TERRY BROTHERS

OSHRC Docket No. 3167

Occupational Safety and Health Review Commission

July 10, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge Paul L. Brady, dated January 21, 1974, is before the Commission for review pursuant to 29 U.S.C. 661(i).

Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, we affirm the Judge's disposition of this case.

[The Judge's decision referred to herein follows]

BRADY, JUDGE: This proceeding is brought pursuant to Section 10 of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (hereinafter referred to as the Act) to contest a citation issued by the Secretary of Labor (hereinafter referred to as the Secretary) pursuant to Section 9(a) of the Act. The citation which was issued April 5, 1973, alleges that as a result of an inspection of Respondent's workplace located at U.S. Highway 127 N.E. Dunnville, Kentucky, Respondent violated Section 5(a)(2) of the Act by failing to comply with specific occupational safety and health standards promulgated by the Secretary pursuant to Section 6 thereof. A notice of proposed penalty was issued with the citation.

On May 24, 1973, a notice of failure to correct [*2] a violation and proposed additional penalty was issued. Such notice was issued pursuant to a reinspection conducted May 15, 1973. The Respondent duly contested the notice of failure to correct the violation and proposed additional penalty, by notice filed May 30, 1973.

The hearing was held on September 13, 1973, and no additional parties sought to intervene. The Respondent was represented by Homer Terry, who is not an Attorney.

The issue for determination is whether Respondent failed to correct the violation codified at 29 CFR 1910.213(h)(1), on or before May 4, 1973. The standard at 29 CFR 1910.213(h)(i) regarding radial saws, states in pertinent part:

The sides of the lower exposed portion of the blade shall be guarded to the full diameter of the blade by a device that will automatically adjust itself to the thickness of the stock and remain in contact with stock being cut to give maximum protection possible for the operation being performed.

If such violation had not been abated, a determination must be made as to the amount of additional penalty, if any, that should be assessed.

The inspections herein were conducted by Mr. James V. Dever, of the Kentucky Department [*3] of Labor. He testified that during the May 15 inspection he observed that one radial saw had the blade removed, and the other had been equipped with a fence running perpendicular to the saw, also a wood guard was installed which ran parallel to the saw blade. Notwithstanding the additional protection he indicated that the installations did not satisfy the standard herein as the lower portion of the saw blade remained unguarded. He stated the standard requires that the blade should adjust itself to the thickness of the stock being cut and that upon completion of the cut the guard should go down in order to guard the blade.

It was pointed out by Mr. Frederick G. Dempsey, Compliance Officer, that the lower blade guard was of the "classic type." This offers protection to the lower side of the blade while it is at rest, however, upon completion of a cut there is maximum exposure of the teeth and thus it does not meet the requirement of the standard for radial saws.

It is contended by the Respondent that the violation herein was completely corrected prior to May 4, 1973, and that the sides of the lower exposed portion of the blade of the radial saw, and the full diameter of the blade [*4] was fully protected.

Mr. Homer Terry explained the operation of the saw and concluded that the blade was safely guarded as a result of the installed devices. He pointed out that other persons in similar businesses believed the machines were guarded as safely as possible. (Ex. 5, 6, 7) Also, his inquiries led him to believe that guards were not manufactured, or available which could fully protect the saw blades as indicated. He stated that in twenty-nine years of operating the business only one injury has occurred as the result of an occupational accident.

Upon being informed that such guards existed he immediately began a search to locate them. He subsequently purchased one guard, but a guard for the other saw will have to be specifically made as the larger size is not available on the market.

The evidence is clear that Respondent has failed to meet the strict requirement of the regulation in spite of its demonstrated effort to fully comply with occupational safety and health regulations.

In reference to an appropriate penalty, the Commission in section 10(c) of the Act, is charged with affirming, modifying, or vacating citations issued by the Secretary, and penalties [*5] proposed under sections 10(a) and 10(b). Under section 17(j), of the Act, the Commission is required to give "due consideration" to the size of the employer's business, the gravity of the violations, the good faith of the employer and history of previous violations in determining the assessment of an appropriate penalty. See Secretary of Labor v. Nacirema Operating Company, Inc., The Commission stated that the four criteria to be considered in assessing a penalty cannot always be given equal weight. It indicated that the principal factor to be considered in assessing an appropriate penalty for a violation is the gravity of the offense. In Secretary of Labor v. National Realty and Construction Company, Inc.

In determining the penalty proposed herein it must be concluded that Complainant failed to properly [*6] consider the factors specified in Section 17(j) of the Act.

The evidence of record indicates that Respondent acted in good faith in attempting to abate the conditions set forth in the original citation. The citation contained fourteen violations, including the one the subject of this proceeding. Upon re-inspection it was found that only the guards on the radial saws did not meet the standard set forth in the regulations. Complainant's own evidence reveals the efforts made by Respondent to guard the saws subsequent to the first inspection, and that only two employees were observed as being exposed to the risk of injury. This must be considered in light of the testimony that one occupational injury had occurred at Respondent's business in twenty-nine years of operation.

Although the evidence indicates that Respondent has failed to correct the violation alleged in a manner consistent with the regulation, the penalty in the amount of $785.00 is deemed excessive in view of the facts in this case. In considering all of the evidence it must be noted that Respondent did abate all other violations contained in the citation, and that diligent efforts were made in an attempt [*7] to comply with the requirements herein, and it was believed that the blades were as fully guarded as possible.

Notwithstanding the foregoing, at the time of the initial inspection the Respondent was provided with a copy of the standards and therefore it was incumbent that such standards should have been met within the time allowed. The regulation is mandatory in that it requires the full diameter of the blade to be guarded. Further, there was no evidence that Respondent sought an extension of the abatement period, nor was it indicated that there was any request for clarification of the standard in question, in order to ascertain more fully its obligation.

In view of the foregoing it is deemed that the purposes of the Act would be more fully effectuated by the assessment of an additonal penalty in the amount $250.00.

FINDINGS OF FACT

1. Terry Brothers, is a partnership having a place of business at U.S. Highway 127 N.E. Dunnville, Kentucky, where it is engaged in the business of manufacturing wooden farm gates and pallets.

2. On January 24, 1973, an authorized representative of the Secretary conducted an inspection of the above worksite at Dunnville, Kentucky. As a result [*8] of the inspection, on April 5, 1973, a citation was issued listing fourteen violations, with notice of proposed penalties.

3. On May 15, 1973, a second inspection was conducted of Respondent's worksite wherein it was disclosed that Respondent had not fully corrected the violation of the standard at 29 CFR 1910.213(h)(1). As a result of such inspection on May 24, 1973, notification of failing to correct violation and of proposed additional penalty was issued.

4. Subsequent to the initial inspection Respondent corrected all other violations listed in the citation and attempted to correct the violation at 29 CFR 1910.213(h)(1).

5. The guarding devices provided by Respondent on or before May 4, 1973, for its radial saws did not meet the requirements as set forth in the standard.

CONCLUSIONS OF LAW

1. Terry Brothers, at all times pertinent hereto, was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and subject matter herein pursuant to 10(c) of the Act.

2. Respondent is and at all times pertinent hereto required to comply with [*9] safety and health regulations promulgated by the Secretary pursuant to Section 6(a) of the Act.

3. Respondent failed to correct the violation of the standard at 29 CFR 1910.213(h)(1) within the period prescribed for abatement. An additional penalty in the amount of $250.00 is deemed reasonable and appropriate for its failure to abate said violation.

Upon the basis of the foregoing findings of fact and conclusions of law and the entire record, it is ORDERED

Respondent is assessed an additional penalty in the amount of $250.00 for failure to abate the violation of the standard at 29 CFR 1910.213(h)(1).