Docket No. 1728

PACK RIVER LUMBER COMPANY

OSHRC Docket No. 1728

Occupational Safety and Health Review Commission

February 18, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter arose on Respondent's (Pack River Lumber) notice contesting Complainant's (Labor) citations alleging serious violations of 29 C.F.R. 1910.213(g)(1) and (h)(1) for failure to provide guards on three saws and 29 C.F.R. 1910.265(c)(22) for failure to adequately guard nip points on power transmission equipment contrary to the duty imposed by section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). The matter went to a hearing, and Judge Robert N. Burchmore modified both citations by finding Pack River Lumber in non-serious violation of the two standards. He reasoned that Labor had failed to prove that it was substantially probable that serious physical harm would be incurred. He did not assess penalties primarily because Pack River Lumber had abated the violations.

I directed review on the questions whether (1) the judge erred in modifying the citation for alleged serious violation of 29 C.F.R. 1910.213(g)(1) and (h)(1) (saw guarding) to non-serious n1 (2) the judge erred in refusing to assess penalties as to both violations [*2] and (3) the judge erred procedurally as to the power transmission allegations. n2 Having reviewed the record we affirm the citation for failure to guard saws as a serious violation and we assess penalties for both contested violations. Accordingly, we modify the judge's decision to be consistent herewith.

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n1 Error has not been assigned by any party to the judge's decision to modify the power transmission guarding violation. On the evidence of record it does not appear that serious harm was the probable consequence of the violation. Natkin & Co., 1 OSAHRC 429, BNA 1 OSHC 1204 CCH E.S.H.G. para. 15,679 (Rev. Com'n., 1973); Crescent Wharf and Warehouse Co., 2 OSAHRC 1318, BNA 1 OSHC 1219, CCH E.S.H.G. para. 15,687 (Rev. Com'n., 1973).

n2 We do not reach this issue on review. The question framed was whether the citation for violation of 29 C.F.R. 1910.265(c)(22) should be vacated for failure to comply with section 9(a) of the Act. We do not reach the issue because it was not raised before Judge Burchmore. Compare his decision in Kellogg Transfer Inc., No. 1761 (1973).

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Pack River Lumber is engaged in the business of processing and manufacturing lumber and other wood products. It's place of business was inspected by Labor's representative who observed that two swing cut-off saws and one radial-arm saw were not provided with guards for the lower portions of the saw blades. The record is clear that sawyers are exposed to unguarded portions of the saw blades when the saws are used and that amputation of an extremity would be the most probable result of an accident. On the other hand, the saws are not in frequent use.

It was also observed that gear and chain drive apparatus and other types of power transmission apparatus located throughout the worksite were unguarded thereby creating pinch point hazards. Most of the apparatus was removed from machine operator stations but was so located that employees were exposed to the hazards presented. The hazards presented are said to be pinched fingers and clothing.

As to the judge's action in modifying the citation alleging the unguarded saw violations, it is apparent that his decision was predicated on the likelihood of an accidental [*4] occurrence. However, as we said after he rendered his decision in this case, the test is whether it is substantially probable that the harm will be serious in the event an accident occurs. n3 Natkin & Co., 1 OSAHRC 429, BNA 1 OSHC 1204, CCH E.S.H.G. para. 15,679 (1973); Crescent Wharf and Warehouse Co., 2 OSAHRC 1318, BNA 1 OSHC 1219, CCH E.S.H.G. para. 15,687 (1973). Since serious physical harm was the probable result, the citation will be affirmed as a serious violation.

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n3 In a companion case based on similar facts and involving the precise standards cited herein the same judge, after receiving our decision in Natkin, affirmed a citation for a serious violation. Kellogg Transfer Inc., supra, note 2.

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We turn now to the matter of penalties. The judge gave overriding consideration to the fact Pack River Lumber abated the hazards after it received citations but before a final order was entered. We are not unmindful of this demonstration of good faith. However, were we to adopt a rule that penalties [*5] should not be assessed in all situations of this kind we would not encourage pre-inspection abatement of hazards, and the rule therefore would not serve to further the purposes of the Act.

In this case, we conclude that because of the gravity of each violation penalties should be assessed. There is no question that serious physical harm can result from the failure to guard saws. On the other hand, the number of violative occurrences was low. As to the power transmission apparatus violation, the number of violative occurrences was large but the possibility of harm was low. On balance we consider the gravity of both violations to be low to moderate. Pack River Lumber employs 100 employees and is therefore small to medium in size. It has no history of previous violations. Penalties of $100 for each violation therefore appear to be appropriate.

Accordingly, the judge's decision is modified so as to affirm the citation for serious violation of 29 C.F.R. 1910.213(g)(1) and (h)(1) and to assess a penalty of $100 therefor and so as to assess a penalty of $100 for the violation of 29 C.F.R. 1910.265(c)(22) and as modified is affirmed insofar as it is consistent herewith. It is so [*6] ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: This decision was properly decided by the Judge and his decision should be affirmed.

The Judge reduced both citations for serious violations to non-serious because the evidence did not demonstrate that serious physical harm was the probable consequence of the cited conditions. Since the Commission has chosen not to review his decision reducing the citation for unguarded power transmission devices to nonserious, I restrict this discussion only to the citation for the unguarded saws.

Each of the three saws for which respondent was cited, while lacking lower blade guards, was protected by a guard on the upper portion of the blade. One of the saws was operated by remote control at a distance of seven feet from the blade. The record is virtually silent as to how the operation of the other two saws without a lower guard would create a substantial probability of serious harm.

It is not apparent that the injury a lower blade guard is designed to prevent or would prevent is amputation. Such guards must necessarily move out of the way of the material being cut, thus exposing the cutting edge of the blade. The purpose of a lower guard [*7] could thus be to protect from abrasion as a result of contact with the side of the blade, to protect the operator from flying splinters, or concededly, to in some fashion prevent amputation. This, of course, is sheer speculation. The problem with the record in this case is that it simply does not disclose any information on the nature of the hazard resulting from nonobservance of the safety standard. Since the evidence does not demonstrate how a lower guard would prevent exposure to the cutting edge of the blade while the saws are in operation, there is no basis on which to conclude that lack of such a guard would pose the risk of serious harm. The Members of this Commission must base their decisions on the evidence of record. It is not our role to serve as expert witnesses for the Secretary, National Realty and Construction Co., Inc. v. OSAHRC, 489 F. 2d. 1257 (D.C. Cir., 1973).

On this record, I would thus submit that even if the monstrous test for a serious violation put forward by the Commission is applied to the facts, a serious violation has not been established because of lack of evidence that it is substantially probable that the harm resulting from noncompliance [*8] with the standard will be serious. The question of the likelihood of an accident does not have to be reached.

29 U.S.C. § 666(j) defines a serious violation in this manner:

. . . a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists . . .

Under the Commission's interpretation of this section, a failure to observe the requirements of a safety standard, regardless of how remote the risk of death or serious harm which could result, automatically becomes a condition that poses a substantial probability of death or serious harm. This has been used as the test despite the fact that the plain meaning of the words of section 666(j) direct us to consider both the likelihood of harm and the probable nature of the harm that a condition presents.

The plain meaning of a "substantial probability that death or serious physical harm could result" can perhaps be best demonstrated by a simple example. One who takes an aspirin tablet, we have been recently told, runs the risk of dying from it. Yet few of us conceive of taking aspirin as an undertaking that poses [*9] a substantial probability of death or serious physical harm. The risk is too remote to warrant that description. But under the Commission test this would be a serious violation.

It should be noted that dicta in the National Realty case, supra, also suggests an interpretation of § 666(j) that differs from that put forward by the Commission. When speaking of that section in connection with charges under the general duty clause, n4 the court characterized a serious violation as "misconduct [that] involves a substantial risk of harm and is substantially probable under the employer's regime of safety precautions." n5

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n4 The general duty clause requires that workplaces be kept free of recognized hazards, causing or likely to cause death or serious injury. 29 U.S.C. § 654(a)(1).

n5 p. 1268, footnote 41.

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Lastly, while I agree with the Commission that abatement of a contested violation prior to the entry of a final order should not "in all situations" result in elimination of penalties, abatement prior to the [*10] time it is required is evidence of an employer's good faith which should be considered in penalty assessments along with the gravity of the violation, the size of the business, and the history of previous violations. The weight given each of these four factors in penalty assessment should depend on the facts of a particular case so that the Act's purpose of insuring safe working conditions can best be effectuated. Secretary of Labor v. Nacirema Operating Co., Inc., 1 OSAHRC 33 (1972). The low level of gravity of these violations, the lack of history of previous violations, and the respondent's good faith as evidenced by its safety program, first aid provisions, and particularly prompt abatement persuade me, as they did the Judge, that no penalty is warranted here.

[The Judge's decision referred to herein follows]

BURCHMORE, JUDGE: On October 20, 1972, the Secretary of Labor issued two citations, each of which charged the Pack River Lumber Company with a single, serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970. Citation No. 1 alleged a serious violation based upon failure of respondent to provide guards on twelve items of power transmission [*11] apparatus in compliance with the regulation contained in 29 C.F.R. 1910.265(c)(22). Citation No. 2 alleged a second, serious violation based upon failure of respondent to provide guards on the lower portions of three cut-off saws in compliance with 29 C.F.R. 1910.213(g)(1) and (h)(1). A penalty in the amount of $600 was proposed for each violation.

Timely notice of contest was filed by the respondent and the proceeding was assigned to the undersigned judge for hearing and initial decision. Hearing was held at Spokane, Washington, on February 5-6 and 26, 1973. The parties have submitted briefs to the trial judge.

Based upon the entire record, including the pleadings, the transcript of the hearing and the exhibits I find the following facts, which are virtually uncontroverted:

1. The respondent, Pack River Lumber Company, is a corporation maintaining a place of business and of employment at Dover, Idaho, at which it is engaged in the business of processing and manufacturing lumber and other wood products, some of which are then shipped directly or indirectly to points outside the State of Idaho.

2. On October 3, 1972, the following power transmission apparatus, present and [*12] in use at the respondent's worksite, lacked prescribed guards at some points:

a) The gear and chain drive at the shaving bin escalator

b) The gear and chain drive on the feed conveyor on the second floor platform in front of boilers

c) The gear and chain drive of the #3 fuel escalator in the fuel bin

d) The V-belt and pulley of the planer infeed drive

e) The chain and gears of the planer outfeed drive

f) The V-belt and pulley of the planer outfeed drive

g) The gear and chain drive on the Roll Case (outside to the planer infeed)

h) The gears on the live rolls and the drive chain on the Roll Case

i) The gear and chain drive on the deck opposite the stacker feeder

j) The chain and sprocket drive of the short chain at the stacker head

k) The chain and gears of the live rolls on the stacker infeed roll case

l) The drive belts and pulleys of the rerun machine

3. On October 3, 1972, the following three saws, present and in use at respondent's worksite, did not have guards over the lower portions of the saw blades:

a) The swing cut-off saw at the south end of the dimension shed

b) The radial arm saw at the north end of the dimension shed

c) The swing cut-off saw at the rerun [*13] machine

4. Respondent knew of the conditions set forth in Findings 2 and 3, above.

5. Each of the conditions set forth in Findings 2 and 3, above, was separate from and unrelated to the rest of the conditions set forth therein so that there was no combined effect to produce a composite condition different from or more hazardous than the individual conditions.

6. Each of the conditions set forth in Findings 2 and 3, above, was voluntarily abated by the respondent prior to the hearing.

I conclude from the foregoing that the Commission has jurisdiction over the parties and subject matter of this proceeding, and that the respondent is an employer engaged in business affecting interstate commerce. I also conclude that in each instance alleged in the citations there was a failure to comply with the cited regulation and such failure constituted a non-serious violation of the Act.

The Secretary requests a further finding under section 17(k) of the Act to the effect that there was a "substantial probability that death or serious physical harm could result from" the conditions alleged in each citation; he urges that this Commission conclude that the violations were serious in nature. [*14] Respondent contests the Secretary's position and the burden of proof to sustain it lies upon the complainant. In my opinion the evidence does not sustain a finding of serious violation.

Complainant's proof consisted entirely of the testimony of the inspecting officer and two photographic exhibits. While this establishes beyond question the existence of the alleged conditions as to lack of prescribed guards, the testimony is virtually silent as to whether serious physical harm could probably result therefrom. The witness did not testify to the presence of employees in proximity to any of the unguarded power transmission apparatus, and he conceded on cross examination that none of the apparatus was located at the site of a work station. Indeed, respondent's evidence shows that there was no need for employees to approach the pinch points and that the only employee working in proximity thereto did so on the seat of a forklift which would effectively prevent his coming in contact with any of the power transmission equipment. The mere fact that, as testified by the compliance officer, employees could walk through the plant does not constitute convincing evidence that there was a [*15] substantial probability that serious harm could result from the absence of the guards of which the compliance officer complained.

Each of the three cut-off saws was protected by the conventional guard on the upper portion of the blade. The saws were shown by the respondent's evidence to be infrequently used and one of them is operated by remote control by an operator who need not come within seven feet of the saw to operate it. The complainant did not observe or describe the operation of the saws so as to show how the absence of the lower guard could create a substantial probability of serious physical harm. The witness stated that he had a radial arm saw at his own home and that it did not come with a lower guard nor did it have one on it. Under all the circumstances, the proof is inadequate to warrant a finding that the violation was a serious one. Accordingly, I further find:

7. The evidence does not establish that there was a substantial probability that death or serious physical harm could result from any of the conditions set forth in Findings 2 and 3, above.

I conclude from the foregoing that there was no serious violation of the Act.

Respondent pleaded as an affirmative [*16] defense that the Act is unconstitutional. However, it conceded that this Commission has no jurisdiction to pass upon that question, and no finding on the question is therefore appropriate at this time.

It remains to consider the proposed penalties. Section 17(c) provides that a penalty of not more than $1,000 "may" be assessed for a violation which, as here, is specifically determined not to be of a serious nature. This Commission is given the authority under 17(j) to assess penalties, "giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations." For the reasons stated below, I conclude that no penalty is appropriate in this case.

The testimony herein shows no history of previous violations by the employer. It also shows that the Secretary was completely satisfied as to the employer's good faith as evidenced by his cooperative attitude, safety program and first aid provisions. Further, the evidence shows that, as found above, the employer in this case proceeded to abate each of the conditions criticized [*17] by the inspector, even while contesting the citations that were issued. In so doing, it seems to me that the employer demonstrated incontestably that its compliance with the law does not await upon the imposition of penalties but that it is so willing to comply that it does so before a citation has become final and before assessment of a penalty. On the other hand, the statute expressly provides in section 10(b) that the period within which abatement is required shall not begin to run until entry of a final order by this Commission.

The primary purpose of assessing penalties is to secure compliance with the law and to insure safe working conditions for employees. When, as here, there is evidence that compliance is forthcoming without the assessment of penalties, it would seem that none is required. In my opinion, considering all the facts of this case, the nature of the violations and the 17(j) criteria quoted above, no penalty would be appropriate herein and I so find.

It is ORDERED that the proposed penalties be and the same are hereby vacated, that the citations be and the same are hereby modified to non-serious citations and affirmed as such and that this proceeding be and [*18] the same is hereby discontinued.