HOFFMAN CONSTRUCTION COMPANY

OSHRC Docket No. 3290

Occupational Safety and Health Review Commission

April 9, 1975

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Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

  CLEARY, COMMISSIONER: On January 8, 1974, Judge James A. Cronin issued his decision in this case.   On January 30, 1974, Chairman Moran, pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. §   651 et seq., hereinafter "the Act"), directed the case for review.

The issues on review are:

1.   Whether the 26-day delay between the inspection and the issuance of the citation is in compliance with the reasonable promptness requirement of section 9(a) of the Act and the decision of the Commission in Secretary v. Chicago Bridge & Iron Company,

2.   Whether the employer's defense that the guarding of the blade as provided for in 29 C.F.R. 1910.213(h)(1) was more hazardous than his existing method of operation requires that the citation should be vacated in accordance with the decision of the Commission in Secretary v. Industrial Steel Erectors, Inc.,

3.   Whether the citation should be vacated because the inspection was not conducted in accordance with the requirements of 29 U.S.C.   [*2]   §   657(a) and (e).

We have reviewed the entire record in this case, including the briefs of the parties, and find no prejudicial error.

We note that this case was decided by the Judge before the Commission decision in Chicago Bridge & Iron Co., No. 744 (January 23, 1974); Petition for review docketed, No. 74-1214, 7th Cir., March 18, 1974.   In that case, the Commission held that the issue of reasonable promptness must be raised during the "issue formulation stage" of the proceedings.   The issue is not a jurisdictional one that may be raised at any time after the hearing.   See, e.g., F. H. Von Damm, No. 665 (May 23, 1974).   In this case the issue was raised for the first time in respondent's post-hearing brief.   The Judge, in correctly rejecting respondent's argument, not only examined the legislative history of section 9(a) of   the Act, but based his decision on a finding that respondent was not prejudiced by any delay in the issuance of the citation.   See E.C. Ernst, Inc., No. 1780 (January 3, 1975); Todd Shipyards Corp., No. 1556 (January 31, 1975).   The judge properly disposed of all of the issues raised by this case.

Accordingly, it is ORDERED that [*3]   the Judge's decision is affirmed.  

CONCURBY: VAN NAMEE

CONCUR:

  VAN NAMEE, COMMISSIONER, concurring: I concur except to the extent of my colleague's discussion of the reasonable promptness question.   The judge correctly disposed of the issue because it was not timely raised.   As for his discussion and my colleague's discussion it is enough to note that the Judge's decision was made prior to ours in Chicago Bridge & Iron Co., 6 OSAHRC 244. BNA 1 OSHC 1485, CCH E.S.H.G. para. 17,187 (1974) pet. for review docketed, No. 74-1214 (7th Cir., March 18, 1974).  

DISSENTBY: MORAN

DISSENT:

  MORAN, CHAIRMAN, dissenting: Although the preceding opinions assert the contrary, it is clear to me that the reasonable promptness issue was raised by the pleadings in this case.

Paragraph III of the Secretary's complaint alleged the following:

As a result of inspections by an authorized representative of the Secretary of Labor, respondent was issued a Citation for Serious Violations and Citation No. 1 on May 22, 1973, pursuant to Section 9(a) of the Act. (Emphasis added.)

Paragraph 3 of respondent's answer to this complaint replied with the following:

"Admits that it was issued a citation dated May 22, 1973;" Respondent [*4]   concluded its answer with a general denial of "each and every other allegation" not "expressly admitted, stated or qualified. . . ." It is therefore evident that the respondent did not admit the complainant's allegation that the May 22nd citation was issued ". . . pursuant to Section 9(a) of the Act." Since §   9(a) (29 U.S.C. §   658(a)) states the requirements to be met by the Secretary in order to issue a valid citation, i.e., one which is stated with particularity and issued with reasonable promptness, a denial that the citation was "pursuant to §   9(a)" is a denial that the citation as issued was valid either because it lacked particularity,   was untimely issued, or both.   There is little doubt that the complaint and answer are part of the "issue formulation stage," the point during which the decision in Chicago Bridge & Iron Co., 6 OSAHRC 244 (1974) states that the issue of reasonable promptness is to be raised. n1

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n1 By pointing this out, I do not retreat from the view that the failure to issue a statutorily valid citation presents a jurisdictional question which may be raised as a defense at any time.

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The respondent having timely raised the issue in accordance with Chicago Bridge, the burden of proof was upon the Secretary to prove the allegations of his complaint.   This the Secretary failed or omitted to do.   Since, as Commissioner Cleary noted, the Judge's decision below issued only 15 days before the decision in Chicago Bridge & Iron Co., supra, it would be a more just disposition to remand this case for further hearings on the reasonable promptness issue.

Furthermore, as Chicago Bridge & Iron Co., supra, does not require a showing of prejudice to the respondent because a citation was untimely issued, the Judge's decision rejecting respondent's reasonable promptness argument because no prejudice was shown should not be allowed to stand.   Since neither Commissioner Van Namee nor myself agree with Commissioner Cleary's acceptance of the Judge's requirements of a showing of prejudice when reasonable promptness is raised as an issue in the pleadings, that requirement is not adopted by the decision.

[The Judge's decision referred to herein follows]

CRONIN, JUDGE: This is a proceeding   [*6]   under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereafter called the Act) contesting two Citations, and Notification of Proposed Penalty, issued by the Complainant against the Respondent on May 22, 1973.   These citations were the result of one inspection of Respondent workplaces at the Trojan Nuclear Plant at Rainier, Oregon on April 24, 1973, April 26, 1973 and May 8, 1973.

Shortly before the hearing, Respondent filed a motion to withdraw its Notice of Contest with respect to Citation Number one,   which had alleged seven non-serious violations, and the proposed penalties based thereon.   This motion was granted by the presiding judge at the outset of the hearing held at Portland, Oregon October 2, 1973.

The remaining Citation for Serious Violation alleges a violation of 29 CFR 1910.213(h)(1) and the penalty proposed for the disputed violation is $700.00.

The alleged violation of §   1910.213(h)(1) was described in the citation as follows:

A DeWalt radial arm saw in the Saw Shack, west of the construction site, did not have a guard covering the lower half of the saw blade.

The standard as promulgated by the Secretary provides,   [*7]   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.

Subsequent to the hearing, opening and reply briefs were filed by both parties.

JURISDICTION AND ISSUES

The Respondent is a corporation with principal offices at 900 S. W Fifth Avenue, Portland, Oregon and during April and May, 1973 was engaged in construction work of the Trojan Nuclear Power Plant at Rainier, Oregon.   By its answer Respondent admits that such a work affected commerce and therefore jurisdiction over the Respondent is conferred on the Commission.

Respondent's post-hearing briefs make a number of contentions.   In summary, Respondent contends that the inspection of April 26 and May 8, 1973 forming the basis for the Citation for Serious Violation and complaint were not conducted in accordance with the requirements of Section 8(a) and 8(e) of the Act and therefore, the resulting citation is invalid and unenforceable.   The further contention is made [*8]   that because the citation was not issued with "reasonable promptness" as required by Section   9(a) of the Act, dismissal is required.   The Respondent also denies the existence and seriousness of the alleged violation and states that, in any event, the penalty was not appropriate under Section 17(j) of the Act.   Finally, Respondent contends that the installation of a guard created additional hazards, thereby relieving Respondent of the obligation to install a lower blade guard and of any penalty for failure to install a guard.

The issues to be resolved and determined are:

1.   Whether the Secretary complied with Sections 8(a) and 8(e), and 9(a) of the Act?   If non-compliance with any of these sections is established, is vacation of the citation required?

2.   Whether the record evidence establishes that Respondent violated the cited standard as alleged?

3.   If the violation was committed, what penalty is appropriate?

SUMMARY OF EVIDENCE

The Respondent corporation, employing approximately 1100 employees, is engaged in the construction of office buildings, parking garages, hospitals, and industrial facilities.   Respondent presently has under contract projects totaling many [*9]   millions of dollars.   Respondent is one of about 50 employers engaged in construction of the Trojan Nuclear Power Project, and at the time of inspection by the U.S. Department of Labor had approximately 75 employees working at the site.

On April 24, 1973, safety compliance officers, Richard C. Jackson and David M. Hancock of the Occupational Safety and Health Administration, conducted a group pre-inspection opening conference for 33 subcontractors working at the Trojan plant site. This meeting was held at the main office of Bechtel Corporation, the prime contractor and manager of the project, and was attended by a Respondent representative.   Employers were informed that the inspection would be conducted in a manner similar to previous inspections (7759). n1 The first employer inspected was the Respondent, on the afternoon of April 24,   1973.   Prior to the actual inspection a separate opening conference was held by compliance officers Hancock and Jackson with Les Bickmore, Respondent's Office Manager and Safety Director for the Trojan Nuclear Project at Respondent's field office.   The inspection was completed in two to three hours and the compliance officers were accompanied [*10]   by Manager Bickmore.   At a closing conference held the same day, Manager Bickmore was informed that the "formal" inspection was concluded but that if other Respondent violations were subsequently observed at the site he would be advised. n2

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n1 Respondent had been inspected by Officer Jackson at the Trojan site in February 1972.

n2 Initially, Officer Hancock testified the "closing" conferences with Respondent occurred on April 26th and May 11th but on recross-examination he stated he also conducted a closing conference on April 24th.

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Sometime during April 26, 1973, without notice to the Respondent and while unaccompanied by a Respondent representative, Officer Hancock inspected Respondent's saw shed located immediately adjacent to its field office and observed Respondent's DeWalt Radial Arm Saw without a lower blade guard (Secretary's Exhibits 1, 2).   The so-called "formal" inspection on April 24th had not included the saw shed. A photograph of this saw (Secretary's Exhibit 1) was taken by Officer Hancock on April [*11]   26, 1973 and another photograph of the same saw (Secretary's Exhibit 2) on May 8, 1973.

Officer Hancock notified Manager Bickmore on April 26, 1973 at Respondent's office concerning his observation of the unguarded saw.   After being advised of the need for a lower saw guard, Manager Bickmore ascertained that such a guard was available and ordered one from the manufacturer.   This guard was received and installed by Respondent's sawyer on May 14, 1973.

The radial arm saw in question had been located in Respondent's saw shed without a guard since March of 1971.   According to Respondent's sawyer, Charles Cole, his duties required him to operate this saw "about half to two-thirds of the time" and he operated it unguarded during April 1973 and previously, for "probably two years, a little longer." This saw is used for ripping and cross-cutting operations, primarily for cutting stakes,   blocks, wedges and panels.   During normal ripping and cross-cutting operations without a lower guard the operator's hands never came closer than 12-16 inches from the blade except when cutting wedges when his thumb came within three-fourths of an inch.   With a lower guard the operator would not [*12]   "be able to get it (thumb) into the saw blade at all."

Sawyer Cole, the prime operator of the saw, testified concerning his experience while operating the saw in May 1973 after installation of the lower guard. According to Sawyer Cole, and Manager Bickmore who observed the guarded saw in operation, the installed guard causes material to bind or jam between the rotating blade and the guard's side; causes the saw to "kick" towards the operator; when the guard fails to ride over the material being cut, the material is forced away from the fence, requiring the operator to exert more force to draw the saw through the material being cut, resulting in "jerks"; obstructs the operator's vision, requiring him to assume awkward positions in order to align the blade with measurement marks on the material being cut; requires the saw to be shut down frequently to clear jammed material; results in burning the material being cut, constituting a fire hazard, and causes blocks of wood and wedges to disintegrate and break up, resulting in wood fragments being forcefully expelled in the area near the operator (Respondent's Exhibits 1-5).

In Sawyer Cole's opinion, operating a lower blade guarded radial [*13]   arm saw is unsafe and the lower guard does not increase safety.   In his 25 years as a carpenter he has never experienced, witnessed or heard of an accident occurring on a saw having an exposed lower blade.

In Officer Hancock's opinion a lower blade guard decreases the hazards to which an operator is exposed and in no way increases them.   According to his testimony the lower guard provides protection on the front as well as on both sides of the blade. Mr. Neal Franklin, a compliance officer of the U.S. Department of Labor testified that the installation of a lower saw blade guard presents no hazard to the saw operator.   According to Officer Franklin an operator of an unguarded saw is exposed to the hazard of "being able to put his hand into the blade." He estimates,   however, the likelihood of an accident occurring with respect to an unguarded radial saw to be "slim -- probably less than 10% of exposure."

Officer Hancock also testified as to the method utilized by the Secretary in recommending a $700 penalty.   For a serious violation the proposed unadjusted penalty is always $1000.   In this case, credit reductions of 20% for good faith, zero percent for size, and 10% for [*14]   Respondent's history of prior violations were then applied to the unadjusted penalty.   Respondent was granted the maximum permissible reduction of 20% for good faith but only 10% of the permissible 20% credit for history because Respondent had been previously cited for a radial arm saw violation n3 (Secretary's Exhibit 3).   No credit was granted on the basis of size because Respondent had over 100 employees.

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n3 Secretary's Exhibit 3, a summary of Respondent's past violations, fails to reflect another violation of 1910.213(h)(1) prior to April 26, 1973.

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Respondent's safety program consists of weekly safety meetings which all employees are required to attend.   These meetings are conducted by foremen of each activity, utilizing information originating from the project safety office, Respondent's main office and other job experience within the company.

DISCUSSION

A.   As to Secretary's compliance with Sections 8(a) and 8(e) of the Act.

Section 8(a) and (e) of the Act read as follows:

Sec. 8(a) In order to carry out [*15]   the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized --

(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.

  (e) Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection. Where there is no authorized employee representative, the Secretary or his authorized representative shall consult with a reasonable number [*16]   of employees concerning matters of health and safety in the workplace.

Section 8(g)(2) of the Act authorizes the Secretary to prescribe rules and regulations dealing with the inspection of an employer's establishment and the Secretary has exercised that authority by promulgating the regulations set forth in 29 CFR 1903.   Conforming to Section 8(a), Section 1903.7 of the regulations requires that an inspection be initiated by the compliance officer presenting his credentials to the owner, operator, or agent in charge of the employer's workplace at the beginning of the inspection. Section 1903.8 adopts the identical language of Section 8(e) with respect to giving the representatives of employer and employees the opportunity to accompany the inspecting compliance officer.

On this record we must conclude that the Secretary's "inspections" of Respondent's worksite on April 26, 1973 and May 8, 1973 were in substantial compliance with Section 8(a).   Two preinspection conferences, at which Respondent's representative was present, were held on April 24, 1973.   At the group opening conference, various subcontractors having worksites at the Trojan project, including the Respondent, were advised [*17]   of the purpose of the compliance officers' presence and that inspections would be conducted in a manner similar to that previously followed at the same site. After this group opening conference, a separate opening conference was held with Respondent's Project Manager who then accompanied the compliance officers on their inspection of certain Respondent worksites. At the closing conference on April 24, 1973 Manager Bickmore was told that although the "formal" inspection of Respondent's worksite had been concluded he would be further advised if other apparent Respondent violations were subsequently observed at the project site. This notification procedure was followed on April 26, 1973 following Officer Hancock's observation on that date of the   unguarded lower blade of the DeWalt radial arm saw.   Clearly, Respondent was on notice April 24th that an inspection of his various workplaces at the Trojan site was about to commence and that this inspection would be "open-ended" and "multiday" (as was the previous inspection in February 1972) its duration being determined by the time necessary for compliance officers to complete their inspection of employers at the Trojan site.   [*18]  

We would find that in following the group and individual employer pre-inspection conference procedure the Secretary's representatives complied with Section 8(a) and were thereby authorized to enter and inspect any and all of the Respondent worksites within the Trojan Nuclear Power construction project.

While Officer Hancock unquestionably failed to give Respondent's representative an opportunity to accompany him during his inspection of the saw shed on April 26th and May 8th in contravention of Section 8(e) of the Act and the Secretary's own regulation, 29 CFR 1903.8, that fact standing alone does not warrant vacation of the citation and proposed penalty based thereon.   The previous Commission rulings in Chicago Bridge & Iron Co., No. 224, CCH Emp S & H Rep P15,416 (1973), and in Wright-Schuchart Harbor Contractors, No. 559, CCH Emp P15,473 (1973) appear to be dispositive of this issue.   The Commission in these cases found the provision in Section 8(e), providing employer and employee accompaniment opportunities, to be directory in nature rather than mandatory and implied that a Respondent must show that he was in some way prejudiced by not having a representative present [*19]   during the inspection before the failure to comply with this requirement can result in a vacation of the citation.   No such showing of prejudice was made by Respondent in this case.

B.   As to Secretary's compliance with Section 9(a) of the Act.   Section 9(a), in pertinent part, provides:

If upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of Section 5 of this Act, . . . or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer.

  The Act fails to define the phrase "reasonable promptness," therefore, reference to the Act's legislative history is in order.   The House Amendment to Senate Bill 2193 provided in Section 10(c) that if the Secretary "believes" that the employer has violated the Act he shall issue a citation within 45 days from the "concurrence" of the alleged violation, but for "good cause" such period could be extended up to 90 days.   Another provision, Section 10(f), provided that no citation could be issued after the expiration of "three months" following a violation's occurrence.

Senate Bill 2193, on the other [*20]   hand, provided in Section 9(a) that if the Secretary "determines" that an employer has violated the Act's mandatory requirements he shall "forthwith" issue a citation.   No time period within which to issue a citation was prescribed, and no statute of limitations provision appeared in the Senate bill.

In the final bill drafted by the Committee of Conference, the House provision prescribing a definite time period within which to issue a citation was eliminated and the statute of limitations period was changed from three months to six months.   In the Statement of the Managers on the Part of the House, the following language appears.

The conference report provides that if the Secretary "believes" that an employer has violated such requirements he shall issue the citation with reasonable promptness. In the absence of exceptional circumstances any delay is not expected to exceed 72 hours from the time the violation is detected by the inspector. n4

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n4 See Legislative History of the Occupational Safety and Health Act of 1970, 92d Congress 1st Session, pg. 1191.

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It is suggested that this history makes clear that Congress decided against the adoption of a provision which would require the Secretary to issue a citation within a set time after the date of the inspection or investigation.   The language in the Statement of Managers that "any delay is not expected to exceed 72 hours" is not considered, as Respondent contends, an attempt to define or interpret the phrase "reasonable promptness," but simply an expression of expectation.

  On this record there are insufficient facts to conclude that the citation here was not issued with reasonable promptness. Such a conclusion is warranted only if the delay between the inspection and issuance of the citation adversely affects a Respondent's ability to defend against the citation's charges.   Although the citation here was issued on May 22, 1973, 26 days after the alleged violation was observed on April 26, 1973, the alleged violation was brought to the Respondent's attention the same day it was observed and no showing has been made that the delay operated to Respondent's detriment or prejudice.

C.   As to violation.

It is undisputed that Respondent's [*22]   radial arm saw did not have a guard covering the full diameter of the lower portion of the saw blade. Respondent's argument in defense, however, is twofold; first, that it was in substantial compliance because the lower portion was guarded except for a relatively small exposed area, and secondly, that Respondent was relieved of its compliance obligation because installation of a guard creates additional hazards and does not reduce existing hazards. We disagree.

Nothing less than a guarding of the full diameter of the blade on both sides can constitute compliance with this particular standard.   The purpose of the standard appears obvious, to eliminate the danger of amputation and laceration by preventing any hand coming into the blade from the side.   Respondent's saw admittedly was not provided with this required protection.   As for Respondent's second contention, we are unable to conclude on this record that Respondent's saw operation made compliance with the standard impossible.   The evidence concerning Respondent's problems operating the guarded saw tends to show only that the particular guard, as designed, is unsuitable for certain cutting operations and creates some additional [*23]   hazards not that it is impossible to comply with the standard.   Moreover, the testimony of Respondent's own sawyer establishes that even this lower guard eliminates the risk of the operator's hand coming into contact with the side of the blade during normal cross-cutting operations, a primary objective of the standard.

Respondent places considerable emphasis on the final portion   of the standard which reads ". . . to give maximum protection possible for the operation being performed." As we understand Respondent's argument, this clause is an essential part of the standard and must be considered in determining the violation's existence because it makes the necessity of the guarding dependent upon the protection provided.   We suggest that Respondent has misread the standard.   This clause simply describes and characterizes the guarding device prescribed by the standard and clearly is not intended to qualify or moderate the requirement of guarding both sides of the lower blade to its full diameter.

While the occurrence of an accidental amputation or injury under the particular circumstances of Respondent's operations was not substantially probable, that is not the test of a [*24]   "serious" violation.   Previous Commission decisions have made clear the Complainant need establish only that an accident is a reasonably foreseeable possibility and prove substantial probability that the consequences resulting from a violative condition will be death or serious physical harm.   Secretary of Labor v. Crescent Wharf and Warehouse, Secretary of Labor v. Natkin and Company, Mechanical Contractors, Secretary of Labor v. Standard Glass & Supply Company,   The Secretary sustained his burden in this regard with the credited opinion testimony of Officers Hancock and Franklin.

Although respondent may have been unaware that lower guards were available for the DeWalt Radial Arm Saw, the company knew that the lower portion of the blade was unguarded and is chargeable with knowledge of the standard's requirement.

D.   As to Penalty.

The Secretary proposes a penalty of $700 for the "serious" violation of §   1910.213(h)(1).   Starting with a proposed unadjusted penalty of $1000 which is required by the Secretary's compliance manual for all "serious" violations, discounts of 20% for good faith and [*25]   10% for Respondent's prior history of violations under the Act were awarded in computing the proposed penalty. No discount for size was given because Respondent has over 100 employees.

  No error is found in the weight accorded Respondent's size, history of previous violations and good faith by the Secretary in determining the proposed penalty. The record, however, shows that insufficient consideration was given to the gravity of the violation by the Secretary.   In calculating the proposed penalty the Secretary began with the maximum penalty allowable under the Act for a serious violation and then discounted it for good faith and Respondent's prior history of violations.   The employment of this method has been expressly disapproved by the Commission.   Secretary of Labor v. Nacirema Operating Company, Inc.,

In determining the gravity of any violation several elements, not intended to be exclusive, must be considered; (1) the number of employees exposed to the risk of injury, (2) the duration of the exposure, (3) the precautions taken against injury, if any, and (4) the degree of probability of occurrence of an injury.   Secretary of Labor   [*26]   v. National Realty and Construction Co.,

Essentially, a single employee was affected by this violation and the duration of his exposure to risk of injury during the normal workday was considerable.   However, the condition had existed since March of 1971 and no injury had ever occurred due to the lack of a lower saw guard on Respondent's saw.   Also, the Secretary's own witness Officer Franklin testified that the likelihood of an accident was "slim." On these facts, the violation's gravity must be considered relatively low.

Weighing all of the statutory factors, we conclude the Secretary's proposed penalty is too high and find that $175 is a reasonable and appropriate penalty.

FINDINGS OF FACT

Upon the entire record, the following facts are found:

1.   On April 26, 1973 and at times prior thereto, the sides of the lower exposed portion of Respondent's DeWalt Radial Arm saw blade were not guarded to the full diameter of the blade.

2.   There was a substantial probability that the consequences of this violative condition could be serious physical harm.

  CONCLUSIONS OF LAW

1.   The Respondent is an employer engaged in a business affecting commerce   [*27]   within the meaning of Section 3(5) of the Act and obliged to comply with those standards promulgated under Part 1910, Title 29, of the Code of Federal Regulations.

2.   On August 26, 1973, Respondent was in violation of 29 CFR §   1910.216(h)(1) and that violation was "serious" within the meaning of Section 17(k) of the Act.

3.   A penalty of $175 for Respondent's violation of 29 CFR §   1910.216(h)(1) is appropriate.

ORDER

Based on the entire record, it is ORDERED that:

1.   A violation of 29 CFR §   1910.216(h)(1) is hereby AFFIRMED and a penalty of $175 ASSESSED.

2.   Respondent's motion to withdraw its Notice of Contest to Citation Number One issued May 22, 1973 is GRANTED.   The said citation is AFFIRMED, any proposed penalties based thereon, ASSESSED.