OSHRC Docket No. 76-135

Occupational Safety and Health Review Commission

April 20, 1977


Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.


Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Reg. Sol., USDOL

James MacMillan, Vice President, MacMillan Industries, Inc., for the employer



This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance [*2] of an unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.



MORAN, Commissioner, Dissenting:

The citation should be vacated because it was not issued with reasonable promptness as required by 29 U.S.C. 658(a). Secretary v. Jack Conie & Sons Corp., OSAHRC Docket No. 6794, June 25, 1976. Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges.

Since my colleagues do not address any of the matters covered in Judge Gold's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.



Manuel del Valle, Complainant

James MacMillan, pro se, Respondent


This matter was heard on April 28, 1976, at New York City pursuant to Section 10(c) of the Occupational Safety and Health Act, 29 U.S.C. 659(c).

Respondent [*3] has contested a citation of December 26, 1975, charging a serious violation of the standard at 29 C.F.R. 1910.212(a)(3)(ii). The Secretary proposed a $500 penalty.

29 U.S.C. 654(a)(2) requires that each employer comply with occupational safety and health standards promulgated under the Act.

29 U.S.C. 666(j) declares that "a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."

Pursuant to 29 U.S.C. 666(b), an employer shall be assessed a civil penalty of up to $1,000 for each serious violation.

Section 666(c) provides that an employer may be assessed a civil penalty of up to $1,000 for each nonserious violation.

Civil penalties can be imposed only after considering the size of the business of the employer, the gravity of the violation, the good faith of the employer, and the history [*4] of previous violations. 29 U.S.C. 666(i).

By not denying paragraphs II and III of the complaint, pursuant to Commission Rule 33(b)(2), 29 C.F.R. 2200.33(b)(2), Respondent is deemed to have admitted that it is a New York corporation maintaining an office and place of business at Newburgh, New York, and engages in the fabrication of canvas and plastic products; that many of the materials and supplies used by Respondent were manufactured outside the State of New York; and that Respondent was and is engaged in a business affecting commerce within the meaning of Section 3(3) and 3(5) of the Act. In light of the foregoing, it is found that the Commission has jurisdiction of the parties and the subject matter.

The standard at issue reads:

1910.212 General requirements for all machines.

(a) Machine guarding --

* * *

(3) Point of operation guarding.

* * *

(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part [*5] of his body in the danger zone during the operating cycle.

John Race, a compliance officer of the Department of Labor, inspected Respondent's facility on December 10, 1975 (Tr. 10).

The inspecting officer observed on the second floor a Thermatron machine which had a bar 30 inches long and 3/4 inch wide; between the bar and the bolster or bottom plate was an opening which was measured at 3/4 inch (Tr. 12). The machine seals two pieces of plastic by heat and pressure; it is operated by two persons, each of whom holds the material with one hand and presses a button with the other; the two buttons must be pressed simultaneously in order to cause the bar to come down (Tr. 13). The officer testified that on each side of the machine there was a red label with white lettering which declared the allowable opening permitted by the New York Department of Labor as 3/8 inch (Tr. 14); that he and Respondent's Vice-President measured the opening at 3/4 inch (Tr. 14); and that if an operator's hand got caught between the bar and the plate when the bar came down, it could result in a broken bone of a finger or even an amputation (Tr. 15, 23), but if the opening were only 3/8 inch he did not believe [*6] that an operator could get his fingers into that space (Tr. 15-16, 21).

The inspector declared that he was told by the corporation Vice-President that the machine was used seasonally; that it had last been used about two months prior to the inspection; and that it would not be worked again until the following spring (Tr. 24).

James MacMillan, Vice-President of the corporation, testified that this equipment had been used in the three weeks prior to the hearing, and that the space had been adjusted to 3/8 inch (Tr. 29). He asserted that it would be difficult to have an accident because two operators must work the machine, one hand of each operator being occupied holding the material in place, while the other hand of each operator must simultaneously push an ignition button (Tr. 30-31). He said that the material worked on varies as to thickness (Tr. 29); since the material slides beneath the bar (Tr. 31), this means that the space between bar and plate is reduced accordingly. Mr. MacMillan stated that he and three other employees operate this machine (Tr. 33, 34).

I find that this record establishes that the operation of the Thermatron machine exposed employees of Respondent to [*7] serious injury and needed guarding at the point of operation by reduction of the space between bar and plate to 3/8 inch. Respondent's failure to do so constituted a violation of the cited standard, and it is so found.

It is further found that the violation was a serious nature since there was a substantial probability that serious physical harm (broken or crushed bone of a finger) could have resulted from the violative condition, and Respondent, through its Vice-President, could have known of the presence of the violation with the exercise of reasonable diligence.

The Secretary has proposed a penalty of $500. While serious physical harm could have stemmed from the violation, I feel that the probability of such occurrence was low. Respondent is a small organization, with four full-time and six part-time employees (Tr. 33). There is no evidence of previous safety violations. The inspecting officer described Respondent's attitude during the inspection as "very, very cooperative" (Tr. 18). He opined that Respondent wanted to do everything to comply with the standards (Tr. 18). After considering the criteria listed at 29 U.S.C. 666(i), I find that a penalty of $300 is appropriate. [*8]

Accordingly, IT IS ORDERED that the serious citation of December 26, 1975, be affirmed and a penalty of $300 assessed.

Dated: August 11, 1976

Boston, Massachusetts