UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 81–1491–S

 

SYNTRON, INC.,

 

 

                                              Respondent.

 

 

July 19, 1982

ORDER OF REMAND

BEFORE ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:

            The Secretary of Labor issued to Syntron, Inc. two citations alleging a violation of the machine guarding standard at 29 C.F.R. § 1910.212(a)(1) and violations of sections 1903.2(a)(1) (OSHA poster) and 1904.2(a) (injury log). Judge LaVecchia’s decision vacated the first citation because ‘an alleged photograph of the saw . . . was shown to be a saw other than the one operated by [Syntron], and was apparently photographed in a different machine shop. This constitutes a fatal flaw in the government’s case.’ The judge alternatively held that ‘evidence submitted by [Syntron] with respect to its saw operation indicated that the operator normally has his body or extremities at least one foot away from the point of operation.’ The judge vacated the other citation because it was not addressed at the hearing. The Secretary has advanced several arguments that the judge’s decision was wrong. We decline to resolve the Secretary’s arguments at this time.

            An administrative law judge’s decision must include findings of fact, conclusions of law and a statement of the reasons or bases for the decision.[1] The judge’s decision does not explain why the introduction of an inapposite exhibit constitutes a ‘fatal flaw’ in the Secretary’s case or why the fact that the operator normally stands a foot away from the point of operation is dispositive. The decision also lacks specific findings on whether, under section 1910.212(a)(1), there was point of operation hazard and whether a method of machine guarding was not provided to protect the operator and other employees in the machine area. We therefore remand this aspect of the case for the filing of a new decision.[2]

            We also remand for further consideration of the posting and injury log citation. The Secretary has argued to the Commission that the notice of contest did not put these matters in issue. The judge should consider whether the second citation was contested.

            Accordingly, the judge’s decision is vacated and the case is remanded for further proceedings consistent with this opinion.

 

SO ORDERED.

 

FOR THE COMMISSION:

 

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: JUL 19, 1982

 

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 81–1491–S

 

SYNTRON, INC.,

 

 

                                              Respondent.

 

February 26, 1982

Appearances:

For the Government: Ronnie A. Howell, Atty.

 

For the Respondent: Henry McCreight, Atty.

 

DECISION

            The respondent was cited for allegedly violating the machine guarding provisions of 29 CFR 1910.212(a)(1). A metal cut-off (band saw) saw was said to be operated by the respondent without a guarding device. An alleged photograph of the saw (Ex. C–1) was shown to be a saw other than the one operated by the respondent, and was apparently photographed in a different machine shop. This constitutes a fatal flaw in the government’s case.

            In the alternative, evidence submitted by the respondent with respect to its saw operation indicated that the operator normally has his body or extremities at least one foot away from the point of operation.

            Citation No. 2 was not addressed.

            In the circumstances the citations must be vacated.

ORDER

            Citations Nos. 1 and 2 are vacated.

 

Louis G. LaVecchia,

Judge

Dated: February 26, 1982

Dallas, Texas.


[1] See 29 U.S.C. § 659(c), section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’); 5 U.S.C. § 557(c), section 8(b) of the Administrative Procedure Act, 5 U.S.C. § 551 et seq.; Commission Rules 66(i), 90(a) and 208(a), 29 C.F.R. §§ 2200.66(i), 2200.90(a) and 2200.208(a). See generally P & Z Co., 77 OSAHRC 211/F5, 6 BNA OSHC 1189, 1192, 1977–78 CCH OSHD ¶22,413, p. 27,025 (No. 76–413, 1977).

[2] On remand, the judge should resolve two other matters. Exhibits R–1 and R–2 were introduced by Syntron, but are not in the official file. The originals or duplicates of the exhibits should be obtained. In addition, a videotape that was played at the hearing to depict the operation of the cited machine was not identified as an exhibit, introduced into evidence, or included in the official file. The status of this videotape must be clarified. Judge LaVecchia should determine whether it is to be considered evidence in this case. If it is evidence, the judge should include the videotape in the record, or, if it is not available, include a summary of the matters it depicts in the record.