UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 14046
SCHULTZ ROOF TRUSS INC.
Respondent.
DECISION
BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
This case is before the Commission pursuant to a sua sponte order for review. The parties
have filed no objections to the Administrative Law Judge’s decision, either by way of petitions
for discretionary review or response to the order for review. Accordingly, there has been no
appeal to the Commission, and no party has otherwise expressed dissatisfaction with the
Administrative Law Judge’s decision.
In these circumstances, the Commission declines to pass upon, modify or change the
Judge’s decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA
OSHC 2032, 1975–76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC
1015, 1975–76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc.,
v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no
compelling public interest issue.
The Judge’s decision is accorded the significance of an unreviewed Judge’s decision.
Leone Constr. Co., 3 BNA OSHC 1979, 1975–76 CCH OSHD para. 20,387 (No. 4090, 1976).
It is ORDERED that the decision be affirmed.
DATED: DEC 20,1976
FOR THE COMMISSION:
William S. McLaughlin
Executive Secretary
(SEAL)
MORAN, Commissioner, Concurring in Part, Dissenting in Part:
Since February 6, 1976, my colleagues have vacated approximately 100 directions for
review filed by the author of this opinion on the ground that specific reasons for so doing should
have been set forth in the direction for review. See, e.g., Secretary v. Francisco Tower Service,
OSAHRC Docket No. 4845, February 6, 1976. In my dissenting opinion in Francisco Tower, I
outlined why such action by the majority was illegal. Apparently, they have now decided to
abandon this unlawful procedure.
In Secretary v. Rollins Outdoor Advertising Corporation, OSAHRC Docket No. 6954,
November 24, 1976, Chairman Barnako attempts to justify the departure from his position in
Francisco Tower, supra, on the basis of the addition of two words in the direction for review.
That case also involved a sua sponte direction for review which did not specify any particular
issue for review. Rather than vacating the direction for review, however, my colleagues reversed
the Judge’s vacation of the citation and entered a decision favorable to the Secretary of Labor. In
my dissenting opinion, I pointed out that the prevailing difference between Rollins and the prior
cases was that Commissioner Cleary had directed the Rollins case for review. I also explained
why the Chairman’s justification for changing the procedure lacked merit.
The Commission has recently announced the following policy regarding sua sponte
directions for review which do not state any specific issue for adjudication:
1. The Commission will affirm the judge’s decision in those cases where
no party has petitioned for review and no party has responded to a ‘no issue’ or
‘for error’ direction for review seeking modification or reversal of the judge’s
decision. Such action will not be considered binding Commission precedent. See
Abbott-Sommer, Inc., Docket No. 9507, BNA 3 OSHC 2032, CCH OSHD para.
20,428 (February 17, 1976).
2. When one or more parties has filed a petition for review, a brief on
review, or otherwise responded to a ‘no issue’ or ‘for error’ direction for review
and does seek modification or reversal of the judge’s decision, the Commission
will review the issues raised by such petition or response. If, as a result of such
review, the Commission determines that an issue or issues should be decided by
the Commission, the parties will be notified and afforded an opportunity to file
1
such other briefs as may be appropriate.
The justification for the change in procedure is stated as follows:
1
41 Fed. Reg. 53015 (1976).
The Commission has determined that vacation of directions for review
which state no specific issue would be inequitable in pending cases wherein the
parties or one of them have petitioned for review or filed responses to the
directions for review or both. In such cases the filing parties may have relied on
the directions for review and have presumed their cases are properly on review.
On the other hand, the Commission realizes that some parties may have believed,
in view of decisions cited above, that their cases were not properly on review and
that the direction for review would be vacated.
The Commission has therefore decided to implement the following policy
in cases pending on the date of publication of this document in which no specific
2
issue for adjudication is stated by the direction for review.
Obviously, this justification is not the same as that relied on by Chairman Barnako in the
Rollins case. In my opinion, neither properly expresses he reasons why my colleagues have
decided to change their procedure. I submit that the purpose of the change is to make it appear
that all general directions for review are given like treatment. Otherwise, consistency would
require vacation of many of Commissioner Cleary’s directions for review. For another case
where my colleagues have reversed a Judge’s vacation of a citation and replaced it with a
decision favorable to the Secretary of Labor following a sua sponte direction for review by
Commissioner Cleary which did not specify any issue for adjudication, see Secretary v. Alfred S.
Austin Construction Company, OSAHRC Docket No. 4809, April 28, 1976.
Although I am pleased that my colleagues have decided to discontinue their illegal action
vacating my directions for review, their manner of disposing of the instant case is also improper.
The authority for a Commission member to direct review of a case is contained in 29 U.S.C. §
661(i) which provides that:
‘The report of the hearing examiner shall become the final order of the
Commission within thirty days after such report by the hearing examiner, unless
within such period any Commission member has directed that such report shall be
reviewed by the Commission.’ (Emphasis added.)
That authority is not qualified by any requirement in the Act or elsewhere that the interested
parties must petition for review or submit briefs on the issues directed for review or that the case
involve a matter of ‘compelling public interest.’
Obviously, if review of a case is contingent upon a petition for review filed by one of the
parties, there would be no purpose in the statute’s authorizing discretionary review by the
2
Id.
members of the Commission. Therefore, my colleagues finding that ‘there has been no appeal to
the Commission’ is irrelevant because there is no right of appeal to the members of this
Commission. Review by the members is not a right of any party. It is authorized only when any
‘Commission member’ directs review within the time specified in 29 U.S.C. § 661(i).
Consequently, since a party has no right to Commission review and there is no requirement that
briefs be filed on cases directed for review, no adverse inference to a party’s claim may be drawn
from a party’s having not done what it need not do.
If my colleagues truly believe that this Commission should only consider issues when
one of the parties to the case files a petition so requesting, they should call for an amendment to
the Act to eliminate the power of a Commission member to direct a Judge’s decision for review.
They also should not direct review in the absence of such a petition. The fallaciousness of the
position they take in this case is demonstrated in no uncertain terms by these two uncontroverted
facts:
(1) neither of them has ever called for—or supported—legislation to eliminate the
Act’s present discretionary review provision, and
(2) between them, they have issued more than 200 directions for review where
neither employer or the Secretary of Labor filed a petition seeking review.
The majority’s affirmance of the Judge’s decision herein on the basis that the aggrieved
party has displayed disinterest in the case is not well-founded and conflicts with the position
taken by the United States Court of Appeals in similar circumstances. There are number of
reasons why an issue may not be pursued at the Commission level. One possibility is lack of
knowledge by pro se respondents of Review Commission procedures and defenses cognizable
under Act. Other possibilities include insufficient time, finances, or other resources to pursue the
matter here or to discover what defenses should be advocated before the Commission. Thus,
various and sundry reasons exist which could explain respondent’s silence. The majority’s
conclusion that disinterest is the reason defies logic, is unfair to respondent, shirks our
responsibility to address viable issues, and is unsupported by the record before us. If respondent
was disinterested in the disposition of the case it would not have contested the citation. This has
been recognized by there Circuit Courts.
In Brennan v. Smoke-Craft, Inc., 530 F.2d 843, 844 n. 6 (9th Cir. 1976), the Court states
the following:
Respondent did not file a brief with this court although it had actively contested
this citation in the proceedings below. We do not infer that respondent has
withdrawn its contest.
The same position was taken by another Circuit Court which stated that an employer who
contested a citation and had not withdrawn that contest
. . . has an interest in the controversy even though it is unwilling to do anything to
protect that interest.
Brennan v. OSAHRC and Santa Fe Trail Transport Company, 505 F.2d 869, 871 (5th Cir. 1975).
In still another case where the employer contested a citation and had not responded to the
Secretary of Labor’s petition for review, the Circuit Court ruled as follows:
[T]he employer has not withdrawn its contest of the Secretary’s citation. Thus we
conclude that there is a continuing case or controversy warranting judicial review
even though [the employer] has not responded to the petition for review.
Brennan v. OSAHRC and Hanovia Lamp Division, Canrad Precision Industries, 562 F.2d 946,
948 (3d Cir. 1974).
My colleagues offer no convincing authority to support their unwarranted departure from
the above precedents. Similarly, they cite nothing but their own views as to their position on the
precedential value of a Review Commission Judge’s decision. They support their statement that
‘[t]he Judge’s decision is accorded the significance of an unreviewed Judge’s decision,’
whatever that may mean, by a citation to Secretary v. Leone Construction Company, OSAHRC
Docket No. 4090, February 10, 1976. They implied in Leone, without any supporting authority,
that an unreviewed Judge’s decision which has not been overruled by the Commission has no
3
precedential value. However in Secretary v. State, Inc., OSAHRC Docket No. 5740, October
21, 1976, where my colleagues adhered to this implication by joining in a statement that an
unreviewed Judge’s decision ‘is not binding as precedent,’ they also state the following:
‘However, it is a guide in the growing body of occupational safety and health
law.’
3 In referring to one of its prior unreported memorandum decisions to which it had been cited by
a litigant, the Circuit Court stated the following in Jones v. Superintendent, Virginia State Farm,
465 F.2d 1091, 1094 (4th Cir. 1972):
We concede that any decision is by definition a precedent, and that we cannot
deny litigants and the bar the right to urge upon us what we have previously done.
(Emphasis added.)
Obviously, the two propositions are contradictory.
Apparently, however, my colleagues believe that there are two different types of
4
Commission final orders. If so, where in the law is that stated? The answer, of course, is that it
is stated nowhere because it isn’t so.
Every appellate court that has ever considered an unreviewed decision of a Review
Commission Judge has considered such an opinion to be the same as one issued by the
Commission members themselves. For example, on appeal of Secretary v. Felton Construction
Company, 8 OSAHRC 327 (1974), the United States Court of Appeals for the Ninth Circuit
considered a decision of Review Commission Judge Stuller which had not been reviewed by the
Commission members. Felton Construction Company v. OSAHRC, 518 F.2d 49 (9th Cir. 1975).
The Court used the following language in considering the Judge’s decision: ‘. . . the Commission
found,’ ‘. . . the hearing examiner’s order became the final order of the Commission,’ ‘. . . the
Commission’s order.’ In Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975),
another Circuit Court relied upon and cited as authority nine decisions of Review Commission
Judges which had not been reviewed by the Commission members. Additionally, in Brennan v.
Gilles & Cotting, Inc., 504 F.2d 1255 (4th Cir. 1974), a third Circuit Court has expressed
concern that the Commission decision was contrary to the holdings of two unreviewed decisions
rendered by Commission Judges. There are many more examples but, as in the past, my
colleagues ignore authority in order to suit their purpose.
Clearly, it is wrong for my colleagues to affirm something which they not consider to be
worthy of precedential value. If Judge Burchmore’s has a fatal defect which should preclude it
from being relied upon cases, it is their judicial responsibility to say so, rather than lying on one-
dimensional procedural rules of their own making. For my part, I agree with affirmance of the
Judge’s action on items 2, 3, and 9 of the nonserious citation pursuant to a settlement agreement
between the parties, but I would vacate the two serious citations which were litigated before the
Judge because the regulation involved therein, 29 C.F.R. § 1910.213, was improperly
4 In this connection, Congress provided in 29 U.S.C. § 661(i) that:
‘The report of the hearing examiner shall become the final order of the
Commission within thirty days after such report . . . unless within such period any
Commission member has directed that such report shall be reviewed by the
Commission.’ (Emphasis added.)
This section makes it clear that Judge’s decisions are decisions of this Commission unless
modified by the Commission following a direction for review under this section.
promulgated as I explained in my dissenting opinion in Secretary v. Noblecraft Industries, Inc.,
OSAHRC Docket No. 3367, November 21, 1975. In view of the majority’s action, however, I
attach Judge Burchmore’s decision hereto as Appendix A so that the law of this case can be
known.
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 11553
BURTEX CONSTRUCTORS, INC.,
Respondent.
Jack Ostrander for the Secretary of Labor.
Gary Shores for the respondent.
BURCHMORE, Judge:
By citations issued June 23, 1975, the complainant charged that on June 10, 1975, the
respondent Committed nine non-serious and two serious violations of the Occupational Safety
and Health Act of 1970, 29 U.S.C. 651 et seq. (the Act), in that respondent failed to comply with
the Occupational Safety and Health Standards contained in 29 C.F.R. 1910. Penalties in the
aggregate amount of $1,025 were proposed. Timely notice of contest was filed as to items 2, 3,
and 9 of non-serious citation No. 1, and as to serious citations Nos. 2 and 3, and the resulting
proceeding was assigned to the undersigned law judge for hearing and adjudication. Hearing was
held at Oklahoma City, Oklahoma, on December 17, 1975. The parties have submitted post-
hearing memoranda.
At the outset of the hearing agreement as to non-serious citation No. 1 was presented and
approved. According to that agreement, items 2, 3, and 9(a) are affirmed, item 9(b) is vacated,
and a penalty of $25 is assessed for the entire citation.
At the time of the inspection, respondent was an employer operating a plant in Norman,
Oklahoma, where it was engaged in manufacturing and fabricating wood roof trusses.
Respondent contends that it is not subject to the Act because it operates wholly within the state.
However, its president testified and I find that it has used lumber that came from out of state and
that one of its machines was manufactured in Texas. I conclude that respondent is an employer
engaged in a business affecting commerce within the meaning of the Act.
CITATION NO. 2
On the date of the alleged violations, respondent’s was inspected by a compliance officer,
one Joyce who observed an employee working with two Dewalt arm saws mounted on a long
workbench along one wall of the plant. Complainant charges a three-part violation with respect
to those saws: A—the saws lacked lower blade guards in violation of 1910.213(h)(1) which
requires that ‘The sides of the lower exposed portion of the blade shall be guarded’; B—one of
the sawheads was free to roll way out beyond the edge of the bench when making a cut at right
1
angles to the bench, in violation of 1910.213(h)(3) ; and C—the saws were not mounted on a
slope such as would cause the saw to return to the rearward position when released by the
2
operator, in violation of 1910.213(h)(4) .
Lower blade guard. Respondent does not deny and I find that the saws lacked lower blade
guards. But respondent showed that most of its cuts were made at an acute angle and it contends
that the use of lower blade guards on an acute angle cut creates a hazard greater than exists when
no lower blade guard is used. After the inspection, respondent obtained lower blade guards and
installed them. But when it operated the saw with the guard installed and attempted to make
acute angle cuts which removed only a small triangular piece of wood from the end of the stock,
the result was that the small pieces would jam and then fly out like projectiles. Lights were
broken, pieces stuck in the walls and employees refused to use the equipment.
Complainant’s area director testified that the guard on one side of the blade should be
raised out of the way when making such small angle cuts to trim ends of the stock. As to this,
respondent contends that there is a hazard in the employee using his finger to hold the guard up
while the saw is in operation. The answer to that contention is that employees must be trained to
follow a safe procedure when using the saw; that is, when changing from a right angle cut where
the lower blade guard is in use, to an acute angle cutoff of small ends, they must stop the saw,
1
The regulations provide:
(3) An adjustable stop shall be provided to prevent the forward travel of the blade
beyond the position necessary to complete the cut in repetitive operations.
(4) Installation shall be in such a manner that the front end of the unit will be
slightly higher than the rear, so as to cause the cutting head to return gently to the
starting position when released by the operator.
2
Id.
retract the guard on the side next to the end piece, fasten it in place, then start the saw and
operate it.
It is easy to understand the impatience of employees and management with lengthened
procedures to which they are not accustomed, particularly if the opinion of the individual is that
little hazard is involved in using the unguarded lower blade. However, Congress and the
Secretary have legislated the regulatory requirement in the interests of increased safety for
employees, and respondent cannot escape the responsibility to comply. I find that it is possible to
use the lower guard safely if proper procedure is followed, and I therefore affirm this part of the
citation.
Saw Stop. Respondent contends that there was no violation in having the saw free to
travel to its greatest reach because the saw was being used for angular cuts that required full
reach to complete. Respondent’s president testified that 95 percent of the cuts made by that saw
were of such an acute angle. However, it is not denied and I find that up to 5 percent of the cuts
were of a lesser angle, and, as the compliance officer testified, she saw an employee making
right angle cuts with the saw. Full travel was not required for those cuts and the regulation
plainly requires as to them that the saw be so locked as to prevent excess travel. Here again,
respondent is obligated to require its employees to follow a safe procedure, which in this instance
includes stopping the saw when changing from an acute to a right angle cut, adjusting the saw
stop to prevent excessive travel, and then restarting and operating the saw. This portion of the
citation must also be affirmed.
Sloping the saw. It is conceded and I find that the saws were not sloped in the manner
required by the regulation. Respondent’s president testified that it was not feasible to do so
because of the necessity for making acute angle cuts. He stated that the saw table was tilted after
the inspection and that the front had to be raised one and three-eights of an inch to produce
enough tilt so that the head would return after an acute angle cut. Then, when a right angle cut
was attempted, the slope was so great that the head returned to its starting position with such
force that it knocked out a plug, causing the saw to drop into a miter position with the result that
the blade hit the table and forced the saw forward with great force; it stopped only when the
circuit breaker blew. Respondent contends therefore that there is no violation in having the table
level because a greater hazard is created by tilting it.
When asked whether any adjustment was made to raise the front of the table less than one
and three-eighths inches, respondent’s president stated that it was lowered to a one-quarter inch
slope and that it worked beautifully in that position for a right angle cut. However, that much
slope would not return the saw head when in the acute angle position.
The key word in the regulation is ‘gently,’ and the requirement is that the saw be sloped
so as to return gently to its starting position. If, with the saw sloped the maximum amount which
will still produce a gentle return when in the right angle position, the saw fails to return when set
for an acute angle cut, then there would be no violation of the regulation. It is obvious, for
example, that no amount of slope would return the saw head when it is set for ripping, because
the saw arm would then be parallel to the long dimension of the bench and at right angles to the
direction of the slope. Similarly, as the arm is turned from a right angle position towards the
ripping position, the returning effect of the slope lessens. But by simple experimentation, a tilt
can be established which returns the sawhead when set at, say 45°, yet still produces a gentle
return at the right angle position. The regulation requires as much and I conclude that the
violation is proven because there was no tilt to the saw at the time of the inspection.
Penalty. This employer has no prior history of violations. It is a small company with only
a few employees; the president engages in the work of the shop himself. The demeanor of the
president at the hearing exhibited a good faith concern for safety and a desire to comply with the
Act. The compliance officer testified that the gravity of the violations was low, albeit that serious
physical injury would be the probable result if an accident did occur. Considering all of the
circumstances in the light of the criteria prescribed in section 17 of the Act for the assessment of
penalties, I find that a penalty of $50 is appropriate to the remedial purpose of the Act. This
employer will certainly comply in good faith without the imposition of a larger penalty at this
time. Its failure to comply prior to the inspection was unintentional because it honestly believed
that compliance would create hazards greater than those sought to be avoided.
CITATION NO. 3
The inspecting officer observed an employee working at a Clary double end trim saw
which is a special machine with four, radial saws and an automatic feed mechanism. In the
opinion of the inspecting officer, the saw blades were not adequately guarded. However, the saw
was not one of the conventional types of saws for which specific standards were prescribed in
section 1910.213(a) to (q) so a citation was drawn under 1910.213(r)(4), which provides as
follows:
(4) The mention of specific machines in paragraphs (a) through (q) and this
paragraph (r) of this section, inclusive, is not intended to exclude other
woodworking machines from the requirement that suitable guards and exhaust
hoods be provided to reduce to a minimum that hazard due to the point of
operation of such machines.
According to complainant, the ‘requirement that suitable guards’ be provided, to which
213(r)(4) refers, is contained in 1910.212(a)(3)(ii), as follows:
§ 1910.212 General Requirements for all machines.
(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.
Since there are no ‘specific standards’ for this type of machine, the requirement of
subparagraph (ii) is plainly that guarding shall be ‘so designed and constructed as to prevent the
operator’ from getting into the danger zone.
The inspecting officer testified that saw blades on both front and rear of the machine
were not so guarded as to prevent an employee from coming into contact with them. As to the
saw blade on the front of the machine, a photograph (Exhibit C–5) shows that a guard was
actually present on the machine, but that the guard did not extend far enough out and down to
actually prevent someone coming into contact with the blade. Accordingly, I find that the
regulation requires respondent to change the guard by extending it as far down as the operation
of the machine will permit. In so doing, it may be necessary to extend the guard outward as well,
but that is a matter of optimum design; the standard requires prevention of employee contact.
As for the saw on the rear of the machine, the complainant failed to show that any
employee was exposed to a possible hazard. One employee was observed working the machine,
but he is shown to have been at the front, on the side on which the above mentioned saw was
located (Exhibit C–3). Respondent’s president testified that no employer works within reach of
the other saw blades. Accordingly, the citation is affirmed only as to the one saw blade near the
front of the machine.
Penalty. While the citation must be affirmed as serious, because the occurrence of an
accident would probably result in serious physical injury, the likelihood of an accident happening
is very low. Moreover, the good faith of the employer in actually providing a guard tends to
overcome the fact that the guard was not as big and extensive as the regulation requires. I
conclude from all of the facts that a penalty of $25 is appropriate in this instance.
It is ORDERED that items 2, 3, and 9(a) of citation number 1 and citations number 2 and
3 be and the same are hereby affirmed, that citation 1, item 9(b) be and the same hereby vacated,
that a penalty of $100 be and the same is hereby assessed and that this proceeding be and the
same is hereby dismissed.
Robert N. Burchmore
Judge OSAHRC
Dated: March 11, 1976