UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 10096

THE GOULD-MERSEREAU CO., INC.,

 

                                              Respondent.

 

July 21, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

MORAN, Commissioner:

            A decision of Review Commission Judge James D. Burroughs, dated March 31, 1975, is before this Commission for review pursuant to 29 U.S.C. § 661(i).

            Having examined the record, the Commission finds no prejudicial error therein. Accordingly, the Judge’s decision is hereby affirmed in all respects.

 

FOR THE COMMISSION:

 

William S. McLaughlin

Executive Secretary

DATED: JUL 21, 1976

 

CLEARY, Commissioner, DISSENTING:

What is before us is Item No. 2 of a citation for nonserious violations for the alleged failure of respondent to guard the point of operation of a horizontal milling machine as required by 29 CFR § 1910.212(a)(1). The guarding was absent. The majority however finds no error in the Judge’s holding that the evidence does not support a determination that the point of operation of the machine exposed employees to injury.

 

The evidence establishes only a remote possibility of injury. Under these circumstances and consistent with Commission precedent, the violation should be characterized as de minimis. Van Raalte Company, Inc., 4 BNA OSHC 1151, 1975–76 CCH OSHD Para. 20,633 (No. 5007, 1976).

 

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 10096

THE GOULD-MERSEREAU CO., INC.,

 

                                              Respondent.

 

March 31, 1975

DECISION AND ORDER

Appearances:

Diane Zwerling, Esquire, Office of the Solicitor U. S. Department of Labor, New York, N. Y., on behalf of complainant.

 

Jacob Fogelson, Esquire, New York, N. Y., on behalf of respondent.

 

STATEMENT OF CASE

BURROUGHS, Judge:

            This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., 84 Stat. 1590 (hereinafter ‘Act’). Respondent seeks review of items 2, 11 and 12 of a non-serious citation issued to it on September 3, 1974, pursuant to section 9(a) of the Act. Review is also sought of the penalties proposed for items 1, 2, 3, 5, 9 and 13 of the citation. No penalties were proposed for the other items set forth in the citation.

            The citation and notification of proposed penalty were issued as the result of an inspection conducted on August 22, 1974, of respondent’s manufacturing plant located at 35 West 44th Street, New York, New York. It is engaged in the manufacture of drapery hardware.

            The citation alleges that respondent violated section 5(a)(2) of the Act by failing to comply with thirteen standards promulgated under the Act. The respondent, by letter dated September 20, 1974, and received by complainant on September 23, 1974, timely advised complainant that it desired to contest the citation and proposed penalties. At the hearing, respondent conceded all of the alleged violations except for items 2, 11 and 12. (Tr. 4–5).

            The non-serious citation issued to respondent alleges that the contested items violated the standards indicated and were described as follows:

Item No.

Standard

Description

2

1910.212(a)(1)

 

Machine guarding was not provided to protect the operator and other employees in the machine area from the hazards of operation:

A. Rolling Mill Dept.

1. No nip point guard on feed rollers of Yoder Mill Ser. #7986

 

2. No foot pedal guard on Bliss Power press 0–18

 

B. Sub-Assembly Dept.

1. No point of operation guard on eight (8) Chicago Riveting Machines

 

2. No point of operation guard on Detroit screwdriver

 

C. Brown & Sharpe horizontal milling machine Ser. #3814 in tool room, no cutter guard.

 

D. Power Press Dept.

1. No point of operation guard on two (2) Chicago Riveting Machines

 

2. No protection for other employees on ring saw

 

11

1910.215(b)(5)

 

Safety guard was not provided to cover the periphery and side of the abrasive grinding wheel on the Boyar-Schultz surface grinder in tool room in accordance with figure 0–12.

 

12

1910.213(p)(4)

 

Belt sander in tool room was not provided with:

1. Guards at each nip point where the sanding belt runs on to a pulley.

 

2. Guard for the unused run of the sanding belt.

 

 

            Sub-item A of item 2 and sub-item 1 of item 12 was conceded by respondent. (Tr. 4–5). The abatement date for item 2 as it applies to the riveting machines was also placed in issue by the respondent. (Tr. 93). The citation specified an abatement date of October 25, 1974, for item 2.

            All penalties proposed in the notification of proposed penalties issued to respondent on September 3, 1974, were contested. In addition to item 2 which was contested, penalties were proposed for items 1, 3, 5, 9 and 13. These uncontested violations involved standards and were described by the citation as follows:

 

Item No.

Standard

Description

1

1910.242(b)

 

Compressed air used for cleaning purposes was in excess of 30 psi and without effective chip guarding:

1. One air gun in rolling mill dept.

 

2. Two (2) air guns in tool room

 

3

1910.22(b)(2)

 

Permanent aisles and passageways in the work and storage areas were not designated by appropriate markings.

 

5

1910.22(a)(1)

 

Rolling mill dept. was not kept in a clean and orderly condition. Materials are stored throughout dept.

 

9

1910.107(e)(9)

 

Fifty-five gallon drum of lacquer thinner was not bonded to the smaller can into which it is being dispensed.

 

13

Nat’l Electric Code NFPA 70–1971 as adopted by 1910.309(a) Article 250–42

 

Exposed noncurrent-carrying metal parts of fixed equipment within 5 feet horizontally or 8 feet vertically of grounded metal objects was not grounded:

1. Two (2) fans in assembly area

 

2. Stapler in assembly area

 

3. Walker-Turner drill press #1944 in sub-assembly

 

4. Fan in sub-assembly

 

5. Fan near Storage area (flammables)

 

            A hearing was held in this case on November 26, 1974, in New York, New York. No additional parties desired to intervene in the proceeding.

JURISDICTION AND ISSUES

            Respondent concedes that all times material to this proceeding it was engaged in a business affecting commerce within the meaning of the Act and that the Commission has jurisdiction of the parties and of the subject matter herein. (Pars. I, III, Complaint and Answer; Tr. 4).

            The following issues are pertinent to a disposition of this case:

            1. Did respondent violate section 5(a)(2) of the Act by failing to comply with the standards published at 29 CFR 1910.212(a)(1), 29 CFR 1910.215(b)(5) and 29 CFR 1910.213(p)(4)?

            2. Was October 25, 1974, a reasonable abatement date for the correction of 29 CFR 1910.212(a)(1) if a violation is determined to have existed?

            3. What penalties, if any, should be determined for any violation of 29 CFR 1910.212(a)(1) that might be determined and for the uncontested violations of items 1, 3, 5, 9 and 13 of the citation issued on September 3, 1974?

FINDINGS OF FACT

            The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving the issues in this case:

            1. Respondent, Gould-Mersereau Company, Inc., is a New York Corporation with its principal office located at 35 West 44th Street, New York, New York. It is engaged in the manufacture of drapery hardware. (Par. II, Complaint and Answer; Tr. 4, 7).

            2. Respondent’s total annual gross revenues is two million dollars. The average daily employees during 1974 was approximately 50. (Stipulated, Tr. 4).

            3. On August 22, 1974, the complainant, through a duly authorized compliance officer, conducted an inspection of respondent’s plant located on 44th Street, New York, New York. (Tr. 7).

            4. Respondent’s manufacturing facilities are housed in three interconnected brick buildings which provide approximately 60,000 square feet of space. (Tr. 7, 44).

            5. Three air guns in the plant contained an air pressure from 80 to 85 pounds per square inch. (Tr. 14). The guns were operational and were generally used by approximately four persons. The guns were generally in constant use.

            6. Eight Chicago Riveting Machines in the sub-assembly department did not have the point of operation guarded. Employees were observed operating the machines. (Tr. 9, 20, 21–22). One employee operates the machine. (Tr. 91).

            7. Two Chicago Riveting Machines were located in the power press department. They did not have the point of operation guarded. (Tr. 11).

            8. Three of the riveting machines were in operation at the time of the inspection. All of the machines were used at various times. (Tr. 63, 64). Generally, two or three of the machines are operated at any given period of time. (Tr. 91, 96–97).

            9. The riveting machines are activated by a foot pedal. They are mechanically operated. The employee places two small pieces of metal into the machine on a locating pin and activates the foot pedal. (Tr. 20, 21, 52, 53, 84, 89).

            10. The employee inserts the pieces with one hand and holds them with the other hand while the foot pedal is activated. (Tr. 21, 22, 53–54). The pieces inserted were short, round pieces. (Tr. 24, 52). The operator’s hands were from one to three inches from the point of operation of the machines during the riveting process. (Tr. 53).

            11. Chicago Riveting Machine Company and others manufacture guards and devices for the riveting machines utilized by respondent. (Tr. 23, 24–25, 47–48, 88–89).

            12. Respondent devised a safety device which prevents an operator from activating the machine when the fingers of the operator are in contact with the riveting points. (Tr. 87–88). An outside electrician had to be employed to install the device. (Tr. 87).

            13. Respondent has ordered a conversion kit to convert the machines from a mechanical to an electrical operation so that the safety device can be installed. The machines have to be converted to electricity prior to installing the safety device. (Tr. 89, 97).

            14. During the year 1973, respondent had three injuries resulting from the use of the riveting machines. One injury involved a rivet going through the index finger of an employee. (Tr. 9, 47, 99).

            15. A pneumatic screwdriver located in the sub-assembly department did not have its point of operation guarded. (Tr. 9).

            16. A horizontal milling machine was located in the tool room. It had no point of operation guard on the cutter. (Tr. 10, 27). The machine was not being used by an employee during the inspection. (Tr. 27, 54–55).

            17. The horizontal milling machine is used to out and shape parts. (Tr. 55). A piece of metal is placed on a table which moves back and forth through the points of operation whenever it is activated. The cutter is stationary and cuts the metal as the table moves. (Tr. 27, 28, 31–32, 33, 56, 72). The cutter automatically shaves off small pieces of metal until the desired shape or size is achieved. (Tr. 30, 32–33, 72). The employee does not use his hands to push the metal under the cutter. (Tr. 33).

            18. The horizontal milling machine is operated only by an experienced toolmaker. (Tr. 74). His hands are close to the cutter when the piece of metal is set on the table but are not closer than two feet to the cutter during the actual operation. (Tr. 55, 73).

            19. Guards are available for a horizontal milling machine. (Ex. 1; Tr. 48–51).

            20. A table ring saw in the power press department contained no guard on the bottom of the table. (Tr. 11).

            21. There were no aisles and passageways marked in the rolling mill department, assembly department and the basement. Materials were stored throughout the aisles. (Tr. 17, 18).

            22. Raw materials were stored in portions of the permanent aisles in the rolling mill department. Empty boxes and paper were thrown on the floor. (Tr. 65–66).

            23. A fifty-five gallon drum of lacquer thinner stored in the flammable storage room of the spray room was not bonded to the smaller can into which it was being dispensed. The drum was grounded. (Tr. 18, 67). Two persons were observed in the spray room. (Tr. 67).

            24. A Boyar-Schultz surface grinder was located in the tool room. The grinder was being used at the time of the inspection without a guard to sharpen a tool. (Tr. 11, 40, 60).

            25. The guard for the surface grinder was laying next to it. The guard was replaced while the compliance officer was at the machine and the employee continued sharpening the tool. (Tr. 11, 40, 60).

            26. Respondent’s assistant manager ordered the employee to replace the guard and to keep it on at all times during the operation. The assistant manager had not previously been aware of the removal of the guard. (Tr. 61).

            27. A horizontal belt sander located in the tool room did not have a guard for the bottom and sides of the belt. The sander consisted of two rollers with a belt going around the rollers. The belt was made of an abrasive material. There was no guard for the nip points where the belt ran onto a pulley. (Tr. 10, 35, 37, 62, 77). The sander was in operation at the time of inspection. (Tr. 37–38).

            28. The upper or top portion of the belt was being used by employees in the tool room. The sides and the bottom were not being used. The bottom of the belt was an inch above the table. (Tr. 35, 38, 76–77, 81). The belt sander is used to smooth parts. (Tr. 76).

            29. The unused portion of the belt run had been guarded by respondent at the time of the hearing. (Tr. 77).

            30. Six pieces of equipment located in various areas were not grounded. The pieces included five pedestal type fans and a stapler. (Tr. 19, 67, 68). Respondent’s representative informed the compliance officer that the machines would be grounded. (Tr. 40–41).

            31. The tool room is a separate department within the plant. It contains approximately 2,000 square feet of space and is located in a separate walled area which is accessible by doors. (Tr. 36, 51). Two employees work in the tool room. (Tr. 36, 58, 81). No other employees were observed in the tool room. (Tr. 37, 59, 60).

            32. Respondent employed at least three persons in the rolling mill department and approximately six persons in the assembly department. (Tr. 45, 46).

            33. No accident has occurred in respondent’s tool room in at least 47 years. (Tr. 77).

            34. Respondent has no history of previous violations under the Occupational Safety and Health Act (Stipulated, Tr. 4).

            35. In arriving at the proposed penalties, complainant allowed a 5 percent reduction for size, a 10 percent reduction for good faith and a 20 percent reduction for previous history. (Tr. 15). A further 50 percent reduction was allowed for abatement. (Tr. 15–16, 17, 18, 19).

LAW AND OPINION

            Respondent has challenged the applicability of three standards to its operations and all of the penalties proposed by complainant. The abatement date specified for the guarding of riveting machines, if such machines are required to be guarded, is also placed in issue by respondent.

I. ALLEGED VIOLATIONS

            A. Alleged Violation of 29 CFR 1910.212(a)(1)

            Section 1910.212(a)(1) of 29 CFR provides as follows:

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.

 

            Complainant alleges that respondent failed to guard the following machines which are contested by the respondent: (1) Chicago Riveting Machines; (2) Detroit power screwdriver; (3) Brown & Sharpe horizontal milling; and (4) ring saw.

            The standard set forth at 29 CFR 1910.212(a)(1) requires machine guarding to protect the operator and other employees in the machine area from hazards such as those created by point of operation. This provision must be construed with 29 CFR 1910.212(a)(3)(ii) which states, in part, as follows:

The point of operation of machines whose operation exposes an employee to injury, shall be guarded . . . . (underlining added)

 

            It is clear that the intent of 29 CFR 1910.212 is to require point of operation guarding where an employee is exposed to injury. The standard does not require that every point of operation be guarded regardless of exposure to injury. There must be a showing that employees are exposed to an injury from an unguarded point of operation before guarding is required.

            Chicago Riveting Machines

            Respondent had a total of 10 Chicago Riveting Machines located in the sub-assembly and power press departments. None of the machines had point of operation guarding. The evidence is also clear that guards and devices are available to protect the operator from the point of operation.

            Three of the riveting machines were in operation at the time of the inspection. The operators were placing small pieces of metal on locating pins and activating the machines with a foot pedal. During the riveting process, the operator’s hands were from one to three inches from the point of operation. The close proximity of the hands of the operator to the point of operation exposed the operator to a possible injury. An inch from the point of operation is insufficient to properly protect the operator from injury. This conclusion is supported by the fact that three injuries occurred in 1973 from the operation of the machines. The violation has been established.

            Detroit Power Screwdriver

            The evidence with respect to the Detroit screwdriver is insufficient to establish a violation. The compliance officer testified as follows with respect to the issue: (Tr. 9, lines 20–24).

‘Q. Did you observe anything else in the sub-assembly department?

 

‘A. I have observed a pneumatic screwdriver in the same situation, no point of operation guards.’

 

            This constitutes the evidence of record on this issue. There are no facts surrounding the issue upon which a valid determination can be made. There is no evidence to reflect how or when the screwdriver was used or whether the point of operation exposed the operator to an injury.

            The only evidence of record on the issue is the statement of the compliance officer that the point of operation was not guarded. The Commission must base its determination of the issues on facts and not on conclusions of the compliance officers.[1] The burden was on complainant to establish the facts which required that the point of operation of the screwdriver be guarded. He has failed in this burden. The issue must be determined for respondent.

            Brown & Sharpe Horizontal Milling Machine

            A horizontal milling machine was located in the tool room. The point of operation, which was at the cutter, was not guarded. The machine was used to cut and shape parts. The metal to be cut or shaped is placed on a table which moves back and forth through the point of operation whenever it is activated and automatically shaves off small pieces of the metal. The operator does not hold the part as it goes back and forth through the point of operation. The part is on the table which moves automatically. The operator’s hands are not closer than two feet to the cutter during the actual operation.

            When the piece of metal is placed on the table the machine is not running. The machine is activated after the piece of metal has been properly placed on the table. Since the operator does not handle the piece of metal after it is placed on the table, his hands or any other part of his body is not exposed to injury from the point of operation. The location of the hands at least two feet from the point of operation is sufficient to protect the operator. This is especially true since the operator has nothing to do with the process while the piece moves through the point of operation.

            The compliance officer conceded that there was little probability of the operator suffering an injury from his operation of the machine. (Tr. 32). However, he raises the possibility that the operator could walk away from the machine while it was running and someone not employed in the tool room could enter and accidentally contact the cutter. (Tr. 32, 57). This is pure speculation. Only two experienced toolmakers work in the tool room. The tool room is located in a separate walled area of the plant. The compliance officer did not observe any employees other than the toolmakers in the room. There is no evidence to indicate other employees had occasion to enter the tool room. There has not been an accident in the tool room in at least 47 years. This is an indication that the employees in the tool room operate in a safe and careful manner. The evidence does not support a determination that the point of operation of the machine exposed employees to injury. The issue is decided for respondent.

            Ring Saw

            A table ring saw in the power press department contained no bottom guard. The compliance officer testified: (Tr. 11, lines 16–22).

‘Q. After you inspected the tool room, what did you observe?

 

‘A. I went into the power press department and I have observed two more Chicago Riveting Machines, same situation, no point of operation guard. I also saw a table with the ring saw with no guard on the bottom of the table.’ (underlining added)

 

The testimony of the compliance officer is the only evidence on the issue.

            As in the case of the power screwdriver, the evidence does not establish the facts upon which to make a determination of whether guarding was necessary to prevent employees from being exposed to injury. The burden of proof was on the complainant. He failed to sustain his burden. The issue must be decided for respondent.

            B. Alleged Violation of 29 CFR 1910.215(b)(5)

            Section 1910.215(b)(5) of 29 CFR provides:

‘Guarding of abrasive wheel machinery—(1) Cup wheels. Cup wheels (Types 6 and 11) shall be protected by:

(i) Safety guards as specified in sub-paragraphs (1) through (10) of this paragraph . . ..’

‘(5) Surface grinders and cutting-off machines. The maximum angular exposure of the grinding wheel periphery and sides for safety guards used on cutting-off machines and on surface grinding machines which employ the wheel periphery shall not exceed 150°. This exposure shall begin at a point not less than 15° below the horizontal plane of the wheel spindle. (See Figures 0–12 and 0–13).’

 

            Complainant alleges that a Boyar-Schultz surface grinder located in the tool room did not contain a safety guard to cover the periphery and side of the abrasive grinding wheel.

            A Boyar-Schultz surface grinder was being used by an employee at the time of inspection to sharpen a tool. There was no safety guard on the grinder to cover the periphery and sides of the grinding wheel. The standard requires guarding of abrasive wheel machinery.

            The guard for the surface grinder was laying next to it. The assistant manager, who accompanied the compliance officer on the inspection, ordered the employee to replace the guard and to keep it on at all times during the operation. The guard was replaced and the employee continued sharpening the tool.

            The assistant manager had not been aware of the removal of the removal of the guard. In Secretary v. Standard Glass Company, Inc., 1 OSAHRC 594, 596 (1972), the Commission stated:

‘An employer cannot in all circumstances be held to the strict standard of being an absolute guarantor or insurer that his employees will observe all the Secretary’s standards at all times.

 

‘An isolated brief violation of a standard by an employee which is unknown to the employer and is contrary to both the employer’s instructions and a company work rule which the employer has uniformly enforced does not necessarily constitute a violation of section 5(a)(2) of the Act by the employer.’

 

            While the assistant manager was unaware of the removal of the guard, the other factors required to determine there was no violation by respondent are not contained in the evidence of record. The violation is sustained.

            C. Alleged Violation of 29 CFR 1910.213(p)(4)

            Section 1910.213(p)(4) of 29 CFR provides as follows:

‘Belt sanding machines shall be provided with guards at each nip point where the sanding belt runs on to a pulley. These guards shall effectively prevent the hands or fingers of the operator from coming in contact with the nip points. The unused run of the sanding belt shall be guarded against accidental contact.’

 

            Complainant alleges that a belt sander in the tool room did not contain a guard for the unused run of the sanding belt.

            A belt sander was located in the tool room and was in operation at the time of the inspection. The sander consisted of two rollers with a belt going around the rollers. The belt was made of an abrasive material. The top portion of the belt was being used by employees in the tool room. The sides and the bottom were not being used. The bottom of the belt was an inch above the table.

            The standard requires that the unused run of a belt on a sanding machine shall be guarded against accidental contact. The bottom of the belt was only one inch above the table. There was little likelihood that an employee would make accidental contact with the bottom of the belt. Accidental contact was possible with the sides of the belt. The sides should have been guarded. The belt sander utilized by respondent was not guarded as required. The violation has been established.

            II. ABATEMENT DATE

            Respondent has challenged the reasonableness of the abatement date as specified for the Chicago Riveting Machines. The citation specified an abatement date of October 25, 1974.

            Respondent had devised a safety device and installed it on one machine at the time of the hearing. It estimated that it would take approximately six months from the date of hearing to provide the safety devices for all of the machines. The riveting machines are mechanically operated and must be converted to electricity before the device can be installed. Conversion kits are necessary for this purpose and the services of an outside electrician are required. Complainant introduced no specific evidence which is directly in opposition to the additional time requested by respondent. The compliance officer stated that safety devices could not be secured in a short period of time. (Tr. 42–43).

            The hearing was held in this case on November 26, 1974. A six months extension from the hearing date would be May 26, 1975. The citation was issued on September 3, 1974, and specified October 25, 1974, as the abatement date. The citation allowed a total of 52 days from its issuance for abatement.

            Respondent’s request for an extension of the abatement date is considered reasonable. The abatement date is extended to sixty days following this decision becoming a final order of the Commission.

            III. PENALTIES

            The Commission is the final arbiter of penalties if the complainant’s proposals are contested. In such an event the complainant’s proposals merely become advisory. Secretary of Labor v. Occupational Safety and Health Review Commission and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). In assessing penalties, the Commission is required by section 17(j) of the Act to find and give ‘due consideration’ to the size of the employer’s business, the gravity of the violation, the good faith of the employer and the history of previous violations. Secretary v. Nacirema Operating Company, Inc., 1 OSAHRC 33 (1972). The principal factor to be considered is the gravity of the offense. In determining the gravity of a violation, several elements must be considered, including but not necessarily limited to the following: (1) the number of employees exposed to the risk of injury; (2) the duration of the exposure; (3) the precautions taken against injury, if any; and (4) the degree of probability of occurrence of an injury. Secretary v. National Realty and Construction Company, Inc., 1 OSAHRC 731 (1972), reversed on another issue, 489 F.2d 1257 (D. C. Cir. 1973).

            Item 1 of the citation pertains to three air guns which contained compressed air in excess of 30 pounds per square inch. The guns contained an air pressure from 80 to 85 pounds per square inch. The guns were used by approximately four persons and were generally in constant use. A penalty of $35 is assessed for the violation.

            Item 2 of the citation pertains to the violation with respect to the ten riveting machines and the uncontested violations with respect to the lack of a nip point guard on feed rollers of Yoder mill and the lack of a foot pedal guard on the Bliss power press. Generally two or three of the riveting machines were always in use. The operator’s hands were from one to three inches within the point of operation of the machines. Employees had occurred injuries in the past from operating the machines. A penalty of $50 is assessed for the violations.

 

Item 3 pertains to the absence of appropriate markings for permanent aisles and passageways. A penalty of $40 was proposed for the violation. The absence of markings was not likely to cause employees an injury if the aisles were kept clear. The evidence indicates materials were stored in the aisles. Item 5 pertains to the improper storage of materials in the aisles of the rolling mill department. A penalty of $35 was proposed for item 5. Due to the interconnection of items 3 and 5, it is concluded that only one penalty should be assessed for the two violations. Accordingly, no penalty is assessed for item 3. A penalty of $35 is assessed for item 5.

            Item 9 pertains to the lack of the smaller can being bonded to the fifty-five gallon drum of lacquer thinner stored in the flammable storage room of the spray room. Two persons were observed working in the spray room. There is no evidence that the lacquer was being transferred from one container to another. The compliance officer simply testified that the drum and smaller can were not bonded and that they were stored in the flammable storage room of the spray room. The standard[2] requires bonding ‘whenever flammable liquids are transferred from one container to another.’ No penalty is assessed since the evidence does not show any exposure to the hazard.

            Item 13 pertains to five ungrounded pedestal type fans and a stapler. There is no indication of how many employees were exposed to the hazards or the duration of exposure. A penalty of $25 is assessed for the violation.

            Full credit has been allowed respondent for good faith. Action was taken to correct those items not contested and there is no evidence of record to indicate that respondent did not cooperate or act in good faith. Complainant’s reason for denying full credit for good faith indicates the respondent was acting in good faith. The compliance officer testified: (Tr. 15).

‘Q. And good faith?

 

‘A. Good faith, a ten percent credit has been given to the company.

 

‘Q. Why?

 

‘A. Since the company did provide some safety measures, they did get wash for their plating room and although it was not installed at the time and the power presses were guarded, therefore, a ten percent credit for good faith and safety was given to the company.’

 

CONCLUSIONS OF LAW

            1. The respondent was at all times material hereto engaged in a business affecting commerce within the meaning of section 3 (5) of the Act.

            2. The respondent was at all times material hereto subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.

            3. Section 1910.212(a)(1) of 29 CFR requires the point of operation of machines to be guarded where employees are exposed to injury. On August 22, 1974, employees of respondent were exposed to injury from the operation of ten Chicago Riveting Machines which did not have their point of operation guarded in violation of 1910.212(a)(1).

            4. A horizontal milling machine in the tool room did not expose an employee to the possibility of an injury from not having the point of operation guarded. The evidence is insufficient to show that employees were exposed to the possibility of injury from having the point of operation on a ring saw and Detroit screwdriver unguarded. There was no violation of 1910.212(a)(1) as to these items.

            5. On August 22, 1974, an employee was using a Boyar-Schultz surface grinder which did not have a safety guard covering the periphery and sides of the abrasive grinding wheel as required by 29 CFR 1910.215(b)(5).

            6. On August 22, 1974, respondent had in operation a belt sander in the tool room that did not have the unused run guarded as required by 29 CFR 1910.213(p)(14).

            7. After consideration of factors specified in section 17(j) of the Act, the following penalties are assessed in lieu of the penalties proposed:

 

Item No.

Penalty Assessed

1

$35

2

5-

3

None

5

35

9

None

13

25

 

ORDER

            Upon the basis of the foregoing findings of fact and conclusions of law, it is

            ORDERED: (1) That items 1, and 3 through 13 of the citation issued to respondent on September 3, 1974, are affirmed;

            (2) That item 2 is affirmed except as to that part of item 2 pertaining to the horizontal milling machine, ring saw and Detroit screwdriver which is vacated; and

            (3) That items 1, 2 and 5 of the notification of proposed penalty issued respondent on September 3, 1974, are affirmed; that items 3 and 9 are vacated; and that item 13 is modified to assess a penalty of $25.

 

Dated this 31st day of March 1975.

JAMES D. BURROUGHS

Judge, OSAHRC


[1] The statement of the compliance officer does not say that the point of operation of the screwdriver must be guarded but only that it was not guarded. The assumption is that he was of the opinion that it should have been guarded.

[2] 29 CFR 1910.107(e)(9) provides:

Whenever flammable or combustible liquids are transferred from one container to another, both containers shall be effectively bonded and grounded to prevent discharge sparks of static electricity.