TOBACCO RIVER LUMBER COMPANY

OSHRC Docket No. 1694

Occupational Safety and Health Review Commission

April 23, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINION:

BY THE COMMISSION: On October 30, 1972, respondent, a corportion operating a sawmill and planing mill, was issued a citation alleging 30 violations of the Occupational Safety and Health Act of 1970 [29 U.S.C. 651 et seq., hereinafter "the Act"]. The citation was issued following an inspection made by the Secretary of Labor. An aggregate penalty of $440 was proposed by the Secretary for 14 of the alleged violations. A hearing was held before Judge J. Paul Brenton following respondent's timely notice of its intent to contest all the alleged violations and proposed penalties.

Judge Brenton issued a decision on December 20, 1973, affirming 16 of the alleged violations in whole or in part, and vacating the remaining alleged violations. Two penalties of $25 were assessed while the 12 remaining proposed penalties were vacated.

This case was directed for review before the full Commission pursuant to section 12(j) of the Act on the following issues:

A. Whether the standards found to have been violated (1) were properly promulgated pursuant to section 6(a) of the Act, 29 U.S.C. 655(a), and (2) were applicable [*2] as national consensus standards within the meaning of section 3(9) of the Act, 29 U.S.C. 652(9).

B. Did the Judge independently assess penalties in conformance with requirements of the Act and prior Commission precedent?

C. Whether the Judge erred in vacating those items of the citation that alleged respondent's non-compliance with the standards at (1) 29 CFR 1910.22(a), (2) 29 CFR 1910.133(a)(1), and (3) 29 CFR 1910.265(e)(5)(iii).

In addition to the above issues, respondent in its brief took exception to the denial of its motion to suppress any and all evidence obtained as a result of the Secretary's inspection of its worksite.

We have considered the entire record, and affirm Judge Brenton's disposition of this case only insofar as it is consistent with the following.

I. Motion to suppress evidence

Before the hearing, respondent moved to suppress evidence obtained during the inspection of its worksite on September 28, 1972. Respondent contended that this inspection was an unreasonable search and seizure contrary to both the Fourth Amendment and section 8(a) of the Act.

In denying this motion, the Judge found that respondent, through its agent in charge, [*3] Leonard, knowingly consented to the Secretary's inspection of its worksite.

There is ample evidence to support Judge Brenton's conclusion that respondent waived any constitutional right to deny entry, and consented to the inspection of its sawmill. Respondent's argument that its employees had no authority to act on behalf of Mr. Gwynn, respondent's president, in consenting to the Secretary's inspection is unconvincing in light of a preponderance of the evidence to the effect that each employee was expected to handle any business visitor during Gwynn's absence from the sawmill. We hold therefore that the inspection was in accordance with the requirements of section 8(a) of the Act. n1

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n1 See Accu-Namics, Inc., 8 OSAHRC 890 (1974), petition for review docketed, No. 74-2979, 5th Cir., July 26, 1974. Cf. Brennan v. Buckeye Industries, Inc., 374 F. Supp. 1350 (S.D. Ga. 1974).

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II. Promulgation of the standards as national consensus standards applicable to respondent

Prior to the hearing, respondent [*4] moved for summary judgment alleging the improper promulgation of the standards under which it was cited. Respondent also alleged that the standards were not applicable to it as national consensus standards within the meaning of section 3(9) of the Act. Following a hearing, Judge Brenton denied the motion noting that genuine issues of material facts remained regarding the Secretary's actions in promulgating the standards. Respondent maintained its opposition to the standards as an affirmative defense at the hearing on the merits.

The Commissioners' views on the extent of their power to review rulemaking action of the Secretary of Labor are divided. In this case, the Chairman and Commissioner Van Namee hold that the Commission may review the question of whether the Secretary of Labor acted ultra vires in adopting the national consensus standard involved, and note the absence of any judicial decisions that would limit such power. Commissioner Cleary would hold that the Commission has no power to review the validity of a standard. See Secretary v. United States Steel Corp.,    OSAHRC    (Docket Nos. 2975 & 4349, Nov. 14, 1974).

In rejecting respondent's defense, [*5] Judge Brenton considered its merits and stated:

The totality of the evidence on this issue failed to shake the foundations upon which the promulgation, by the Secretary, of the standards promulgated by American National Standard Institute, as National Consensus Standards was postured. Therefore, there being no substantial evidence on the record, as a whole, that the Secretary did not substantially conform to and abide by the provisions of Section 3(8) and 3(9) of the Occupational Safety and Health Act of 1970, in carrying out his duties in the promulgation of the Standards in question pursuant to Section 6(a) of that Act, Respondent's affirmative defense on this issue is without merit and must be and is hereby denied (references to exhibits omitted).

We find ample support in the record for the Judge's statements as to the merits of respondent's defense.

It should be noted that the essence of respondent's defense is that the standards cannot be applied to it as national consensus standards within the meaning of section 3(9) because respondent was not a member of the American National Standards Institute (ANSI) at the time the standards were adopted by that organization. Respondent [*6] argues that its absence from the ANSI membership rolls means that the standards were not adopted under procedures whereby it could be determined by the Secretary that persons interested and affected had reached substantial agreement on their adoption. This argument misperceives the clear import of section 3(9) of the Act.

Section 3(9) of the Act reads:

The term "national consensus standard" means any occupational safety and health standard or modification thereof which (1) has been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption, (2) was formulated in a manner which afforded an opportunity for diverse views to be considered and (3) has been designated as such a standard by the Secretary, after consultation with other appropriate Federal agencies (emphasis added).

The italicized language cannot be read in a vacuum as respondent urges. Rather, it must be read in conjunction with the remainder of the section. Read in this way, the section [*7] states that the Secretary must determine that, during the process of adoption, diverse views were presented by persons deemed representative of the class of persons "interested and affected by the scope or provisions of the standard . . . ." n1A It does not state that all the members of the class interested and affected by the scope of standard had, or need have had, an opportunity to participate in its adoption. Consequently, we must reject respondent's contention that the standards cannot be applicable to it because it was not individually afforded an opportunity to participate in their adoption by ANSI.

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n1A The determination mandated by section 3(9) of the Act was, in fact, made by the Secretary regarding 29 CFR Part 1910. See 29 CFR 1910.1.

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The Chairman, who directed full Commission review on the above issue, does not concur in the rejection of respondent's defense. He would hold that the Commission is empowered to review the Secretary's performance of his rulemaking duties. Moreover, he would hold [*8] that respondent has prevailed in the assertion of this defense because the Secretary failed to meet his burden of establishing the validity of the standards.

III. Judge's assessment of penalties

Although review was directed on the issue of whether penalties were assessed in accordance with the requirements of the Act and prior Commission precedent, both parties in their briefs maintained that Judge Brenton acted properly in assessing penalties in this case. We will not, therefore, disturb the penalties assessed in this case. Consequently, except for the penalties relating to the vacated items to be discussed below, the assessment of penalties is affirmed.

IV. Alleged non-compliance with the standard at 29 CFR 1910.22(b)(1) n2

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n2 In his petition for discretionary review, the Secretary took exception to the vacation of item 2 of the citation. The petition referred to the pertinent standard as 29 CFR 1910.22(a)(1). Item 2, however, alleged non-compliance with the standard at 29 CFR 1910.22(b)(1). Inasmuch as the Secretary's brief identified the correct standard relating to item 2, we will decide this issue on the merits and disregard the Secretary's obvious error.

[*9]

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The standard appearing at 29 CFR 1910.22(b)(1) [hereinafter section 1910.22(b)(1)] provides:

1910.22 General requirements

(b) Aisles and passageways. (1) Where mechanical handling equipment is used, sufficient safe clearance shall be allowed for aisles, at loading docks, through doorways and wherever turns or passage must be made. Aisles and passageways shall be kept clear and in good repairs, with no obstruction across or in aisles that could create a hazard.

Regarding non-compliance with this standard, the citation alleged that "[a]isles and passageways to the drag saw and head saw operator stations were not kept clear of obstructions."

The evidence shows that there were three possible passageways to the operator's work stations. One of these passageways required the operators to use a stairway that was not equipped with stair railings on its open sides. It is urged by the Secretary that this stairway was an obstructed passageway within the meaning of section 1910.22(b)(1). Judge Brenton rejected the Secretary's interpretation of the standard. So do we. Reading the last sentence [*10] in section 1910.22(b)(1), it is clear that the standard contemplates overhead and "tripping" obstructions -- not open stairways. There is a specific safety standard at 29 CFR 1910.24(h) that requires stair railings. Indeed, Judge Brenton affirmed a separate item of the citation that alleged respondent's open stairway failed to comply with this specific standard. Under these circumstances we agree with the Judge that the open stairway was not an obstructed passageway.

The second possible passageway required the operators to pass nearby n3 an open electrical junction box and unguarded high speed drive belts. It is urged by the Secretary that the above facts establish an obstructed passageway within the meaning of section 1910.22(b)(1). We do not agree. There are specific safety standards covering the en route hazards noted by the Secretary. n4 Moreover, we note that the Secretary issued a citation alleging that these two hazards constituted violations of the two standards. n5 Consequently, absent a showing that the two alleged hazards were blocking the passageway, we agree with the Judge that the Secretary failed to show that the passageway was obstructed within the [*11] meaning of section 1910.22(b)(1).

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n3 The term "pass nearby" has been employed in its precise denotation. It is intended to stress the fact that the alleged hazards were not physically blocking the passageway. Rather, the passageway was clear of physical blockages but ran nearby the two alleged safety hazards.

n4 See 29 CFR 1910.265(c)(22) and 1910.309(a).

n5 Items 22 and 26 of the citation alleged non-compliance with the two standards. See note 4, supra.

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The third possible passageway arguably consisted of two fixed ladders leading to the head saw and drag saw stations. There was no question that both these ladders were obstructed. In fact photographic exhibits show that the ladders were so covered with debris that they were not visible. It is precisely this fact that leads us to agree with the Judge's conclusion that neither ladder was accessible for employee use. Even if both ladders are assumed to be passageways, the ladders were so obstructed that they lost their charactor as passageways. [*12] It is obvious that the ladders were never used as a means of access to the work stations. We therefore hold that the ladders were not a passageway within the meaning of section 1910.22(b)(1) inasmuch as they were not used as a means of ingress and egress from the work stations. Since we have previously noted that there were two unobstructed alternative means of access, we affirm Judge Brenton's determination that "[t]he government failed to show that any employee was exposed to an obstructed passageway to either station."

Accordingly, we affirm the vacation of the item alleging non-compliance with section 1910.22(b)(1).

V. Alleged non-compliance with the standard at 29 CFR 1910.133(a)(1) n6

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n6 This standard reads:

1910.133 Eye and face protection

(a) General. (1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards (emphasis added).

[*13]

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In the citation, the Secretary alleged respondent's failure to comply with the standard at 29 CFR 1910.133(a)(1) by not requiring the wearing of personal eye protection by the drag saw operator, the head rig operator, and those employees who used compressed air hoses to clean sawdust off machinery. Judge Brenton held that the Secretary failed to meet his burden of establishing a "reasonable probability" n7 of eye injury to those employees who used compressed air for cleaning purposes. All the Secretary showed was that there were employees using air hoses and that there was sawdust on the machinery. He did not show that during the cleaning operations sawdust blew in the vicinity of respondent's employees' eyes. Apparently, the Secretary assumed that an eye hazard could be inferred from the evidence submitted. A majority of the Commission agrees with the Judge, and refuses to draw this inference.

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n7 See note 6 supra; Secretary v. Kit Mfg. Co., 16 OSAHRC 80 (1975); Secretary v. Nibco of Colo. Div., Nibco, Inc., 9 OSAHRC 325 (1974).

[*14]

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Commissioner Cleary does not agree with this holding. He would hold that the evidence as adduced at the hearing permits an inference of airborne sawdust thereby establishing a "reasonable probability" of a hazard to the eyes of respondent's employees. Consequently, Commissioner Cleary would affirm the citation insofar as it alleges a hazard to the employees who used compressed air hoses to clean machinery.

The evidence adduced by the Secretary relating to the alleged eye hazards to the drag saw operator and head rig operator is insufficient to affirm the citation. Both these employees use power-driven saws during the performance of their respective job tasks. It was the Secretary's position at the hearing that the fact that power-driven saws are used establishes a "reasonable probability" of eye injury. But the Secretary has retreated from this per se approach inasmuch as his brief to this Commission only urges the Commission to reverse the Judge as to those employees who used compressed air for cleaning purposes. Accordingly, the Commission affirms the vacation of the item alleging [*15] non-compliance with 29 CFR 1910.133(a)(1).

VI. Alleged non-compliance with the standard at 29 CFR 1910.265(e)(5)(iii)(a)

In item 24 of the citation, the Secretary alleged that respondent failed to comply with the standard at 29 CFR 1910.265(e)(5)(iii). Specifically, the Secretary alleged that the area adjacent to respondent's edger was not properly fenced off within the meaning of the standard.

The standard at 29 CFR 1910.265(e)(5)(iii)(a) provides:

1910.265 Sawmills

(e) Log breakdown and related machinery and facilities --

(5) Edgers --

(iii) Antikickback devices. (a) Edgers shall be provided with safety fingers or other approved methods of preventing kickbacks or guarding against them. A barricade in line with the edger, if properly fenced off, may be used if safety fingers are not feasible to install (emphasis added).

By its terms this standard is clear. An edger may be guarded in one of two ways. It may be equipped with safety fingers that serve to eliminate the possibility of lumber being kicked back out of the edger. If, however, safety fingers or their equivalent are not provided precautions must be taken to reduce the possibility [*16] of injury to employees in the event a kickback occurs. These precautions include the installation of a physical barricade which serves to impede the flight of any materials that might be kicked out of the edger. The standard also requires that the area between the edger and the barricade be "fenced off" in order to prevent any employees from entering this dangerous area.

At the hearing, it was shown that respondent's edger was not equipped with safety fingers or any other device that would prevent kickbacks. It was also shown that, while respondent had installed a barricade in line with the edger, no fencing of any sort was provided to prevent employee entrance into the hazardous area between the edger and the barricade.

Despite the above facts, the Judge vacated the citation stating that there was a fence, a "mental" fence. Judge Brenton reasoned that since the employees knew of the dangers to be encountered upon entry into this hazardous area there was an effective mental fence. The Secretary maintains that the Judge's interpretation of the standard ignores the plain meaning of the Standard. We agree.

It is clear that the standard requires a physical limitation [*17] upon intentional or accidental entry into the hazardous area. Mental fences might serve to reduce the probability of intentional entry, but they do nothing to prevent accidental entry. n8 We hold, therefore, that the standard at 29 CFR 1910.265(e)(5)(iii)(a) requires the erection of physical fencing to prevent entry into the hazardous area between an edger and a barricade.

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n8 Although the Secretary showed that several employees worked near the edger, the Judge's interpretation of the standard does not contemplate accidental entry into the hazardous area.

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Accordingly, we reverse the vacation of item 24 of the citation and affirm said item as it alleges an other than serious violation for non-compliance with 29 CFR 1910.265(e)(5)(iii)(a).

A $25 penalty was proposed by the Secretary for item 24 of the citation. Respondent is a small corporation with no history of previous violations. There is nothing in the record to indicate a lack of good faith on the part of respondent. Moreover, the gravity of this violation [*18] is relatively low inasmuch as there was a low probability of accidental entry into the hazardous area by the employees working near the edger. Accordingly, a $25 penalty is assessed for item 24.

Chairman Moran does not concur in the reversal of Judge Brenton's vacation of this item and its proposed penalty. Rather, he would hold that respondent was in compliance with the standard at 29 CFR 1910.265(e)(5)(iii)(a) for the reasons assigned by the Judge.

We hold, therefore, that:

(1) Respondent's motion to suppress the evidence obtained as a result of the Secretary's inspection was properly denied.

(2) Respondent's motion for summary judgment was properly denied.

(3) Respondent's affirmative defense relating to the validity of the standards was properly rejected.

(4) The penalties, except as altered by this decision, were properly assessed.

(5) The Secretary failed to show non-compliance with the standard at 29 CFR 1910.22(b)(1).

(6) The Secretary failed to show non-compliance with the standard at 29 CFR 1910.133(a)(1).

(7) A violation of section 5(a)(2) of the Act for non-compliance with 29 CFR 1910.265(e)(5)(iii)(a) was established and a $25 penalty is appropriate [*19] for said violation.

(8) The Judge's decision is, in all other respects, affirmed.

[The Judge's decision referred to herein follows]

BRENTON, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act.

The Citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at Eureka, Montana and described as follows: "sawmill and planing mill," the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant of Section 6.

The Citation, which was issued on October 30, 1972, alleges that the violations, resulted from a failure to comply with certain enumerated standards promulgated by the Secretary by publication in the Federal Register on May 29, 1971 (36 F.R. 10466), and codified in 29 CFR Part 1910.

The description of the alleged violations contained on said Citation [*20] and the standards relating thereto as promulgated by the Secretary are reserved for inclusion in this Decision and Order at such time as this tribunal comes to grips with the merits.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated October 30, 1972, from Vernon A. Strahm, Area Director of the Billings, Montana, area, Occupational Safety and Health Administration, U.S. Department of Labor, proposed to assess a penalty for the violations alleged in the amount of $440.00.

After Respondent contested this enforcement action, and a Complaint and an Answer had been filed by the parties, together with motions of the Respondent to suppress the evidence and for Summary Judgment and several motions of the Complainant, hereinafter identified, the case came on for hearing at Kalispell, Montana, on May 17, 1973, and on that date the hearing was adjourned to June 12, 1973, and completed on June 14, 1973.

PRELIMINARY STATEMENT

The Motion to suppress the evidence and the Motion for Summary Judgment are of extreme importance to the parties. Examining the transcripts of testimony, the depositions and the voluminous [*21] exhibits together with legal research and briefing by the parties as well as by this tribunal having been recognized as tedious and time consuming, this Decision and Order of necessity will be in two (2) stages. The first stage is a disposition of the several motions and the second and final stage will be a disposition on the merits.

FIRST STAGE

RESERVED MOTIONS OF THE COMPLAINANT

Through the entire course course of the proceedings in this cause, Complainant has consistently objected to the several delays encountered in bringing this case into focus for trial on its merits. First, there was the long protracted delay in Respondent filing its answer to the Complaint. The Answer ultimately raised issues outside the scope of the issue as to the liability for the violation of each standard alleged upon the physical facts relating thereto. The delay was occasioned in part from the inaccessibility at Eureka and Kalispell, Montana, the situs of Respondent's operation and the situs to trial respectively, to copies of the Federal Register and the National Electric Code depicting the standards alleged. In fact this tribunal, in an endeavor to expedite the proceedings herein, [*22] upon discovery, forwarded to Counsel for Respondent a copy of the Federal Register and a copy of the alleged standards of the National Electric Code after begging for and receiving a copy of the latter from the Review Commission.

The hearing commenced on May 17, 1973, preceded by a day long pretrial conference, and was adjourned to June 12, 1973, for compelling reasons. Primarily, because the filing of the Motion to Suppress the Evidence and for Summary Judgment immediately before the pretrail conference required a world of discovery by both parties.

Of course, Complainant moved to summarily reject these motions at the outset, and he has consistently renewed his objection and motions at every stage of the proceedings herein.

Additionally, Complainant has moved at every appropriate stage of the proceedings for a dismissal of the Notice of Contest for want of good faith prosecution by Respondent.

And Complainant objected to Respondent taking the deposition of former Assistant Secretary of Labor, George C. Guenther; and now moves for its exclusion from the evidence in support of Respondent's Motion for Summary Judgment. This latter motion is grounded on the proposition that its [*23] taking was untimely and that it is irrelevant together with the fact that Complainant with short notice was unable to cross examine Mr. Guenther.

Rulings on the foregoing motions were reserved until the transcript and briefs of the parties were received.

It should be noted at this point that Counsel appearing in this cause are each able, aggressive and tenacious fighters. Counsel for Respondent introduced two novel issues which are the subject of the Motions to Suppress the Evidence obtained upon inspection of Respondent's sawmill and for Summary Judgment bottomed on the invalidity of the promulgation, by the Secretary of Labor, of the standars alleged to have been violated.

In deliberating upon the motions of the Complainant, then, consideration must be given to the proposition that the concept of justice for all under equal law, equally administered, is not self-executing. It comes alive and exists when the trial judge, dedicated to the credo that it is his affirmative duty to see that justice is done, render to every man his due, fairly and impartially, without bias, prejudice or passion. He cannot be negative, and he fails in his purpose of function if he is merely [*24] umpire, referee, a symbol or an ornament. The cause belongs to the parties, not to counsel Every issue to the extent possible should be decided on its merits. This frequently requires the judge to exercise affirmative powers and duties with respect to whatever may be reasonably necessary, during any stage of the proceedings, to prevent prejudice to a party or a miscarriage, of justice.

The essence of justice is its quality. Its rendition is handmade, laborious and even tedious, but personal and individual. To maintain the confidence of the citizens, to insure procedural due process, and to achieve a just disposition of the cause of the parties, the Judge's credo must include his affirmative duty to be an instrumentality of justice.

This entire case under the Job Safety Act was new and novel to Respondent as well as to its counsel, whereas Complainant and his counsel had lived with it since its enactment in December 1970. Simply stated, then, due process would amount to only a fading shadow if Respondent is precluded from having its day in court on the issues presented by its motions, unless it has been made to appear that either is a sham or a farce. Neither of the latter [*25] having been made apparent, Complainant's motions to summarily dismiss Respondent's motions should be denied.

Likewise, Complainant's motion to Dismiss the Notice of Contest should be denied.

Further, Complainant's objection to the taking of the deposition of George C. Guenther and to its inclusion in evidence is not well taken for the reasons hereinabove delineated and these objections are hereby denied and the deposition is admitted in evidence going to the Motion for Summary Judgment and to the merits, if warranted.

Complainant has also moved to correct the transcript of Mr. Guenther's deposition on page 39 at line 3 by striking the word "not" and substituting therefor the word "national." This motion is well taken and is hereby granted and pursuant thereto this tribunal has made the correction on the transcript.

ON MOTION TO SUPRESS

Respondent's Motion to Suppress is bottomed primarily on the proposition that consent to make the inspection and gather the evidence sought to be suppressed was not freely and intelligently given. At this point it is significant to observe that the Congress, in enacting the enforcement provisions of the Act, elected to refrain to deal [*26] specifically with procedure to be employed upon the encounter with a refusal by an employer to permit inspection of his work place. It is not provided in Section 8(b) of the Act, but is delegated to the Secretary under Section 8(g)(2), by way of the Secretary prescribing rules and regulations, in carrying out his responsibilities, having to do with the inspection of an employer's establishment.

Respondent is a corporation operating a sawmill in Eureka, Montana. Kenneth Gwynn, its President, owns 99% of its outstanding shares. He also owns and attends to about nine (9) other businesses in and about Eureka. These enterprises require frequent travel within a hundred mile radius. He averages about three (3) hours per day intermittently at the sawmill. Gwynn had not specifically designated any one employee as his man in charge for any particular purpose during his presence or absence. Instead he operated on the proposition that any employee who is available at a given time is expected to undertake the consummation of any situation that may arise. Each employee understands and complies with one specific order from Mr. Gwynn, which is to never permit a person to go into the mill [*27] unaccompanied.

The mill is located at the edge of Eureka and a public roadway leading thereto is a cul-de-sac upon arrival. The mill property is not fenced in nor are there any signs of any kind forbidding entry for any purpose; however, it is not open to the public generally. A separate building is maintained for a small office and lunchroom. The work force comprises about nineteen (19) men on each of two (2) shifts. Several of the work stations are isolated resulting in a limited number of employees having access to a view to the arrival of a business visitor. The work force is seasoned, experienced and competent; each employee knows his job and does it. Also, each one understands that it is Gwynn's desire and preference, in his absence, that whoever observes a visitor arriving at the mill that he contact that person and take care of the business presented. Business visitors have been salesmen, fire insurance inspectors, State safety inspectors or persons wanting to purchase lumber culls. Thus, if an employee sees a caller he makes contact, ascertains his business, refers him to Gwynn, when present, or if not, the employee is expected to handle the matter. In [*28] fact, the mill-wright on his own would order parts and supplies not to exceed $5,000.00 to repair and maintain equipment.

On September 28, 1972, about mid-morning, Thomas Martin, Compliance Officer for the Secretary, accompanied by John Miehle, a Montana employee engaged in similar activities, arrived at Respondent's establishment and upon entering the office encountered an apparent mill hand. Thereupon, Martin inquired as to whether Mr. Gwynn was available within the area of the mill, having previously ascertained that Gwynn was Respondent's President and principal management official. The answer was no, but that he could probably be located at his service station, whereupon Martin and Miehle left for the service station and on arrival inquired of the attendant as to Gwynn's presence. Martin was informed that Gwynn had gone to Kalispell, a city estimated to be 65 to 90 miles distant, whereupon they departed the service station and returned to the sawmill.

Upon again entering the office they encountered the same employee as before. Martin advised him of their learning of Gwynn's absence from town, having gone to Kalispell, and thereupon Martin asked for the next man in charge. [*29] To this point Martin had not disclosed the purpose of his visit nor had any employee made inquiry thereof. Martin was referred by this employee to Mr. Leonard who was found operating a forklift on the loading dock.

Upon contacting Leonard, Martin introduced himself and Miehle, presented his card and asked Leonard if he had a few minutes to go to the office, which he did. At the office Martin presented his credentials as a Compliance Officer for the Occupational Safety and Health Administration. He then informed Leonard that he was there to conduct an inspection under the provisions of the Occupational Safety and Health Act, prepared his papers and forms for the inspection and asked Leonard to accompany him, which Leonard did. At no time did Leonard upon being informed as to the identity of Martin and the purpose of his visit, refuse admittance of Martin to make the inspection and investigation. Nor did Leonard indicate in any manner that he lacked authority from his employer to permit Martin to engage in and upon the business mission which Martin had explained to him.

The inspection consumed about two (2) hours, during which time Leonard absented himself twice to [*30] attend to his job function. Upon concluding the inspection they returned to the office where Martin discussed with Leonard the substance of the alleged violations and Leonard, using a typewriter, made a list thereof for subsequent reference with Gwynn. As the Inspectors took their leave, Martin advised Leonard that they would be available at Gwynn's motel in Eureka the remainder of the day and night should Leonard be in contact with Gwynn and advise him accordingly. Nothing significant occurred thereafter until the issuance and service of the Citation, the subject matter of this litigation.

During the course of this litigation considerable research has unfolded from every quarter including the tribunal. An exhaustive review of the abundant case law on search and seizure will not solve the riddle. A careful analysis of the scope of the provisions for inspections and investigations of the Job Safety Act invested in the Secretary, by the Congress, to undertake inspections of the workplace may tend to shed light upon the dilemma.

The Congress by writing Section 8(a) into the Occupational Safety and Health Act provided for the inspection and investigation of work places in specific [*31] terms in this to wit:

In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is anthorized --

(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and

(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.

It has been demonstrated by the facts that the ownership and operation of the establishment, the sawmill, was corporate. The purposes for which the Respondent was incorporated were carried out by and through its elected officers together with the number of employees it found necessary or expedient to employ.

Moreover, Gwynn was the duly elected and acting President of this Corporation. As such he was simply an officer employee [*32] with wide discretionary powers in managing and conducting its affairs. In this capacity, undoubtedly, Gwynn was the operator of Respondent's business in the sense intended by the fashioners of the statute, which is believed to encompass any person who conducts some working or industrial establishment, enterprise or system. Likewise, in this capacity, when present, he would be the agent in charge of the establishment.

It would appear that Martin, the Compliance Officer, made a reasonable effort to locate the representative of the owner or the operator of the sawmill for the presentation of his credentials before embarking upon an investigation and inspection. It does not appear that the Congress intended that the Secretary be required to scout the countryside within a radius of 100 miles, otherwise, the alternative of presenting credentials to an agent in charge would have little or no force and effect.

Respondent places considerable emphasis on the proposition that Leonard was not informed that he had a right to refuse entrance for the inspection as well as the proposition that consent therefore was not freely and intelligently given. Respondent has not stressed the proposition [*33] that Leonard was not the agent in charge.

Nevertheless, an exploration of the meaning of "agent in charge" as used in the Act and the rationale thereof to the facts in the instant case may sound the key to the resolution of the issues on this motion.

First, be it remembered that "agency" is a comprehensive term embracing almost limitless number of relations between two or more persons or entities, and is a relation between two or more persons by which one party, usually called the agent, is authorized to do certain acts for, or in relation to rights of property of, the other, who is denominated the employer. Kunz vs Lowden, 125 Fed. 2nd 911.

In practical affairs it is often difficult to apply this definition, but it is certainly necessary to constitute agency that there be some kind of representation of the employer by virtue of authority conferred by him.

Turning to the term "agency" it is discovered that it is one of wide signification. It is defined to be one who acts for another by authority from him; one who undertakes to transact some business or manage some affair for another by authority and on account of the latter, and to render an account of it. [*34] The term "agent" may therefore be said to apply to anyone who by authority performs an act for another. The term includes servants who perform only manual labor as such, however, when the employer confers the right to exercise a degree of discretion upon his employee in carrying out business entrusted to him, the term takes on its broader scope and meaning. Workmen vs City of San Diego, 72 Cal. Rptr. 5009; Peoples vs Orkin Exterminating Co., 135 S.E. 2d 835, 244 S.C. 173.

The phrase "in charge" is employed in the Act in the sense that it means in command; having supervisory power of any particular place of employment in the absence of the owner or operator. The term "agent in charge," then, takes on the concept in law of a special owner where an employee is entrusted to carry out any business of the employer beyond the normal labor of his specific job task.

Under the peculiar facts and circumstances of this case as contained within the transcript of the testimony of the hearing on this motion, together with the depositions of several employees of Respondent, there is no difficulty in concluding that Kenneth Gwynn as President of Respondent corporation was representative [*35] of the owner of the sawmill as well as its operator. He was, in fact, its overall managing agent. Further, there is no difficulty in concluding that any employee of Respondent, at the time of the inspection, who may have come forward to entertain the business presented by Martin, should be considered the agent in charge, in the absence of Gwynn, clothed with authority and a degree of discretion to act for Respondent. The overwhelming state of the evidence is to the effect, that each employee was expected to handle any business visitor in Gwynn's absence, except the millwright would not obligate the corporation on any one transaction in excess of $5,000.00. In the instant case employee Leonard assumed the role of agent in charge by express authority from Respondent to handle and take care of any and all matters arising in the absence of Gwynn.

It should be noted that the Act contains no criminal nor other sanction for a refsual to permit an inspection. The Secretary's remedy upon a refusal is a matter of his discretion by virtue of his regulatory and rule making power authorized by Section 8(g)(2) of the Act. In fact, the Secretary has adopted rules and regulations [*36] dealing with this matter as contained in his Compliance Operations Manual (Exh. C-46, at Chapter V, Section D, 1 and 2 of pages V5 through V8). Briefly, the Compliance Officer, encountering a refusal, is charged with advising that the law provides for an inspection without stating or implying that a refusal may subject the employer to a penalty. If there is still a refusal he shall then endeavor to ascertain the reason therefor and then immediately leave and report to his Area Director who in turn will set the stage for a warrant from the District Court. He is not empowered to use any force whatsoever even after being armed with a lawful warrant. The procedure thereafter is apparently prosecution for civil contempt. It would appear that this course of conduct as provided by rule affords substantial procedural due process.

It should also be recognized that the Congress specifically, by Section 17(f) of the Act, made it a criminal offense for any person to give advance notice of any inspection except upon authority from the Secretary. The mandate, in expressed terms, certainly relieves the Compliance Officer from any duty to advise the employer or his agent that he has the right [*37] to refuse to permit an inspection, as such would be tantamount to advance notice. Consequently, there is no merit to this portion of Respondent's contention unless there may be an unconstitutional overtone with the enforcement provisions of the Act. Consideration of the latter, of course, is outside the scope of this administrative tribunal.

The Fourth Amendment to the United States Constitution forbids unreasonable searches and seizures. Generally, a Warrantless Search and Seizure is unreasonable if conducted without consent. Here specific consent in specific terms was not extracted. It is not required by Section 8(a) nor by any other provision of the Act. Likewise, it is not required by the Fourth Amendment.

What is or what is not consent has been made difficult to adjudicate in face of the maze of case law upon the subject. Precisely so, inasmuch as ordinarily each case is decided on its own peculiar facts and circumstances. Then, too, the matter is made more complexing by Complainant offering the proposition that consent is irrelevant to the validity of the search at issue.

The authority to enter without delay is unequivocal except that it must be performed [*38] at a reasonable time within reasonable limits and in a reasonable manner. In the context of the provisions of the Act for inspections, then it may wel be that the Congress intended to bypass Fourth Amendment requirements, in the sense that it was convinced that the overriding intent and purpose of the Act, to assure so far as possible every working man and woman safe and healthful working conditions, and having provided reasonable means for carrying it out, that therefore warrantless administrative inspections are not unreasonable.

It just seems unnecessary to debate or decide the proposition that consent is irrelevant to the validity of the search at issue. The basic question is whether the search was unreasonable upon application of Fourth Amendment standards to the peculiar facts and circumstances as have been found to exist in this case.

The Compliance Officer in going about his business in making the inspection followed the mandates of the Act to the letter. In addition, he explained the nature and purpose of his visit. Leonard was clothed with unequivocal authority to refuse or permit the inspection. Leonard was not stupid, and he was well aware that the inspection might [*39] disclose damaging evidence.

Upon a review of all the testimony, and appraisal of the witnesses demeanor, and based upon all the surrounding facts and circumstances, this tribunal is persuaded that the government has sustained its burden of proof that Respondent knowingly and voluntarily waived its constitutional right and consented to the inspection of its sawmill. The consent here was not in specific terms; nevertheless, there is not a scintilla of credibie evidence that even the slightest objection was raised during the entire course of a two-hour inspection and investigation. Further, the evidence, considered as a whole, is convincing that the consent was uncontaminated with duress or coercion, actual or implied.

Although the facts and circumstances of this case are not on all fours with Secretary of Labor vs Indiana Gas and Electric Company,

Moreover, without debating or deciding, it is suggested that apparently the Congress intended warrantless inspections in places of employment covered [*40] by Occupational Safety and Health standards. Evidently, the Congress had the strong feeling that this field of activity should be subjected to pervasive regulatory power. It is also suggested that apparently this feeling was predicated on the proposition that the public interest is so dependent on human resources in the sense of safe and healthful working conditions and the elimination of the burdens of lost production, wage loss, medical expenses, and disability compensation payments that pervasive regulation of any business so covered is justified. And, therefore, the legislature should be permitted to design broad powers of inspection to cover existing evils. Furthermore, need for inspection must be weighed in terms of reasonable goals of code enforcement. A valid public interest may justify the intrusion contemplated.

The Congress, however, as has been observed herein, conferred a large measure of discretionary power upon the Executive Branch, the Secretary in this instance, in carrying out his inspection. And it has been amply demonstrated, that warrantless inspections under the statute continue to the point in time that there is a refusal, whereupon further procedure [*41] is covered by regulation in that the inspector backs off and sets the forces in motion for a warrant. The constitutionality of this procedure and the practice of nondisclosure of a right to refuse is left to the literature of the higher echelon of the judiciary.

A perusal of Carmara vs Municipal Court, 387 U.S. 523; See vs Seattle, 387 U.S. 541; Colonnade Catering Corp. vs U.S., 397 U.S. 72; and United States vs Biswell, 406 U.S. 311; fail to alter the conclusions reached here today. There are similarities and there are differences and most significantly, Leonard was not any Tom, Dick or Harry that was temporarily in charge of the sawmill. In fact, anyone of the nineteen employees was in charge each day for a period of five hours on each of two shifts. This case, then, must necessarily stand or fall on its own two feet. And the facts and the law are against the Respondent and favor the Complainant. The inspection of Respondent's operation was not unreasonable and the evidence thereby obtained is not constitutionally tainted by the Fourth Amendment of the United States Constitution.

Accordingly, the Motion to Suppress the Evidence should [*42] be denied.

ON MOTION FOR SUMMARY JUDGMENT

This Motion is predicated on the proposition that the Occupational Safety and Health regulatory standards, now known and administered as 29 CFR Part 1910, were not adopted in accordance with the statutory requirements of the Act. The Respondent has simply urged that the standards alleged to have been violated, all thereof part and parcel of 29 CFR Part 1910, are illegal and therefore there is no genuine issue of a material fact. In support of the Motion is the deposition of George C. Guenther, the Assistant Secretary of Labor for Occupational Safety and Health at the time of the promulgation of the standards in question, together with the oral evidence adduced at the hearing on the Motion. (Tr. Volume 1, pages 117-121).

The concern here has to do with standards promulgated by the American National Standards Institute, commonly referred to as ANSI standards.

These standards were promulgated pursuant to Section 6(a) of the Act which provides, among other things, as follows:

. . . the Secretary shall, as soon as practicable during the period beginning with the effective date of this Act and ending two years after such date, [*43] by Rule promulgate as an Occupational Safety or Health standard any national consensus standard . . .

Section 3(8) of the Act defines the term "Occupational Safety and Health Standard" as follows:

Means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.

Then at Section 3(9) of the Act the term "National Consensus Standard" is defined as follows:

Means any Occupational Safety and Health Standard or modification thereof which

(1) has been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the Standard have reached substantial agreement on its adoption.

(2) was formulated in a manner which supported an opportunity for diverse views to be considered and

(3) has been designated as such a Standard by the Secretary, after consultation with other appropriate Federal agencies.

"Promulgate" means to publish. U.S. vs Stoehr, 100 F. Supp 143. [*44] A "promulgation" usually connotes an official public declaration. Kelly vs Murphy 377 P. 2 nd 177; Burlington Food Stores, Inc., vs Hoffman, 199 A 2 nd 106.

There is no question here that the ANSI Standards were published in the Federal Register and thereby they were, by rule, promulgated by the Secretary.

Respondent, however, argues that they were not National Consensus Standards at the time of promulgation inasmuch as Respondent reads Section 3(9), the definition of an Occupational and Health standard, into Section 6(a) in place of National Consensus Standard. Respondent thereby concludes that since the ANSI Standards were not Occupational and Health standards at the time of promulgation, they could not have been National Consenuses Standards at that time, and thus promulgation by rule was improper and illegal under 6(a) of the Act.

Suffice it to say that his argument is prosaic and banal. The gobbledgook employed in its assertion is unimpressive and it is hereby rejected.

Additionally, Respondent contends that, prior to the promulgation of the ANSI Standards as Occupational and Health standards, the Secretary failed to comply with the three [*45] prerequisites for determination of a National Consensus Standard, as set forth in Section 6(a).

Initially, a presumption exists that the promulgation by the Secretary of the ANSI Standards pursuant to the Congressional mandate of the Act is a valid, lawful and subsisting act until the contrary affirmatively appears upon the record. In order for the Respondent to prevail it must overcome the presumption by clearly establishing, by substantial reliable and probative evidence, the lack of a genuine triable issue of a material fact.

The only evidence offered in contradiction to the testimony of George C. Guenther was that to Kenneth Gwynn. Gwynn complained that, as a sawmill operator, he had no opportunity to express his views and thereby have any real input to the standards promulgated by ANSI, inasmuch as he was not on its membership rolls; thus, had no notice and was thereby precluded from participation.

It is established by Mr. Guenther's testimony that he and his staff had had a long and continuing association with ANSI and all of them were thereby totally familiar with its procedures, methods, practices and processes in formulating its standards before it promulgated any one [*46] of them.

The requirement is as to persons interested and affected in a particular proposed standard, having an opportunity to be heard and reaching substantial agreement on its adoption. In our representative democratic system this certainly means that those participating should be a representative group of interested and affected persons in a given industry as to the proposed standard then under consideration. To construe the meaning as all inclusive would circumvent the entire Act and it would never get off the ground. The enactment of law by the Congress has never been required by unanimous vote. Most assuredly, when by rule the promulgation of a National Consensus Standard has the force and effect of law the Congress did not and never intended to impose a greater burden upon the Secretary than that with which it must live by.

The defense of illegality, like any other defense, may, of course, involve a genuine issue of material fact. When it does, under basic principles, a Motion for Summary Judgment must be denied. Affiliated Enterprises vs Courter Amusement Company, 22 Fed Supp 11; Wise vs McCarty, Aniline and Extract Company, 9 FRD 170. The [*47] moving party has the burden of clearly establishing the lack of any triable issue even though the opposing party has at trial the burden of proof on a particular issue. It is not the function of the trial court at the Summary Judgment hearing to resolve any genuine factual issue, including credibility; and or purpose of ruling on the motion all factual inferences are to be taken against the moving party and in favor of the opposing party.

Here the issue of fact is whether the conduct of the Secretary in promulgating the ANSI Standards constituted an illegal act, in violation of Section 6(a), of the Act, by failing to abide by Section 3(9) in determining a National Consensus Standard, in one or more respects. And this issue is a genuine issue of material fact that cannot be adjudged on a Motion for Summary Judgment. The issue is raised by the pleadings. Moreover, the deposition and oral testimony clearly indicate a genuine issue of a triable material fact. About the only conceivable way this matter could be resolved on this motion would be if upon deposing Guenther or by submitting a request for admission he had unequivocally admitted to having failed or neglected to carry out [*48] one or more aspects of Section 3(9) as applied to Section 6(a).

Respondent's Motion for Summary Judgment must be denied.

Although the hearing on the merits proceeded immediately, upon conclusion of the hearing on the Motion for Summary Judgment and without a decision on this Motion, Respondent was not precluded in offering further testimony. In fact, Respondent requested leave to take further depositions on the issue presented, albeit a request in further support of its Motion. There should be no reason why such testimony could not go to the merits of the defense, including that already admitted on the issues presented by the Motion for Summary Judgment. At trial Respondent did not pursue the issue nor has it made any endeavor to bolster this particular defense by further testimony by way of deposition since June 12, 1973. At this point in time then this case must of necessity be closed and locked out as to further evidence.

Obviously this tribunal must determine the issue at the time of its definitive decision on the merits and it would appear that there is no compelling reason why the evidence received on the Motion for Summary Judgment may not be considered in [*49] determining that issue.

ORDER

Wherefore, it is ORDERED and ADJUDGED that:

1. The Motions of the Complainant to summarily dismiss Respondent's Motion for Summary Judgment and to suppress the evidence are hereby denied.

2. Complainant's Motion to Dismiss the Notice of Contest is hereby denied.

3. Motion of the Complainant to exclude the taking of the deposition of Geroge C. Guenther and to exclude it from the evidence is hereby denied.

4. Motion of the Complainant to correct the deposition of Mr. George C. Guenther is hereby granted.

5. Respondent's Motion to Suppress the Evidence of the Compliainant gathered and obtained upon inspection of Respondent's sawmill be and is hereby denied.

6. Respondent's Motion for Summary Judgment be and is hereby denied.

7. And this cause is continued for further proceedings according to law to wit:

(1) The parties shall file their respective briefs on the merits within twenty (20) days after which this tribunal's definitive decision on the merits will be rendered.

It is so ORDERED.

SECOND STAGE

This is a continuation of the DECISION AND ORDER heretofore rendered and issued on or about October 23, 1973, on the several Motions [*50] of the parties, denominated "FIRST STAGE," and the same is hereby adopted and made a part hereof as if fully rewritten herewith.

DECISION AND ORDER ON THE MERITS

RESPONDENT'S AFFIRMATIVE DEFENSE

Disposition of Respondent's Affirmative Defense, upon its averment that the Standards herein alleged to have been violated were not promulgated in accordance with the Statutory authority provided therefore, is the first consideration at this stage of this Decision and Order.

The findings, the law and much of the discussion as set forth in the First Stage of this Decision and Order, under the caption of "On Motion for Summary Judgment," is applicable here and will not be repeated.

As was stated there no additional nor newly discovered evidence has been presented. In addition, Respondent has presented no additional persuasive propositions of law and authorities in support of this defense.

Accordingly, upon the facts and law upon this issue, as heretofore delineated herein under the First Stage, it is determined that Respondent has failed to establish any invalidity in the promulgation of the Standards, the subject matter of this controversey.

The totality of the evidence on this issue [*51] failed to shake the foundations upon which the promulgation, by the Secretary, of the Standards promulgated by American National Standard Institute, as National Consensus Standards was postured. Therefore, there being no substantial evidence on the record, as a whole, that the Secretary did not substantially conform to and abide by the provisions of Section 3(8) and 3(9) of the Occupational Safety and Health Act of 1970, in carrying out his duties in the promulgation of the Standards in question (Exhibit C-55 and hereinafter set forth) pursuant to Section 6(a) of the Act, Respondent's affirmative defense on this issue is without merit and must be and is hereby denied.

THE CASE ON THE ALLEGED VIOLATIONS

The description of the alleged violations contained on the Citation is stated as follows:

Item Number -- Standard -- Description

1 -- 29 CFR 1910.22(a)(1) -- Material and equipment located in the millwright shop was in a disorderly condition.

2 -- 29 CFR 1910.22(b)(1) -- Aisles and passageways to the drag saw and head saw operator stations were not kept clear of obstructions.

3 -- 29 CFR 1910.24(b) -- Fixed stairs were not provided/maintained for access to drag saw [*52] and head saw operator stations. Runway with standard railing or fixed stairs were not provided of access to tepee burner conveyor for routine maintenance purposes.

4 -- 29 CFR 1910.24(c) -- Fixed industrial stairs leading to the tail sawyers work station were not constructed/maintained to safely carry a moving concertrated load of 1,000 pounds.

5 -- 29 CFR 1910.24(f) -- Fixed industrial stairs leading to the tail sawyers work station were not constructed/maintained to a uniform rise height, and were not reasonably slip resistant.

6 -- 29 CFR 1910.24(h) -- Standard stair railings were not provided on all open sides of fixed industrial stairs leading to the tail sawyers work station.

7 -- 29 CFR 1910.94(b)(3)(i) -- Head saw abrasive grinder located in the saw file room was not provided with an exhaust system.

8 -- 29 CFR 1910.106(e)(6)(i) -- Adequate precautions such as a "No Smoking" sign were not taken to prevent the ignition of flammable vapors in the vicinity of gasoline pump located at the fuel pump House.

9 -- 29 CFR 1910.132(a) -- Personal head protective equipment was not provided/used for employees throughout the sawmill.

10 -- 29 CFR 1910.133(a) -- Personal [*53] eye protection was not provided/used for employees at the following locations: 1. Drag saw operator; 2. Head rig operator; 3. Employees blowing sawdust with compressed air in the sawmill.

11 -- 29 CFR 1910.157(a)(1) -- Portable fire extinguisher located at entrance to the head saw was not fully charged.

12 -- 29 CFR 1910.106(g)(9) -- A 6BC fire extinguisher was not provided within 75 feet of the fuel pump house.

13 -- 29 CFR 1910.169(b)(3) -- Pressure gauges were not provided for air receivers located at the drag saw operators station and small room adjacent to the planer.

14 -- 29 CFR 1910.215(a)(2) -- Bench-type abrasive grinder located in the millwright shop was not provided with a side guard.

15 -- 29 CFR 1910.215(a)(4) -- Bench-type abrasive grinder located in the millwright shop was not provided with a tool rest.

16 -- 29 CFR 1910.242(a) -- The following hand tools located in the drag saw building were not maintained in a safe condition: 1. Pickaron -- broken handle; 2. Cat hook -- taped, broken handle.

17 -- 29 CFR 1910.242(b) -- Compressed air nozzles used for cleaning purposes located in the saw file room and sawmill were not designed to reduce pressure to less than [*54] 30 p.s.i. when obstructed or dead-ended.

18 -- 29 CFR 1910.252(a)(2)(ii)(b) -- Compressed gas cylinders located in the millwright shop were located where they could be knocked over, and were unsecured.

19 -- 29 CFR 1910.252(a)(2)(iv)(c) -- Reserve stock of oxygen cylinders located in the millwright shop were not separated from fuel gas cylinders by a minimum distance of 20 feet, or by a noncombustible barrier.

20 -- 29 CFR 1910.252(a)(2)(v)(c)(1) -- Horizontal positioned fuel-gas cylinder (acetylene) located in the shop truck was being used in the millwright shop.

21 -- 29 CFR 1910.265(c)(3)(i) -- Floor opening located at the drag saw operator station was not guarded as required by Section 23(a)(8) of the Standards.

22 -- 29 CFR 1910.265(c)(22) -- Mechanical power-transmission apparatus was not properly guarded at the following locations: 1. Waste conveyor drive motor for tepee burner; 2. Cant transfer table-roll case drive chains and sprockets; 3. Head saw drive belts; 4. Sawdust conveyor motor and chain; 5. Cant line sprocket and chain near the edger station; 6. Head saw grinder motor pulley in the saw file room; 7. Sprocket and chain along passageway by trim saw; 8. Sprocket [*55] and chain for motor to the grader's table.

23 -- 29 CFR 1910.265(e)(5)(ii) -- Gears and chains located on sides of edger were not guarded.

24 -- 29 CFR 1010.265(e)(5)(iii) -- Area adjacent to barricade of edger was not properly fenced off.

25 -- 29 CFR 1910.265(e)(6)(i)(c) -- Planer "pineapples" were not guarded.

26 -- 29 CFR 1910.309(a) NEC 1971 Article 110-17(a) -- Live parts of electrical equipment operating at 50 volts or more were not guarded against accidental contact by using approved covers at the following locations: 1. Wall switch by front door of millwright shop; 2. Three electrical control boxes located on front wall of millwright shop; 3. Junction box by drag saw operator; 4. Heater casing by drag saw operator; 5. Electrical control box by tail sawyer's work station; 6. Junction box near head saw drive belts; 7. Electrical wiring near edger operator; 8. Junction box on wall near edger operator; 9. Two electrical boxes at main air compressor; 10. Electrical junction box on top of stacker; 11. Electrical junction box side of trim saw.

27 -- 29 CFR 1910.309(a) NEC 1971 Article 250-43(a) -- Fixed electrical equipment was not grounded at the following locations: [*56] 1. Two bench grinders in the millwright shop; 2. Carbide grinding motor in the saw file room.

28 -- 29 CFR 1910.309(a) NEC 1971 Article 250-45(d) -- Electrical equipment was not grounded at the following locations: 1. Portable disc sander and extension cord in the millwright shop; 2. Portable power drill in the saw file room.

29 -- 29 CFR 1910.309(a) NEC 1971 Article 400-4 -- Flexible cord to the chemical mixing pump was attached to the building surface.

30 -- 29 CFR 1910.309(a) NEC 1971 Article 400-5 -- Flexible electrical extension cord located in the millwright shop was spliced.

The Standards as promulgated by the Secretary provides as follows:

Item Number

1 -- Subpart D -- Walking-Working Surface Section 1910-22 General requirements.

(a) Housekeeping. (1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

2 -- Section 1910.22 -- General requirements.

(b) Aisles and passageways. (1) Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks, through doorways and wherever turns or passage must be made. Aisles and passageways shall [*57] be kept clear and in good repairs, with no obstruction across or in aisles that could create a hazard.

3 -- Section 1910.24 Fixed industrial stairs.

(b) Where fixed stairs are required. Fixed stairs shall be provided for access from one structure level to another where operations necessitate regular travel between levels, and for access to operating platforms at any equipment which requires attention routinely during operations. Fixed stairs shall also be provided where access to elevations is daily or at each shift for such purposes as gauging, inspection, regular maintenance, etc., where such work may expose employees to acids, caustics, gases, or other harmful substances, or for which purposes the carrying of tools or equipment by hand is normally required. (It is not the intent of this section to preclude the use of fixed ladders for access to elevated tanks, towers, and similar structures, overhead traveling cranes, etc., where the use of fixed ladders is common practice.) Spiral stairways shall not be permitted except for special limited usage and secondary access situations where it is not practical to provide a conventional stairway. Winding stairways may be [*58] installed on tanks and similar round structures where the diameter of the structure is not less than five (5) feet.

4 -- Section 1910.24 Fixed industrial stairs.

(c) Stair strength. Fixed stairways shall be designed and constructed to carry a load of five time the normal live load anticipated but never of less strength than to carry safely a moving concentrated load of 1,000 pounds.

5 -- Section 1910.24 Fixed industrial stairs.

(f) Stair treads. Each tread and the top landing of a stairway, where risers are used, should have a nose which extends one-half inch to 1 inch beyond the face of the lower riser. Noses should have an even leading edge. All treads shall be reasonably slip-resistant and the nosings shall be of nonslip finish. Welder bar grating treads without nosings are acceptable providing the leading edge can be readily identified by personnel descending the stairway and provided the tread is serrated or is of definite nonslip design. Rise height and tread width shall be uniform throughout any flight of stairs including any foundation structure used as one or more treads of the stairs.

6 -- Section 1910.24 Fixed industrial stairs.

(h) Railings and handrails. [*59] Standard railings shall be provided on the open sides of all exposed stairways and stair platforms. Handrails shall be provided on at least one side of closed stairways, preferably on the right side descending. Stair railings and handrails shall be installed in accordance with the provisions of Section 1910.23.

7 -- Subpart G -- Occupational Health and Environmental Control. Section 1910.94 Ventilation. (b) Grinding, polishing, and buffing operations

(3) Hood and branch pipe requirements. (i) Hoods connected to exhaust systems shall be used, and such hoods shall be designed, located, and placed so that the dust or dirt particles shall fall or be projected into the hoods in the direction of the air flow. No wheels, discs, straps, or belts shall be operated in such manner and in such direction as to cause the dust and dirt particles to be thrown into the operator's breathing zone.

8 -- Subpart H -- Hazardous Materials. Section 1910.106(e) Industrial Plants (6) Sources of ignition -- (i) General. Adequate precautions shall be taken to prevent the ignition of flammable vapors. Sources of ignition include but are not limited to open flames; lightning; smoking; cutting [*60] and welding; hot surfaces; frictional heat; static, electrical, and mechanical sparks; spontaneous ignition, including heat-producing chemical reactions; and radiant heat.

9 -- Subpart I -- Personal Protective Equipment Section 1910.132 General Requirements.

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

10 -- Section 1910.133 Eye and Face Protection.

(a) General. (1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employee shall use such protectors. [*61] No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glares, liquids, injurious radiation, or a combination of these hazards.

(2) Protectors shall meet the following minimum requirements:

(i) They shall provide adequate protection against the particular hazards for which they are designed.

(ii) They shall be reasonably comfortable when worn under the designated conditions.

(iii) They shall fit snugly and shall not unduly interfere with the movements of the wearer.

(iv) They shall be durable.

(v) They shall be capable of being disinfected.

(vi) They shall be easily cleanable.

(vii) Protectors should be kept clean and in good repair.

(3) Persons whose vision requires the use of corrective lenses in spectacles, and who are required by this standard to wear eye protection, shall wear goggles or spectacles of one of the following types:

(i) Spectacles whose protective lenses provide optical correction.

(ii) Goggles that can be worn over corrective spectacles without disturbing the adjustment of the spectacles.

(iii) Goggles that [*62] incorporate corrective lenses mounted behind the protective lenses.

(4) Every protector shall be distinctly marked to facilitate identification only of the manufacturer.

(5) When limitations or precautions are indicated by the manufacturer, they shall be transmitted to the user and care taken to see that such limitations and precautions are strictly observed.

(6) Design, construction, testing, and use of devices for eye and face protection shall be in accordance with American National Standard for Occupational and Educational Eye and Face Protection, Z87.1-1968.

11 -- Subpart L -- Fire Protection Section 1910.157 Portable fire extinguishers. (a) General requirements -- (1) Operable condition. Portable extinguishers shall be maintained in a fully charged and operable condition, and kept in their designated places at all times when they are not being used.

12 -- Subpart H -- Hazardous Materials. Section 1910.106. Flammable and combustible liquids. (g) Service stations

(9) Fire control. Each service station shall be provided with at least one fire extinguisher having a minimum approved classification of 6 B, C located so that an extinguisher will be within 75 feet [*63] of each pump, dispenser, underground fill pipe opening, and lubrication or service room.

13 -- Subpart M -- Compressed Gas and Compressed Air Equipment Section 1910.169 Air receivers. (b) Installation and equipment requirements.

(3) Gages and valves. (i) Every air receiver shall be equipped with an indicating pressure gauge (so located as to be readily visible) and with one or more spring-loaded safety valves. The total relieving capacity of such safety valves shall be such as to prevent pressure in the receiver from exceeding the maximum allowable working pressure of the receiver by more than 10 percent.

(ii) No valve of any type shall be placed between the air receiver and its safety valve or valves.

(iii) Safety appliances, such as safety valves, indicating devices and controlling devices, shall be constructed, located, and installed so that they cannot be readily rendered inoperative by any means, including the elements.

(iv) All safety valves shall be tested frequently and at regular intervals to determine whether they are in good operating conditions.

14 -- Subpart O -- Machinery and Machine Guarding. Section 1910.215 Abrasive wheel machinery.

(2) Guard design. The [*64] safety guard shall cover the spindle end, nut, and flange projections. The safety guard shall be mounted so as to maintain proper alignment with the wheel, and the strength of the fastenings shall exceed the strength of guard, except:

(i) Safety guards on all operations where the work provides a suitable measure of protection to the operator, may be so constructed that the spindle end, nut, and outer flange are exposed; and where the nature of the work is such as to entirely cover the side of the wheel, the side covers of the guard may be omitted; and

(ii) The spindle end, nut, and outer flange may be exposed on machines designed as portable saws.

15 -- Section 1910.215 Abrasive wheel machinery. (a) General requirements (4) Work rests. On offhand grinding machines, work rests shall be used to support the work. They shall be of rigid construction and designed to be adjustable to compensate for wheel wear. Work rests shall be kept adjusted closely to the wheel with a maximum opening of one-eighth inch to prevent the work from being jammed between the wheel and the rest, which may cause wheel breakage. The work rest shall be securely clamped after each adjustment. [*65] The adjustment shall not be made with the wheel in motion.

16 -- Subpart P -- Hand and Portable Powered Tools and Other Hand-Held Equipment. Section 1910.242. Hand and portable powered tools and equipment, general.

(a) General requirements. Each employer shall be responsible for the safe condition of tools and equipment used by employees, including tools and equipment which may be furnished by employees.

17 -- Section 1910.242. Hand and portable powered tools and equipment, general.

(b) Compressed air used for cleaning. Compressed air shall not be used for cleaning purposes except where reduced to less than 30 p.s.i. and then only with effective chip guarding and personal protective equipment.

18 -- Subpart Q -- Welding, Cutting, and Brazing. Section 1910.252. Welding, cutting, and brazing. (a) Installation and operation of oxygen-fuel gas systems for welding and cutting -- (2) Cylinders and containers -- (ii) Storage of cylinders -- general.

(b) Inside of buildings, cylinders shall be stored in a well-protected, well-ventilated, dry location, at least 20 feet from highly combustible materials such as oil or excelsior. Cylinders should be stored in definitely assigned [*66] places away from elevators, stairs, or gangways. Assigned storage spaces shall be located where cylinders will not be knocked over or damaged by passing or falling objects, or subject to tampering by unauthorized persons. Cylinders shall not be kept in unventilated enclosures such as lockers and cupboards.

19 -- Section 1910.252. Welding, cutting, and brazing. (a) Installation and operation of oxygen-fuel gas systems for welding and cutting -- (2) Cylinders and containers -- (iv) Oxygen storage.

(c) Oxygen cylinders in storage shall be separated from fuel-gas cylinders or combustible materials (especially oil and grease), a minimum distance of 20 feet or by a noncombustible barrier at least 5 feet high having a fire-resistance rating of at least one-half hour.

20 -- Section 1910.252. Welding, cutting, and brazing. (a) Installation and operation of oxygen-fuel gas systems for welding and cutting -- (2) Cylinders and containers -- (v) Operating procedures.

(c)(1) Fuel-gas cylinders shall be placed with valve end up whenever they are in use. Liquefied gases shall be stored and shipped with the valve end up.

21 -- Subpart R -- Special Industries. Section 1910.265. [*67] Sawmills. (c) Building facilities, and isolated equipment -- (3) Floors.

(i) Floor and wall openings. All floor and wall openings shall be protected as prescribed in Section 1910.23.

Section 1910.23. Guarding floor and wall openings and holes. (a) Protection for floor openings. (8) Every floor hold into which persons can accidentally walk shall be guarded by either:

(i) A standard railing with standard toeboard on all exposed sides, or

(ii) A floor hole cover of standard strength and construction that should be hinged in place. While the cover is not in place, the floor hole shall be constantly attended by someone or shall be protected by a removable standard railing.

22 -- Section 1910.265. (c) Building facilities, and isolated equipment

(22) Mechanical power-transmission apparatus. The construction, operation, and maintenance of all mechnical power-transmission apparatus shall be in accordance with the requirements of Section 1910.219.

(For the Standards under Section 1910.219 Mechanical power-transmission apparatus, see generally pages 22289 through 22293 of the Federal Register for October 18, 1972, Occupational Safety and Health Standards, or Exhibit C-55 in this [*68] cause.)

23 -- Section 1910.265. Sawmills. (e) Log breakdown and related machinery and facilities -- (5) Edgers

(ii) Guards. (a) The top and the openings in end and side frames of edgers shall be adequately guarded and gears and chains shall be fully housed. Guards may be hinged or otherwise arranged to permit oiling and the removal of saws.

(b) All edgers shall be equipped with pressure feed rolls.

(c) Pressure feed rolls and edgers shall be guarded against accidental contact.

24 -- Section 1910.265 Sawmills. (e) Log breakdown and related machinery and facilities -- (5) Edgers

(iii) Antikickback devices. (a) Edgers shall be provided with safety fingers or other approved methods of preventing kickbacks or guarding against them. A barricade in line with the edger, if properly fenced off, may be used if safety fingers are not feasible to install.

(b) A controlling device shall be installed and located so that the operator can stop the feed mechanism without releasing the tension of the pressure rolls.

25 -- Section 1910.265 Sawmills. (e) Log breakdown and related machinery and facilities -- (6) Planers -- (i) Guards

(c) Pressure feed rolls and "pineapples" [*69] shall be guarded.

26 -- Subpart S -- Electrical Section 1910.309. National Electrical Code.

(a) The requirements contained in the following articles and sections of the National Electrical Code, NFPA 70-1971; ANSI C1-1971 (Rev. of 1968) shall apply to all electrical installations and utilization equipment: Article 110-17(a) Guarding Live Parts. (a) Except as elsewhere required or permitted by this Code, live parts of electrical equipment operating at 50 volts or more shall be guarded against accidental contact by approved cabinets or other forms of approved enclosures, or any of the following means:

(1) By location in a room, vault, or similar enclosure which is accessible only to qualified persons.

(2) By suitable permanent, substantial partitions or screens so arranged that only qualified persons will have access to the space within reach of the live parts. Any openings in such partitions or screens shall be so sized and located that persons are not likely to come into accidental contact with the live parts or to bring conducting objects into contact with them.

(3) By location on a suitable balcony, gallery, or platform or elevated and arranged as to exclude unqualified persons. [*70]

(4) By elevation at least 8 feet above the floor or other working surface.

27 -- Section 1910.309

(a) NEC 1971. Article 250-43. Fixed Equipment -- Specific. Exposed, noncurrent-carrying metal parts of the following kinds of equipment, regardless of voltage, shall be grounded:

(a) Frames of motors as specified in Section 430-142-Stationary Motors. The frames of stationary motors shall be grounded where any of the following conditions exist:

(a) supplied by means of metal-enclosed wiring.

(b) located in a wet place and not isolated nor guarded.

(c) in a hazardous location. (See Articles 500 through 517)

(d) the motor operates with any terminal at more than 150 volts to ground. Grounding of the motor frame is preferable, but where the frame of the motor is not grounded, it shall be permanently and effectively insulated from the ground.

28 -- Section 1910.309

(a) NEC 1971. Article 250-45. Equipment Connected by Cord and Plug.

(d) In other than residential occupancies, (1) refrigerators, freezers, air conditioners, and (2) clothers-washing, clothers-drying and dish-washing machiners, sump pumps and (3) portable, hand-held, motor-operated tools and appliances of the following [*71] types: drills, hedge clippers, lawn mowers, wet scrubbers, sanders and saws, and (4) cord- and plus-connected appliances used in damp or wet locations, or by persons standing on the ground or on metal floors or working inside of metal tanks or boilers, and (5) portable tools which are likely to be used in wet and conductive locations.

29 -- Section 1910.309

(a) NEC 1971. Article 400-4. Prohibited Uses. Except where installed in accordance with Article 645, flexible cord shall not be used (1) as a substitute for the fixed wiring of a structure; (2) where run through holes in walls, ceilings or floors; (3) where run through doorways, windows, or similar openings; (4) where attached to buildings surfaces; or (5) where concealed behind building walls, ceilings, or floors.

30 -- Section 1910.309

(a) NEC 1971. Article 400-5. Splices. Flexible cord shall be used only in continuous lengths without splice or tap.

For convenience, the subject matter hereinafter appearing under the designations, Findings of Fact, Discussions of the Issues, and Conclusions of Law is, under each, separated by numbers 1 through 30 to correspond with the 30 numbered items of the Citation.

FINDINGS [*72] OF FACT

1. On the floor of the millwright shop there was one hose strung out irregularly under and about a vise and approximately through the center of the shop. Also, a welding hose in use by the millwright and a pipe upon which he was working. And there is a miniscule of other unidentified objects on the floor that may or could be in the work area and path of travel of the millwright. The millwright was the only employee exposed to this condition. (Exhibit C-1)

2. The passageways to the head sawyer's station and to the dragsaw station, as depicted by the Secretary, each covered by debris from operations, were not being used by any employee of the Respondent. (Exhibits C-2, C-3)

3. (a) Fixed ladders were provided for access to the head sawyers station and to the drag saw station. Neither was accesible as each was covered with debris from operations. (Exh. C-2, C-3)

(b) A fixed ladder was not provided for access to the teepee burner conveyor nor was a runway with standard railing provided for access thereto. (Exh. C-4) To maintain the conveyor and the burner, the employee had access from a platform to the chute in which he moved only when not in operation. [*73]

4. The fixed stairs to the tail sawyer's station was wobbly and moved upon use by an 175 pound male. Also some of the treads were not securely nailed. The stairs did not collapse during use on inspection. Three adult males, the combined weight of which is unknown, used the stairs at the same time during the inspection. In Respondent's view the stairs should carry a concentrated load of 1,000 pounds.

5. (a) The riser height of the fixed stairway at the tail sawyer's station from the foundation to the first riser was higher as well as between first and second riser than the remainder of the 5 risers. (Exh. C-5)

(b) The stair treads were constructed out of rough lumber and covered with sawdust. (Exh. C-5)

6. The open sides of the stairway to the tail sawyer's station were not equipped with standard railings. (Exh. C-5)

7. There was an exhaust system provided for the head saw abrasive grinder in the file room.

8. Four employees used the gas pumps intermittently. Each one has been instructed not to smoke in the area of these pumps. There was no "No Smoking" sign posted in this area. (Exh. C-7)

9. No employee, while engaged in performing his job function and moving [*74] in and about the area of the sawmill, wore a hard hat except one employee. There was wood debris on the floor at the tail sawyer's station and at the drag saw operator's station. (Exh. C-8, C-9) There was sawdust under the teepee conveyor and also scattered there about were small fragments of wood bark and wood. (Exh. C-4) There were barriers of wire mesh between the head saw and head saw operator's station and the operator sits in front of a canvas. (Exh. C-10) Respondent had 400 hard hats available.

10. Neither the drag saw operator, the head-rig saw (head-saw) operator or an employee operating a compressed air mechanism used personal eye protective equipment in the performance of the work. (Exh. C-9, C-11) Goggles were provided for use by any employee finding his operation presented the hazard of flying objects.

11. The pressure gauge on the portable fire extinguisher located near the head sawyer's station was in its discharge position. (Exh. C-12)

12. The gasoline pump station was not provided with a fire extinguisher in or about its immediate area. The nearest extinguisher was some 75 to 100 feet distance, however, it's classification was unknown.

13. [*75] Two air receivers, one located at the drag saw station and the other in a room adjacent to the planer, were not equipped with an indicator pressure gauge. (Exh. C-13) There was some evidence that the pressure in the air receiver at the drag saw station was controlled by a gauge on this air receiver's compressor with an air relief valve on this air receiver tank at the compressor.

14. There was no side guard provided for the abrasive wheel bench grinder in the millwright shop. (Exh. C-14)

15. The bench grinder in the millwright shop was not provided with a work rest; designated as a tool rest by the witness. (Exh. C-14)

16. A tool known as a peavey, described by the Compliance Officer as a cant-hook, was lying near the drag saw station in the condition of a broken handle and one of two picaroons was nearby with the handle wrapped with some tape. (Exh. C-15)

17. The compressed air cleaning units, one located in the saw file room and the other in the mill generally, (Exh. C-11, C-17) employed for cleaning purposes, were not equipped with a type nozzle that would reduce the air pressure to 30 p.s.i. The air pressure generally throughout the mill was 70 to 90 p.s.i. One employee [*76] experienced no adverse effect from deadending an activated nozzle against his skin. The Citation at Item 17 did not include failure to provide effective chip guarding and personal protective equipment. (R. Citation p. 5 of 9).

18 & 19. Three oxygen cylinders and one fuel gas cylinder were standing, unsupported, adjacent to and close by a closed door within the millwright shop and the fuel gas cylinder (gray) was just a few inches from the oxygen cylinders (yellow). (Exhs. C-1, C-17) Nor was there a five feet noncombustible barrier between them. (C-17)

20. The fuel gas (acetylene) cylinder located in Respondent's truck, which was stationed at or near the millwright shop for utilization, was in use while its valve end was in a horizontal position. (Exh. C-18)

21. There is a hole in the floor attendant to the operation of the drag saw. When the mill is running, logs are continuously moved over this floor opening and the saw operator does his cutting over the hole. The hole is there to catch the sawdust and debris from the cutting to be carried therefrom, by the machinery of a conveyor system in this hole, to the teepee burner. The opening has several dimensions, [*77] "a foot here and 8 inches there" and 7 inches was mentioned. The drag saw operator performs his work at a standing position "quite a ways" from the front of the hole. He is the only employee of the Respondent having any exposure to or relation with the floor hole. (Exh. C-9, C-19)

22. Here the testimony shows that the several power transmission power apparatuses, enumerated as 1 through 8 of Item 22 of the Citation, were each exposed at their respective locations. In the Compliance Officers words, in each instance, "there were no guards of any kind." (Exhs. C-4, C-6, C-20, C-21, C-22, C-23, C-24, C-25)

The Citation at Item 22 merely charges that mechanical power transmission apparatuses at 8 locations were not properly guarded. This Item of the Citation does not specify, with respect to any one of the 8 alleged infractions, the standard or regulation that requires a guard nor that which makes any guard a proper one at any one of the 8 locations, except that each one of the eight violates the standard at 29 CFR 1910.265(c)(22). (R. Citation, page 6 of 9) The Complaint is a re-statement of the Citation. (R. Complaint, paragraph XXVI)

23. Gears and chains on side of edger [*78] were unhoused. (Exh. C-26) The nearest workman to this side of the edger is its operator, who sits in a chair 4-1/2 to 5-1/2 feet away, when the edger is being operated, overseeing the entire operation including the next closest workman who is on the other end of the edger, 12 feet away. When saws are changed or maintenance is required the edger is made inoperable. There is a passageway 2 to 3 feet from these chains and gears. When the mill is operating each workman is at his station doing his job.

24. The area in front of the barricade for kickbacks from the edger was not physically fenced off. (Exh. C-27) Whenever passage is required by a workman he travels behind the barricade. No employee ever goes behind the edger machine, that is, he does not put himself between the machine and the barricade. Each employee has been made acquainted with the propensity of the edger machine for the chance of injury upon traveling between it and the barricade, and with this knowledge he will not so travel unless bodily shoved into this area.

25. There is only one pineapple as a part of the planer. (Exh. C-29) The nip point apparently is between the lumber passing under the [*79] pineapple and the pineapple itself and there is a metal band that extends all along directly in front of this nip point. (Exh. C-29). There is no exposure at the location of the pineapple unless an employee climbed in and did a lot of reaching which is not done. On this Item the Complainant's testimony speaks to pineapples and the only mention of the word guard is where the testimony alludes to a suitable guard would have to be fabricated to guard the pineapples.

26. The numbers in parenthesis hereunder correspond to the numbered violations in Item 26 of the Citation.

Live parts of electrical equipment operating at 50 volts or more were exposed at the following locations in Respondent's sawmill:

(1) Wall switch, Millwright Shop. (Exh. C-30)

(2) One box at extreme right in group of three boxes, Millwright Shop. (Exh. C-31)

(4) Heater casing, drag saw operator's station. (Exh. C-33)

(5) Electrical control box at tail sawyer's station. (Exh. C-34)

(6) Junction box at head saw drive belts.

(8) Junction box near edger operator. (Exh. C-36)

(9) Two electrical boxes at air compressor. (Exh. C-37)

(10) Junction box on stacker. (Exh. C-38)

(11) Junction box on trim saw. [*80] (Exh. C-39)

Live parts were not exposed at the following locations:

(2) The other two boxes in the group of three, Millwright Shop. (Exh. C-31)

(3) Junction box by drag saw operator.

(7) Electrical wiring near edger operator. (Exh. C-35)

27. Two fixed electrical metal motors in the millwright shop and one in the saw file room were equipped with metal enclosed wiring as a source of supply and although each was equipped with a third prong, as a ground conductor, no ground connection was provided for either one of them. (Exhs. C-40, C-14)

28. The portable disc sander in the millwright shop is a hand-held motor operated tool, composed of noncurrent, carrying metal parts, and is a cord and plug, connected piece of equipment. The plug was not equipped with a third prong capable of grounding the equipment when in use. The same facts apply to the portable power drill in the saw file room. (Exhs. C-41, C-42, C-43)

29. Respondent's mill contained an electrical flexible cord in service that was attached to a building surface. The hazard presented thereby is the gradual wearing and deterioration of the insulation and the consequent effect of an exposed live wire at [*81] each attachment. (Exh. C-44)

30. The flexible electric extension cord in the millwright shop was spliced with electrical tape. (Exh. C-45)

31. Jurisdiction is not in issue inasmuch as Respondent stipulated as to its amenability under the Act.

DISCUSSION OF THE ISSUES

Item 1

The Compliance Officer had difficulty in identifying the alleged disorderly housekeeping items and their locations in relation to a hazardous condition. His testimony on this item of the Citation was conclusive except for the items delineated under Findings of Fact No. 1, and should only be affirmed as to those items.

Item 2

There was in fact more than one passageway to the head saw station and to the drag saw station. The government failed to show that any employee was exposed to an obstructed passageway to either station. Moreover, the hazard, if any, was not revealed by the evidence, having been left to speculation and guesswork. This Item of the Citation should be vacated.

Item 3

(a) The charge here is in the alternative, provided/maintained for access. The fixed ladders were provided but not maintained for access from one structure level to another. The head saw operator and the [*82] drag saw operator had separate means by which to reach their stations, neither of which was shown to present any safety hazard. Further, there was no showing that any employee used or ever attempted to use the ladders when covered with debris.

(b) To require a fixed ladder to the teepee burner conveyor together with a runway with standard railing along the conveyor for routine maintenance is preposterous under the Standard alleged. There was no showing that maintenance required regular travel between levels, nor that it was daily or at each shift for which purpose the carrying of tools or equipment by hand is normally required. Moreover, there is no requirement by the Standard alleged of a runway with standard railings. Vacation of this Item of the Citation is therefore in order.

Item 4

The evidence here is all circumstantial. The opinions of the witnesses are conflicting. Respondent's witness, an employee of several years, had ample opportunity to see and observe the use of the stairs (Exh. C-5) and to know its capabilities in contrast to that of the Compliance Officer who observed for only a few brief minutes. The Government has the burden to make its case by a preponderence [*83] of the substantial, reliable and probative evidence. Several inferences may be derived from the facts and circumstances. Upon Complainant's evidence the trier of the facts could draw an inference of the truth of the fact alleged, however, contrary circumstances are in evidence and thus the inference that the fixed stairway was incapable of sustaining a concentrated load of 1,000 pounds is not irresistibly convincing. In consequence thereof the Complainant has failed to sustain his burden in making out a violation under Item 4 of the Citation and it should be vacated.

Item 5

(a) It is obvious from the evidence presented that the fixed ladder to the tail sawyer's station was not totally equipped with risers of uniform height throughout the flight of stairs. This portion of Item 5 of the Citation should be affirmed.

(b) The Standard alleged here requires that stair treads shall be reasonably slip-resistant. The Secretary, through his Compliance Officer, reads into the Standard that stair treads should be equipped with abrasive slip-resistant material. This may be an ideal but it certainly is not required by the Standard alleged. The Compliance Officer gave no account [*84] of any sensation whatsoever of slipping, or even a feeling that he might, when he traversed this flight of stairs. The rationale of the evidence relating to this portion of the violation alleged is to the effect that the stair treads of rough lumber coated with sawdust were reasonably slip-resistant. This portion of Item 5 of the Citation should be vacated.

Item 6

This Item of the Citation requires no discussion as the violation is self-evident.

Item 7

The Standard alleged in this Item 7 of the Citation to have been violated has to do with "hood and branch pipe requirements." It states that "hoods connected to exhaust system shall be used" and then point out how such hoods shall be designed, located and placed. If in fact there had been no exhaust system provided, it would appear difficult to relate such failure, in and of itself, to a violation of Section 1910.94(b)(3)(i). It would appear that Section 1910.94(b)(2)(i) which states, "Every establishment performing dry grinding, dry polishing, or buffing shall provide suitable hood or enclosures that are connected to exhaust systems" is not appropriate to cover the facts alleged.

The Government loses on two grounds [*85] here. There was in fact an exhaust system and the factual violation alleged does not fit the Standard alleged. Item 7 of the Citation should be vacated.

Item 8

The Standard alleged here does not mandate a "No Smoking" sign. It only mandates "adequate precautions" to prevent ignition of flammable vapors. The gas pumps here are private and used by a limited number of employees, intermittently, one at a time. Each one has been instructed not to smoke in the area of the pumps. The addition of a "No Smoking" sign may well be appropriate and ideal, but it does not make the precautions taken inadequate. Item 8 of the Citation should be vacated.

Item 9

The charge here has to do with the alleged failure to provide and cause to be used personal head protective equipment for all employees working in the sawmill. The Standard alleged to have been violated fails to indicate of what the head equipment shall consist. Hard hats were provided but used by only one employee, the Michigan operator.

If the standard at Section 1910.132(a) is valid and applicable in its broad general terms, and the Review Commission having held 2 to 1 that it is, then the issue is whether the Government has [*86] shown a necessity for wearing hard hats by reason of hazards of processes or environment whereby mechanical irritants are encountered in a manner capable of causing physical injury through physical contact.

The Compliance Officer was concerned with four locations only as representing the hazard contemplated by the Standard. The tail sawyer's station, drag saw operator's station, the head sawyer's station and the teepee burner conveyor. The evidence offered as proof of the truth of the fact alleged was nothing more than sawdust and fragments of wood and bark on the ground or floor nearby these areas. From this the officer-inspector assumed that the fragments flew into the area of the head of the workmen at the several stations and that they fell from the conveyor. His testimony is totally void as to any observation of such flying or falling objects during a two hour walk around Respondent's mill while it was in operation. In regard to the teepee burner conveyor, the only factual testimony is to the effect that the only falling particles therefrom is wind-blown sawdust.

Several inferences may be drawn from the facts and circumstances in addition to that which the Government [*87] urges. The wood fragments seen on the floor areas, alluded to, may well have come from normal and natural fall and roll off from the operation rather than being spit into the air by the operation of the saw. On the ground about the teepee burner conveyor they may well have arrived there from carrying, dragging or hauling operations. Also the accessability of 400 hard hats to twenty workmen may mean that over a long period of experience within the mill that protective head equipment was unnecessary except for the Michigan operator. There was no testimony that there had ever been a head injury or an eye injury at Respondent's mill and all twenty employees were a available for cross-examination. Gwynn and Leonard were on the witness stand but neither was interrogated on this point.

It would appear that the Government is urging here, that it is a fact, that it is well recognized in the saw mill operation industry, that it is a common occurrence for power driven saws to cause to be blown into the air injury laden fragments to the head and eyes. If so, there was no testimony to that effect, direct or circumstantial.

Another inference may be drawn, from the fact that the head saw [*88] (headrig) operator was protected by wire mesh and canvas to the effect, that experience has shown that this is the only saw operating station that presented the alleged hazard.

The only rational conclusion from all the facts and circumstances, elicited under Item 9 of the Citation, is that Complainant has failed to show by a preponderance of the substantial, reliable and probative evidence that protective head equipment, hard hats in particular, are necessary at Respondent's saw mill by reason of any hazards of processes employed or the existing environment. This Item of the Citation should therefore be vacated.

Item 10

The discussion under the preceding Item 9 concerning head protective equipment is equally applicable to the alleged violation under Item 10 which concerns eye protective equipment and is, therefore, adopted by reference as if fully rewritten herein and hereunder.

In addition, it is interesting to note the inconsistency of the specific testimony as to the tail sawyer's failure to wear a hard hat under Item 9 of the Citation and excluding him under Item 10 as to eye protection when the exact same facts and circumstances are applicable.

Moreover, inasmuch [*89] as the Secretary ignored the plain unambiguous mandate of Section 9(a) of the Act requiring a description, with particularity, the nature of the violation, it is difficult to determine the fact alleged and thereby ascertain his burden as to the proof. The first sentence of Section 1910.133(a)(1) states "Protective eye . . . equipment shall be required when there is a reasonable probability of injury that can be prevented by such equipment." The fourth and last sentence states "Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects . . . ."

Further, as to the workman using compressed air, the testimony is void as to any flying objects presenting or creating a hazard to an eye of any employee. It is true the Citation states "blowing sawdust," but the proof fails to even mention sawdust. The best the evidence shows is that the workman was using compressed air for cleaning purposes. Exhibit C-11 demonstrates nothing in relation to the violation as charged in the Citation. It is impossible to draw a rational inference from the dearth of the evidence presented that there is either a reasonable probability of eye injury or that the [*90] operation of the compressed air for cleaning purposes presented any hazard of flying object.

Item 10 of the Citation, for the reasons hereinabove delineated should be vacated.

Item 11

Here the Standard alleged requires that portable extinguishers be maintained in a fully charged condition. There being no contrary circumstances presented, the rational inference from the fact that the gauge was in its discharge position is proof of the fact alleged. This Item of the Citation should be affirmed.

Item 12

The fire control at Respondent's saw mill service station is suspect inasmuch as there existed in the area of the gasoline pumps a holder for an extinguisher, however, it was absent an extinguisher. Moreover, the spares were 75 to 100 feet distant and it was unknown if any one of them was classified 6B, C as required by the Standard at Section 1910.106(g)(9). Item 12 of the Citation should be affirmed.

Item 13

The most that the meager facts here make out is a case for a technical violation. The only rational inference to be drawn from the absence of an indicator gauge is that the pressure within the air receiver could not be determined by the sense of seeing. But [*91] such a fact fails to furnish any clue to any other function of the gauge or the safety hazard, if any, because of its absence. By reason of such fact, and absent related circumstances, the proposed penalty for violation of this Item of the Citation is without merit. Also the fact that there was a gauge on the compressor and a rolief valve lends some credence to the proposition that the absence of a gauge on the air receiver presents no safety hazard in and of itself.

There was some evidence tending to show that the relief valve should pop at any time the pressure would build beyond a certain point. Also that a visible gauge on the tank would be a warning to anyone nearby that the relief valve was stuck if the pressure registered too high. This seems highly speculative unless the gauge in addition to just registering pressure, indicated the danger point.

Accordingly, this Item 13 of the Citation should be affirmed and the corresponding proposed penalty therefor vacated.

Item 14

Respondent's defense here was of very little merit, nevertheless, it seems appropriate to examine the Standard alleged to ascertain if, in fact, there has been a violation of the Standard as [*92] charged.

Section 1910.215 covers abrasive wheel machinery exclusively under Subpart 0 -- "Machinery and Machine Guarding." Section 1910.211(b)(12) defines "Safety guard" -- "means an enclosure designed to restrain the pieces of the grinding wheel and furnish all possible protection in the event that the wheel is broken in operation." (See paragraph (b) of Section 1910.215). The Citation charges a failure to provide a side guard, whereas the Standard alleged to have been violated has to do with "guard design." The Respondent is not charged by the Citation with failing to have a safety guard designed to cover the spindle end, nut and flange projections, which is a general requirement of all safety guards.

Guarding of abrasive wheel machinery is covered under paragraph (b) of Section 1910.215. Within the framework of this paragraph there are ten separate well defined Specifications for safety guards for types and kinds of operations, together with "band type guards" and special "revolving cup guards." And each requirement is made mandatory by paragraph (a)(1) of Section 1910.215 which states "abrasive wheels shall be used only on machines provided with safety guards as defined in [*93] the following paragraphs of this Section."

The Standard alleged to have been violated is a subparagraph of paragraph (a) of the Section cited. Moreover, covering the spindle end, nut and flange projections and the requirements as to mounting a safety guard are only general requirements for design of all safety guards which has nothing to do with the failure to provide side guarding which is the specific charge of Item 14 of the Citation. Also compliance with the Standard alleged, in and of itself, would not entirely abate the hazard of a broken wheel.

Having failed to cite the proper and appropriate Standard as a violation of the charge set forth in the Citation, this Item 14 of the Citation should be vacated.

Item 15

At the hearing, the Respondent offered no contrary facts or circumstances, thus, where the evidence supports the charge contained in an Item of a Citation it should be affirmed.

Item 16

The Standard alleged as violated here states in effect that tools used by employees shall be maintained in a safe condition. There was no proof that either tool in question was being or had been put to use in the existing condition. As to the peavey, Exhibit C-15 demonstrates [*94] that its condition is less than conducive for even an attempted use. The picaroon was not tested in any manner. No witness knew for a fact that a portion of the handle was taped because of a crack or break. The Compliance Officer assumed it was broken because of the tape. Respondent's witness thought it was taped to add friction for gripping during its use. The evidence here is inconclusive as to each tool. The Government has failed to sustain its burden here, therefore, Item 16 of the Citation should be vacated.

Item 17

The issue here is whether the failure to equip the air hoses, on compressed air tanks used for cleaning purposes, with nozzles designed to reduce the pressure to less than 30 p.s.i. is proof of the truth of the fact alleged. The fact alleged is that there was a violation of Section 1910.242(b) which simply says that compressed air shall not be used unless reduced to less than 30 p.s.i. The only use observed was of the one instrumentality as depicted in Exhibit 11 where the pressure being used was 98 p.s.i.

Also the effect of the further requirement in the Standard alleged must be considered. It seems to say that the use of less than 30 p.s.i. for cleaning [*95] purposes, is prohibited unless accompanied with effective chip guarding and personal protective equipment. The latter certainly qualifies the former.

The Citation notified Respondent that he didn't have the correct kind of nozzles on the hoses in question and the evidence is clear that it didn't. The hazard for such failure, according to the Compliance Officer, was injury to an employee if he deadended the nozzle against his skin, however, the Standard particularly addresses itself to a guard for protection against flying debris that may be propelled from application of the pressurized air in the cleaning process.

Respondent was not cited for using compressed air for cleaning purposes with that air pressurized in excess of 29.999 p.s.i. While special type nozzles may be one method of reducing the pressure, the failure to have installed such equipment, in and of itself, does not prove the truth of the violation of Section 1910.242(b) any more than the fact that one compressed air unit was being used with 98 p.s.i. proves that the special type nozzles are required under the Standard.

There is just no valid rational relationship between the allegations of the Citation [*96] at Item 17 and the Standard alleged to have been violated and consequently this Item of the Citation should be vacated.

Items 18 and 19

There apparently is no valid issue as to the allged violations at 1910.252(a)(2)(ii)(b) and 1910.252(a)(2)(iv)(c). There is a reasonable inference from the physical facts adduced that the possibility of one or more cylinders being knocked over existed. Obviously, the fuel gas cylinder was resting a distance of less than 20 feet from the oxygen cylinders. The hazard, urged by the Government, upon a cylinder being knocked over was explosion and consequent injury. The hazard, if any, to be encountered in storing the different type cylinders a minimum of 20 feet apart or separating them by a noncombustible barrier was unnoticed by the evidence. The Citation at Items 18 and 19 should be affirmed.

Item 20

The facts here are undisputed. The fuel gas cylinder in the truck was in use with the valve end not up. The hazard has to do with the possibility of the liquid escaping before it is transformed into gas, and find its way down the hose to the torch with a consequent explosion.

The proposed penalty for Item 20 of the Citation is $35.00. [*97] The evidence fails to substantiate the proposal. Evidence on the likelihood of occurrence was non-existant. It was simply the empty opinion of the Compliance Officer. For this tribunal, that is not enough.

Accordingly, Item 20 of the Citation should be affirmed and its corresponding proposed penalty vacated.

Item 21

The issue here is whether any employee is exposed to a floor hole into which he can accidently walk. The drag saw station is an isolated operation at Respondent's mill and there is no traffic on or about the place where its operator performs his work. In the past there have been two attempts to cover the hole in question but each one resulted in the malfunction of the purpose of the floor hole. This particular floor hold was and is one of the permanent parts of the function of the mill processes. It was not just any old floor hole exposed to traffic. It served a purpose and performed a function. There is no evidence that there was any walking, or stepping for that matter, to or towards the hole. The operator stationed himself to the side of the hole. During operations, logs were continuously conveyed over the hole and when the mill was down there was no [*98] occasion for any person to be in or about the drag saw operator's station.

Regulations, as well as laws, must be reasonable and applied in a reasonable manner. The regulation or Standard is reasonable in the sense that an opening in a floor should be covered or guarded if, in the ordinary course of events, the hole exposes an employee to a reasonable possibility of the danger of walking into it, if unguarded by either a standard railing or floor hole cover.

The floor hole here had no relation to any pedestrian traffic pattern whatsoever. It was partially guarded by machinery, logs and the drag saw itself. Moreover, there was absolutely no evidence of any other employee exposure.

The evidence, therefore, is inconclusive, as to a reasonable possibility or change that the drag saw operator can walk into the floor hole.

More significantly, the context of Section 1910.23(a)(8) deals with a floor opening rather than a floor hole as those terms are defined at Section 1910.21(a)(1) and (2). Floor openings occupied by machinery are excluded from the application of Subpart D -- "Walking-Working Surfaces." Here the floor opening, or hole whichever, contained machinery, the function [*99] of which was to continuously remove and convey the fall out from the operation of the draw saw.

It just seems that this Citation should be vacated.

Item 22

The charge here, in effect, is that mechanical power-transmission apparatus was improperly guarded at eight locations throughout the mill in violation of the Standard at 29 CFR 1910.265(c)(22). 265 relates to "saw mill" specifically under Subpart R, Special Industries, of part 1910 of the Standards. (c) under 265 relates to "building facilities, and isolated equipment." (22) under (c) relates to "mechanical power-transmission apparatus."

The fashioners of the Standard, alleged to have been violated in eight separate distinct locations in and about the saw mill, chose the following significant language:

"The construction, operation, and maintenance of all mechanical power-transmission apparatus shall be in accordance with the requirements of Section 1910.219." (Emphasis added.)

Upon examining Section 219 the obvious inquiry encountered is which requirement or requirements, if any, has application to any one of the eight alleged violations among its sixteen paragraphs, letter (a) through (p) together with the several [*100] subparagraphs and sub-sub-paragraphs under each.

It just seems that there is a question of procedural due process as to Item 22 of the Citation. Where is the fairness in requiring the Respondent to read through voluninous regulations in his quest to ascertain where he may have been wrong. For example, the term "waste conveyor drive motor" as used in number (1) of Item 22 does not appear in any Standard set forth in Section 219.

It is recognized that the words chains, sprockets and belts appear in several paragraphs of Section 219, however, there are several variables and options throughout this entire Section. Judge Carlson stated in a recent case that Employers are charged with being Standard readers but certainly not mind readers. ( Secretary of Labor vs A.B. Concrete, Inc. OSAHRC 2423)

What specific requirement as to each alleged guarding infraction did the Complainant have in mind? Surely the law does not require guesswork and speculation. It is the function of the Secretary to carry out the provisions of the Job Safety Act, but he fails in his duty when he charges "not properly guarded" in violation of a sawmill Standard that references to an entire [*101] maze of Standards under another section, without telling anyone the language of a particular requirement within that section upon which he relies for enforcement of each separate violation alleged.

Condoning the Secretary to take pot shots at an employer in his endeavors to enforce the Act is tantamount to a violation of the due process clause of the United States Constitution. In the instant case the employer was not notified sufficiently of the charges against him as contained under Item 22 of the Citation, and although he was given ample opportunity to be heard, he labored under the handicap of not knowing how to defend this incomprehensive charge.

A review of the testimony in each case under Item 22 is not of very much help inasmuch as it consists chiefly of conclusions of the Compliance Officer. Further, in not one single instance did he allude to the language of any requirement, upon which he relied, as a basis for any one of the eight specific charges.

Moreover, it is noted under the peculiar facts and circumstances in each operation attending each alleged charge there was no relative exposure to a chance of injury.

For the forgoing reasons Item 22 of the Citation should [*102] be vacated.

Item 23

The Standard alleged to have been violated states "gears and chains shall be fully housed." And this Standard is under Section 265 relating specifically to sawmills. The evidence presented is conclusive that the chains and gears on the edger were not housed.

Respondent contended that no hazard existed by reason of these unguarded gears and chains inasmuch as when the mill is in operation no employee is performing any work at or near the site of the edger where the gears and chains are located and functioning. Further, that no employee has any reason or occasion to pass by while the edger is in operation. Moreover, there was no evidence that at any time over the years of operation had any employee either accidentally or deliberately become entangled in any gear or chain of this edger.

It is very difficult to find the existence of a hazard under the facts and circumstances presented here. The chance of accidental contact and resulting injury is miniscule at best.

Nevertheless the Standard alleged has been violated and the Standard itself does provide alternative common sense means of abatement and thus this Item 23 of the Citation should be affirmed. [*103] The corresponding proposed penalty, however, should be vacated because the gravity of the offense is practically zero.

Item 24

The issue presented here is whether a physical fence is the only proper or appropriate means of fencing off the area between the edger machine and the barricade. Obviously, the scheme of the Standard alleged to have been violated is to prevent entrance into the area in question. Here each employee is schooled on the danger to be encountered upon entry into this area. Each one knows the risk and his entrance therein, if any there be, would be totally involuntary. Consequently the chance of injury is non-existant. A physical fence or barrier would not prevent one from being propelled therein against his will.

There is a fence here, it is mental, having been erected by the very nature of the peculiar facts and circumstances surrounding the operations at Respondent's sawmill. This kind of fence has been suitable and appropriate for a long period of time and is, therefore, within the confines of the requirement of the Standard that the area be properly fenced off. The area is "no mans land," each employee knows it, respects it, and abides by [*104] it.

Accordingly, Item 24 of the Citation should be vacated.

Item 25

The evidence here is unclear and confusing. Complainant failed to identify the hazard of an unguarded pineapple. This is left to the tribunal to make an assumption and thereupon the only rational inference, from the meager facts and circumstances, is that the hazard, if any, is the nip point as indicated in Finding of Fact numbered 25. The function and purpose of the metal band or bar that is installed in front of the nip point was totally unexplained. Thus the inference therefrom is that it is there to prevent anything entering the path under the pineapple except the piece of lumber intended.

Furthermore, exposure to a hazard, if any there be, was not adequately shown.

The Complainant failed to make a case for violation of the Standard alleged at Item 25 and it should be vacated.

Item 26

The charge here has to do with failure to guard against accidental contact with live parts of electrical equipment operating at 50 volts or more.

Of the eleven averred violations of the Standard the government established that at nine locations live wires were exposed, primarily within an uncovered box and only at the [*105] junction of the electrical wire and the screw connection within the device.

In most instances the exposed locations were high above the floor or in isolated places. Although most were accessible there was little, if any, reason shown why any employee would have occasion to work in close proximity to any one of them or little, if any, possibility, shown, upon passing near by, that accidental contact could occur. From these facts and circumstances, it must necessarily be concluded that the chance of accidental contact with a live part at any one of the locations was rather remote.

It is also observed that following the inspection Respondent has covered all the boxes, even the boxes that were not live, and has eliminated the faulty heater casing and its components.

Item 26, then, should be affirmed in part and vacated in part in accordance with the findings of fact as to each averment under Item 26. Further, because of exceedingly low gravity, the corresponding proposed penalty for this Item should be vacated.

Item 27

Here the evidence is rather conclusive that each fixed electric metal motor received its source of electricity by means of connecting metal enclosed wiring [*106] system, neither of which would also connect to a grounding system. Also the criteria in ascertaining the proposed penalty for this violation appears to be substantially in accordance with the statutory requirements and the Secretary's guidelines. Accordingly, this Item of the Citation should be affirmed.

Item 28

Here Respondent presented no contrary facts or circumstances to the charges and the evidence in support thereof. The facts presented by Exhibits C-41, C-42 and C-43, together with the testimony and the rational inferences to be drawn therefrom indicate conclusively that Respondent was in violation of the safety infractions as charged by Item 28 of the Citation. Again, it is apparent that the Secretary adequately followed the law and guidelines in proposing the penalty for the violation here.

An affirmance of Item 28 of the Citation and the corresponding proposed penalty is therefore appropriate.

Item 29

Here Respondent suggests that running the flexible cord on the floor would be more of a hazard than the fastening of it to building surfaces. If such would be done in a haphazard manner, of course, it would create a housekeeping problem and a different violation. [*107]

The part of the Standard alleged here to have been violated is inescapable. It is reasonable and should be adherred to.

Item 30

The Standard here prohibits the use of flexible cords that have been spliced, however, the Secretary permits splicing or repairs if electrical tape is used and the result is equal to the strength of the insulation of the cord. The witness for the government on this point, with considerable experience, was of the opinion that the splice or splices in question failed to meet the test. There were no contrary facts or circumstances presented and accordingly this Item 30 of the Citation should be affirmed.

CONCLUSIONS OF LAW

1. As to Item 1 of the Citation, the only hazard presented here is as to the hose on the floor, excepting therefrom the welding hose when in use by the millwright, and the several unidentified objects on the floor that are or could be encroachments upon any path of travel of the millwright in the performance of his work. These encroachments are violations of the Standard alleged.

2. There has been no credible proof of any violation as charged by Item 2 of the Citation and it should be vacated.

3. Section 1910.24(b) as alleged [*108] at Item 3 of the Citation to have been violated is not applicable to the facts and circumstances surrounding Respondent's teepee burner conveyor. Also, where the facts and circumstances show that operations do not necessitate regular travel between levels at the place where a fixed ladder exists, the failure to maintain it for access is not a violation of the Standard alleged.

4. Where the only evidence produced to make a case for violation is circumstantial, and the inference to be drawn therefrom, as proof of the truth of the fact alleged is met by contrary circumstances, of equal or greater weight, there has been a failure to sustain the burden of proof, requiring a vacation of this Item 4 of the Citation.

5. Where the evidence as to the lack of uniformity in riser height on a flight of stairs is conclusive, then there is a violation of that part of the Standard as alleged in Item 5 of the Citation relating thereto.

Stairtreads of rough lumber coated with sawdust make out a case for reasonable slip-resistant treads until the contrary affirmatively appears from the evidence.

6. The Standard alleged requires standard railings on all open sides of all exposed stairways. [*109] Absence thereof, having been found, is a violation per se of the Standard alleged, and it should be affirmed.

7. Failure to cover the fact alleged as a violation with an understandable meaningful Standard, that has application is fatal. In addition, where there is a failure to show the truth of the fact alleged there is no violation.

8. Where each employee, having authority to utilize gas pumps, on employer's property, and thereby access to the area thereof, have been instructed not to smoke within and about that area, and the evidence shows no other employee exposure thereto, such instruction satisfied the Standard alleged requiring adequate precautions to prevent the ignition of flammable vapors.

The requirement of a "No Smoking" sign is a mandate of the Secretary and not of the Standard alleged. Such a sign, in any case, may well become part of the adequate precautions taken, however, it is doubtful that such a sign without more would satisfy the requirement of the Standard.

9. To make a case for failure to provide personal head protective equipment as may be required under Section 1910.132(a), it must affirmatively appear from all the facts and circumstances that the [*110] requirement is reasonably necessary by reason of the hazard alleged. The Complainant has this burden and where he fails to tip the scales by a preponderence of the evidence, taken as a whole, there can be no violation.

10. Eye protective equipment is not required to be provided and used in accordance with Section 1910.133(a)(1) in or about the workplace unless there has been a showing by a preponderence of substantial, reliable and probative evidence that either there is a reasonable probability of eye injury or that machines or operations present the hazard of flying objects within that workplace.

11. Where the Standard requires that a portable fire extinguisher shall be maintained in a fully charged condition, and the evidence shows that the gauge thereon is in a fully discharged position, without any contrary circumstances, it will be deemed that this evidence is sufficient proof, in law, as to the truth of the fact alleged.

12. Failure to provide at least one fire extinguisher having a minimum approved classification of 6B, C at a place accessible within 75 feet of any service facility conducted under the guide of a service station is a violation of the Standard [*111] alleged at Section 1910.106(g)(9).

13. The mere naked showing of the absence of an indicating pressure gauge on an air receiver does nothing more than make out a case for a technical violation of Section 1910.169(b)(3). By reason thereof any proposed penalty for such violation is unwarranted as there is nothing upon the record from which gravity of the violation may be determined.

14. Where the truth of the fact alleged is established by the evidence, it cannot be the basis for the violation of a specific Standard, unless the ingredients thereof have a rational relationship to that Standard.

15. Failure to provide a work rest at an abrasive bench grinder is sufficient to show that a work rest was not used to support the work and thereby a violation of Section 1910.215(a)(4) has been established.

16. Where a tool is found in an almost complete broken condition, and the evidence strongly favors the fact that it is utterly useless, there must be a showing that it in fact was used in that condition, or that it was considered usable by the employer and was made available by him for the use intended, before there can be a violation of Section 1910.242(a).

The inference that a [*112] wooden handle to a tool must be in a broken or weakened condition from the fact that a portion thereof has been taped, without more, fails to make a case for violation of Section 1910.242(a), in view of contrary circumstances.

17. A Citation charging failure to equip the hose on a compressed air instrument with a nozzle designed to reduce the pressure to less than 30 p.s.i., and that fact is proved, merely shows that certain nozzles were not used. The use thereof is neither mandated nor prohibited by Section 1910.242(b) and therefore there is no rational relationship between the Citation and the Standard alleged to have been violated.

18. The storage of oxygen and fuel gas cylinders within a building where there is a possibility of any one of them being knocked over is a violation of Section 1910.252(a)(2)(ii)(b).

19. In storing fuel gas and oxygen cylinders a failure to separate them a minimum of 20 feet or by a 5 foot non-combustible barrier is a violation of Section 1910.252(a)(2)(iv)(c).

20. A fuel gas cylinder in use with the valve end horizontal is a violation of Section 1910.252(a)(2)(v)(c)(1).

Where likelihood of an occurence is predicated solely on the [*113] opinion of one witness, without any creditable foundation having been shown for that opinion, it should be rejected.

21. It is unreasonable to require the guarding of a floor hole or opening, which by reason of its dimensions would accommodate the foot of a workman should he step into it, where the peculiar facts and circumstances show no reasonable chance that the only workmen shown to be exposed can accidently walk into it.

Moreover, when that hole is occupied by machinery it is specifically excluded from the application of the Standard alleged.

22. Where the Secretary predicates 8 separate alleged machine guarding infractions upon at random violations of the requirements of an entire Section of the Standards, he has not afforded procedural due process as to notice and thak kind of a Citation is bad on constitutional grounds.

23. Where there exists a heterogeneous cluster of gears and chains upon an edger in a sawmill, unhoused, the location of which is accessible to employees while in operation and one or more can and may come nearby, there is presented a slight chance of probable contact, all of which thereby represents an exposure to some hazard which is a violation of [*114] 1910.265(e)(5)(ii).

24. "Properly fenced off" does not necessarily, in each and every instance, mean a physical barrier. Thus, where a barricade is provided as an anti-kickback device from the operation of an edger within a sawmill and a mental barrier has been erected within the mind of each employee, by reason of the very nature of the peculiar facts and circumstances then and there existing, which has prevented and is preventing entrance, such condition is tantamount to a properly fenced off barricade. This condition is a proper fence because it is fitting, suitable, appropriate and adapted to the purpose and circumstances.

25. Where the evidence, presented by the proponent of a proposition which tends to disprove the truth of the fact alleged, is unexplained, and contrary circumstances are also presented by the opponent, the proponent has failed to meet his burden of proof for affirmance of the violation alleged.

26. Where any live part of electrical equipment operating at 50 volts or more is exposed and there is a chance of accidental contact, even though the possibility is remote, there has been a violation of the Standard at N.E.C. 1971, Article 110-17(a) as [*115] referenced by the Standard at 29 CFR 1910.309(a). However, where the evidence shows that the likelihood or probability of occurrence on a non-serious violation is minute, if any, and good faith has been demonstrated at 100%, no penalty should be assessed.

27. Where all the evidence is conclusive, as to the violation of the Standard at N.E.C. 1971, Article 250-43(a) as referenced by 29 CFR 1910.309(a), the alleged violation must be affirmed. Likewise, where it is apparent that the penalty proposed meets the law and guideline tests therefore it should be assessed.

28. The provisions of Article 250-45(d) of the N.E.C., as referenced by the Standard at CFR 1910.309(a), require the grounding of any hand-held motor-operated drill or sander with cord and plug, when either contains exposed non-current metal parts.

29. Attaching flexible electric cord to building surfaces presents the hazard of an eventual exposure to live wires, the results of which may not be easily determined. Nevertheless, such practice is prohibited by Article 400-4 N.E.C. 1971 as referenced by the Standard at 29 CFR 1910.309(a) inasmuch as a potential hazard may and can occur creating a chance of injury [*116] by a continued employment of such practice.

30. Where the Secretary permits, a splice in an electrical flexible cord to be accomplished by the use of electrical tape of equal or greater strength than the insulation of the cord, within the prohibition of Article 400-5, N.E.C. 1971 as referenced by the Standard at 29 CFR 1910.309(a), and a witness, with considerable experience, is of the opinion that a certain splice does not meet the test, then the failure of the employer to present contrary facts and circumstances of equal or greater weight, makes a case for violation of the Standard alleged.

ORDER

WHEREFORE, upon the totality of the Record, depositions, transcript of the testimony, exhibits, oral arguments of counsel, and the several briefs upon the propositions of law and authorities it is adjudged and Ordered:

1. That Respondent's affirmative defense on the issue of the validity of the promulgation, by the Secretary, of the Standards herein contested, be and the same is hereby denied.

2. That Item 1 of the Citation be and the same is hereby affirmed to the extent set forth in Conclusion of Law numbered 1.

3. That Items 6, 11, 12, 15, 18, 19, 29 and 30 of the Citation [*117] be and each is hereby affirmed.

4. That Items 2, 7, 8, 9, 16 and 25 of the Citation be and each is hereby vacated.

5. That Items 3, 4, 10, 14, 17, 21, 22 and 24 of the Citation, together with the proposed corresponding penalty for each, be and each is hereby vacated.

6. That Item 5 of the Citation be and it is hereby affirmed as to the riser height requirement and vacated as to the slip resistant requirement.

7. That Items 13, 20 and 23 of the Citation be and each is hereby affirmed and the corresponding proposed penalty for each is hereby vacated.

8. That sub-items (1), (4), (5), (6), (8), (9), (10), (11) and that one live open box as to sub-item (2) as delineated under Findings of Fact numbered 26 of Item 26 of the Citation be and each is hereby affirmed; that sub-items (3), (7) and the two non-live open boxes as to sub-item (2) as delineated under Findings of Fact numbered 26 of Item 26 of the Citation be and each is hereby vacated; and that the corresponding proposed penalty for Item 26 be and it is hereby vacated.

9. That Items 27 and 28 of the Citation and the corresponding proposed penalty for each be and each is hereby affirmed.

10. That the total penalty [*118] herein and hereby assessed is in the sum of $50.00.

It is so ordered.