COLUMBIAN ART WORKS, INC.

OSHRC Docket No. 78-0029

Occupational Safety and Health Review Commission

October 28, 1981

[*1]

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor, USDOL

Robert L. Wood, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Frank Zinn is before the Commission for review pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). Judge Zinn affirmed a citation issued by the Secretary of Labor ("the Secretary") alleging that Columbian Art Works, Inc. ("the Respondent") violated the standard at 29 C.F.R. 1910.212(a)(3)(ii) n1 by failing to adequately guard the point of operation of a bracket trimmer. The judge assessed a penalty of $500.

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n1 The standard provides in pertinent part:

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 of his body in the danger zone during the operating cycle.

[*2]

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Respondent filed a petition for discretionary review, contending that the unguarded bracket trimmer "presented only a minimal probability of serious injury" during the operation, that Respondent lacked knowledge that it was in noncompliance, and that no penalty should be assessed. Former Commissioner Barnako granted the petition for review.

We have reviewed the record and have considered the parties' arguments, which are substantially the same as those arguments made to the judge. With the following comments, we conclude that the judge properly affirmed the citation. n2

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n2 Respondent argues that it had a work rule preventing the operator and unloading operator from placing their hands in the point of operation during the operating cycle. Respondent further argues that the unloading operator was required to perform a task away from the point of operation while the machine was cycling. Additionally, Respondent supplied the unloading operator with a pushing device to prevent exposure to the point of operation. For these reasons, Respondent argues that its employees were not exposed to a hazard. However, Judge Zinn correctly found exposure to a hazard. The Commission has held that the cited standard requires a physical device rather than reliance on the skill or attentiveness of employees. See Mayhew Steel Products, Inc., 80 OSAHRC 77/A2, 8 BNA OSHC 1919, 1980 CCH OSHD P24,678 (No. 77-3970, 1980); Pass & Seymour, Inc., 79 OSAHRC 101/C13, 7 BNA OSHC 1961, 1979 CCH OSHD P24,074 (No. 76-4520, 1979); Irvington Moore, 75 OSAHRC 45/A2, 3 BNA OSHC 1018, 1974-75 CCH OSHD P19,523 (No. 3116, 1975), aff'd, 556 F.2d 431 (9th Cir. 1977). Moreover, the guarding device must be designed to prevent the employees from having any part of their bodies in the danger zone during the operating cycle. See MRS Printing, Inc., 78 OSAHRC 84/B10, 6 BNA OSHC 2025, 1978 CCH OSHD P23,102 (No. 76-3113, 1978). The pushing devices used in this case did not meet this requirement.

[*3]

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In 1973, Respondent received a citation from the Occupational Safety and Health Administration ("OSHA") alleging failure to guard four bracket trimmers as required by section 1910.212(a)(3)(ii). In response to this citation, Respondent installed a foot pedal for the unloading operator's use in preventing the machine from cycling. A follow-up inspection resulted in no further citation. Respondent's vice president concluded from this that Respondent was in compliance and Respondent argues on review that the Secretary was precluded from issuing the citation involved in this case.

The record does not establish that the compliance officer informed Respondent that it was in compliance with section 1910.212(a)(3)(ii). n3 OSHA's failure to issue a citation following an inspection does not grant an employer immunity from enforcement of applicable occupational safety and health standards. See International Harvester Co. v. OSHRC, 628 F.2d 982 (7th Cir. 1980). The Respondent cannot rely on OSHA's earlier failure to issue a citation to later argue a lack of knowledge of the hazardous condition.The [*4] Commission has held that the knowledge element of section 17(k) of the Act, 29 U.S.C. 666(j), is directed not to the requirements of the law but to the physical conditions which constitute a violation. See Southwestern Acoustics and Specialty, Inc., 77 OSAHRC 25/E7, 5 BNA OSHC 1091, 1977-78 CCH OSHD P21,582 (No. 12174, 1977). As Judge Zinn properly determined, Respondent knew of the hazardous condition of the bracket trimmer. Respondent had a work rule prohibiting its employees from placing their hands in the point of operation during the operating cycle. This shows that Respondent knew of the employees' exposure to a hazard from the unguarded point of operation. See Pass & Seymour, Inc., 79 OSAHRC 101/C13, 7 BNA OSHC 1961, 1979 CCH OSHD P24,074 (No. 76-4520, 1979).

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n3 In agreeing with the lead opinion, Chairman Rowland finds it unnecessary on the record before the Commission to reach the merits of the defense considered in the concurring opinion, and thus, Chairman Rowland does not agree that the lead opinion implies that such a defense is unavailable to an employer.

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Judge Zinn assessed a penalty of $500. In assessing penalties, we must consider an employer's size, history of compliance, and good faith, as well as the gravity of the violation. Section 17(j) of the Act, 29 U.S.C. 666(i). Considering the Respondent's reliance on the prior inspections and the Respondent's apparent good faith in attempting to reduce the hazard posed by the bracket trimmers, we consider it appropriate to assess a minimal penalty. The Act requires assessment of a penalty for a serious violation. Section 17(b) of the Act, 29 U.S.C. 666(b). We therefore assess $1. n4

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n4 Commissioner Cottine concludes that the assessment of a nominal penalty in this case is inappropriate. He would affirm the judge's assessment of a $500 penalty in view of the Respondent's knowledge of the hazardous condition at its worksite and the high gravity of the violation.

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Accordingly, Judge Zinn's decision affirming the citation is affirmed and [*6] a penalty of $1 is assessed. SO ORDERED.

CONCURBY: CLEARY

CONCUR:

CLEARY, Commissioner, concurring:

I agree that Respondent's bracket trimmer was not properly guarded and that a nominal penalty of $1 is appropriate. I do not, however, agree with the implication in the lead opinion that an employer cannot validly defend against an OSHA citation on the basis that it lacked fair notice of the requirements of a particular standard. The substance of Respondent's argument is that OSHA misled it into believing that its bracket trimmer was in compliance with the standard. If this was indeed the case, then Respondent would lack fair notice of the requirements of the standard and could not be found in violation. Diebold, Inc. v. Marshall, 585 F.2d 1327 (6th Cir. 1978); Auto Sun Products, 81 OSAHRC    , 9 BNA OSHC 2008, 1981 CCH OSHD P    (No. 77-2616, 1981).

It is a close question whether the circumstances surrounding the earlier citation deprived Respondent of fair notice that its bracket trimmer violated 29 C.F.R. 1910.212(a)(3)(ii). However, in view of Respondent's actual knowledge of the hazardous condition of the bracket trimmer, the compliance officer's apparent approval of the machine [*7] following the earlier citation did not deprive Respondent of fair notice that the bracket trimmer required further guarding. Accordingly, the citation is properly affirmed.