Docket No. 995

SMOKE-CRAFT, INC.

OSHRC Docket No. 995

Occupational Safety and Health Review Commission

May 20, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order directing review of a decision of Judge Thomas J. Donegan modifying Complaint's citation charging a serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). The Judge found a violation but concluded that it was non-serious in nature and assessed no penalty.

We have reviewed the record. We hold that the Judge erred in finding a violation. Therefore Judge Donegan's decision is adopted only to the extent it is consistent with this decision.

The relevant facts are as follows: Respondent manufactures beef jerky and sausage. Its operation requires the cutting of sausages approximately 48 inches long into smaller pieces. For this purpose the sausages are placed in a miter box. This box is a trough large enough to accommodate the sausages. The sides of the box have a series of grooves spaced at an interval corresponding to the length into which each sausage is cut -- approximately seven inches. The grooves are used to guide the cutting saw. The [*2] saw is electrically powered, portable and hand-held, with a reciprocating blade. It is operated by one employee while another inserts his hands into the box and holds the sausages to be cut. Occasionally the saw operator will assist in holding the sausage.

Five slices are made with the blade in the grooves of the miter box. However, the saw operator first cuts off the end of each sausage by guiding the saw blade along the outside edge of the box. Complainant's inspector observed the ends of four or five sausages being cut in this manner while an employee held each sausage with his hand not more than one to one-and-a-half inches from the blade of the saw. It is uncontroverted that the saw could cut flesh and that no protective equipment was used. Nevertheless, the inspector did not suggest that Respondent use protective gloves and sausage manufacturers normally do not use such gloves. n1

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n1 There is evidence that protective gloves are used in the meat packing industry. However, Respondent's president testified that Respondent is not a meat packer and performs no slaughtering or deboning. This testimony was not controverted by Complainant.

[*3]

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Over the period of 10 years during which Respondent has been cutting sausage in a miter box none of its employees have been cut or otherwise injured by a saw blade.

Complainant alleged and the Judge concluded, that Respondent had failed to comply with the requirements of 29 C.F.R. 1910.132(a), which provides as follows:

Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

The Judge found that the operation of the saw during the end cut along the outside edge of the miter box presented a hazard of injury by cutting to the employee holding the end of the sausage. We agree with this finding. However, [*4] the Judge erred by concluding a violation on this basis.

The existence of a hazard in itself does not establish a violation of this standard. The standard requires the use of personal protective equipment "wherever it is necessary by reason of hazards of processes or environment. . . ." In this case Complainant has not proven that the hazard existing in Respondent's operation is a hazard which necessitates the use of protective equipment.

The facts adduced by Complainant establish that an injury is possible. However, this evidence is countered by Respondent's 10-year history of no injuries. It is clear on the record that an injury, while possible, is extremely unlikely. Furthermore, Complainant adduced no evidence that protective equipment is customarily used in Respondent's industry. On the contrary, the evidence of record is that such equipment is not used by sausage manufacturers. There is no other standard relating to personal equipment to protect against the hazard of being cut by a saw. The hazard therefore is not known in Respondent's industry as a hazard requiring personal protective measures. See Modern Automotive Service, Inc., [*5] O.S.H.R. 1544, CCH Employ. S. & H Guide para. 17,369 (Rev. Com'n., Feb. 27, 1974).

Accordingly the preponderance of the evidence does not establish that protective equipment is necessitated either by the likelihood of injury or by custom in Respondent's industry. Complainant has failed to sustain his burden of proof. Armor Elevator Company, Inc.,

One further point requires discussion. Respondent explicitly contested another citation alleging seven non-serious violations of section 5(a)(2) of the Act. Subsequently Respondent admitted these violations and the reasonableness of the penalties proposed therefor. Judge Donegan, however, held that this citation and proposed penalties had not been contested and therefore had become a final order of the Commission pursuant to section 10(a).

We specifically disavow the Judge's application of section 10(a) insofar as he interprets it as divesting him of jurisdiction over the aforementioned citation and penalties. In view of Respondent's admission we affirm this citation and respective penalties.

Accordingly, [*6] the decision of the Judge is amended (1) to vacate the citation alleging a serious violation for failure to comply with 29 C.F.R. 1910.132(a) and (2) to affirm the citation for non-serious violations and the penalty proposed therefor. As amended it is hereby ORDERED affirmed.

CONCURBY: MORAN

CONCUR:

MORAN, CHAIRMAN, concurring: I agree with the disposition but not for the reasons given. The standard under which this respondent was cited is not an occupational safety and health standard as defined in the law (29 U.S.C. § 652(8)).

Further explanation as to why the standard is unenforceable was included in Secretary v. Ryder Truck Lines, Inc., Secretary v. Modern Automotive Service, Inc.,

In addition, I share Judge Donegan's view that where the employer, having once contested, decides to withdraw from its contest to certain allegations, the Commission lacks jurisdiction to act upon them. This tribunal has been established only to act upon issues in dispute. Where there is no dispute, there is no jurisdiction to act.

DISSENTBY: CLEARY (In Part)

DISSENT:

CLEARY, COMMISSIONER, dissenting in part: I respectfully [*7] dissent to the holding that respondent was not in violation of the standard published in 29 CFR 1910.132(a), the personal protective equipment standard.

The majority permits an acknowledged hazard to continue unabated by vacating the citation. The facts demonstrate that as one employee holds the sausage as it is being cut, his bare hand is one and one-half inches from the reciprocating blade of the sausage knife being operated by a second employee. In finding a threat of injury, the Judge described the hazard as follows:

The reciprocating power saw is portable and is described by Mr. Mikkelson as a bread cutting knife type of saw (Tr. 56). He testified that it operates with a short reciprocating stroke, much like an electric carving knife used in the home (Tr. 58, 59).

To describe the hazard is to show the need of personal protection. [*8] Further proof of necessity on an industry basis or any other basis should not be required in applying section 1910.132(a). It is clear from the record that during inspection the exposed employee was not wearing personal protective equipment but that subsequent thereto he was wearing wire mesh gloves for protection. This is appropriate protection. The Commission should require the continuation of this safety practice.

That the respondent has had no injuries should not be determinative. The Act may be violated even though no accident or injury occurs. It is remedial and preventative in nature. R.E.A. Express, Inc. v. Brennan and O.S.H.R.C., No. 73-1468 (2nd Cir., April 18, 1974). When employees are required to wear wire mesh gloves the hazard is alleviated.

[The Judge's decision referred to herein follows]

DONEGAN, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter called the Act). Two Citations (Number 1 and 2) for serious violations and one Citation for non-serious violations (Number 1) were issued on May 19, 1972, by the Complainant against the Respondent under [*9] the authority vested in the Complainant by Section 9(a) of the Act.

Citations 1 and 2 for serious violations and Citation 1 for non-serious violations allege that as a result of the inspection on May 2, 1972, of a workplace under the ownership, operation or control of the Respondent, located at 850 West 30th, Albany, Oregon, and described as a meat processing plant, the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citations allege that the violations result from the failure of the Respondent to comply with standards promulgated by the Secretary of Labor, by publications in the Federal Register, and codified in 29 CFR Part 1910. The alleged violations are set forth as follows:

Citation Number 1 for Serious Violation:

29 CFR 1910.212(a)(1) The following equipment is not guarded to protect operators of the machines:

A. The rotating knives and blades in the mixing vat in the Jerky Kitchen.

B. Rotating augers in the feed trough on the elevated platform.

C. The beaters and blades of the grinder in the sausage kitchen [*10] (2 such machines).

D. The blades of the forming machine in the Jerky Kitchen.

Alleged violation must be corrected by "June 19, 1972."

Citation Number 2 for Serious Violation:

29 CFR 1910.132(a) In the sausage holding room: The workman who was holding the "Beef Stick" in position while another workman used a reciprocating power saw to cut off the ends of the material was not protected in any manner from the moving saw blade.

Alleged violation must be corrected by "May 30, 1972."

Citation Number 1 for Non-Serious Violation:

Item Number 1:

29 CFR 1910.309(a) In the sausage holding room there are 7 fans wired with splices made in the appliance cord & not used in continuous lengths as specified in Article 400-5, National Electrical Code, NFRA 70-71; ANSI C1-1971.

Alleged violation must be corrected by "June 5, 1972."

Item Number 2:

29 CFR 1910.219(e)(1) The following power transmission apparatus is not guarded: (A) The V-belt drive of the large vacuum pump in the packaging room. (B) The V-belt drive of the small vacuum pump in the packing room. (C) The V-belt drive of the metering equipment section of the large vacuum pump in the packaging room. (D) The V-belt drive [*11] of the metering equipment of the small vacuum pump in the packaging room. (E) The V-belt drive of the hammer mill at the trash disposal facility at the rear of the building.

Alleged violation must be corrected by "June 5, 1972."

Item Number 3:

29 CFR 1910.219(f)(3) The chain & sprocket on the low south side of the "Royal" packaging machine is not equipped with a guard.

Alleged violation must be corrected by "June 5, 1972."

Item Number 4:

29 CFR 1910.212(a)(1) On 3 machines designated A, B, & C, the hot sealing rolls are exposed to contact by workmen who must make adjustments at that location.

Alleged violation must be corrected by "May 30, 1972."

Item Number 5:

29 CFR 1910.252(a)(2)(iv)(c) Two acetylene cylinders are located in the shop workbench area, adjacent to oxygen cylinders and with no type of separating barrier.

Alleged violation must be corrected "Immediately."

Item Number 6:

29 CFR 1910.243(a)(2) The Milwaukie portable hand grinder in the shop is not equipped with a "dead man" switch.

Alleged violation must be corrected by "May 24, 1972."

Item Number 7:

29 CFR 1910.132(a) Workmen who perform meat cutting operations do not use any kind of [*12] protection to prevent knife cuts.

Alleged violation must be corrected "Immediately."

The standards, allegedly violated by the Respondent, as promulgated by the Secretary provide as follows:

Citation Number 1 (Serious Violation):

29 CFR 1910.212(a)(1)

Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are -- barrier guards, two-hand tripping devices, electronic safety devices, etc.

Citation Number 2 (Serious Violation):

29 CFR 1910.132(a)

Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any [*13] part of the body through absorption, inhalation or physical contact.

Citation Number 1 (Non-Serious Violation):

Item Number 1, 29 CFR 1910.309(a)

The requirements contained in the following articles and sections of the National Electrical Code, NFPA 70-1971; ANSI C1-1971 (Rev. of 1968) shall apply to all electrical installations and utilization equipment:

400-5 Flexibles Cords and Cables, Splices.

National Electrical Code -- 1971

Section 400-5 -- Splices. Flexible cord shall be used only in continuous lengths without splice or tap.

Item Number 2, 29 CFR 1910.219(e)(1) n1

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n1 With reference to the above standard, Table 0-12, and paragraphs (m) and (o) are to be found on the following pages.

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Horizontal belts and ropes. (i) Where both runs of horizontal belts are seven (7) feet or less from the floor level, the guard shall extend to at least fifteen (15) inches above the belt or to a standard height (see Table 0-12), except that where both runs of a horizontal belt are 42 inches or less from the floor, the [*14] belt shall be fully enclosed in accordance with paragraphs (m) and (o) of this section. (ii) In powerplants or powerdevelopment rooms, a guardrail may be used on lieu of the guard required by subdivision (i) of this subparagraph.

TABLE O-12 -- TABLE OF STANDARD MATERIALS AND DIMENSIONS

	clearance			Minimum
	from			height of
	moving	Largest mesh	Minimum guage	guard from
	part at all	at opening	(US Standard)	floor or plat-
Material	points	allowable	of thickness	form level
	Inches	Inches		Feet
Woven wire	Under 2	3/8	No. 16	7
	2-4	1/2	No. 16	7
	Under 4	1/2	No. 16	7
	4-15	2	No. 12	7
Expanded metal	Under 4	1/2	No. 18	7
	4-15	2	No. 13	7
Perforated metal	Under 4	1/2	No. 20	7
	4-15	2	No. 14	7
Sheet metal	Under 4		No. 22	7
	4-15		No. 22	7
Wood or metal	Under 4	3/8	Wood 3/4 Metal No. 16	7
strip crossed	4-15	2	Wood 3/4 Metal No. 16	7
Wood or metal	Under 4	1/2 width	Wood 3/4 Metal No. 16	7
strip not	4-15	1 width	Wood 3/4 Metal No. 16	7
crossed
Standard rail	Min. 15
	Max. 20

(m) Standard guards -- general requirements -- (1) Materials. (i) Standard conditions shall be secured by the use of the following materials. [*15] Expanded metal, perforated or solid sheet metal, wire mesh on a frame of angle iron, or iron pipe securely fastened to floor or to frame of machine.

(ii) All metal should be free from burrs and sharp edges.

(iii) Wire mesh should be of the type in which the wires are securely fastened at every cross point either by welding, soldering, or galvanizing, except in case of diamond or square wire mesh made of No. 14 gage wire, 3/4-inch mesh or heavier.

(2) Methods of manufacture. (i) Expanded metal, sheet or perforated metal, and wire mesh shall be securely fastened to frame by one of the following methods:

(a) With rivets or bolts spaced not more than five (5) inches center to center. In case of expanded metal or wire mesh, metal strips or clips shall be used to form a washer for rivets or bolts.

(b) by welding to frame every four (4) inches.

(c) By weaving through channel or angle frame, or if No. 14 gage 3/4-inch mesh or heavier is used by bending entirely around rod frames.

(d) Where openings in pipe railing are to be filled in with expanded metal, wire mesh or sheet metal, the filler material shall be made into panels with rolled edges or bound with "V" or "U" [*16] edging of No. 24 gage or heavier sheet metal fastened to the panels with bolts or rivets spaced not more than five (5) inches center to center. The bound panels shall be fastened to the railing by sheet-metal clips spaced not more than five (5) inches center to center.

(e) Diamond or square mesh made of crimped wire fastened into channels, angle or round-iron frames, may also be used as a filler in guards. Size of mesh shall correspond to Table 0-12.

(ii) Where the design of guards requires filler material of greater area than 12 square feet, additional frame members shall be provided to maintain panel area within this limit.

(iii) All joints of framework shall be made equivalent in strength to the material of the frame.

(o) Approved materials -- (1) Minimum requirements. The materials and dimensions specified in this paragraph shall apply to all guards, except horizontal overhead belts, rope, cable, or chain guards more than seven (7) feet above floor, or platform. (For the latter, see Table 0-13.;

(i) Minimum dimensions of materials for the framework of all guards, except as noted in subdivision (i)(c) shall be angle iron 1 inch by 1 inch by 1/8 inch, metal pipe of [*17] 3/4-inch inside diameter or metal construction of equivalent strength.

(a) All guards shall be rigidly braced every three (3) feet or fractional part of their height to some fixed part of machinery or building structure. Where guard is exposed to contact with moving equipment additional strength may be necessary.

(b) The framework for all guards fastened to floor or working platform and without other support or bracing shall consist of 1-1/2-inch by 1-1/2 inch by 1/8-inch angle iron, metal pipe of 1-1/2-inch inside diameter, or metal construction of equivalent strength. All rectangular guards shall have at least four upright frame members each of which shall be carried to the floor and be securely fastened thereto. Cylindrical guards shall have at least three supporting members carried to floor.

(c) Guards thirty (30) inches or less in height and with a total surface area not in excess of ten (10) square feet may have a framework of 3/8-inch solid rod, 3/4-inch by 3/4-inch by 1/8-inch angle, or metal construction of equivalent strength. The filling material shall correspond to the requirements of Table 0-12.

(ii) The specifications given in Table 0-12 [*18] and subdivision (i) of this subparagraph are minimum requirements; where guards are exposed to unusual wear, deterioration or impact, heavier material and construction should be used to protect amply against the specific hazards involved.

(2) Wood guards. (i) Wood guards may be used in the woodworking and chemical industries, in industries where the presence of fumes or where manufacturing conditions would cause the rapid deterioration of metal guards; also in construction work and in locations outdoors where extreme cold or extreme heat make metal guards and railings undesirable. In all other industries, wood guards shall not be used.

(ii) (a) Wood shall be sound, tough, and free from any loose knots.

(b) Guards shall be made of planed lumber not less than one (1) inch rough board measure, and edges and corners rounded off.

(d) While no definite dimensions are given under the heading for framework or filler materials, wood guards shaal be equal in strength and rigidity to metal guards specified in subparagraphs (1)(i) and (ii) of this paragraph and [*19] Table 0-12.

(e) For construction of standard wood railing, see subparagraph (5) of this paragraph

(3) Guards for horizontal overhead belts. (i) Guards for horizontal overhead belts shall run the entire length of the belt and follow the line of the pulley to the ceiling or be carried to the nearest wall, thus enclosing the belt effectively. Where belts are so located as to make it impracticable to carry the guard to wall or ceiling, construction of guard shall be such as to enclose completely the top and bottom runs of belt and the face of pulleys.

(ii) The guard and all its supporting members shall be securely fastened to wall or ceiling by gimlet-point lag screws or through bolts. In case of masonry construction, expansion bolts shall be used. The use of bolts placed horizontally through floor beams or ceiling rafters is recommended.

(iii) Suitable reinforcement shall be provided for the ceiling rafters or overhead floor beams, where such is necessary, to sustain safely the weight and stress likely to be imposed by the guard. The interior surface of all guards, by which is meant the surface of the guard with which a belt will come in contact, shall be smooth and free [*20] from all projections of any character, except where construction demands it; protruding shallow roundhead rivets may be used. Overhead belt guards shall be at least one-quarter wider than belt which they protect, except that this clearance need not in any case exceed six (6) inches on each side. Overhead rope drive and block and roller-chain-drive guards shall be not less than six (6) inches wide than the drive on each side. In overhead silent chain-drive guards where the chain is held from lateral displacement on the sprockets, the side clearances required on drives of twenty (20) inch from the nearest moving chain part, and on drives of over twenty (20) inch centers a minimum of one-half inch from the nearest moving chain part.

(iv) Table 0-13 gives the sizes of materials to be used and the general construction specifications of guards for belts ten (10) inches or more in width. No material for overhead belt guards should be smaller than that specified in Table 0-13 for belts ten (10) to fourteen (14) inches wide, even if the overhead belt is less than ten (10) inches wide. Expanded metal, because of the sharp edges, should not be used as a filler in horizontal belt [*21] guards.

(v) For clearance between guards and belts, ropes or chains of various center to center dimensions between the shafts, see bottom of Table 0-13.

(4) Guards for horizontal overhead rope and chain drives. Overhead-rope and chain-drive guard construction shall conform to the rules for overhead-belt guard construction of similar width, except that the filler material shall be of the solid type as shown in Table 0-13, unless the fire hazard demands the use of open construction. A side guard member of the same solid filling material should be carried up in a vertical position two (2) inches above the level of the lower run of the rope of chain drive and two (2) inches within the periphery of the pulleys which the guard encloses thus forming a trough. These side filler members should be reinforced on the edges with 1-1/2 inch by 1/4-inch flat steel, riveted to the filling material at not greater than eight (8) inch centers; the reinforcing strip should be fastened or bolted to all guard supporting members with at least one 3/8-inch rivet or bolt at each intersection, and the ends should be secured to the ceiling with lag screws or bolts. The filling material shall be fastened [*22] to the framework of the guard and the filler supports by 3/16-inch rivets spaced on 4-inch centers. The width of the multiple drive shall be determined by measuring the distance from the outside of the first to the outside of the last rope or chain in the group accommodated by the pulley.

(5) Guardrails and toeboards. (i) Guardrail shall be forty-two (42) inches in height, with midrail between top rail and floor.

(ii) Posts shall be not more than eight (8) feet apart; they are to be permanent and substantial, smooth, and free from protruding nails, bolts, and splinters. If made of pipe, the post shall be one and one-fourth (1-1/4) inches inside diameter, or larger. If made of metal shapes or bars, their section shall be equal in strength to that of one and one-half (1-1/2) by one and one-half (1-1/2) by three-sixteenths (3/16) inch angle iron. If made of wood, the posts shall be two by four (2 X 4) inches or larger. The upper rail shall be two by four (2 X 4) inches, or two one by four (1 X 4) strips, one at the top and one at the side of posts. The midrail may be one by four (1 X 4) inches or more. The rails (metal shapes, metal bars, or wood), should be on [*23] that side of the posts which gives the best protection and support. Where panels are fitted with expanded metal or wire mesh as noted in Table 0-12 the middle rails may be omitted. Where guard is exposed to contact with moving equipment, addition strength may be necessary.

(iii) Toeboards shall be four (4) inches or more in height, of wood, metal, or of metal grill not exceeding one (1) inch mesh. Toeboards at flywheel pits should preferably be placed as close to edge of the pit as possible.

Item Number 3 -- 29 CFR 1910.219(f)(3)

Sprockets and chains. All sprocket wheels and chains shall be enclosed unless they are more than seven (7) feet above the floor or platform. Where the drive extends over other machine or working areas, protection against falling shall be provided. This subparagraph does not apply to manually operated sprockets.

Item Number 4 -- 29 CFR 1910.212(a)(1)

Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are -- [*24] barrier guards, two-hand tripping devices, electronic safety devices, etc.

Item Number 5 -- 29 CFR 1910.252(a)(2)(iv)(c)

OXYGEN CYLINDERS in storage shall be separated from fuelgas cylinders or combustible materials (especially oil or grease), a minimum distance of 20 feet or by a noncombustible barrier at least 5 feet high having a fire-resistance rating of at least one-half hour.

Item Number 6 -- 29 CFR 1910.243(a)(2)

"Dead man" controls. Hand-held, power-driven woodworking tools shall be provided with 'dead man' control, such as a spring-actuated switch, valve, or equivalent device, so that the power will be automatically shut off whenever the operator releases the control.

Item Number 7 -- 29 CFR 1910.132(a)

Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury [*25] or impairment in the function of any part of the body through absorption, inhalation or physical contact.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, a "Notification of Proposed Penalty" dated May 19, 1972, from, Eugene Harrower, Area Director, Portland, Oregon, Occupational Safety and Health Administration, U.S. Department of Labor, informed the Respondent that it is proposed to assess penalties for the alleged violations as follows:

SERIOUS VIOLATIONS

Citation Number	Proposed Penalty
1	$600.00
2	$600.00

NON-SERIOUS VIOLATIONS:

Citation Number	Item Number	Proposed Penalty
1	1	0
	2	$60.00
	3	0
	4	$30.00
	5	0
	6	0
	7	$30.00

A Notice of Contest dated June 6, 1972, from the Respondent contested the alleged violations and proposed penalties.

It is not clear from a reading of "Citation For Serious Violation" Number 1 whether the Respondent is charged with four separate serious violations under sub-parts A, B, C and D or with one serious violation. It is noted that the proposed penalty for the violation or violations alleged in this Citation is $600.00. Any uncertainty [*26] as to the number of serious violations alleged in this Citation will be resolved in favor of the Respondent and the Citation will be considered as charging one serious violation involving the following pieces of equipment:

A. . . . the mixing vat in the jerky kitchen.

B. . . . the feed trough on the elevated platform.

C. . . . the grinder in the sausage kitchen.

D. . . . the mixing vat in the sausage kitchen.

E. . . . the forming machine in the jerky kitchen.

The above listing omits the charge, under sub-part C of the Citation, that two grinders were involved in the alleged violation. It developed at the hearing that there was only one grinder in the sausage kitchen at the time of the inspection, on May 2, 1972, by the Occupational Safety and Health Administration Compliance Officer, Mr. Dave Arnett (Tr. 47, 54, 55, 145, 146). Mr. Arnett testified that he was accompanied on the inspection by the plant manager, Glen Warden, and Mr. Warden informed him that the vat in the sausage room was part of the grinding process and in his notes he referred to it as one of the grinding machines. He testified that he really didn't know what this piece of equipment did (Tr. 135).

The [*27] seven photographs of the Respondent's equipment were taken by Mr. Arnett on or about June 6 or 7, 1972, which was more than a month after he inspected the Respondent's workplace on May 2, 1972. These photographs were admitted into evidence as Secretary's Exhibits 1 to 7 inclusive.

The Secretary's Complaint was filed on June 16, 1972, and the Respondent's Answer on June 26, 1972.

The Respondent, in the Answer, admits the alleged violations contained in Citation Number 1 (non-serious violations) as set forth in paragraph five (V) of the Secretary's Complaint. In the Answer, the Respondent admits receiving the notification of proposed total penalty of $1,320.00, but states lack of knowledge of the basis of the assessment and on information and belief denies all other allegations contained in paragraph ten (X) of the Secretary's Complaint. Paragraph ten (X) sets forth all the proposed penalties for the alleged serious and non-serious violations contained in the Citation.

The Attorney for the Respondent stated at the hearing that the Respondent does not contest the non-serious violations in Citation Number 1. He stated that the proposed penalties for the non-serious violations [*28] amounting to a total of $120.00 will be paid. He said that the non-serious violations had all been corrected in about five days after the Citation was received by the Respondent.

The Respondent's employees do not have a representative and no employee or person representing an employee sought to participate in the hearing.

DISCUSSION

The issues in this case are concerned with alleged serious violations as set forth in Citations 1 and 2 and the proposed penalties for these alleged serious violations.

"Citation For Serious Violation" Number 1 is divided into sub-parts A, B, C, and D; apparently, for the purpose of identifying the equipment alleged to be operated by the Respondent in violation of the Secretary's standard 29 CFR 1910.212(a)(1).

Secretary's Exhibits 1 to 5 inclusive concern "Citation For Serious Violation" Number 1. Exhibits 6 and 7 are concerned with "Citation For Serious Violation" Number 2 which will be discussed later.

Mr. Wilem Mikkelson, President of Smoke-Craft, Inc., was the first witness to testify at the hearing. On direct examination, by the Attorney for the Secretary, Mr. Mikkelson identified and described the equipment which is alleged to [*29] violate the Secretary's standards. Mr. Mikkelson's testimony as to the correct identification of the equipment appearing in the photographs, which differs in some instances from Mr. Arnett's identification notes on the back of the photographs, has not been disputed. It is found that Mr. Mikkelson's testimony as to the location and operation of the equipment is credible.

In evaluating the evidence in this case and considering the errors made by Mr. Arnett, in describing the equipment in the Secretary's Exhibits and the "Citation For Serious Violation" Number 1, it is important to keep in mind that Mr. Mikkelson was the first witness to testify at the hearing and Mr. Arnett was present at the hearing when Mr. Mikkelson testified.

Mr. Mikkelson's identification of the equipment in Mr. Arnett's photographs (Secretary's Exhibits numbered 1 to 5 inclusive) is as follows:

Secretary's Exhibit No. 1 -- Mixing vat in jerky kitchen.

Secretary's Exhibit No. 2 -- Mixing vat in sausage kitchen.

Secretary's Exhibit No. 3 -- Paddles of mixing vats.

Secretary's Exhibit No. 4 -- Grinder in sausage kitchen, of which there is only one.

Secretary's Exhibit No. 5 -- Paddles of mixing vats.

Mr. [*30] Mikkelson's testimony, that the two mixing vats and the paddles of the two mixing vats are substantially the same and that there is only one grinder, is not contradicted by credible evidence.

No photographs were offered in evidence by the Attorney for the Secretary of the equipment identified in subparts B, C and D except for Secretary's Exhibit No. 4. This exhibit is a photograph of the outside of the grinder in the sausage kitchen. Mr. Arnett had written on the back of this photograph (Secretary's Exhibit No. 4) "2nd grinder in sausage kitchen," while in fact, this was the only grinder in the sausage kitchen and the piece of equipment which Mr. Arnett identified as the "1st grinder in sausage kitchen" (Secretary's Exhibit No. 2) was in fact, a mixing vat, the same type of equipment as the mixing vat in the jerky room (Secretary's Exhibit No. 1).

The confusion in identifying and describing the location and operation of the equipment which is alleged to be the basis of the serious violation set forth in Citation Number 1 raises a question as to whether the Respondent was fairly charged. In addition it raises a serious question as to whether the Compliance Officer making [*31] the inspection has been mistaken in his observations and conclusions.

The credible evidence is that the lips of the openings of the mixing vats, the auger troughs for transporting the meat, the grinder, and the forming machine are raised a minimum height of five feet from the floor. The exposure of the employees to the moving parts of this equipment is minimal.

Sub-part B of Citation For Serious Violation Number 1 states that the rotating augers in the feed trough on the elevated platform are not guarded to protect the operators of this machine. The substantial evidence is that the covers of the feed trough were off for the purpose of cleaning the trough and the augers were not operating when the trough was being cleaned. There is no credible evidence that the covers are removed when the equipment is operating or that the feed trough is operated from the raised platform.

Sub part A of this Citation describes rotating knives and blades in the mixing vat in the jerky room. The uncontradicted evidence is that paddles are used for mixing and not knives. The machine is designed to mix and not cut the meat. Even though the lips of the mixing vats in the jerky kitchen [*32] and sausage kitchen are raised at least five feet from the floor, the difference between rotating paddles and rotating knives and blades is signficant in evaluating a hazard to the operators of this equipment.

Mr. Mikkelson's uncontradicted testimony is that there are mixing rotating bars and a feeding screw in the grinder. This is contrary to the description of the moving parts of the grinder in sub-part C. The question is raised whether the Compliance Officer examined the interior of the grinder since he mistook the mixing vat in the sausage kitchen for a second grinder.

The forming machine has rotating bars and the credible testimony of Mr. Mikkelson refers to the machine as an extruder. In sub-part D of the Citation it is stated that the blades of the forming machine are not guarded to protect operators of the machine. The edge of the forming machine is 74 inches from the floor (Tr. 69, 70).

Mr. Arnett testified that he included the grinder in the sausage room as a possible serious violation because a workman was standing on a platform and doing something, down inside, to the grinder. Mr. Arnett is not sure which platform the workman was standing on and he does not know [*33] what the workman was doing. The machine was turned off. Mr. Arnett did not know if the grinder had a fail safe switch (Tr. 142). Mr. Arnett's basis for finding a serious violation as to the grinder in the sausage kitchen is illustrative of the evidence offered to prove the serious violations as to the equipment identified in Citation For Serious Violation Number 1 (Tr. 143, lines 1 to 5 inclusive.)

Proof by assumption is not sufficient. There has been no substantial evidence offered that an employee, in performing his regular duties, is required to assume such a position with reference to the Respondent's equipment that he is exposed to hazards created by points of operation of the machine. The possibility that the employee could be exposed, if assumptions were made as to the position of the employee if and when a machine is running, does not meet the requirement that the Secretary of Labor must prove by substantial, reliable and credible evidence that a violation has occurred.

"Citation For Serious Violation" Number 2 alleges a serious violation of the Secretary's standard 29 CFR 1910.132(a) in that the workman, holding the "Beef Stick" (sausage meat) in position, [*34] while a second workman used a reciprocating power saw to cut off the ends of the "Beef Stick," was not protected from the moving saw blade.

There are two employees engaged in this operation, the "cutter" (operating the reciprocating power saw) and the "placer" of the sausage (Tr. 81). While the "placer" puts the sausage in the miter box, the reciprocating power saw is on the table. Both the "placer" and the "cutter" use their hands to even the sausage in the miter box.

When the "Beef Stick" (sausage) is ready to be cut, the "placer" will have one hand holding the sausage in the miter box with the other hand free. The "cutter" will place one hand on the sausage in the miter box and with the other hand will hold and operate the reciprocating power saw. The first cut is made outside of the miter box at the end of the "Beef Stick" (Secretary's Exhibits 6 and 7). These photographs, which were taken by Mr. Arnett more than a month after he inspected the Respondent's workplace on May 2, 1972, do not show the "cutter's" hand on the "Beef Stick" nor do they show that the "cutter" is wearing mesh metal gloves. It was stated at the hearing that the workmen were wearing steel [*35] mesh gloves when the photographs were taken on June 6 or 7, 1972, which were not worn at the time of the inspection (Tr. 48).

Mr. Mikkelson testified that Secretary's Exhibits 6 and 7 do not show the typical production operation in cutting the "Beef Stick." The "cutter" and "placer" each use one hand in holding the "Beef Stick" when the reciprocating saw is cutting the "Beef Stick" (Tr. 52). He also testified that the reciprocating power saw is inside the slots of the miter box before the saw is put into action; that is, the saw blade is never actually reciprocating until it is down within the slots of the miter box (Tr. 82).

The reciprocating power saw is controlled by the "cutter" who holds it in his hand (Tr. 83). The "Beef Stick" is cut approximately 5 or 6 times in the miter box (Tr. 84). The workman who is operating the reciprocating saw will have one hand operating the saw and one hand down in the miter box, holding the sausage (Tr. 83).

Mr. Arnett, testified that Secretary's Exhibit 6 reflects what he saw, disregarding the gloves, as to the "Beef Stick" operation on May 2, 1972. He described the ends of the beef stick as being rough and, although he did not measure [*36] the distance, the hand of the "placer" came within an inch or an inch and a half of the reciprocating saw (Tr. 117). At the time of the inspection, Mr. Arnett testified that he observed the two workmen cutting possible 4 or 5 ends of "Beef Sticks" and one of the employees had his hands on the ends of all the "Beef Sticks" when the ends were cut off, Secretary's Exhibit 6 (Tr. 119).

It appears from the credible testimony that all of the cutting of the "Beef Stick" was done in the slots of the miter box except for the cutting of the ends of the "Beef Stick." Citation Number 2 specifically alleges that the serious violation involves the cutting of the ends of the "Beef Stick" with the reciprocating power saw without protection for the hands of the workmen holding the ends.

A determination must be made as to whether the cutting of the ends of each "Beef Stick" involves a violation of standard 29 CFR 1910 and whether the violation is serious or non-serious.

Undoubtedly, if the blade of the reciprocating power saw came in direct contact with flesh, while it was operating, it would cut the flesh. Since the reciprocating power saw operates like an electric carving knife it is under the control of the operator and the principal danger of cutting would be to the hand of the workman holding the end of the "Beef Stick." In making the end cut of the "Beef Stick" the reciprocating power saw is only guarded on one side by the miter box. In making the other cuts it operates in the slots of the miter box and, therefore, can't slip towards the side.

It is concluded, from the evidence of record, that the operation of the reciprocating power saw in cutting the ends of the "Beef Stick" without appropriate guarding of the hands of the workman, holding the end of the "Beef Stick," is a non-serious violation of standard 29 CFR 1910.132(a).

The cutting of sausage with the reciprocating power saw is not likely to result in death or serious physical harm. A cutting injury from the reciprocating power saw would no more result in serious physical harm than the non-serious violation of the same standard charged [*38] in Item 7 of Citation 1. The method of protecting the workmen who perform meat cutting operations from knife cuts is the same in Citation 2 and Item 7 of Citation 1 -- the workmen wear steel mesh gloves.

The two workmen assigned to cutting the "Beef Stick" are engaged in a meat cutting operation in which there is less danger of accidental cutting, since the sausage in the "Beef Stick" has already been ground, than in an operation which requires the cutting of unground meat with a knife.

It follows that if the meat cutting operation involving the reciprocating power saw is a non-serious violation of standard 29 CFR 1910.132(a) it should be grouped with the unspecified number of non-serious violations, involving meat cutting operations charged in Item 7 of Citation Number 1.

The proposed penalty for the unspecified number of non-serious violations, involving meat cutting operations, in Item 7 of Citation Number 1 is $30.00. The respondent did not contest Item 7 nor the proposed penalty. To increase the penalty because an additional non-serious meat cutting violation is included in the unknown number of meat cutting violations originally charged under Item 7 would do little to insure [*39] compliance with the Act.

The good faith of the Respondent in complying with the Act is evidenced by the uncontradicted testimony that Smoke-Craft, Inc., has an established safety committee for over two years which meets once a week. Management has followed the recommendations of the safety committee. The Respondent, with special regard to the Act, has employed two specialists to survey the plant and has spent over $2800.00 increasing the safety of the plant (Tr. 29, 30, 31).

Smoke-Craft, Inc., is a specialized processor of cut, dry, salted beef and is not engaged in meat packing.

After considering the entire record in this case, which includes the pleadings, credible testimony of the witnesses, exhibits in evidence, and memoranda filed by the Attorneys for the parties after receipt of the hearing transcript; it is concluded that the following "Findings of Fact" and the ensuing "Conclusions of Law" based thereon are supported by the substantial evidence of record.

FINDINGS OF FACT

1. The Respondent, Smoke-Craft, Inc., maintains a place of business and workplace at 850 West 30th Avenue, Albany, Oregon. For the last two fiscal years the Respondent had gross revenues [*40] of approximately $9,000,000 and a profit of less than $250,000. At the Albany, Oregon, workplace there are approximately 190 employees.

2. The Respondent is engaged in reprocessing meats and the production of specialty meat products which are shipped interstate.

3. On May 2, 1972, the Respondent's workplace at Albany, Oregon was inspected by David Arnett, an authorized representative of the Secretary of Labor and in the employ of the Occupational Safety and Health Administration, U.S. Department of Labor.

4. Following the inspection of the Respondent's workplace on May 2, 1972, the Respondent, on May 19, 1972, was issued Citations 1 and 2 for alleged serious violations and Citation 1 consisting of 7 Items for alleged non-serious violations, together with a Notification of Proposed Penalty, dated May 19, 1972, for the total amount of $1,320.00. In addition, the three Citations contained dates on which the alleged violations must be corrected.

5. In a letter dated June 6, 1972, the Respondent contested the three Citations and the Notification of Proposed Penalty.

6. All of the violations alleged in the three Citations were corrected by the Respondent within the [*41] abatement dates set in the Citation except for parts "C" and "D" of Citation For Serious Violation Number 1.

7. The Respondent does not contest any of the alleged non-serious violations charged in the 7 Items of the Citation For Non-Serious Violations Number 1, nor the total civil penalty of $90.00 for the non-serious violations alleged in Items 2, 4 and 7.

8. The following equipment of the Respondent, when operating or at rest, offers no threat to the safety or health of the operators of the equipment or to the other workmen employed at the workplace of the Respondent:

A. . . . the mixing vat in the jerky kitchen.

B. . . . the feed trough on the elevated platform.

C. . . . the grinder in the sausage kitchen.

D. . . . the mixing vat in the sausage kitchen.

E. . . . the forming machine in the jerky kitchen.

9. There is not a substantial probability of death or serious harm to the workmen engaged in the cutting of the ends of the "Beef Stick" from the moving saw blade of the reciprocating power saw.

10. There is a threat of injury by cutting, of a non-serious nature, to the workmen engaged in the cutting of the ends of the "Beef Stick" from the moving saw blade of [*42] the reciprocating power saw. This is a non-serious violation involving meat cutting which is of the same nature as the alleged meat cutting violation charged in Item 7 of Citation 1 (non-serious violation).

11. The proposed penalty for Item 7 of Citation 1, which is not contested is adequate to cover this additional non-serious violation involving the operation of the reciprocating power saw.

CONCLUSIONS OF LAW

1. The Occupational Safety and Health Review Commission has jurisdiction over the parties and subject matter of this proceeding.

2. The Respondent, Smoke-Craft, Inc., is at all times material to this proceeding, an employer engaged in business affecting interstate commerce within the meaning of Section 3 of the Act.

3. The Respondent, on May 2, 1972, failed to comply with the standards set forth in Citation Number 1 for non-serious violations, issued May 19, 1972, thereby violating Section 5(a)(2) of the Act. The Citation, not having been contested becomes a final order of the Occupational Safety and Health Review Commission and is not subject to review by any court or agency, in accordance with Section 10(a) of the Act.

4. The proposed penalty in the [*43] amount of $120.00 for the violations charged in Citation Number 1 for non-serious violations, issued May 19, 1972, not having been contested is thereby a final order of the Occupational Safety and Health Review Commission and is not subject to review by any court or agency, in accordance with Section 10(a) of the Act.

5. The allegations set forth in Citation For Serious Violation Number 1 do not constitute a violation by the Respondent of 29 CFR 1910.212(a)(1), which is a standard promulgated by the Secretary of Labor pursuant to Section 6 of the Act. There being no violation of the Act, the proposed penalty of $600.00 for this alleged serious violation must be vacated.

6. The allegation set forth in Citation For Serious Violation Number 2 does not constitute a serious violation of the Act within the meaning of Section 17(k) of the Act. There being no serious violation of the Act, the proposed penalty of $600.00 for this alleged serious violation must be vacated.

7. The allegation set forth in Citation For Serious Violation Number 2 does constitute a non-serious violation of 29 CFR 1910.132(a), a standard promulgated by the Secretary of Labor pursuant to Section 6 [*44] of the Act. Under the authority of Section 17(j) of the Act, no civil penalty is assessed for this non-serious violation.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED:

1. That Citation For Serious Violation Number 1 and the proposed penalty based thereon, be and the same are hereby vacated.

2. That Citation For Serious Violation Number 2 be modified to a non-serious violation and the proposed penalty based upon the alleged serious violation be vacated, and the same hereby are modified and vacated accordingly.