ROCKY MOUNTAIN MILLWORK, INC.

OSHRC Docket No. 7238

Occupational Safety and Health Review Commission

December 15, 1975

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

COUNSEL:

Altero D'Agostini, Regional Solicitor, USDOL

Bill L. Sherry, President, Rocky Mountain Millwork, Inc., for the employer

OPINION:

MEMORANDUM DECISION

BY THE COMMISSION: A decision of Review Commission Judge Garl Watkins, dated October 18, 1974, is before this Commission for review pursuant to 29 U.S.C. 666(i). At issue is whether occupational safety standards set forth at 29 C.F.R. 1910.213 were validly 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 the standards were validly promulgated. n1 They also find that the violation is serious in that the evidence establishes that there was a substantial probability that serious physical harm, such as amputation of the hand or fingers, could result from the violative conditions. Moreover, the respondent possessed the requisite knowledge of the presence of such conditions inasmuch as all four saws were located on respondent's premises. 29 U.S.C. 666(i). n2

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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 14, 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.

n2 Commissioner Cleary adds that in his opinion "knowledge" is not critical to finding a "serious" violation under section 17(k) of the Act. Rather, a lack of knowledge is an affirmative defense to an alleged "serious" violation. See D. R. Johnson (dissenting opinion), No. 3179 (April 25, 1975).

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Commissioner Moran would affirm the Judge's decision for the reasons set forth in his dissenting opinion in Noblecraft.

Regarding the assessment of an appropriate penalty, the record shows that the respondent operates a small business with only nine employees, only four of whom used the unguarded saws in the normal course of their employment. The respondent has no history of prior violations and exhibited moderate good faith. Under these circumstances, the Commission finds that a $200.00 penalty is appropriate.

Accordingly, the citation for a serious violation is affirmed and a penalty of $200.00 is assessed therefor. Additionally, the Judge's findings as to the citation for nonserious violations are affirmed.