THE WIRTH CORPORATION

OSHRC Docket No. 5298

Occupational Safety and Health Review Commission

December 9, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Robert A. Friel, Assoc. Regional Solicitor

George J. Tichy, Timber Products Building, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This case involves a citation alleging that Respondent committed a serious violation of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") by failing to guard the lower exposed portions of the blades of two radial saws as required by 29 C.F.R. 1910.213. n1 Administrative Law Judge Jerry W. Mitchell affirmed the citation and assessed a penalty of $200 therefor. n1

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Subsection (h)(1) of this standard, in pertinent part, provides that "[t]he 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."

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In defense to the citation Respondent raised [*2] the same issue which we have since decided in Noblecraft Industries, Inc., Docket No. 3367 (11/21/75). We concluded that this standard had been validly promulgated in accordance with the rulemaking procedures prescribed by the Act. In rejecting the defense in this case Judge Mitchell correctly anticipated our decision in Noblecraft.

We further conclude that Judge Mitchell properly disposed of the other issues before him, and we agree that a $200 penalty is appropriate on the facts. Accordingly, his decision is affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

1910.213(h)(1) was improperly promulgated.

Since the foregoing opinion does not address all of the matters covered by Judge Mitchell's decision, the same is attached hereto as Appendix A.

APPENDIX A

DECISION AND ORDER

Mrs. Sandra K. Rogers, for complainant

George J. Tichy, for respondent

There was no appearance by or on behalf of Respondent's employees even though all notices had been [*3] posted

STATEMENT OF THE CASE

Jerry W. Mitchell, Judge

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) contesting a Citation for Serious Violation issued by the Secretary of Labor (Complainant) against The Wirth Corporation (Respondent) under the authority vested in Complainant by Section 9(a) of the Act.

A workplace described as "millwork plant" located at 43rd Avenue, Caldwell, Idaho was inspected on October 4, 1973 by a Compliance Safety and Health Officer (CSHO) on behalf of the Secretary of Labor. During that inspection alleged violations of two specific safety standards were noted. As a result of the inspection, Citation Number One (Non-Serious, 1 Item) and Citation Number Two (Serious, 1 Item) were issued to Respondent on October 10, 1973. The standards allegedly violated were promulgated by the Secretary of Labor pursuant to Section 6 of the Act and are now codified at Title 29, Code of Federal Regulations, Part 1910.

Respondent has contested Citation Number Two (Serious) but not Citation Number One. The alleged violation is described in the Citation in the following language with the [*4] cited safety standard quoted immediately thereafter:

Citation Number One (Serious)

"The two radial arm saws in the plant, a Sears Craftsman and a Dewalt, were not equipped with guards to cover the lower portion of the exposed saw blades."

ABATE - "Nov. 16, 1973"

Standard -- 29 CFR

"Subpart O -- Machinery and Machine Guarding

* * *

1910.213 Woodworking machinery requirements.

* * *

(h) Radial saws. (1) The upper hood shall completely enclose the upper portion of the blade down to a point that will include the end of the saw arbor. The upper 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 and remain in contact with stock being cut to give maximum protection possible for the operation being performed."

Pursuant to the enforcement procedure provided in Section 10(a) of the Act, Respondent was duly advised by a Notification of Proposed Penalty dated [*5] October 10th of the proposal to assess a penalty of $0 in connection with Citation Number One and a penalty of $600 in connection with Citation Number Two (Serious). In a timely manner Respondent filed a letter dated November 1st contesting the violation, penalty and abatement date of Citation Number Two. A complaint was duly filed and answered. In addition to substantially denying the allegations of the complaint, Respondent's answer raises six (6) separately stated Affirmative Defenses based on constitutional grounds. Trial was held at Boise, Idaho on March 7, 1974.

PROCEEDINGS AND EVIDENCE

When the trial convened each party was represented by competent legal counsel. At least one of Respondent's employees was present as a witness but did not desire party status. There was no appearance by or on behalf of any of Respondent's employees.

The Compliance Safety and Health Officer (CSHO) (Dworak) was called as a witness. He describes the inspection of Respondent's moulding plant which he conducted on October 4, 1973. The inspection included opening and closing conferences and a walk-around inspection during which he was accompanied by Respondent's General Manager and one [*6] of Respondent's maintenance men. Less than 20 persons were employed at the plant. During the inspection of the radial saws they were joined by one of the employees who used the saws. Neither of the radial arm saws had a lower blade guard. Both saws were being used by Respondent at the time of the inspection but the CSHO did not actually observe them in use. In response to a query he was told that the saws were used for making crosscuts on 2 by 4's. Their use averaged about 2 hours every two weeks. He was also told that guards for the two saws had been ordered about 4 months before the inspection when Respondent's insurance carrier had advised him of the requirement.

Following discussion of the violations at the closing conference, Respondent's General Manager returned to the saws with the CSHO and put the saws out of operation by having one of his men cut the electric plugs off the ends of the power cords.

This witness testifies concerning a previous inspection of Respondent's plant on February 11, 1972. The Citation issued following that inspection did not include any citation for violations involving radial arm saws. He does not know whether the saws were in use at the [*7] plant at the time of the previous inspection. The records of the company did not reveal any injury involving the radial arm saws.

One of Respondent's lumber graders (Mrs. Rainey) was called as the only other witness by Complainant. She testifies that she has used the radial arm saws for 7 years without injury. Her use of the saws consists mostly of crosscutting 2 by 4's in straight cuts only. She states that she uses the two saws for a combined total of about 2 hours every two weeks. When she uses the saws her left hand is placed about 8 to 12 inches from the blade. At the time of the trial they were again using the Dewalt saw but not the Craftsman saw.

Respondent's General Manager was called as its sole witness. He describes Respondent's work as being general mill work where they mostly make studs for the mobile home industry. At the time of the inspection there were no lower guards on either of the radial arm saws. Guards were ordered about 4 months before the inspection but had not been received by October 4th. The guard for the Dewalt saw was received before the trial but was not installed even though the saw had been returned to use about a month before the trial. [*8]

This witness testifies that the Craftsman saw was ONLY used for corsscuts and that any dado, angle or bevel cuts were made with the Dewalt saw. They have never used a wabbler washer or blade on either saw. The only people using these saws were Mrs. Rainey, two or three different maintenance men and the moulding department foreman. He describes guards observed on a Dewalt saw used by one of his competitors and states that in his view it is more dangerous than no guard at all.

At the close of the presentation of evidence counsel for Respondent moved to dismiss the matter on the grounds that Complainant had failed to carry its burden of proof and that the standard relied on is invalid as well as the other grounds set forth in its affirmative defenses. The motion was denied and the parties given the opportunity to argue it in their briefs.

Subsequent to receipt of the transcript the time in which to file briefs was extended at the joint request of the parties. Each party filed an extensive brief.

DISCUSSION

Facts sustaining jurisdiction are alleged in a complaint and admitted in Respondent's answer. Jurisdiction is thus conceded.

Constitutionality of the Act

Counsel for [*9] Respondent contends in six (6) separately stated affirmative defenses that the Act and the enforcement procedures provided for therein are unconstitutional. It is apparent that these constitutionality issues are raised at this stage of these proceedings so as to preserve Respondent's right to pursue them at some future appropriate time.

The Occupational Safety and Health Review Commission does not have authority to rule on the constitutionality of the Act. Secretary v. American Smelting and Refining Company, 4 OSAHRC 445 (1973). An administrative agency does not have the power to determine the constitutionality of the statute it administers. Public Utilities Commission v. United States, 355 U.S. 534, 539 (1958); Engineer Public Service Company v. SEC, 138 F2d 936, 951-953 (D.C. Cir. 1943) cert. denied 332 U.S. 788. In view of this well recognized principle, I am constrained to hold that resolution of the constitutionality issues are beyond the authority of this Judge. Respondent's brief indicates full recognition of this principle. I note in passing, however, that a number of the Circuit Courts of Appeal have had the constitutionality issue presented [*10] directly to them on substantially the same issues as those raised by Respondent in this proceeding and in each case have ruled that the Act is constitutional. See American Smelting & Refining Co. v. OSHRC, 501 F2d 504, 515 (8th Cir. 1974); McLean Trucking Co. v. OSHRC, 503 F2d 8 (4th Cir. 1974); Beall Construction Co. v. OSHRC, 507 F2d 1041 (8th Cir. 1974); and Frank Irey, Jr. v. OSHRC, (3rd Cir. No. 73-1765 decided Nov. 4, 1974 -- decision vacated and rehearing ordered Dec. 20, 1974).

Respondent argues that enforcement of the Act, as well as the standard involved here, is uneven in that they are not uniformly applied and enforced in similar situation. There is no evidence of record in this proceeding that the enforcement procedures followed by the Secretary of Labor in this case were contrary to the provisions of the Act. This is particularly true with respect to Sections 8, 9, and 10 of the Act. When the procedures provided by Section 10 have been completed in this case, Respondent will have full opportunity for recourse to judicial review under Section 11 of the Act. It is important to realize in connection with these contentions that the Review [*11] Commission is given authority under the Act to assess all civil penalties indicated by the facts extant, if the Commission should determine that there has been a violation of Section 5 of the Act. [See Section 17(j).]

Another argument raised by Respondent involves the alleged illegality of the standard relied upon in this instance. Respondent contends that the standard was illegally adopted and asserts that it was not adopted in accordance with the provisions of Section 6(a) of the Act and is therefore totally invalid. Respondent argues that in adopting this ANSI (American National Standards Institute) national consensus standard the Secretary of Labor has "omitted total sections, reworded and rearranged the content of certain of the provisions, omitted key provisions essential to the true impact of the adopted standard, and so on". Respondent would require the Secretary to literally adopt the ANSI standard in its "precise terms" without rearrangement or any alteration of format.

The section of the Act controlling here is Section 6(a), which provides in pertinent part:

". . . the Secretary shall, as soon as practicable during the period beginning with the effective date of [*12] this Act and ending two years after such date, by rule promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees. In the every of conflict among such standards, the Secretary shall promulgate the standard which assures the greatest protection of the safety or health of the affected employees." (Emphasis added.)

There is nothing in the wording of this section that would require the Secretary to literally reproduce all of the wording of an ANSI national consensus standard in promulgating such a standard as a safety standard under this Act. In fact, a close reading of this section indicates to the contrary. In choosing between a national consensus standard and an established Federal standard the Secretary is required to promulgate the standard which assures the greatest protection for the affected employees. The Secretary is thus charged with the responsibility of determining which standard is most effective and must promulgate that standard. Congress obviously [*13] intended that the Secretary should make specific choices. Under these circumstances there is a clear presumption that the Secretary will exercise his wisdom and expertise so as to carry out the mandate of Congress. The record in this instance is devoid of anything that would indicate a failure on the part of the Secretary to follow the provisions of the Act.

A thorough perusal of the legislative history of the Act does not sustain any conclusion different from that discussed above. There is no indication in that history that Congress intended to restrict or limit the Secretary in exercising his wisdom and expertise in selecting which of the published ANSI national consensus standards or Federal standards should be adopted for promulgation.

The standard relied on here, 29 CFR 1910.213(h)(1), has its source in paragraph 4.1.9(a) of the ANSI national consensus standard entitled, "Safety Code for Woodworking Machinery" [ANSI 01.1-1954 (R-1971)]. 1910.213(h)(1) is identical with this source paragraph except for the change in the identifying numbering system. The Secretary has thus followed the Congressional mandate in adopting and promulgating the ANSI national consensus standard. [*14]

Respondent attacks the Secretary's elimination of the "Note" preceding the actual text of all of the standards set forth in Section 4 of ANSI 01.1-1954 (R-1971) and argues that the Secretary violates Section 6(a) of the Act by such elimination. Section 6(a) provides for prompt promulgation of national consensus standards by the Secretary. It does not require promulgation of material that is not a part of the national consensus standards. The "Note" involved here is nothing more than an explanatory note. It does not contain anything that even remotely resembles a safety standard. It tells the users of the document that the "standards given are those which woodworkers have agreed are most generally useful". The "Note" then goes on to indicate a recognition that there may be situations where the standards are not satisfactory and suggests that the enforcing authority should exercise wide latitude in allowing the use of other devices which give promise of affording adequate protection. It should be noted here that Respondent has not shown the use of any such "other device" in this instance. In fact, Respondent admits that there was no guard of any kind in place or in use in [*15] connection with the lower blade of either of the saws cited.

The Secretary has exercised the latitude suggested in the "Note" in selecting the specific basic safety standard suggested by the ANSI national consensus group and promulgating it as a safety standard under the authority of Section 6(a) of the Act. The Secretary has thus followed the mandate of Congress exactly. Nothing in this record establishes anything to the contrary. Respondent's argument must fail. Respondent's motion to dismiss is denied.

The Violation

The Citation alleges Respondent's failure to guard the lower portion of the blade on each of two radial arm saws in use at Respondent's workplace in violation of the safety standard found at 1910.213(h)(1). It is alleged that the violation is serious and a penalty of $600 is sought in connection therewith.

The evidence clearly establishes the absence of the required guard from either saw. Respondent concedes the lack of the required guards but argues that such guards were unnecessary. This argument is grounded on such things as the location of the saws, the small number of employees using them, the safety training of the operators before using the saws and [*16] several other facets of construction and use. Not one of these points raised by Respondent, nor all of them in concert, tend to excuse the use of these saws while not fitted with guards in compliance with the requirements of the cited safety standard. There is nothing in this record justifying Respondent's failure to equip the saws with guards over the lower blades. The arguments made go to the seriousness of the violation, its gravity, and the extent of the penalty to be assessed - not to excusing the saws from being guarded.

The saws were admittedly in use prior to the inspection and by a number of different people. Each of the employees using the saws were exposed to the hazards of the unguarded lower blades. The requirements of the standard cited have thus been violated.

Under the terms of Section 17(k) of the Act a violation is serious if there is a substantial probability that death or serious physical harm could result from the violative condition. It is not necessary that there be a substantial probability of an accident occurring because of the existing hazard -- only that there be a substantial probability that if an accident does occur the resulting injury will [*17] be serious in nature or that death will result. See Secretary v. Standard Glass and Supply Company, 2 OSAHRC 1488, 1489 (1973) and Secretary v. Crescent Wharf & Warehouse Co., 2 OSAHRC 1318, 1325 (1973). In this instance it is rather obvious that if the saws will cut lumber they will surely amputate fingers, hands, and arms or at least severly mutilate any such extremities coming in contact with the unguarded blades. The other criterion in this Section, that Respondent knew of the violation, is clearly met by the evidence. Some 4 months before the inspection Respondent's insurance underwriter had advised Respondent that the guards covered by the present Citation should be obtained. The requirements of Section 17(k) are thus clearly satisfied. The violation is without doubt one that is serious in nature.

In determining the appropriateness of any penalty assessed in this instance it is necessary to give due consideratsion to the criteria set forth in Section 17(j) of the Act.

1. There is a history of a single previous Citation for violations of the Act at this worksite. However, that Citation did not include any alleged violation of safety standards covering the saws [*18] cited in the instant case.

2. The only evidence concerning the size of Respondent's business is that there were less than 20 employees working at the inspected location.

3. Good faith -- Respondent gives an indication of good faith in that immediately following the closing conference the two saws were promptly rendered inoperative by the simple expedient of cutting the electrical plugs from the ends of the saws' power cords. This action was taken in the presence of the Compliance Officer. This demonstration of good faith is greatly counteracted, however, by the fact that several months later one of the saws was returned to use without installation of the required guard or the use of any other method of safeguarding the employees using the saw. It is noted that Respondent's testimony is that the guard was ordered some 4 months prior to the inspection but that it had not been installed by the time of the trial, although received prior to the trial.

4. The gravity of this violation is considered to be rather low because of the limited exposure. The saws were only used for a total of approximately 2-3 hours every two weeks. The gravity is further reduced by the fact that the [*19] operators of the saws were trained in using them before being permitted to use them. There have been no injuries in connection with the use of either of these saws.

Giving due consideration to the foregoing it is considered that a penalty of $200 is appropriate under all of the circumstances involved here.

There is nothing in this record which would indicate that there is any reason why Respondent should not have been able to obtain and install the required guard within the approximately 6 week period proposed by Complainant. Respondent's General Manager testifies that he placed an oral order for the guard some 4 months before the inspection but does not indicate that such an order was ever placed in writing or that he followed up to see when the order would be filled or why it was delayed. Under the circumstances established in this record it is concluded that the abatement date of November 16, 1973, about 6 weeks after the inspection, was reasonable.

Consequently, based upon the evidence adduced and after full consideration of all submissions, briefs, arguments and motions, we make the following:

FINDINGS OF FACT

1. On October 4, 1973 and at all times material hereto [*20] The Wirth Corporation, Respondent herein, was a corporation maintaining a millwork plant and place of business and employment at Caldwell, Idaho. Respondent was organized and existed under and by virtue of the laws of the State of Idaho. Less than 20 employees were employed by Respondent at the inspected worksite where they were engaged in manufacturing general lumber millwork consisting mostly of studs for the mobile home industry. Raw materials received or originating from places outside of the State of Idaho were converted into end products, substantial quantities of which are sold or delivered to places outside of the State of Idaho. Respondent's business thus affects commerce within the meaning of Section 3 of the Act (9 U.S.C. 652). (File-Complaint, Articles I and II; Answer, Articles II and III; Transcript pgs. 9, 20, 75, and 131.)

2. On October 4, 1973 a Compliance Safety and Health Officer (CSHO) inspected Respondent's worksite at Caldwell, Idaho on behalf of the Secretary of Labor. Opening and closing conferences were conducted with a representative of Respondent and that representative accompanied the CSHO during the walk-around inspection. A representative of [*21] Respondent's employees also participated in the inspection. (Transcript pgs. 10, 22, 26, 37, and 121-122.)

3. As a result of the October 4, 1973 inspection Citation Number One (Non-Serious, 1 Item) and Citation Number Two (Serious, 1 Item) were issued to Respondent on October 10th. On the same date a Notification of Proposed Penalty was also issued to Respondent proposing a penalty of $0 in connection with Citation Number One and $600 in connection with Citation Number Two. On November 1, 1973 Respondent timely contested Citation Number Two, including the violation, the proposed penalty and abatement period. (File.)

4. On October 4, 1973 the two radial arm saws at Respondent's workplace were not equipped with guards covering the lower portions of their blades as required by the safety standard found at 29 CFR 1910.213(h)(1). Although use of the saws was not observed by the CSHO they were in regular use by Respondent's employees. They were used by one of Respondent's lumber graders on an average of about two hours every two weeks. Two or three of Respondent's maintenance men also used the saws an average of 2 to 3 hours every month. The saws were primarily used for straight [*22] cross-cuts of 2 by 4 studs. Some dado cuts and some angle cuts were also made with one of the saws but the frequency and extent of such use was not established. The saws were rendered inoperative in the presence of the CSHO immediately following the closing conference when Respondent severed the plugs from the ends of the power cords. (Transcript pgs. 10-13, 26-27, 36, 47-48, 54, 57-58, 61-62, 72-73, 94, 97, 116-118, 121-122, 126, 133-138, 145-148, 161-164, 175-176 and 179-184.)

5. Lower blade guards were verbally ordered about 4 months prior to the inspection but had not been received by the time of the inspection. One of the saws was returned to operation and use prior to the trial in this matter. The guard received for that particular saw was not installed prior to the trial even though the saw was returned to use and was actually in use at the time of the trial. (Transcript pgs. 56, 113-114, 151, 170-176, and 185.)

From the foregoing Findings of Fact we now make and enter the following:

CONCLUSIONS OF LAW

1. At all times material hereto The Wirth Corporation, Respondent herein, was an employer engaged in a business affecting interstate commerce within the meaning [*23] of Section 3 of the Occupational Safety and Health Act of 1970. On November 1, 1973 Respondent filed a letter contesting Citation Number Two (Serious), the proposed penalty and the abatement period. Respondent thereby brought itself and the subject matter of this proceeding within the jurisdiction of the Occupational Safety and Health Review Commission pursuant to Section 10 of the Act.

2. The safety standard cited and relied on here [29 CFR 1910.213(h)(1)] is, on the basis of the record in this proceeding, in full accord with the definition of a "national consensus standard" set forth in Section 3(9) of the Act and has been adopted and promulgated by the Secretary of Labor in full accord with the provisions of Section 6 of the Act.

3. The enforcement procedures followed by the Secretary of Labor in this proceeding are in full compliance with the provisions and requirements of Sections 8, 9, 10 and 17 of the Act.

4. The Occupational Safety and Health Review Commission does not have the authority to rule on the constitutionality of the Occupational Safety and Health Act of 1970.

5. The absence of a guard on the lower exposed portion of the blade of each of the two radial [*24] arm saws at Respondent's workplace, as found in Finding 4, is a serious violation of 29 CFR 1910.213(h)(1).

6. The abatement date proposed by Complainant was reasonable under all of the circumstances involved here.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law and for good cause shown, it is hereby ORDERED that:

1 Respondent's motion to dismiss based on Complainant's alleged failure to carry its burden of proof and because of the alleged failure of the Secretary of Labor to duly and properly promulgate the standard relied on here be, and the same hereby is, DENIED:

2. Citation Number Two (Serious) be, and the same hereby is, AFFIRMED;

3. The penalty of $600 proposed in connection with Citation Number Two be modified to $200 and as so modified be, and the same hereby is, ASSESSED; and that

4. The abatement period proposed by Complainant herein be, and the same hereby is, AFFIRMED.