VICTOR O. HEGSTED, a sole proprietor, d/b/a CHALLENGER SUPPLY

OSHRC Docket No. 7318

Occupational Safety and Health Review Commission

December 17, 1975

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

COUNSEL:

Altero D'Agostini, Regional Solicitor, USDOL

Gary J. Jensen, for the employer

OPINION:

MEMORANDUM DECISION

BY THE COMMISSION: A decision of Review Commission Judge Garl Watkins, dated November 12, 1974, is before this Commission for review pursuant to 29 U.S.C. 661(i). At issue is whether the 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 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, respondent possessed the requisite knowledge of the presence of such conditions inasmuch as all three saws were located on respondent's premises. 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 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.

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.

Considering the entire record in conjunction with the factors enumerated in 29 U.S.C. 666(i), a $100.00 penalty is considered appropriate. The gravity of the violation is moderately low. Only three saws failed to comply with the standards, and the likelihood of an accident occurring on any of the saws was somewhat remote. Additionally, the respondent clearly demonstrated its good faith by attempting to protect its employees with guards of its own making. Although respondent had previously violated the Act, the complainant's compliance officer correctly concluded that respondent's good faith attempt to comply in its new building should operate in mitigation as to the penalty. Finally, respondent is a small business.

Accordingly, the citation for a serious violation is affirmed, and a penalty of $100.00 is assessed therefor.