J. R. SIMPLOT COMPANY
OSHRC Docket No. 2094
Occupational Safety and Health Review Commission
March 3, 1975
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: The only issue in this case is that posed by Chairman Moran's direction for review. He requested submissions on the following question:
Whether a swing saw equipped with an adjustable blade guard in conformity with 29 C.F.R. 1910.212(a)(3)(ii) and designed to be adjusted according to the type of material worked on, is rendered in non-compliance with said standard when the adjustable blade guard is improperly used by an employee operating the saw.
On the evidence of record and based on the credibility of the witnesses, Judge Jerry W. Mitchell essentially answered the question in the affirmative. He assessed a penalty of $100 having found that the violation was serious. We affirm.
Among other things, Respondent was cited for a serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ) because contrary to the requirements of 29 C.F.R. 1910.212(a)(3)(ii), it allegedly did not adequately guard the point of operation of a 20 inch metal cutting saw during normal use. The evidence showed that Respondent's saw was provided [*2] with a guard designed to meet the requirements of the standard. The guard could be used in a free floating mode and it could be used in a fixed mode.
After resolving a direct conflict in evidence, Judge Mitchell found that the saw was normally used with the guard fixed in an up position such that the point of operation was not guarded during use. He also concluded that employees were exposed and that serious harm would be the result of an injury. This was sufficient to affirm the citation.
He also concluded that the citation could be affirmed based on the evidence concerning Respondent's use of the guard in a fixed position. Obviously, fixed position guarding is permissible. However, in this case the evidence established that Respondent's use left gaps between the material being sawed and the guard of such dimension that an operator's fingers and hands could come into contact with the blade.
Having reviewed the record we conclude that the judge's conclusions as stated above properly disposed of the matter. Accordingly, his decision including his disposition of other matters not specifically referred to herein is affirmed, and it is so ORDERED.
DISSENTBY: MORAN
DISSENT:
MORAN, [*3] CHAIRMAN, dissenting: I would vacate the citation in this case on the basis that the evidence introduced at the hearing is insufficient to support affirmance of the alleged violation.
The only witness for the complainant at the hearing was the inspector. At his request during inspection of the respondent's potato processing plant, one of respondent's employees demonstrated the use of the swing saw by cutting a piece of scrap metal of an undisclosed size. A hood for guarding the blade was mounted on the upper housing of the saw. The inspector testified that during the demonstration the hood was secured in a position which caused about nine inches of the circular blade to be unguarded. In his opinion, the left hand of the operator was thereby endangered. He was accompanied on the inspection by the respondent's safety officer. Upon being asked whether the safety officer stated that the hood was in its normal position during the demonstration, the inspector replied as follows:
I believe, I asked, was that the way your saw was normally operated, and the answer was yes. (Emphasis added)
The testimony of the safety officer is considerably different. He denied having made [*4] any statement regarding the normal operation of the saw and contended that the hood was in a secured position about one-eighth of an inch above the material that was cut in the demonstration.
The supervisor of the respondent's metal prefabrication shop testified concerning the normal operation of the saw. The saw was used to cut "structural steel, angle iron, flat bar, pipe, and channel iron." The ordinary procedure was to allow the hood to float freely on the upper surface of the material being cut. When the hood is so used, the operator is fully protected from exposure to the blade. The shop supervisor trained all operators as to the proper usage of the saw, and no accidents had resulted from the saw's operation during the five years in which it had been used. If he were to observe improper usage of the saw, he would reprimand the operator.
The standard allegedly violated in this case, 29 C.F.R. § 1910.212(a)(3)(ii), provides in pertinent part that:
The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device . . . shall be so designed and constructed as to prevent the operator from having any part [*5] of his body in the danger zone during the operating cycle. (Emphasis added)
The Judge correctly found that operation of the saw with the hood in the floating position was proper usage thereof in compliance with the standard. However, he also concluded that the demonstration constituted a violation thereof. I disagree.
In view of the conflict in the testimony concerning the amount of blade exposure during the demonstration, the evidence is insufficient to establish a violation by a preponderance of the evidence as required. See Secretary v. Armor Elevator Company, 5 OSAHRC 260 (1973). Furthermore, the inspector's uncertainty concerning the discussion of the normal operation of the saw merits little consideration compared to the safety officer's unequivocal denial thereof. Therefore, even if the inspector's version regarding the amount of blade exposure is accepted, the evidence is insufficient as it merely establishes an isolated instance of improper use of the guard. Secretary v. Standard Glass Company, 1 OSAHRC 594, (1972); Secretary v. Clements Paper Company, 1 OSAHRC 574, (1972).
Although the shop supervisor testified that the hood was ordinarily used in [*6] the floating position, he also indicated that it was necessary to have it in a secured position to cut structural steel and channel iron. When in the secured position, the bottom of the guard is about one-sixteenth of an inch above the material to be cut. He also testified that the floating position was normally used with cutting angle iron. During cross-examination, he expanded on that as follows:
Q -- The angle iron is always set at such an angle that you can lower the hood?
A -- That depends on the operator.
Q -- That depends on the operator. Different operators do it differently?
A -- They could. (Emphasis added)
The safety officer testified that angle iron varied in thickness from about "a half inch probably to as much as four and a half, maybe five" inches.
The Judge reached the following conclusions concerning the operations of the saw with the hood in the secured position:
When used in this manner the guard does not touch the surface of the table nor of the material being cut. There is an unguarded portion of the saw blade exposed to contact. The extent of this unguarded portion of the blade depends entirely upon the thickness of the material being [*7] cut. It may be as much as 4 & one-half to 5 inches. This unguarded portion of the blade is exposed and constitutes an obvious danger to the operator from the time he turns the saw on and starts to move it towards the material to be cut. There is no guard to keep parts of the operator's body out of the danger zone. As the blade enters the material, more and more of the blade is covered by the material and [is] thereby guarded. When the blade reaches the thickest portion of the material, it is fully guarded.
[I]t is concluded that use of the saw with the guard secured just above the surface of the material to be cut is use of the saw in violation of the standard. The space left unguarded in any instance where the material is more than one-half or three-fourths of an inch thick is certainly sufficiently wide to admit the operator's fingers while he is holding and moving the material during the approach of the saw.
The conclusions of the Judge may be correct, but general conclusions are not an adequate substitute for evidence in establishing a violation of the Act. See National Realty and Construction Company, Inc., v. Occupational Safety and Health Review Commission, 489 [*8] F.2d 1257 (D.C. Cir. 1973).
Except for the demonstration, there is no evidence in this record to show a violation by use of the saw with the hood in the secured position. No evidence was introduced as to the dimensions of the structural steel or channel iron that might have been cut on the saw. Thus, the amount of blade exposure when cutting these items is not established by the record. Further, there is no evidence concerning how frequently these items were cut. If they had not been cut within the six months that preceded the date of issuance of the citation, they could not have been encompassed within the citation. 29 U.S.C. § 658(c). Although there was evidence of the thickness of the angle iron, the hood was normally used in the floating position when cutting it. The fact that it could be cut with the hood in the secured position does not prove that it was cut in that manner.
[The Judge's decision referred to herein follows]
MITCHELL, JUDGE: This is a proceeding pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651, et seq. ) (the Act hereinafter) contesting citations issued by the Secretary of Labor (Complainant) [*9] against J.R. Simplot Company (Respondent) under the authority vested in Complainant by Section 9(a) of the Act.
A workplace described as "potato processing" located at "130 Burley, Heyburn, Idaho" was inspected on November 28 and 29, 1972 by a Compliance Safety and Health Officer (CSHO). The workplace was allegedly under Respondent's ownership, operation or control. During the inspection certain alleged violations of safety and health standards were noted. Two separate Citations for Serious Violations and two separate citations covering 18 and 6 items of non-serious violations were issued on January 5, 1973. The safety and health standards allegedly violated were promulgated by the Secretary of Labor pursuant to Section 6 of the Act by publication in the Federal Register and are now codified at 29 CFR 1910.
Respondent initially contested each of the Citations for Serious Violation; Items 4(A) and 17 of Non-Serious Citation One; and Item 3 of Non-Serious Citation #1. After Respondent's withdrawal of Notice of Contest on several of these Items, the only issue at the trial involved Citation For Serious Violation Two. That violation is described in the Citation as follows with [*10] the wording of the standard allegedly violated quoted immediately thereafter:
Citation for Serious Violation Two --
The Trenn Jaeger 20-inch Promacut Swing Saw in Sheet Metal Shop is not adequately guarded. Guard is normally secured up, exposing blade when saw is in operation.
Abate by "February 5, 1973"
Standard -- 29 CFR 1910.212(a)(3)(ii) --
Subpart O -- Machinery and Machine Guarding
1910.212 General requirements for all machines.
(a) Machine guarding --
(3) Point of operation guarding
(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.
Pursuant to the enforcement procedure provided in Section 10(a) of the Act, Respondent was duly advised by a "Notification of Proposed Penalty" dated January 5, 1973 of the proposal to assess a penalty of $600 in connection with Citation for Serious Violation Two as well as various other penalties [*11] in connection with certain of the other violations covered by the Citations. In a timely manner Respondent contested each of the Citations for Serious Violation as well as two Items on Non-Serious Citation One and one Item on Non-Serious Citation 1. The contest extends to the citation, proposed penalty and abatement period. A complaint was filed by Complainant and answered by Respondent.
The case was assigned to this Judge on March 26th with trial scheduled for Friday, April 20th. On motion of Respondent, because the trial was scheduled to convene on Good Friday and estimated to take two days, the trial was continued to May 2nd and 3rd. Subsequently this trial date was continued to May 3rd and 4th on Complainant's motion.
On April 27th Respondent filed a Motion to Withdraw Notice of Contest as to all items of Citation for Serious Violation One and Item 17 of Citation for Non-Serious Violation Number One. A check in the amount of $635 covering the penalties proposed in connection with these two items was enclosed with the motion. The check was promptly forwarded to OSHA. On April 30 Complainant filed a response concurring in Respondent's Motion to Withdraw Contest as described [*12] above.
On May 3rd the trial was continued to June 1st on the oral motion of Complainant because of the hospitalization of Complainant's key witness. On May 25th Complainant filed a Motion to Amend six separate paragraphs of its complaint. The trial was held at Burley, Idaho on June 1st.
PROCEEDINGS AND EVIDENCE
When the hearing convened Complainant and Respondent were each represented by competent legal counsel. Counsel for Respondent stated that all notices have been posted at the plant and that Grain Millers Union Local 296, representative of Respondent's employees, has been sent copies of all notices and motions. There was no appearance by or on behalf of the affected employees. Neither Complainant nor Respondent were aware of the intent of any affected employees to appear.
As the result of a discussion between counsel for the parties a number of agreements were reached and several matters reducing the issues at the trial were disposed of during pre-trial conference. Respondent's previously filed Motion to Withdraw Notice of Contest as to Citation for Serious Violation One and Item 17 of Non-serious Violation One was granted. The affidavit in support of the [*13] motion asserts that the violative conditions have been abated; that Respondent will continue to comply with the provisions of the Act; and that all posting and service requirements have been met. The file shows that Respondent's check in the sum of $635, the full amount of the proposed penalties, accompanied the motion. Prior to the pre-trial conference Complainant filed a concurrence in the motion and orally renewed such concurrence during this conference.
During the pre-trial conference it was shown that Respondent's Notice of Contest included an item from another Citation, Non-Serious Citation 1, which was not in the case file. A copy of that Citation was furnished by Complainant and placed in the case file. The following action was also accomplished as a result of the pre-trial conference:
1. Paragraph V(A) of the Complaint (Item 3 of Non-Serious Citation One) was deleted by Complainant with Respondent's concurrence. This item was not contested by Respondent. Respondent had previously paid the full proposed penalty.
2. Complainant's motion to amend the complaint, filed prior to the trial, was granted with the concurrence of Respondent.
3. Paragraph V(B) [*14] of the Complaint (Item 4(a) of Non-Serious Citation One) was withdrawn by Complainant because a determination had been made that the Item should not have been issued. Respondent concurred. Respondent had not contested Item 4(B) and Complainant withdrew the penalty proposed in connection with Items 4(A) and 4(B) jointly.
4. Respondent's motion to withdraw the Notice of Contest to Item 3 of Non-Serious Citation 1 was granted. Respondent's counsel represented that the violative condition had been abated; that compliance with the standard would continue; and that all posting and notice requirements have been complied with. No penalty was proposed in connection with this item. Complainant concurred in this withdrawal.
As a result of these actions taken during the pre-trial conference the issues to be determined at the trial were reduced to a single alleged serious violation, Citation for Serious Violation Two.
The only witness called by Complainant was the Compliance Safety and Health Officer (CSHO). His testimony is that he was accompanied on the inspection by another CSHO. The plant inspected is a large potato processing plant occupying some 30 acres of space and employing [*15] approximately 1,000 employees. The CSHO conducted an opening conference with Respondent's plant manager. At that time the witness explained that the CSHO's were at the plant for the purpose of conducting an inspection in response to a complaint. During the inspection Respondent's Safety Director and an employee representative accompanied the CSHO. A closing conference was conducted with the plant manager following the inspection.
The saw, which is the subject of the Citation herein, is a metal cutting saw with a blade 20 inches in diameter. It is located in a large room adjacent to the machine shop. During the inspection the saw was operated for the CSHO by one of Respondent's employees at the request of Respondent's safety Director. This employee placed some material on the table, turned the saw on, cut the material, turned the saw off and left. During the cutting operation the operator's right hand was placed on the upper part of the saw frame and his left hand held the material being cut. His left hand was approximately 9 inches from the blade without any guard intervening between his hand and the blade. At the time the employee operated the saw the adjustable [*16] guard over the upper portion of the blade was secured "up a ways" with nothing between the operator's hand and the blade. When the lack of proper guarding was pointed out by the CSHO, Respondent's Safety Director stated that the "shield" was the only guard the came with the saw. He also told the CSHO in response to a question that the saw was normally operated with the shield in the same position as during the demonstration. The upper guard covered 190 to 200 degrees of the blade. There was no guard on the lower portion of the blade.
When the saw is at rest and not in use the blade is at the back edge of the table (side opposite from where the operator stands) with the extreme lower portion of the blade resting in a slot in the table top. The blade turns forward and down when rotating. It is moved to the material to be cut by pressure on a foot pedal which raises the saw and blade through an arc descending to the material at the front edge of the table. The blade descends into the material to be cut with blade going down into a slot in the table top. It is operated from a position directly in front of the blade.
Respondent called the supervisor of its metal prefabrication [*17] shop as a witness. He has been employed as Lead Supervisor for the past year and as Assistant Supervisor for the previous five years. The saw in question has been in the metal prefabrication shop for approximately five years. The witness was not present when the employee operated the saw for the CSHO.
He describes three separate "safety guards" which are attached to the saw. One located at the back of the saw adjusts the depth to which the saw blade enters the slot in the table. Another is an adjustable stop which regulates how for forward the saw head and blade may travel in its operating arc. The third safety guard is an adjustable shield or hood with a viewing window in the top. The hood sits over the saw blade from the top and can be adjusted downward so as to float freely on the upper surface of the material being cut or secured in position so that it just clears the material. When the hood is allowed to float there is no space between the lower edge of the hood and the material. When the hood is secured there is an open space of about 1/16 inch. Ordinary procedure is to allow the hood to float freely on the upper surface of the material being cut. Where [*18] this is not possible, as in the case of structural steel, channels and some angle iron, the hood is adjusted to a position where it just clears the surface.
This witness trains Respondent's employees in the use of the saw. His basic instruction is to guard the blade. He also instructs them as to when to use the hood in free floating position. He explained the three adjustments he would make before cutting each different size or shape of material. These adjustments require 1 & 1/2 minutes to accomplish. He was not present at the time the saw was operated for the CSHO by one of Respondent's employees at the request of Respondent's Safety Director. Respondent's final witness was the company Safety Director. He accompanied the CSHO during the inspection and was the person who requested one of Respondent's employees to make a cut with the saw. The employee adjusted the hood to about 1/8 inch above the material, made the cut and left. The witness did not instruct the employee to adjust the saw. He denies telling the CSHO that the saw was normally operated with the hood secured in the up position.
Following receipt of the transcript each party submitted Briefs and Reply Briefs. [*19] In addition, Respondent submitted proposed Findings and Conclusions.
DISCUSSION
Concessions made by each party during the pre-trial conference eliminated all issues herein except those in connection with Citation for Serious Violation Two. That alleged violation is described in the following language:
The Trenn Jaeger 20-inch Promacut Swing Saw in Sheet Metal Shop is not adequately guarded. Guard is normally secured by exposing blade when saw is in operation.
During the trial, and again in its brief, Respondent argues that the only issue raised by this Citation is as to whether the saw in question was fitted with an "adequate guard." Respondent cites Complainant's omission of the word "normally" in repeating the Citation in the complaint as a significant amendment of the Citation and on this basis argues that the condition (whether an adequate guard is installed) of the saw is the sole issue. Respondent thus attempts to substantially narrow the Citation and eliminate reference to the manner in which the saw was and is used. In furtherance of this position Respondent objected during the trial to any testimony concerning the manner in which the saw was used.
Respondent's [*20] position is untenable. The clear wording of the Citation, with or without the adverb "normally," certainly places the condition of the saw while in operation at issue. If there ever was any legitimate doubt, the second sentence of the Citation eliminates it. It says, ". . . . when saw is in operation." The standard cited says, ". . . during the operating cycle." Neither of these phrases give rise to any doubt. Respondent was clearly apprised of Complainant's contention that the saw was used while the guard was secured in an up position. At this point it should be noted that the saw does not pose a significant danger until and unless the blade is spinning.
As installed the guard was apparently adequate to meet the requirements of the cited standard -- but only if the guard was properly used. Testimony of the superintendent of Respondent's Sheet Metal Shop concerning adjustment of the guard clearly establishes that the guard was capable of being released so that it "floated" on the table top. In this manner it would also "float" on the upper surface of any material being out and thereby interpose a barrier which would keep all parts of the operator's body from entering [*21] the danger zone. This would be a proper use of the guard and would comply with the standard.
This same superintendent also testified that on occasion the guard is lowered and secured in a position 1/16th to 1/8th of an inch above the uppermost surface of the material to be cut. When used in this manner the guard does not touch the surface of the table nor of the material being cut. There is an unguarded portion of the saw blade exposed to contact. The extent of this unguarded portion of the blade depends entirely upon the thickness of the material being cut. It may be as much as 4 & 1/2 to 5 inches. This unguarded portion of the blade is exposed and constitutes an obvious danger to the operator from the time he turns the saw On and starts to move it towards the material to be cut. There is no guard to keep parts of the operator's body out of the danger zone. As the blade enters the material, more and more of the blade is covered by the material and thereby guarded. When the blade reaches the thickest portion of the material, it is fully guarded.
The testimony of the CSHO does not contradict the testimony of Respondent's superintendent with regard to the two possible [*22] methods of using the guard described above. However, he does describe the guard secured in an up position (". . . . up a ways. . . .") at the time he observed it while being operated by one of Respondent's employees. In this position the guard covered the upper 190 to 200 degrees of the blade and left the lower portion exposed except where the lower edge extended into a groove in the table top. He also describes the manner in which the saw was used in his presence. One of Respondent's employees operated the saw at the request of Respondent's Safety Director, who was accompanying the CSHO on the walkaround. This employee approached the saw, placed a piece of scrap material on the table, turned the saw on, cut the material, turned the saw off and left. No adjustment of the guard. During the cutting operation, the employee's left hand was holding the material to be cut. That hand was located on the material about 9 inches from the saw blade with no barrier or guard intervening between it and the rapidly spinning saw blade. Certainly this operation was in obvious violation of the cited standard. During the demonstration the saw was not adequately guarded even though an adequate [*23] guard was installed and available for use.
The employee demonstrating the use of the saw only made a single cut but the testimony is that on occasion several cuts are made on the same material. When this occurs the operator feeds the material across the cutting area with his hands without turning the saw off. Such an operation is hazardous, to say the least, unless the blade is fully guarded by the guard in a "floating" position rather than having the guard secured in an "up" position.
Following operation of the saw by Respondent's employee for the benefit of the CSHO, Respondent's Safety Director was queried as to whether the operation observed was the way the saw was normally operated. The CSHO testifies that the response of Respondent's Safety Director was in the affirmative. The Safety Director admits having the saw operated but denies any discussion with the CSHO concerning the normal manner in which the saw is used. The Safety Director also insists that the employee demonstrating the saw adjusted the guard to a secured position about 1/8th of an inch above the surface of the material to be cut. The testimony of these two witnesses is thus in direct conflict. [*24] In resolving this conflict all of the circumstances surrounding the matter must be taken into consideration. There is no obvious reason to discard the testimony of either man since this is the only instance of conflict. After considering the manner and attitude of each witness and weighing their involvement herein it is concluded that the testimony of the CSHO is persuasive.
I therefore conclude that Respondent's employee demonstrated the saw in operation with the guard secured in an up position rather than covering the blade. I also conclude that Respondent's Safety Director stated to the CSHO that the manner in which the saw was demonstrated was the normal way in which the saw was used.
The cited standard reads as follows:
The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle. (Emphasis added)
The standard is explicit -- all parts of the operator's body [*25] must be prevented by the guard from entering the danger zone located at the point of operation. The guard installed on Respondent's saw was adequate if used in its "floating" position. However, that adequacy was negated by the normal manner in which the saw was used. With the guard secured up, there was no guard at the point of operation. The saw, as normally used, was in the same condition as a saw without a guard installed. In this same vein, it is concluded that use of the saw with the guard secured just above the surface of the material to be cut is use of the saw in violation of the standard. The space left unguarded in any instance where the material is more than 1/2 or 3/4's of an inch thick is certainly sufficiently wide to admit the operator's fingers while he is holding and moving the material during the approach of the saw.
THE VIOLATION IS A SERIOUS VIOLATION
In order for a violation to be serious it must meet the criteria set forth in Section 17(k) of the Act. In this instance there is obviously a substantial probability that serious physical harm would result from any contact with the unguarded spinning saw blade. The lightest and briefest touch of [*26] the teeth of the saw would surely shread the flesh and bones of any part of the operator's body making contact. There is just no way any injury less than serious could result. This criterion is satisfied in full.
Respondent argues that even if the violation is found it is not serious because Respondent did not and could not have known of the presence of the violation. This argument fails. Throughout the inspection Respondent was represented by its Safety Director. A company safety director, especially in such a large company as is Respondent's (1000 employees at the inspected plant), can and is presumed to be a distinct part of the management team. The Safety Director's knowledge of and responsibility for safety conditions in the plant is the same as Respondent's knowledge. Knowledge of safety conditions in the plant by Respondent's Safety Director is attributable to Respondent also.
In this instance, the statement of Respondent's Safety Director to the CSHO established the normal manner in which the saw was used -- with the guard secured up. That normal manner of operation is in violation of the cited standard since normally the point of operation is not guarded. This [*27] knowledge of Respondent's Safety Director of the normal manner in which the saw is used and thus of the violation is Respondent's knowledge. The fact that Respondent's employees are initially properly trained in use of the saw is commendable but does not relieve Respondent of the responsibility of follow-up supervision to assure continued use in a proper manner. This necessary follow-up was not done here and Respondent knew this through its Safety Director. The criteria established by Section 17(k) of the Act is fully satisfied on this record. The absence of an adequate guard while the saw was in use as normally used is a serious violation within the meaning of Section 17(k).
THE ABATEMENT DATE
While there is no apparent contest over the abatement date it is noted that the February 5, 1973 date proposed by Complainant is reasonable. An adequate guard was already in place. The undisputed testimony of Respondent's superintendent is that basic training in proper use of the saw and guard is given to each employee. The only requirement to accomplish abatement is to alter the training slightly so the employees will understand the correct use of the guard. If this training [*28] is coupled with a program of supervision to assure continued proper use as opposed to the normal manner testified to, then abatement is complete. The period allowed was more than an adequate period of time in which to instigate the change. The abatement date is reasonable.
APPROPRIATENESS OF THE PENALTY
The factors set forth in Section 17(j) of the Act must be given due consideration in determining an appropriate penalty. In this instance a large company (1000 employees at the inspected plant alone) is involved. Respondent does not have any prior history of violations nor of injuries resulting from the use of the saw in question. Respondent's good faith is obvious. A proper guard was in place. Respondent follows a training program in proper use of the saw. Safety consciousness on Respondent's part is apparent. The only real deficiency is the lack of follow up supervision. Violations identified were promptly abated. The gravity of this violation, even though the violation is clearly serious in nature, is of a low order. The only employees exposed to the danger are those who actually operate the saw.
Giving appropriate weight to each of the Section 17(j) criteria [*29] in the light of the foregoing comments it is concluded that a penalty of $100 is appropriate in these circumstances and will serve to effectuate the purpose of the Act.
Consequently, based upon the evidence adduced and after consideration of the briefs and other submissions by each party, I make the following:
FINDINGS OF FACT
1. Respondent, J.R. Simplot Company, is a corporation maintaining a place of business at Boise, Idaho and a worksite at 130 Burley, Heyburn, Idaho. At all times material hereto Respondent was engaged at the worksite and place of employment at Heyburn, Idaho in the production of potato products which are shipped directly or indirectly to points outside the state of Idaho. Respondent also utilizes the mails, telephone and other facilities of interstate commerce. Respondent is an employer engaged in a business affecting interstate commerce within the meaning of Section 3 of the Act. (Complaint, Articles I & II, Admitted in Article I of Answer.)
2. On November 28 and 29, 1972 Respondent was engaged in the production of potato products at the above described worksite with approximately 1000 employees working at the site. As the result of an inspection [*30] of the worksite on November 28th and 29th, Respondent was issued two Citations for Serious Violations and two Citations for non-serious violations, all dated January 5, 1973. Violation of a single specific safety standard is alleged in each of the Citations for Serious Violations. Violations of 18 and 6 specific safety and health standards are alleged in the two Citations for non-serious violations. On the same date Notifications of Proposed Penalties were also sent to Respondent proposing assessment of penalties totaling $1545 in connection with certain of the alleged violations. The only violations in issue here is set forth at pages 2 - 3. (File.)
3. The inspection of Respondent's worksite was conducted by a CSHO responding to a complaint. He was accompanied during the walkaround by an employee representative and also by Respondent's Safety Director. (Record pages 20 - 21.)
4. On January 26th, Respondent contested the two Citations for Serious Violation, Items 4(A) and 17 of Non-Serious Citation One and Item 3 of Non-Serious Citation 1. The contest extends to the citation, the proposed penalty and the abatement periods. (Filed -- Notice of Contest.)
5. On [*31] April 27th Respondent filed a Motion to Withdraw Notice of Contest to Citation for Serious Violation One (all items) and Item 17 of Citation for Non-Serious Violation One. Enclosed with the motion was an affidavit of Respondent's Safety Director attesting that the violations covered by the motion had been fully abated, that all service and posting requirements had been complied with and that Respondent intends to continue complying with the Act. A check in the amount of $635, covering the full amount of penalties proposed in connection with these items was enclosed with the motion. Complainant filed a concurring response on April 30th. (File.) Respondent's Motion to Withdraw Contest to Citation for Serious Violation One and Item 17 was granted on June 1st as a preliminary to the trial. (Record pages 4 - 5.)
6. Following amendment of the Complaint, withdrawal of Item 4(A) of Non-Serious Citation One and withdrawal of the penalty proposed in connection with entire Item 4 by Complainant, Respondent moved to withdraw contest of Item 4(A). The motion was granted. Respondent also moved to withdraw its contest of Item 3 of non-serious Citation 1. This motion was also granted. [*32] (Record pages 6 - 13.)
7. On November 28th and 29th Respondent's steel cutting 20-inch Promacut Swing Saw in the Sheet Metal Shop was fitted with an adequate guard as required by 29 CFR 1910.212(a)(3)(ii) but the guard was not properly positioned while the saw was in use. The guard was normally secured in an "up" position while the saw was in use. When secured in the "up" position the guard does not adequately guard the point of operation as required by the cited standard. (Record pages 22-23, 30-36, 39, 51-52, 56, 63, 68-70, 72-74.)
8. There is a substantial probability that serious physical harm could result from the violation found in Finding 7. (Record page 43.)
9. Respondent knew of the violation through its Safety Director who was fully aware of the normal manner of using the saw with the guard secured in an "up" position. (Record pages 39 & 56.)
10. Respondent's Superintendent of its Sheet Metal Shop trains all employees in proper use of the saw. (Record page 63.)
CONCLUSIONS OF LAW
1. At all times material hereto, Respondent was an employer engaged in a business affecting interstate commerce within the meaning of Section 3 of the Occupational Safety [*33] and Health Act of 1970. On January 26, 1973 Respondent contested certain Citations herein and thereby brought itself and the subject matter of this proceeding within the jurisdiction of the Occupational Safety and Health Review Commission.
2. The violation of 29 CFR 1910.212(a)(3)(ii) as found in Finding 7 is a serious violation within the meaning of Section 17(k) of the Act.
3. Abatement of the violation by February 5, 1973 was a reasonable abatement time.
4. Under the instant circumstances a penalty of $100 is appropriate.
ORDER
Based upon the foregoing Findings and Conclusions and for good cause shown, it is hereby
ORDERED that:
1. Respondent's motion to withdraw its contest of Citation for Serious Violation One, Items 4(A) and 17 of Non-Serious Citation One and Item 3 of Non-Serious Citation 1 be, and the same are hereby, GRANTED;
2. Citation for Serious Violation Two be, and the same is hereby AFFIRMED; and that
3. A penalty of $100 be, and the same is hereby assessed against Respondent in connection with the violation of Citation for Serious Violation Two.