JAMES TICE, d/b/a TICE INDUSTRIES

OSHRC Docket No. 1622

Occupational Safety and Health Review Commission

January 20, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners.

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On October 30, 1973, Judge Thomas J. Donegan issued his order in this case vacating one citation and proposed penalty for one serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). The citation alleged failure to comply with the Occupational Safety and Health Standard promulgated at 29 CER 1910.212(a)(3)(ii), n1 in two different ways.

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n1 29 CFR 1910.212(a)(3)(ii) states:

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.

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Pursuant to section 17(j) of the Act, Commissioner Van Namee directed that the decision [*2] and order be reviewed by the Commission. The issue on review is whether the Judge committed reversible error in concluding that the respondent did comply with the cited standard. Central to the proper disposal of this issue is the question: Did the respondent contest the citation itself or just the penalties proposed by the complainant?

The respondent is the sole proprietor of a small business engaged in sheet metal fabrication and machine works production. Respondent employs four full-time employees, including his son, and one part-time employee, a high school student from a local vocational school. Subsequent to an inspection of respondent's workplace on October 6, 1972, a citation was issued on October 24, 1972, alleging a violation of section 5(a)(2) of the Act for failure to comply with the standard promulgated at 29 CFR 1910.212(a)(3)(ii). n2

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n2 A citation for several non-serious violations was also issued to respondent. No penalties were assessed and no contest was taken. Therefore, that citation is not before us.

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The citation alleged (1) that the metal swing saw in respondent's shop will swing 3 1/2 inches beyond the edge of the work-bench, and (2) that the saw blade is guarded only on the upper half of the blade. n3 The compliance officer testified that these two conditions failed to comply with the cited safety standard by allowing an operator of the saw to have a part of his body within the "danger zone" of the machine "during the operating cycle."

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n3 Hereinafter referred to as item 1 and item 2, respectively.

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Respondent timely filed a notice of contest to the proposed penalty by returning, to a representative of the Secretary of Labor, a copy of the "Notification of Proposed Penalty" across which he had written:

All corrections made

J. Tice

I protest any penalty

J. Tice

At the hearing, the respondent, appearing pro se, indicated his wish to contest the citation for serious violation as well as the proposed penalty. The Judge received evidence as to the violation, reserving a ruling until [*4] the time of his decision on the complainant's objection that the respondent had contested only the penalty and that since the respondent had failed to contest the citation within the statutory 15-working day period as provided for in section 10(a) of the Act, it became a final order of the Commission beyond the jurisdiction of the Judge.

In his decision, the Judge overruled the complainant's objection and allowed respondent's contest to the citation as well as the penalty. He further held that the Secretary failed to meet his burden of proof, and, therefore, vacated the citation and penalty.

Given these facts without more, we would hold that the respondent contested only the penalties, thereby making the citation a final, uneviewable order of the Commission. Brennan v. O.S.H.R.C. & Bill Echols Trucking Co., 487 F.2nd 230 (5th Cir. 1973); Florida East Coast Properties, Inc., No. 2354 (February 5, 1974); 29 U.S.C. 659(c); section 10(a) of the Act. Even construing the notice of contest in the light most favorable to the respondent, we do not interpret this notice as contesting anything but the penalties. Bill Echols Trucking Co., supra.

The record, [*5] however, contains a document that compels us to agree with the Judge in allowing the notice of contest as to part of the citation, albeit on different grounds.

The document, attached for easy reference as Appendix 1 to this decision, was dated by the respondent on November 16, 1972, yet the OSHRC file stamp bears the date April 20, 1973. A letter dated April 18, 1973, from the Solicitor of the Seattle, Washington, branch office of the Department of Labor states that the document was received by that office on November 17, 1972, an assertion borne out by a faint pencil notation on the document itself. No explanation was offered by the Secretary as to the cause for the long delay in transmitting the document to the OSHRC office.

The loss or lack of actual knowledge of this document prompted the Secretary's counsel to file a motion to dismiss the contest based upon respondent's failure to answer the complaint. That the document was intended as an answer, although rather informal and incomplete, is clearly evidenced by its being written partially on the Secretary's form letter directing answers to the complaint, and partially on a page of the complaint itself. This document is dated [*6] November 16, 1972, the day after the Secretary placed the complaint in the mail. n4 This is further evidence that it was intended as respondent's answer.

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n4 There is no evidence in the record to indicate the date when the complaint was received by the respondent.

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Judge Donegan did not rule on the Secretary's motion until after he received the document. Granting wide leeway to the respondent because of his obvious failure to understand Commission procedure, the Judge properly construed the document as an answer to the complaint and denied the motion to dismiss.

We find that this answer also served as a timely notice of contest to item 1 of the citation, alleging that the saw created a hazard by extending 3 1/2 inches beyond the workbench, since it was received by the Secretary, on November 17, 1972, within the 15-working day period for the filing of notices of contest required by section 10(a) of the Act.

We hold, however, that the second item alleging a failure to guard the lower half of the saw blade [*7] was not contested and became a final order of the Commission be operation of section 10(a) of the Act. Respondent circled only that portion of the complaint relating to item 1, and in the document itself he addressed only that item. If respondent had wished to contest item 2, for failing to guard the lower half of the blade, it is reasonable to infer that he would have circled that allegation and addressed himself to it. He did not do so. We, therefore, find that the Judge erroneously vacated item 2 of the citation, and we reverse.

Regarding item 1, substantial conflicting evidence exists as to whether the guard that existed on the upper half of the saw blade would act as a shield, preventing an operator's abdomen from coming into contact with the blade when pulled beyond the edge of the workbench. The compliance officer testified that, based on his experience and observation of respondent's saw, when the saw is extended to its full 3 1/2 inches beyond the workbench, the guard swings up sufficiently to expose the blade to the operator's abdomen. This testimony was vigorously opposed by the respondent who claimed that the guard would come between the blade and the operator's [*8] abdomen at all times. The conflict could have been readily resolved by measuring the distance from the pivot of the bar to the center of the saw, or by photographing of the saw when extended the full 3 1/2 inches beyond the bench. These actions were not taken during the inspection, and when the compliance officer returned to the workplace, entering to take photographs, the chain had already been shortened. The compliance officer testified that he extended the saw to one inch beyond the workbench and the saw was virtually perpendicular to the bench.

Further, there is a serious question concerning the position of the operator during the operation of the saw. The saw was not observed in operation, but a posed photograph, simulating the operation of the saw (Secretary's Exhibit 2) indicates that the operator would stand to the side of the saw, not in front of it, thus allowing the saw to pass to the side of the operator's body.

We, in view of the foregoing, hold that the Secretary failed to meet his burden of proof as to item 1 of the citation and affirm Judge Donegan's decision vacating that item.

Further, we find that the proposed penalty of $500 for item 2 is excessive [*9] and should be reduced. While the Secretary considered the statutory factors of respondent's size, good faith, past safety history, and gravity of the violation in arriving at his proposed penalty of $500, that proposal, when contested, becomes merely advisory and not binding upon this Commission which then acts de novo on the penalty. Brennan v. O.S.H.R.C & Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). In our own assessment of these factors, we find: First, that the respondent is the operator of a marginal business from which he has been drawing only $500 a month in salary. He is in debt to his bank, and had, at the time of the hearing, only been able to pay off the interest on his loans. Respondent claims, and the Secretary does not refute, that a $500 penalty would financially cripple him. Second, at the hearing, respondent testified that he has been in business for some 25 years and in that time no injuries have occurred except for an occasional cut finger, treated simply with an adhesive bandage. Therefore, not only does the respondent have an excellent safety record, but his use of the saw for 20 years without injury indicates that, while the nature of [*10] any injury could be serious, the likelihood of such injury is small, thus reducing the gravity of the violation. Third, the respondent immediately abated the violations. After the October 6 inspection, respondent was informed, by the compliance officer, that he would be cited for not having a proper guard on his saw and for having an excessively long chain which permitted the saw to swing 3 1/2 inches beyond the edge of the workbench. The compliance officer returned later in the day to take photographs of the saw and found that the respondent had already shortened the chain. Finally, respondent abated all other violations within 10 days, well within the compliance officer's twenty day abatement requirement, and before the expiration of the 14-working day limit for the filing of notices of contest.

Given respondent's marginal financial situation, his good faith in rapidly abating the hazard, the low gravity of the offense, and his otherwise excellent safety record, we find that the purposes of the Act would be best served by a substantial reduction in the penalty. Colonial Crafts Reproductions, Inc., No. 881 (October 27, 1972). A substantial reduction is further [*11] justified by our vacating one item of the citation. Weighing all the factors, we find that a penalty of $50 is appropriate.

Accordingly, it is ORDERED that item 1 of the citation be vacated, that item 2 of the citation be affirmed and that a penalty of $50 be assessed.

CONCURBY: VAN NAMEE

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: My colleagues sustain the alleged violation of 29 C.F.R. 1910.212(a)(3)(ii) on procedural grounds. I concur in the result because Complainant has demonstrated by a preponderance of the evidence that Respondent violated the standard by failing to guard the lower half and left hand side of the metal swing saw. Armor Elevator Co., OSHRC Dkt. Nos. 425 & 426, BNA 1 O.S.H.C. 1409, CCH E.S.H.G. para. 16,958 (Rev. Com'n., 1973). A $50 penalty is appropriate in light of all the circumstances.

I also agree that the Secretary failed to carry his burden of proof with regard to the first allegation of the citation.

My concurrence is predicated on the evidence of record since, as I have stated previously, a contest of the penalty should be construed as a contest of both the penalty and the alleged violation. Florida East Coast Properties, Inc., OSHRC Dkt. No. [*12] 2354, BNA 1 O.S.H.C. 1532, CCH E.S.H.G. para. 17,272 (Rev. Com'n., 1974) (Van Namee, Com'n'r., dissenting).

The majority, however decided in Florida East Coast Properties, to read notices of contest narrowly whereas my colleague, Commissioner Cleary, will read the Secretary's citations broadly. RPM Erectors, No. 1114, BNA 2 O.S.H.C. 1187, CCH E.S.H.G. para 18,568 (1974); B. Heckerman Iron Works, Inc., No. 111, BNA 1 O.S.H.C. 1352, CCH E.S.H.G. para. 16,371 (1973) (Cleary, Com'n'r., dissenting). Here the majority extends the rule of Florida East Coast Properties. In this case, they have taken a multiple allegation citation for a single serious violation and they have dissected it into separate parts for the purpose of determining the scope of contest. They require the employer to be a skilled artisan in the drafting of legal pleadings.

I certainly do not join in this extension of the Florida East Coast Properties rule; it is most unfair to require an employer to be a master of pleadings while recognizing that a compliance officer is not such so that his citations can be liberally construed.

APPENDIX 1

U.S. DEPARTMENT OF LABOR, OFFICE OF THIS SOLICITOR, [*13] 3048 Arcade Plaza Building, Seattle, Washington 98101, (206) 442-0940

November 15, 1972

James Tice d/b/a, Tice Industries, 4506 S.E. 39th Street, Portland, Oregon

Gentlemen:

Enclosed is a copy of a Complaint filed with the Occupational Safety and Health Review Commission (Commission) which is hereby served upon you, and for which an Answer is required to be filed. Please be advised of the service and posting requirements of 29 C.F.R. 2200.7(f) and (g), and 29 C.F.R. 1903.16. An extra copy of the Complaint for your posting requirements is also enclosed.

The Commission's requirements are that throughout this proceeding written response to the Commission (1825 K Street, N.W., Washington, D.C. 20006), must be made by you when the posting requirements, as applicable, have been carried out, by certification of compliance or otherwise with these requirements. A copy of any and all such responses would be sent to us on behalf of the Secretary of Labor, as a party, as well as any other party, (affected employees or authorized employee representatives) to this action, all in accordance with the service and posting requirements of the Commission's regulations governing this proceeding. [*14]

Moreover, please be advised that as Attorney of record for the Secretary in this action, this office will expect to be furnished copies of all correspondence with the Commission (or Hearing Judge) and any other filings, including an Answer required to this Complaint. An Answer is to be filed and served within 15 days of receipt of the enclosed Complaint in the manner prescribed by 29 C.F.R. 2200.33(b).

Sincerely,

Robert A. Friel, Associate Regional Solicitor

By Jane Ann McKenzie, Attorney

II

The respondent is, and at all times material hereto was, engaged at the aforesaid worksite and place of employment in the business of sheet matal fabrication and machine works production. At all times material hereto respondent is and was engaged in the use of materials brought directly or indirectly to respondent from points outside the State of Oregon, and also utilizes the mails, telephone and other facilities of interstate commerce. The respondent was and is thereby engaged in a business affecting commerce within the meaning of section 3 of the Act.

III

The Secretary of Labor, purusant to the authority vested in him by section 6 of the Act, duly issued and promulgated [*15] the Occupational Safety and Health Standards (29 C.F.R. Part 1910), hereinafter referred to as the safety and health regulations.

IV

On October 6, 1972 at the aforesaid worksite and place of employment, the respondent violated the safety and health regulations, specifically 29 C.F.R. 1910.212(a)(3)(ii), in that:

1. The metal swing saw in the main shop will swing 3 1/2 inches beyond the edge of the bench; and 2

[SEE ILLUSTRATION IN ORIGINAL]

[The Judge's decision referred to herein follows]

DONEGAN, JUDGE: This is a proceeding pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et. seq., 84 Stat. 1590, hereinafter referred to as the Act).

Citation for serious violation Number 1 and Citation for non-serious violations Number 1 (4 items) were issued to the Respondent on October 24, 1972, under the authority vested in the Complainant by Section 9(a) of the Act.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act a "Notification of Proposed Penalty" was issued to the Respondent on October 24, 1972, which proposed a penalty of $500.00 for the alleged serious violation, and a total penalty of $0 for the [*16] non-serious violations ($0 for each of the 4 items).

It is alleged in Citation Number 1 for a serious violation, and Citation Number 1 for non-serious violations that as a result of an inspection on October 6, 1972, of a workplace under the ownership, operation, or control of the Respondent, located at 4506 S.E. 39th Street, Portland, Oregon, 97202, n1 and described as a "sheet metal fabrication and machine works," the Respondent has violated 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 of the Act.

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n1 The Citation, Complaint and subsequent pleadings give the address of the Respondent's workplace as 4506 S.E. 39th Street. The correct address is 4506 S.E. 39th Avenue, Portland, Oregon, 97202.

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The Respondent timely contested the proposed penalty of $500.00 for the serious violation by returning to a representative of the Secretary of Labor a copy of the "Notification of Proposed Penalty" on which he had [*17] written the following:

All corrections made

J. Tice

I protest any penalty

J. Tice

It is to be noted that the Respondent did not state that he was "protesting" or contesting the alleged serious violation. There is no contest of the alleged non-serious violations (4 items) and since a total penalty of $0 is proposed for these 4 items, the Respondent's "protest" of "any poenalty" is not considered to be a contest of a penalty of $0.

The penalty of $500.00 was proposed for the following serious violation.

Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected

29 CFR 1910.212(a)(ii) -- October 6, 1972. The metal Swing Saw in the Main Shop will swing 3 1/2 inches beyond the edge of the bench, and the saw blade is guarded only on the upper half of the blade. -- Limit Chain: Immediately upon receipt of citation; Guard: November 13, 1972

Area Director's Signature: Eugene Harrower.

The standard or regulation cited in Citation Number 1 for the alleged serious violation, (29 CFR 1910.212(a)(3)(ii), provides as follows:

1910.212 General requirements for all machines.

(a) Machine guarding -- [*18]

(3) Point of operation guarding.

(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 Secretary of Labor filed a complaint on November 15, 1972. The Respondent did not file an answer within 15 days after service of the complaint in accordance with 29 C.F.R. 2200.33(b) of the Commission's Rules of Procedure.

The Complainant's motion for dismissal of notice of contest, and motion for continuance of the hearing date, pending a ruling on the motion for dismissal, were filed on January 24, 1973.

An Order was issued on April 25, 1973, denying the Complainant's motion for dismissal of notice of contest and setting the date of hearing as of May 22, 1973.

No affected employees or persons representing affected employees have appeared in this proceeding or have sought to participate in the hearing.

DISCUSSION

In reply to an inquiry shortly [*19] after the opening of the hearing, Mr. James Tice, the Respondent, stated that he is contesting not only the penalty of $500.00, but also the fact that his swing saw was classed as a serious violation -- he is contesting the serious violation and the penalty. He affirmed that he was not contesting the non-serious violations where no penalties were proposed.

The Attorney for the Complainant asserted that the notice of contest, as expressed in Mr. Tice's statement on the copy of the "Notification of Proposed Penalty" is clearly and unambiguously limited to the proposed penalty of $500.00.

Evidence was received at the hearing concerning the alleged serious violation. A ruling was reserved until the time of this decision on the Complainant's objection that the Respondent had not contested the serious violation within the statutory period of time provided in Section 10(a) of the Act, and therefore, the Commission did not have jurisdiction over the alleged serious violation.

Section 10(a) of the Act does not preclude the Commission from exercising jurisdiction as to the violation, if so requested by the Respondent at the hearing, when only the penalty for the violation is contested [*20] in the notice of contest.

Section 10(a) provides that the employer has fifteen working days to contest the citation or proposed assessment of penalty and if the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty . . . the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency (Emphasis supplied).

To read the underlined words as mandating, for contesting purposes, the separation of the alleged violation and the proposed penalty therefor, is to ignore the purposes of the Act, and more particularly, Section (17)(j) and (k) of the Act.

It is difficult to see how the purposes of Section 10(a) of the Act would be defeated if "or" is considered to have a conjunctive meaning when the alleged violation and the proposed penalty therefor are being considered.

To arbitrarily assign a disjunctive meaning to "or" in this case of a non-lawyer Respondent appearing pro se, would be contrary to all reasonable concepts of justice. Particularly, since this far from affluent Respondent was not in a position to engage a lawyer [*21] to advise him of the asserted esoteric subtleties of the provisions of Section 10(a) of the Act.

If the notice of contest is considered to be a pleading, n2 which it plainly is, the asserted strictures on the Commission's jurisdiction no longer serve to defeat the ends of justice or to deprive the parties of the right to a complete and a fair hearing.

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n2 Secretary of Labor v. Midwest Die Casting Company,

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Pleadings may be amended, and since neither the Act nor the Commission's Rules specifically provide for the amendment of the notice of contest, Rule 15 of the Federal Rules of Civil Procedure n3 is applicable.

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n3 Rule 15(b) provides in part: "If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence."

[*22]

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In allowing an amendment of a pleading, in accordance with Rule 15 of the Federal Rules of Civil Procedure, consideration must be given to a party's claim of prejudice in maintaining the action or in defending on the merits.

Accordingly, the alleged serious violation is in issue and the evidence received at the hearing will be considered for the purpose of making a determination as to whether there was a serious violation on October 6, 1972 at the Respondent's workplace as charged in Citation Number 1 for a serious violation. It follows that the Complainant's objection, based on the contention that the Commission does not have jurisdiction over the alleged violation, is overruled.

The Respondent's workplace was first inspected on October 4, 1972, by Donald Quilici, a Compliance Officer of the Occupational Safety and Health Administration. He did not complete the inspection since he is an industrial hygienist, and having noted what he believed to be safety violations, he returned on October 6, 1972 with Mr. Neal Franklin, a safety Compliance Officer of the Occupational Safety and Health [*23] Administration for the purpose of continuing the inspection.

Mr. Franklin testified that the metal swing saw in the main shop of the Respondent's workplace had a limit chain that was too long, allowing the operator to pull the swing saw 3 inches beyond the front edge of the table. The swing saw did not have a full guard on the blade but had a half moon guard on the right-hand side of the saw facing the saw. He stated the left-hand side of the saw blade was fully exposed and the lower half of the blade was exposed.

When the Attorney for the Complainant called Mr. Franklin's attention to his measurement given in the Citation as 3 1/2 inches, Mr. Franklin changed his previous testimony of 3 inches to 3 1/2 inches.

Mr. Franklin testified that the left hand of the operator would be directly left of the saw blade holding the metal being cut against the board (fence) across the back of the table, while the right hand is used to pull the saw forward into the metal being cut.

Mr. Quilici, took two photographs of the metal swing saw (received in evidence as Secretary's exhibits 1 and 2) on the afternoon of October 6, 1972, after the foreman, John Tice, had shortened the limit chain of [*24] the swing saw on the recommendation of Mr. Franklin.

As to the hazard involved when the swing saw may be pulled toward the operator beyond the edge of the table, Mr. Franklin testified that the operator could possible pull it intoi his abdomen, thereby suffering severe lacerations. In addition to this hazard, Mr. Franklin also stated that the operator of the swing saw was in danger of an amputation of fingers or hand from the unguarded saw blade.

Mr. Franklin does not think that John Tice, the son of the Respondent, who simulated the position of the operator of the swing saw in the posed photograph is standing in front of the saw. His opinion is that the saw would be pulled in close proximity to John Tice's side.

Mr. Franklin did not observe the saw in operation.

Mr. Quilici testified on October 6, 1972, he observed that the swing saw had no full guard around the blade and that it extended 3 1/2 inches out beyond the front of the table when fully extended. He watched Mr. Franklin measure the distance the saw extended in front of the table. When he returned on the afternoon of October 6, 1972 to take the photographs, John Tice informed him that he had shortened the [*25] limit chain. Mr. Quilici stated that he did not measure the distance the saw then extended beyond the table with the limit chain shortened but it appeared to be approximately an inch beyond the table, and, when extended, it was pretty much perpendicular to the table.

Mr. Quilici testified that it was possible for the operator to lean into the edge of the table with his stomach, and he based this observation on his inability to see anything to prevent the operator from leaning on the edge of the table, "depending on his stomach I suppose."

As stated previously, Mr. John Tice assumed an operating position at the swing saw so that Mr. Quilici could take the photograph appearing in Secretary's Exhibit 2.

Mr. Quilici did not discuss with the Area Director the issuance of the citation for the serious violation and he did not select the standard which was applied to the alleged serious violation. Mr. Franklin did this.

The Citation for the serious violation and paragraph IV of the Complaint alleges two separate and distinct violations of the standard [(29 C.F.R. 1910.212(a)(3)(ii)], both of which are concerned with a lack of guarding of the swing saw at the "point of operation" n4 [*26] in such a way that the operator is prevented from having any part of his body in the danger zone during the operating cycle.

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n4 The machine guarding standard cited does not specify how the "point of operation" is to be guarded.

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The first alleged violation of this standard is concerned with the swing saw extended 3 1/2 inches beyond the table. The second alleged violation of this standard is concerned with the saw blade being guarded only on the upper half of the blade.

Mr. Franklin testified concerning his observation of the swing saw when it was extended beyond the table. He stated that it was his opinion, based on experience and his observation of the actual saw, that the guard would not be between the operator and the moving saw blade.

The Compliance Officer did not measure the distance from the pivot of the bar on which the saw was suspended to the center of the saw. No measurement was made from the edge of the saw to the guard on the saw. With appropriate measurements, at the time of the inspection, [*27] the arc of the saw could be determined and the conflict in the testimony could be resolved as to whether the guard would be between the saw blade and the body of the operator during the outward and upward ascent of the arc. The Respondent testified that the moment the swing saw is released by the operator it returns to the back of the table.

The testimony of Mr. Quilici, that the saw appeared to be pretty much perpendicular to the table when it was extended approximately an inch beyond the table, raises a question as to the distance on the arc the pivot bar and the saw would move from a perpendicular to a horizontal position if the saw was extended an additional 2 1/2 inches.

The Respondent, James Tice, measured the swing saw during the luncheon recess and testified that the pivot bar from the swivel point to the bottom of the saw measures 30 inches and when it swings in the arc it raises and falls very little.

The position of the operator during the operation of the saw has not been established. The saw was not observed in operation during the inspection. An assumption that the operator would be standing directly in front of the saw blade and within 3 1/2 inches of the table [*28] is not supported by adequate evidence. In fact, the testimony is that Mr. John Tice was standing to the side in the posed photograph.

The standard cited specifically applies to "point of operation" guarding. It aslo refers to the "danger zone" during the "operating cycle."

The "point of operation," as defined in the standard, n5 is not synonymous with the "danger zone" during the "operating cycle." n6 The standard is vague as to its application when the "danger zone" of a machine extends beyond the "point of operation."

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n5 (3) Point of operation guarding. (1) Point of operation is the area on a machine where work is actually performed upon the material being processed.

n6 (3)(ii) . . . 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.

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From the standard's definition, it would be reasonable to conclude that the "point of operation" of the swing saw is the [*29] bench area where the blade of the saw cuts the metal being processed.

It would also be reasonable to conclude that the "danger zone" of the swing saw could be an area beyond the "point of operation" when the alleged unguarded saw blade is extended beyond the bench.

But the swing saw was not observed when it was operating and there is no evidence in the record as the "danger zone" during the "operating cycle."

There is not adequate evidence to sustain a finding that there has been a violation of the cited standard in this instance.

The second alleged violation of the standard is concerned with the saw blade being guarded only on the upper half of the blade.

Mr. Quilici and Mr. Franklin testified that they observed that the swing saw had no full guard around the blade. Mr. Franklin stated the left-hand side of the saw blade was fully exposed and the lower half of the blade was exposed.

Mr. Quilici said that when he was taking a photograph of the saw on the afternoon of October 6, 1972, he requested Mr. John Tice to assume a normal operating position like that which he would assume when actually operating the saw. He stated that Mr. Tice demonstrated, in assuming this position, [*30] that his left hand would be used to hold the material being cut by the saw and his right hand would be used to pull the saw through the material.

Mr. Franklin was requested by the Attorney for the Complainant to describe the operation of the swing saw as it is depicted in the photograph. In reply, he stated that, as depicted in the photograph, the operator would place the material to be cut against the saw fence, hold it with his left, grab the handle of the swing saw in his right hand, and pull the saw through the material to be cut.

In reply to questions of the Complainant's Attorney, Mr. Franklin testified that the left hand of the operator would be to the left of the saw blade and it would be possible for the left hand to be within a matter of inches from the saw blade during the operation of the saw.

Mr. Franklin replied to a question, as to how the operator of the saw would amputate his fingers or hand, by stating that the operator could do this by pulling the saw through his fingers, if they got in the way in front of the saw. Mr. Franklin stated that there would be a better chance of injury to the operator if guards were lacking on the saw blade.

The testimony [*31] concerning the hazard to the operator's fingers and hand at the "point of operation" is based on a supposition. A supposition that the operator, in holding the metal against the saw, will place his hand or fingers at the "point of operation," that is, at the point where the saw is cutting the metal.

There is no substantial evidence to support such a supposition. The posed photograph of John Tice does not show his left hand in a position where it is likely to come in contact with the saw at the "point of operation."

The swing saw is a metal cutting saw n7 and there are no appropriate or specific guarding standards which are applicable. In the absence of applicable guarding standards, the employer is required, by the cited standard, to install a guarding device on the swing saw that it designed and constructed so as to prevent the operator from having any part of his body in the "danger zone" during the "operating cycle."

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n7 James Tice, the Respondent, testified that because the swing saw is a metal cutting saw, the blade has to be kept lubricated with a wax stick on the cutting edge and the side. He stated that when he extended the guard on the saw, as a result of the inspection, the lower half of the blade was left exposed for this purpose and in order to make metal cuts.

[*32]

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The "operating cycle" of the machine is determinative of the "danger zone" and of the guarding that is required to prevent the operator from having any part of his body in the "danger zone" during the "operating cycle." There is no evidence to make such a determination since the swing saw was not operated during the inspection.

The evidence is not adequate to support a finding that there was a violation of the cited standard at the "point of operation" of the swing saw.

James Tice is the sole proprietor of Tice Industries and has been operating his business under this name for 10 years. Prior to that he operated an identical business under the name of Tice Hardware Manufacturing Company for about 15 years.

The Respondent has had the swing saw in operation for 20 years and says there have been no injuries. He states that the records of the State Labor Bureau will reflect that his business has an excellent safety record throughout the years.

At the time of the inspection, in addition to his son John Tice, he had three full time employees and one part time employee, a high school boy. The employees [*33] are not represented by a union.

The Respondent leases the building (9000 square feet) where he operates his business. The basic business activity is the manufacture of architectural trim (kick plates for doors, thresholds, letter drop assemblies, push plates and metal articles of a similiar nature). In addition he has a small parts business for mini-cycles.

For the sale of the hardware that he manufactures, he has an affiliation with a company in St. Louis, Missouri, which has manufacturer's representatives in Oregon and Washington.

Tice Industries is a small and marginal operation which does not make money. After paying operating expenses, including salaries, there was approximately $8,500.00 left over last year which James Tice drew as wages. The Respondent is in debt to a bank and claims the proposed penalty of $500.00 is going to cripple him from a financial standpoint. He stated that he did not have adequate finances to hire an attorney to represent him in this action.

After considering the entire record in this case, including the memorandum filed by the Complainant n8 after the hearing, it is concluded that the following "Findings of Fact" and "Conclusions [*34] of Law" are supported by the credible and substantial evidence of record.

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n8 The Respondent did not file a memorandum after the hearing.

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FINDINGS OF FACT

1. The Respondent, James Tice, doing business as Tice Industries, maintained a place of employment under his ownership and control at 4506 S.E. 39th Avenue, Portland, Oregon.

2. At this workplace in Portland, Oregon, the Respondent is engaged in the manufacture, distribution and sale of metal architectural trim and sells locally, over the counter, small parts for mini-cycles.

3. The Respondent ships and sells some of the products manufactured at his workplace in the State of Oregon outside of the state of Oregon.

4. Tice Industries is a small and marginal business operation which does not make money except for paying expenses and the wages of the three full time employees and one part time employee, in addition to paying approximately $8,500.00 in wages to James Tice, who works full time in the business.

5. The Respondent's workplace in Portland, Oregon [*35] was inspected on October 4 and 6, 1972 by authorized compliance officers in the employ of the Occupational Safety and Health Administration, U.S. Department of Labor.

6. Following the inspection, the Respondent was issued, on October 24, 1972 a Citation Number 1 for a serious violation and a Citation Number 1 for non-serious violations (4 items), together with a "Notification of Proposed Penalty" of $500.00 for the alleged serious violation, and a total penalty of $0 for the alleged non-serious violations ($0 for each of the 4 items).

7. The Respondent did not contest the Citation for the alleged non-serious violations (4 items) or the proposed total penalty of $0 for the non-serious violations.

8. The Respondent timely contested the proposed penalty of $500.00 for the alleged serious violation, and for purposes of this proceeding, is considered to have contested the alleged serious violation.

9. The alleged serious violation, consisting of two parts, has not been proven by adequate substantial evidence.

CONCLUSIONS OF LAW

1. The Respondent, James Tice, doing business as Tice Industries, was, at all times material to this proceeding, an employer engaged in business [*36] affecting interstate commerce within the meaning of Section 3 of the Act.

2. The Occupational Safety and Health Review Commission has jurisdiction over the parties and subject matter of this proceeding in accordance with Section 10 of the Act.

3. On October 4 and 6, 1972, an inspection was made of the Respondent's workplace at Portland, Oregon by authorized employees of the Secretary of Labor in accordance with the requirements of Section 8 of the Act.

4. Citation Number 1 for alleged non-serious violations (4 items) and the proposed total penalty $0 for these alleged serious violations, not having been contested by the Respondent within the period of time provided for contest by Section 10 of the Act, became a final order of the Occupational Safety and Health Review Commission, not subject to review by any court or agency as provided in Section 10 of the Act.

5. The alleged serious violation, consisting of two parts, set forth in Citation Number 1 did not constitute a violation of the standard cited [(29 C.F.R. 1910.212(a)(3)(ii)], and therefore the Respondent was not in violation of Section 5(a)(2) of the act, in this regard, on October 6, 1972, the alleged date of the violation. [*37]

ORDER

Based on the foregoing "Findings of Fact" and "Conclusions of Law," it is ORDERED:

1. That Citation Number 1 for a serious violation issued to the Respondent on October 24, 1972 be vacated, and the same is hereby vacated.

2. That the proposed penalty of $500.00 for the serious violation alleged in Citation Number 1 for a serious violation be vacated, and the same is hereby vacated.