BOONVILLE DIVISION OF ETHAN ALLEN, INC.

OSHRC Docket No. 76-2419

Occupational Safety and Health Review Commission

December 20, 1978

[*1]

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Richard L. Barnes, for the employer

OPINION:

DECISION

BY THE COMMISSION:

On November 17, 1976, Administrative Law Judge Robert P. Weil affirmed three serious citations issued to respondent alleging violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ["the Act"]. On November 23, 1976, former Commissioner Moran directed that the Judge's decision "be reviewed for error." Respondent thereafter filed a petition for discretionary review with regard to the Judge's affirmance of serious citation 3. Neither party filed a brief on review.

The parties have not taken issue with the parts of the decision in which the Judge affirmed Citations 2 and 4. In addition, there is no compelling public interest warranting Commission consideration of those citations. Accordingly, the Commission will not review these dispositions. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976); Crane Co., [*2] 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976).

Citation 3 alleges a serious violation of the Act for failure to comply with the standard published at 29 C.F.R. 1910.213(r)(3) n1 with respect to a Cemco combination woodworking machine. The machine, as it appeared at the time of the inspection, consisted of two circular saws, two small hydraulic clamps, and four drills. The Judge affirmed the violation and assessed the proposed penalty of $600. The only issue before the Commission is whether respondent failed to comly with the cited standard by failing to install lower blade guards on the two saws. For the reasons that follow, we affirm the Judge's finding of a violation, although we assess a reduced penalty.

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n1 The standard provides as follows:

1910.213 Woodworking machinery requirements.

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(r) Miscellaneous woodworking machines

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(3) For combination or universal woodworking machines each point of operation of any tool shall be guarded as required for such a tool in a separate machine.

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Respondent is a furniture manufacturer, employing about 219 persons at its plant in Boonville, New York. Respondent uses the combination woodworking machine to make frames for 30-inch mirrors. The machine's cycle is started by an operator placing a piece of wood against two rests in the front of the machine and depressing a hooded pedal with his foot. The machine then automatically proceeds sequentially through four phases: two small hydraulic presses lower to clamp the wood in place; the saws lower, simultaneously miter cut the two ends of the piece of wood, and raise; the drills make the holes; and the hydraulic presses release. The operator then removes the finished piece of wood and begins the cycle anew.

The two saws of this combination machine are mounted at right angles to each other. The blades are approximately 4 to 5 feet from the floor in the raised position and descend in a vertical motion to make the cuts. Each blade is 16 inches in diameter and rotates continuously. At the time of the inspection, installed guards protected all of each blade with the exception of the lower central quadrant. Two small hydraulic clamps are located [*4] in front of a portion of the unprotected quadrant of each blade. The operator stands one-and-one-half to two feet in front of the two saws. Normally, the operator uses both hands to place the wood in the machine. When placing the wood in the machine, the operator's hands are approximately one foot from the blades. The operator turns to get another piece of stock while the machine is operating through its automatic phases.

After the inspection, respondent designed and fabricated a chain-type guard. Still later, respondent designed, built, and installed a solid metal, two-piece retractable lower guard, which the compliance officer thought would satisfy the requirements of the standard. The guard is pushed upward on contact with the wood to permit the saw blade to cut the wood.

Respondent asserts that it was not in violation of the Act with respect to the cited machine for three reasons. First, respondent contends that the clamping devices in front of the saws provide some protection in case an employee falls toward the blade. Second, it argues that the operator's hands are removed from the point of operation when the saw travels through its cycle. Third, respondent asserts [*5] that there is no hazard when the saws are in the "rest" position. According to respondent, because the saws are then five feet above the floor, it would be necessary for the operator to "fall up" in order to contact the saw blades. We reject respondent's arguments.

Even assuming that the clamping device in front of the saw provides some protection to an employee who falls toward the blade, there is no assertion that the clamp would be as effective as the guard in preventing injury. Partial protection is not adequate when the required method of abatement can be accomplished. See Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1978 CCH OSHD para. 22,909 (No. 12523, 1978). It should be noted that in the compliance officer's opinion, the guards devised and installed by respondent met the requirements of the standard. An examination of photographic exhibits R-3 and R-4 shows that the clamps provide no protection whatsoever to a significant part of each blade when the blades are anywhere but in the lowered position. The protection provided when the blades are lowered is questionable as best.

With respect to respondent's contention that the operator removes his [*6] hands from the points of operation during the cycle, the evidence indicates that the operator normally turns to get another piece of stock after the wood in the machine is held by the presses. There is, however, no evidence that the operator leaves the machine or is required to use both of his hands in a way that would prevent the possibility of contact with the saw blades. Indeed, the compliance officer's testimony that there is a possibility of accidental contact with the rotating blade is unrebutted. We have held repeatedly that machine guarding cannot rely primarily upon human behavior. E.g., Slyter Chair, Inc., 76 OSAHRC 46/A2, 4 BNA OSHC 1110, 1976-77 CCH OSHD para. 20,589 (No. 1263, 1976); Akron Brick and Block Company, 76 OSAHRC 2/E2, 3 BNA OSHC 1876, 1976-77 CCH OSHD para. 20,302 (No. 4859, 1976). Accordingly, the argument is rejected.

Respondent's third argument, that there is no hazard when the equipment is in its "rest" position five feet above the floor, is equally unconvincing. The evidence reveals that the operator must place a piece of stock in the machine when the blades are in the raised position, which brings his hands within one foot of the blades. [*7]

Considered together, respondent's second and third arguments also could be regarded as a contention that the point of operation where guarding is required is only the point at which the blade contacts the wood during the normal operating cycle. We reject that reading of the standard. "Point of operation," for purposes of the cited standard, is defined at 29 C.F.R. 1910.211(a)(1) as "that point at which cutting, shaping, boring, or forming is accomplished upon the stock." We interpret "that point" to mean a point on the machine, not a point on the stock, because it is the machine that must be guarded. Thus, the operant part of the machine or tool that cuts, shapes, bores, or forms is the point of operation. Applied here, the "point of operation" encompasses that portion of the saw blade where cutting is, or can be, accomplished. This follows from the fact that the standard is plainly designed to reduce or eliminate the hazards of cuts or amputation that are created by an unguarded rotating blade wherever it is located. Thus, the cutting part of the blade is the point of operation regardless of whether the blade is raised, lowered, or moving through its cycle. To interpret [*8] the standard more narrowly would yield the result that saw blade guarding would be required only when the blade is in the wood. Such an interpretation would be not only contrary to the express purpose of the Act, n2 but also the result would render the standard essentially meaningless.

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n2 See section 2(b) of the Act.

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Respondent also argues, as it did before the Judge, that the solid guard installed after the inspection would not prevent amputation, presumably because the guard could be displaced by the operator's hand as well as by the stock. However, the Judge found, and we agree, that the guard provides protection to the operator under all circumstances except where the guard would be displaced. Even when the guard is displaced, it could provide some warning to the operator. To accept respondent's argument would be, in effect, to allow a total absence of protection because the guard does not provide complete protection. This is contrary to the express purpose of the Act. See Sec. 2(b) of the Act; [*9] Kelly Construction Services, Inc., 76 OSAHRC 89/F3, 4 BNA OSHC 1491, 1976-77 CCH OSHD P20,925 (No. 7102, 1976).

Finally, respondent asserts that the violation is not serious, apparently relying on the low probability that an accident might occur. We do not consider the likelihood that an accident might occur in determining the seriousness of a violation. Rather, the inquiry is whether, in the event of an accident, there is a substantial probability that the resulting injury would be death or serious physical harm. California Stevedore & Ballast Company, 73 OSAHRC 39/B5, 1 BNA OSHC 1305, 1973-74 CCH OSHD para. 16,520 (No. 14, 1973), aff'd, 517 F.2d 986 (9th Cir. 1975). The seriousness of the hazard is established here by the unrebutted evidence that accidental contact with the saw blade almost certainly would result in serious cuts or amputatior.

We do, however, take into account the probability that an accident might occur in determining the gravity and, in turn, the appropriate penalty. Judge Weil assessed a penalty of $600. The gravity of the violation is low, as evidenced by the absence of saw-blade accidents on the machine in the six years it had been in use, [*10] the partial protection afforded by the presence of the clamping device, and the operating procedure used by the employee. Respondent also has an established safety program. On the other hand, respondent is large in size, employing about 219 employees in its Boonville plant alone. On balance, we conclude that a reduced penalty in the amount of $300 is appropriate.

Accordingly, it is ORDERED that the Judge's decision be affirmed as modified and a penalty of $300 be assessed for this serious violation of the Act.