Docket No. 3742

MADISON MILLWORK CO.

OSHRC Docket No. 3742

Occupational Safety and Health Review Commission

December 17, 1975

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Robert A. Friel, Assoc. Regional Solicitor

W. Brent Eames, for the employer

OPINION:

MEMORANDUM DECISION

BY THE COMMISSION: A decision of Review Commission Judge Henry C. Winters, dated August 22, 1974, is before this Commission for review pursuant to 29 U.S.C. § 661(i). At issue is whether the occupational safety standard codified at 29 C.F.R. § 1910.213(h)(1) was properly promulgated.

For the reasons set forth in Secretary v. Noblecraft Industries, Inc., Docket No. 3367, November 21, 1975, Chairman Barnako and Commissioner Cleary find that 29 C.F.R. § 1910.213(h)(1) was validly promulgated. n1 Accordingly, the Judge's decision is affirmed.

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n1 Commissioner Cleary continues to hold the view he expressed in his concurring opinion in Secretary v. United States Steel Corp., Docket Nos. 2975 & 4349, November 19, 1974, that the Commission lacks the authority to review the validity of a standard promulgated by the Secretary of Labor. Assuming arguendo that the Commission does have such authority, Commissioner Cleary joins with Chairman Barnako in finding the standard at issue valid and enforceable.

[*2]

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DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

1910.213(h)(1) was improperly promulgated.

Since the foregoing opinion does not fully state the matter covered by Judge Winter's decision, the same is attached hereto as Appendix A.

APPENDIX A

DECISION AND ORDER

Mildred L. Wheeler, for Complainant

W. Brent Eames, for Respondent

Henry C. Winters, Judge

STATEMENT OF THE CASE

This is an action under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) to affirm two citations and a proposed penalty of $500.00.

The citations, one charging a serious violation for which the penalty of $500.00 is proposed, and the other charging several nonserious violations in seven item numbers for which no penalties are proposed, were issued June 27, 1973 by the Secretary's area director following an inspection made on June 18, 1973 of a cabinet shop, a workplace [*3] maintained by Respondent at Rexburg, Idaho.

By notice of contest in the form of a letter dated July 12, 1973, the Respondent contested the citations and proposed penalty.

The case was heard by this Judge at Rexburg, Idaho on December 4, 1973.

At the opening of the hearing, the Respondent withdrew its notice of contest with respect to certain nonserious violations which have been abated.

The following is a description of the serious violation alleged in Citation Number 1, together with the language of the standard allegedly violated and the penalty proposed:

Description of	Standard	Proposed
Alleged Violation	Allegedly Violated	Penalty
The Delta Rockwell Radial Arm saws,	29 CFR 1910.213	$500.00
one on West side and one on East	Woodworking machinery requirements
side of the shop did not have a	* * * *
guard covering the lower half of	(h) Radial saws.
the saw blade.	(1) The upper hood shall
	complete-
	ly enclose the upper portion of
	the blade down to a point that
	will include the end of the saw
	arbor. The uppper hood shall be
	constructed in such a manner and
	of such material that it will
	protect the operator from flying
	splinters, broken saw teeth, etc.,
	and will deflect sawdust away
	from the operator. 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 being cut to give maximum
	protection possible for the
	operation being performed.

[*4]

The following is a description of the nonserious violations remaining under challenge, as charged in Citation Number 2, together with the language of the standard allegedly violated:

Item	Description of	Standard	Proposed
No.	Alleged Violations	Allegedly Violated	Penalty
2	Three air hoses used for	29 CFR 1910.242	$0
	cleaning displayed a static	Hand and portable powered tools
	pressure of 80 p.s.i.	and equipment, general.
		* * * *
		(b) Compressed air used for
		cleaning.
		Compressed air shall not be used
		for cleaning purposes except
		where reduced to less than 30
		p.s.i. and then only with effec-
		tive chip guarding and personal
		protective equipment.

DISCUSSION

The alleged serious violations.

It was stipulated by the parties that the two radial arm saws involved in the alleged serious violations did not have a guard covering the lower half of the saw blades; that there employees and the manager, part-owner, used such saws; and that at the time of the inspection and prior thereto, one saw was used two or three hours per day and the other may be used all day some days and not at all on other days.

Although admitting to the absence of lower [*5] guards, Respondent does not conceded it is thereby in violation of the Act. Respondent contends that the pertinent portion of 29 CFR 1910.213(h), which requires guarding of the lower exposed portion of the saw blades, is unenforceable because: (1) it is unreasonably vague; (2) it requires a guard which creates an accident hazard in itself and is, therefore, superseded by the provisions of 29 CFR 1910.212(b) which prohibits the use of such a guard; (3) compliance with it is impossible; and (4) it is not a consensus standard because when 29 CFR 1910.213 was promulgated by the Secretary an essential portion of the underlying ANSI standard n1 was omitted, thereby negating its having been promulgated as a consensus standard. Moreover, the Respondent contends that even if it is conceded that the involved portion of the standard is enforceable, the evidence warrants only a finding of a nonserious violation of relatively low gravity.

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n1 The Secretary omitted a note, which is contained in Section 4.1 of the ANSI Safety Code for Woodworking which pertains to circular, rip, cross-cut, resaw and swing cut-off saws, and provides as follows:

NOTE: It is recognized that the standards for saw guards in 4.1 are not perfectly applicable to all operations for which saws are used. The standards given are those which woodworkers have agreed are most generally useful. Since there are a considerable number of cases not satisfactorily met by these standards, the enforcing authority should exercise rather wide latitude in allowing the use of other devices which give promise of affording adequate protection. It may be expected that by so doing further progress in saw guarding will be encouraged.

[*6]

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In the opinion of this Judge, the portion of the standard requiring the lower guard is not so vague and indefinite as to make it unconstitutionally unenforceable. The phrase "to give maximum protection possible for the operation performed" is vague, and adds nothing meaningful from an enforcement standpoint. Nevertheless, when read as a whole, this portion of the standard is sufficiently clear to be enforceable. It reads as follows:

. . . 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 being cut to give maximum protection possible for the operation performed.

It must be kept in mind that it is the sides of the blade - not the front, or bottom or rear of the cutting edge - that is required to be guarded. It must also be kept in mind that it is the exposed portion of the sides of the blade that must be guarded. There is no requirement that the lower portion of the blade be enclosed in such a manner as to prevent the use of the device as a saw. The fact that [*7] in a cross-cutting operation there may be a brief moment just as the cutting edge of the blade comes forward through the stock when a small portion of the exposed side of the blade cannot be completely covered does not nullify the standard. The standard must be interpreted in the light of the practical use of the saw as a saw. When interpreted in this light, the involved standard is enforceable and compliance is possible.

Respondent's contention that the required lower guard creates an accident hazard in itself is not sustained by the evidence.

Likewise, there is insufficient evidence to sustain Respondent's contention that the standard ostensibly adopted by the Secretary as a consensus standard was not in fact a consensus standard because of the omission of what is asserted to be an essential substantive part of the underlying ANSI standard. This Judge recognized that there is good reason to challenge the validity of this standard because of the Secretary's omission of such qualifying note without publication in the Federal Register of the reason for such omission. In this Judge' opinion, the mere fact of the omission is in and of itself insufficient grounds to void the standard [*8] here involved. This Judge is aware, however, that a complete record has been made on this issue in other cases now pending before this Commission on review. n2 The record in such other cases is not incorporated into the record in this case and cannot be here considered.

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n2 Docket No. 2265, Secretary v. Brady Hamilton Stevedoring Co. and other cases.

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It is the conclusion of this Judge that the failure to guard the sides of the lower half of each of the two radial arm saws at Respondent's cabinet shop constitutes a separate violation of 29 CFR 1910.213(h)(1). There are two violations each of which occurred on June 18, 1973. n3 The questions remain then: Are the violations serious or nonserious? And what penalties, if any, should be imposed?

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n3 The citation charges two violations, but the Secretary's area director erroneously treats them as one for penalty purposes. The citation is defective in that it does not allege on what date the violations occurred. The Respondent has not objected to such omission.

[*9]

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The radial arm saws in question were 10-inch saws and were used to cut the ends off of boards. All cuts were ninety degree crosscuts. No ripping nor mitering nor beveling nor dadoing nor any other of the possible functions of a radial arm saw were performed with these particular saws. The boards were of varying lengths and widths. On occasion, 4 X 4 lumber was cut by these saws, but generally the width and breadth dimensions of the material were smaller. At the time of the hearing, a lower guard had been installed on one saw. A guard to fit the other saw was not readily availale for purchase but at the time of the hearing had been ordered and would be installed as soon as it arrives.

The compliance officer, when asked what type of injury could occur using a radial arm saw without a guard on the lower portion of the blade, expressed the opinion that if an operator's hand or finger came in contact with the saw blade, it would almost to sure amputation. He gave no factual basis for this opinion. No specific example was recited of an instance where an amputation or severe injury resulted because [*10] of the absence of a lower guard on a radial arm saw. No statistics relating to the causes of injuries from such machines were offered in evidence.

The compliance officer owns and uses in his basement a 10-inch radial arm saw similar to those here involved. While he was attending high school and college, he worked for his father in the construction business using radial arm saws. Neither the saw in his basement nor any of those used in his father's business was equipped with a lower guard until it was required under the Act. When asked by this Judge whether in connection with his work in his father's business he knew of anyone receiving a serious injury such as an amputation merely because of the absence of a lower guard, he replied that it's hard to say it was merely the absence of the lower guard. He operated his own saw without a lower guard for some six or seven years off and on, and his hand never came into contact with the blade and he suffered no injury. Since the lower guard has been installed, he has hit the lower guard a number of times because knowing the guard is there he puts his hand a little bit closer. With the guard on, he believes he is able to cut smaller [*11] pieces. In the opinion of the compliance officer, by virtue of the guard being on the sides of the blade the operator would have a harder time getting his fingers in contact with the cutting edge of the blade, the guard giving a sort of a double warning to the operator.

Respondent's vice-president, who had many years of experience in the use of radial arm saws, the last six years being in the employ of Respondent, is of the opinion that in the kind of cross cutting for which the saws are used by Respondent there is no significant danger of amputation or serious physical harm with or without the lower guard. The guard which had been installed on one saw for a few months before the hearing did not, in his opinion, make the operation of the saw any safer. He conceded that if one were to fall into the spinning saw blade from a particular direction, there was a remote possibility the lower guard might provide some additional protection. He brought to the hearing room and demonstrated the use of Respondent's radial arm saw which is one of those involved in the alleged violation and is now equipped with a lower guard sold by the manufacturer of the saw. Although he was aware before [*12] the inspection that the OSHA standard required a lower guard on the radial arm saws, Respondent's vice-president made no attempt to get the guards because he did not think it was much of an advantage to his shop and did not believe the standard was a safety feature.

Respondent's shop foreman, who is one of two principal operators of a radial arm saw and whose experience of seven years with such saws includes four and a half years with Respondent, also expressed the opinion that the saw is not safer with the lower guard installed. He would prefer not to have the lower guard because sometimes the piece cut off binds between the lower guard and the blade.

Another of Respondent's employees, a journeyman cabinet maker, whose five years of experience with radial arm saws includes two years with Respondent, has no complaints regarding safety conditions at Respondent's workplace. He has never heard of any accidents wiuth the radial arm saw.

An owner of a cabinet shop near Idaho Falls was called as a witness on behalf of Respondent. He has been in cabinet work approximately 28 years. He considers the radial arm saw to be the safety kind of saw used in cabinet work. He expressed the [*13] opinion that the kind of radial arm saw he uses is not safer with the lower guard than without it. He knew of no reason, when a radial arm saw is used for cross-cutting, for an operator to exert any pressure with his hand in the direction of the spinning blade. In his opinion, an operator of a radial arm saw who is holding a short piece of wood close to the blade would have a natural tendency to exert pressure in a direction away from the blade so that if his hand slipped it would not move into the blade.

The opinion of the compliance officer is based to a greater extent upon a combination of facts not of record and of pure speculation. Something more than that must be shown of record in order to prove the essential elements of serious violation as defined in Section 17(k) of the Act. It has not been established by a preponderance of the evidence that there was a substantial probability that death or serious physical harm could have resulted from the fact that a radial arm saw, used in the manner the saws are used in Respondent's workplace, was not equipped with the required lower guard. A radial arm saw is a dangerous instrumentality. When it has all of the guards on it required [*14] by the standards, it remains a dangerous instrumentality and there remains the possibility of amputation of a finger or severe laceration of hand or arm. What real difference the lower guard makes has not been established here.

Considering all the evidence adduced pertaining to the use of the radial arm saws in Respondent's shop, having viewed and heard the witnesses and having watched the demonstration of use of one of the saws in question, this Judge concludes that the operation of each saw without the required lower guard constituted a nonserious violation of relatively low gravity.

In determining what penalty, if any, is appropriate, it is necessary to consider not only the gravity of the offense as it relates to risk or hazard to employees but also the good faith of the employer, its past history, as well as the size of its business.

The size of Respondent's business is small. Respondent has no adverse past history of violations. In many respects Respondent has demonstrated its good faith in matters of occupational safety and health. It has an effective safety program in its shop. It has a good record in that injuries in the past have been few in number and relatively [*15] minor in severity. Officials of Respondent have a real concern for the well being of employees. The Secretary's area director in applying his formula for calculating proposed penalties has allowed Respondent the maximum deduction for good faith.

It is not to the credit of Respondent, however, that prior to the instant inspection its vice-president made a conscious decision not to install the lower guards although he was aware that standards issued by the Secretary required them. An employer does not have the option of complying or not complying with an applicable standard duly promulgated under the Act. If an employer affected by a particular standard believes that the conditions presently existing in his workplace are as safe as those which would prevail if the complied with the standard, he should apply to the Secretary for an order for a variance, as provided in Section 6(d) of the Act. If for some reason an employer is unable to comply immediately with a particular portion of a standard, he may under the conditions provided in Section 6(b)(6) apply for a temporary order granting a variance. The Respondent here did not seek a variance but through its vice-president made [*16] an arbitrary decision not to comply. In order to impress upon this Respondent the necessity of complying with all applicable standards, some dollar penalty should be assessed, despite the low level of gravity of the offense from the standpoint of risk of injury to Respondent's employees. All pertinent criteria considered, as penalty of $75.00 is appropriate for each of the two violations of 29 CFR 1910.213(h)(7), for a total penalty of $150.00.

Item No. 2, Citation Number 2

The evidence clearly supports the allegations of the Secretary that Respondent used three portable compressed air pieces of equipment for cleaning purposes without reducing the air pressure to less than 30 pounds per square inch; that such conduct constituted three nonserious violations of 29 CFR 1910.242(b); that under pertinent criteria, no penalty is appropriate.

The Respondent is concerned with the efficacy of a particular method of abatement suggested by the compliance officer as being one of the acceptable means of abatement. This Judge believes that 60 days should be allowed Respondent to correct that violation. This will give Respondent an opportunity to obtain a copy of the interpretation of [*17] the involved standard issued by the Department of Labor on February 14, 1972, as well as to try alternate systems which will meet the requirements of this standard and at the same time do an effective job for Respondent in its shop.

In consideration of all the evidence and of the briefs submitted by the parties, the Judge makes the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. At all times herein pertinent, Madison Millwork Co., a corporation, Respondent, was and is engaged in a business affecting commerce.

2. On June 18, 1973 at a workplace maintained by Respondent at Rexburg, Idaho, Respondent failed to comply with standards promulgated by the Secretary in the following respects:

(a) Respondent failed to equip a "Delta Rockwell" radial arm saw, located on the west side of the shop, with a guard covering the exposed portion of the sides of the lower half of the saw blade, contrary to 29 CFR 1910.213(h)(7);

(b) Respondent failed to equip a "Delta Rockwell" radial arm saw, located on the east side of the shop, with a guard covering the exposed portion of the sides of the lower half of the saw blade, contrary to 29 CFR 1910.213(h)(7); and

(c) Respondent [*18] failed to comply as alleged in Citation Number 2, with standards set forth in such citation in the manner described in such citation.

3. The instances of noncompliance described in paragraph 2 above had a direct and immediate relationship to safety and health but were not of a serious nature.

4. Each instance of noncompliance described in paragraph 2 above was of a relatively low gravity.

5. At all times herein pertinent, except as to the decision not to install the lower guards on the radial arm saws, the Respondent has acted in good faith.

6. The size of Respondent's business is small.

7. Respondent has no history of past violations.

8. Considering the size of Respondent's business, the gravity of the violations, the good faith of the Respondent and its history of past violations, the following penalties are appropriate:

For each of the two instances of noncompliance with 29 CFR 1910.213(h)(7), a penalty of $75.00, for a total penalty of $150.00; and

For each of the remaining instances, no penalty.

9. A reasonable time for correcting the instance of noncompliance with 29 CFR 1910.242(b) (Item No. 2 of Citation Number 2) is within 60 days from the date of the final [*19] order of the Commission in this proceeding; and in all other respects the abatement times as set forth in the citations are reasonable.

CONCLUSIONS OF LAW

1. This Commission has jurisdiction of the parties and of the subject matter of this case.

2. The instances of noncompliance referred to in paragraph 2 of Findings of Fact constitute nonserious violations of standards promulgated pursuant to Section 6 of the Act and subject the Respondent to assessment of civil penalties as provided in Section 17(c) of the Act.

3. The penalties found in paragraph 8 of Findings of Fact to be appropriate are lawful and should be imposed.

4. Citation Number 1 should be modified to allege nonserious violations and to require their immediate abatement in accordance with these findings and as so modified should be affirmed.

5. Citation Number 2 should be modified to require that the violation at Item Number 2 be abated within 60 days of the date of the final order of the Commission in this proceeding and as so modified should be affirmed.

ORDER

In view of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED:

(1) Citation Number 1, issued June 27, 1973, be and it is [*20] hereby modified to charge two nonserious violations and to provide for their immediate abatement; and, as so modified, be and it is hereby affirmed;

(2) Citation Number 2, issued June 27, 1973, be and it is hereby modified to require that the violation at Item Number 2 be abated within 60 days of the date of the final order of the Commission in this proceeding; and, as so modified, be and it is hereby affirmed; and

(3) A civil penalty of $75.00 be and is hereby assessed against Respondent for each of the violations alleged in Citation Number 1 for a total penalty of $150.00.

Dated at Seattle, Washington this 22nd day of August 1974.

Henry C. Winters, Judge