router, the operators are protected to some degree by the use of long jigs. Jigs cannot be substituted for the guard requirements. (See 29 CFR 1910.212(a)(3)(iii)).

An examination of the guard (Exh. R-2) reveals that it might be pre-set by the spring tension screws to allow a gap of 1/8-inch blade exposure between the wood being worked and the guard. Standard 29 CFR 1910.212(a)(3)(ii) does not require automatic guard adjustability. If respondent does not find this method feasible, it should seek a variance from complainant.

Respondent's employees do use jigs which cover the exposed gap between the wood being cut and the knife blade. This [*25] does offer the operators a measure of protection but it cannot substitute for a guard.

Officer O'Day believed a hazard existed only if the hands of the operators of the machines slipped off the jigs being used. The gravity of the violation appears low and when considered with the other factors of section 17(j) of the Act, a penalty of $35.00 is reasonable.

Serious violation - 29 CFR 1910.213(c)(1), 1910.213(d)(1)

Both of the above standards require the same guarding for ripsaws and crosscut saws. The four saw violations were considered to amount to one serious violation by Officer O'Day. It is undisputed that the four saws were equipped with guards which failed to automatically adjust to the thickness of the wood being worked, or to the saw's table bad when not in operation. At the time of inspection, the four saws were not in compliance with either of the two cited standards.

Although each of the four saws perform different wood-working operations, they were hand fed operations. Respondent admits that the guards on each of the saws could be made to automatically adjust to the thickness of the wood being worked, or to the table beds when the machines were not [*26] in operation. The guards were not operated automatically but were pre-set to a height slightly above the thickness of the wood. Respondent used the pre-set method because it prevented the guards from marring or scratching the wood which occurs when guards automatically adjust to the thickness and remain on the surface of the wood.

Respondent knows of no permanent method or device which will allow guards to automatically adjust without wood damage. Respondent did immediately abate the guarding violations on each of the four saws.

The two standards (1910.213(c)(1), 1910.213(d)(1)) require guards on rip and crosscut saws to automatically adjust themselves to the thickness of, and remain in contact with, the material being cut. Respondent must either comply with the standards' requirement or seek a variance from complainant. This Judge has no authority to exempt respondent from the standards' requirement on the ground of production interference. Secretary of Labor v. Clark Equipment Company, supra.

Officer O'Day believed that the inadequate guarding of the point of operation of each of the four saws created a finger amputation hazard. He, for reasons not disclosed, [*27] determined that the four violations when combined created one serious violation.

The gravity of the hazards when considered with the use of jigs by the saws' operators, the expertise of the few operators involved, the lack of any saw injury in 25 years of business operation except for one splinter and one minor cut, and respondent's safety reles, rises no higher than that established for the saw violations of items 2 and 3 of the nonserious citation.

The serious violation for the four saws jointly will be reduced to a nonserious violation for each saw separately, and the single proposed penalty of $650.00 will be adjusted accordingly.

Under all the circumstances of this case, including the statutory factors of section 17(j) of the Act, a penalty of $50.00 is assessed for each of the four saw guard violations.

Penalties, Items 4 through 7 of nonserious citation

Respondent did not contest the violations set forth in items 4 through 7 of the nonserious citation but did contest the penalties proposed.

Item 4 - 29 CFR 1910.22(b)(1)

The small amount of scrap wood debris on the second and fifth floor aisle space which created a possible tripping hazard, and the partial [*28] blockage of aisle space on the first and second floors is of such minor gravity as to render the $60.00 proposed penalty unreasonable. It will be reduced to zero.

Item 5 - 29 CFR 1910.107(g)(3)

The 8 or 10 used rags on the floor in the spray area of respondent's workplace created, if it did, a fire hazard of minor proportions. The workplace was protected by a sprinkler system. Officer O'Day observed no metal containers in the area for rag deposit but respondent maintained there were steel drums containing water, in the area for the rags. These drums were removed and emptied at the end of each work day.

Under all the circumstances, the gravity of this violation is low, and when considered with the other factors of section 17(j) of the Act, a zero penalty is deemed reasonable.

Item 6 - 29 CFR 1910.106(e)(2)(ii)

Nine open five-gallon cans of flammable liquids in various areas of respondent's workplace created a fire hazard of moderate proportions. The gravity of the violation considered with the other statutory factors of section 17(j) of the Act, renders the proposed penalty of $115.00 reasonable. Item 7 - 29 CFR 1910.106(d)(4)(i)

A small hole [*29] in the ceiling of an inside storage room where flammable materials are stored, might compromise the fire resistant integrity of the otherwise fireproof froom. But this is conjecture. Under the circumstances with due consideration of all the statutory factors of section 17(j) of the Act, the proposed penalty of $40.00 will be reduced to zero.

FINDINGS OF FACT

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

1. Respondent Mikel Company, Inc., manufactures highstyle dining room furniture and breakfronts.

2. Respondent maintains an office and place of business at 509-603 East 137th Street, Bronx, New York, and admits its business affects commerce.

3. On September 2, 1975, respondent's workplace was inspected by compliance officer William O'Day.

Item 1, nonserious citation - 29 CFR 1910.213(m)(1)

4. On September 2, 1975, respondent's root shaper was operated with a hold down device bolted to the machine.

5. A hold down device is a guard which protects the operator's hands from the root shaper's point of operation.

6. The root shaper complied with the guarding requirements of 29 CFR [*30] 1910.213(m)(1).

Item 2, nonserious citation - 29 CFR 1910.213(j)(3)

7. On September 2, 1975, a jointer, not in operation but operational, was equipped with a guard that did not automatically adjust to cover the cutting edge of the machine's blade.

8. The failure of the machine's guard to automatically adjust was due to either the lack of a guard spring or to the lack of tension on the guard's spring.

9. The lack of the guard's ability to automatically adjust to cover the saw blade exposed respondent's operators to a finger amputation hazard which was mitigated by the ability of the operator to manually hold the guard in place.

10. Respondent was responsible for the violation.

Item 3, nonserious citation - 29 CFR 1910.212(a)(3)(ii)

11. Three operational routers at respondent's workplace lacked guards to protect an operator's hands from the machines' points of operation.

12. Respondent has guards for the three routers but does not use them because they damage the wood being worked.

13. The machines' operators do use jigs which provide a measure of protection to the operators' hands from the machines' points of operation.

14. Jigs do not comply [*31] with the standard's requirement for point of operation guarding and cannot be substituted for guards.

15. The lack of guards exposed respondent's operators to finger amputation hazards which is partially mitigated by the operators' use of jigs.

16. Respondent is responsible for the violation. The claim of production interference when guards are used does not exempt respondent from complying with the guarding standard (29 CFR 1910.212(a)(3)(ii)).

Serious citation - 29 CFR 1910.213(c)(1), 1910.213(d)(1)

17. A Martin saw, a multiple saw, a Delta table saw and a Northfield table saw, at respondent's workplace were equipped with guards that did not automatically adjust either to the thickness of the material being cut, or to the table bed when the machines were not in operation.

18. Respondent admits that the guards do not adjust automatically but are pre-set to a height slightly above the work being cut.

19. Respondent could give no reason for the failure of the guards to cover the blades of the Delta table saw and the Northfield table saw when these machines were not operating.

20. The guards do not adjust automatically to the thickness of the wood being [*32] cut or molded because contact between the wood and the guards damages the surface of the wood.

21. The operators of the four saws are provided with some protection from the saws' points of operation by using jigs, or by removing their hands from the stock (multiple saw).

22. The hazard to operators using the four saws whose guards do not automatically adjust, is possible finger amputation.

23. Respondent's claim of production interference if guards automatically adjust does not exempt respondent from complying with the automatic guard adjustability provisions of standards 29 CFR 1910.213(c)(1) and 1910.213(d)(1).

24. Respondent failed to comply with the requirements of the standards.

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 September 2, 1975, respondent was not in nonserious violation of 29 CFR 1910.213(m)(1) in that its root shaper was equipped with a guard.

4. On September 2, 1975, respondent [*33] was in nonserious violation of 29 CFR 1910.213(j)(3) for the failure to have an automatically adjustable guard on its jointer.

5. Under the circumstances of this case with due consideration to the statutory factors of section 17(j) of the Act, the proposed penalty of $60.00 is reduced to $30.00.

6. On September 2, 1975, respondent was in nonserious violation of 29 CFR 1910.212(a)(3)(ii) for its failure to have its three routers equipped with point of operation guards.

7. Under the circumstances of this case with due consideration to the statutory factors of section 17(j) of the Act, the proposed penalty of $65.00 is reduced to $35.00.

8. On September 2, 1975, respondent was in violation of 29 CFR 1910.213(c)(1) and 1910.213(d)(1) for its failure to have the guards automatically adjust on its Martin saw, multiple saw, Delta table saw and Northfield table saw.

9. Under the circumstances of this case with due consideration to the statutory factors of section 17(j) of the Act, the serious violation for the combined four saw guard violations is reduced to separate nonserious violationss for each saw. The proposed penalty of $650.00 is reduced to $50.00 for each of the [*34] four saw guard violations.

10. Under the circumstances of this case with due consideration to the statutory factors of section 17(j) of the Act, the proposed penalties of $60.00, $45.00 and $40.00 respectively, for the nonserious violations of 29 CFR 1910.22(b)(1) (item 4), 1910.107(g)(3) (item 5), and 1910.106(d)(4)(i) (item 7), are reduced to zero.

11. Under the circumstances of this case with due consideration to the statutory factors of section 17(j) of the Act, the proposed penalty of $115.00 for the nonserious violation of 29 CFR 1910.106(e)(2)(ii) (item 6), is reasonable and proper.

ORDER

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

ORDERED that the citation (item 1) for a nonserious violation of 29 CFR 1910.213(m)(1), and the proposed penalty of $160.00 for the alleged violation are vacated, it is further

ORDERED that the citation (items 2 and 3) for nonserious violations of 29 CFR 1910.213(j)(3) and 1910.212(a)(3)(ii) are affirmed, it is further

ORDERED that the proposed penalty of $60.00 for the nonserious violation of 29 CFR 1910.213(j)(3) is reduced to $30.00, and the proposed penalty of $65.00 for the nonserious violation [*35] of 29 CFR 1910.212(a)(3)(ii) is reduced to $35.00, it is further

ORDERED that the citation for the serious violation of 29 CFR 1910.213(c)(1) and 1910.213(d)(1) is reduced to four separate nonserious violations, one for each of the four saws cited, it is further

ORDERED that the proposed penalty of $650.00 for the alleged serious violation is reduced to single penalties of $50.00 for each of the four nonserious saw violations, it is further

ORDERED that the proposed penalties for each of the nonserious violations of 29 CFR 1910.22(b)(1) (item 4), 1910.107(g)(3) (item 5), 1910.106(d)(4)(i) (item 7), are reduced to zero, it is further

ORDERED that the proposed penalty of $115.00 for the nonserious violation of 29 CFR 1910.106(e)(2)(ii) (item 6) is affirmed.

JEROME C. DITORE, JUDGE, OSHRC