SECRETARY OF LABOR, Complainant, v. YAZOO MANUFACTURING COMPANY, Respondent. OSHRC Docket No. 81-2141 _DECISION_ Before: BUCKLEY, Chairman; CLEARY, Commissioner. BY THE COMMISSION: This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration. It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. _See_ section 10(c) of the Act, 29 U.S.C. § 659(c). Following an inspection of Yazoo Manufacturing Company's ("Yazoo") lawn equipment manufacturing plant in Jackson, Mississippi, the Secretary of Labor issued to Yazoo one five-item serious citation and one three-item nonserious citation. The administrative law judge affirmed each item in the citations, but reduced the classification of three items in the serious citations to nonserious. He assessed a total of $500 in penalties. Both parties petitioned for review of the judge's decision and both petitions were granted. The issues on review are whether the judge erred in affirming the two citations and whether he erred in downgrading the three allegedly serious items to nonserious.[[1]] We affirm in part and reverse in part. _Citation 1, Item 1 -- Guarding of Nip Points on Belt Sander_ The Secretary alleged that Yazoo violated 29 C.F.R. § 1910.212(a)(1)[[2]] by failing to guard a belt sander. During the inspection, compliance officer Butler observed an employee using a belt sander to sand a piece of metal. The sander did not have a guard to cover the ingoing nip points where the belt ran onto the pulleys. The compliance officer testified that an employee's fingers could be crushed in the ingoing nip points because of the forward motion, tightness, and speed of the belt. The compliance officer also testified that the employee operating the sander worked within four inches of the machine and at times would be even closer. Yazoo plant manager Bell testified that Yazoo had provided a guard for the sander, but that the guard apparently had been removed by an employee to change the belt on the machine. Bell had not noticed that the guard was off the sander, but testified that he should have been aware the guard was off. We affirm the judge's decision finding Yazoo in nonserious violation of the standard. The compliance officer's testimony that the sander was unguarded and presented a hazard to the operator while in operation was uncontradicted. Plant manager Bell admitted he should have been aware of the unguarded machine. The lack of guarding was an obvious condition. Thus, Yazoo could have known about the condition with the exercise of reasonable diligence. _See_, _e.g._, _Scheel Construction, Inc_.,76 OSAHRC 138/B6, 4 BNA OSHC 1824, 1976-77 CCH OSHD ¶ 21,263 (No. 8687, 1976). We conclude the violation is nonserious because the Secretary failed to establish that death or serious physical harm could result from an injury. Considering the factors set forth in section 17(j) of the Act, 29 U.S.C. § 666(i), we assess a $100 penalty. _Citation 1, Item 2 and Item 5 -- Guarding of Fan Blades and V-Belt on Floor Fan _ The Secretary alleged that Yazoo violated 29 C.F.R. § 1910.212(a)(5) by failing to guard the blades of three different fans located less than seven feet above the floor.[[3]] Subitem (a) involves a 42-inch exhaust fan, subitem (b) an 18-inch floor fan, and subitem (c) a 30-inch floor fan. The Secretary also alleged that Yazoo violated 29 C.F.R. § 1910.219(e)(3)(i) [[4]] by failing to guard the V-belt on the unguarded 30-inch floor fan referred to in subitem (c) of item 2. Employees testified that the fans were unguarded and used. Employees approached within several feet of the fans and some had bumped into the floor fan referred to in subitem (c). The compliance officer testified that the unguarded fan blades and V-belt created a hazard that could result in the amputation of a finger. However, the compliance officer did not know the speed at which the V-belt traveled. The judge affirmed both items, finding that the fans were unguarded and that employees had access to the unguarded blades and V-belt. The judge found that Yazoo had not presented any evidence to refute the Secretary's prima facie showing of a violation. He classified the blade guarding item of the violation as serious, but found that the failure to guard the V-belt on the floor fan was nonserious. On review, Yazoo argues that the Secretary failed to prove exposure to any hazard and that, because of its size and speed, the belt was not covered by the cited standard. We affirm the judge's decision as to the violations. The fact that the fan blades and V-belt were unguarded is not disputed. Yazoo employees were exposed to the unguarded fan blades and this presented a serious hazard of amputation. Also uncontroverted is the fact that employees were exposed to the unguarded V-belt, which was not shown to be exempted from the standard's guarding requirements. _See_ 29 C.F.R. § 1910.219(a)(1).[[5]] Although the width of the belt was less than 13/32 inch, there was no evidence that the belt was operating at 250 feet per minute or less. The Secretary, however, failed to prove that death or serious physical harm could result from the violative condition, and we therefore affirm the judge's finding of a nonserious violation. For purposes of assessing a penalty we combine these two items. Considering the factors set forth in section 17(j) of the Act, we assess a total penalty of $100. _Citation 1, Item 3a -- Guarding of Abrasive Wheel Grinders and Pedestal Grinder_ Item 3a has two subparts, (a) and (b). Each subpart will be discussed separately. The Secretary alleged in subitem (a) that Yazoo violated 29 C.F.R. § 1910.215(a)(2) [[6]] by failing to guard the spindle end, nut, and flange projection of a Baldor bench grinder located in the plant assembly area. Employee Jones testified that he had used the grinder for about thirty to forty minutes a day, five days a week, for at least four or five months before the inspection and that he had used the grinder on the day before the inspection. He testified that the grinder had been unguarded and had been used by other employees during that period. The compliance officer testified that the hazards presented to employees using the unguarded grinder included bruises and abrasions, as well as broken teeth or a broken skull in the event the grinding wheel shattered. We affirm the judge's decision finding a serious violation. The compliance officer correctly characterized the grinder as abrasive wheel machinery, which is covered by the cited standard. The record is clear that the grinder was unguarded and that employees were exposed to the unguarded machine. The violation was properly characterized as serious on the basis of the compliance officer's uncontradicted testimony concerning the potential for serious physical injury resulting from shattered wheels. The Secretary also alleged that Yazoo violated section 1910.215(a)(2), _supra_, by not guarding the spindle end, nut, and flange projection of a pedestal grinder located located in Yazoo's machine shop. Compliance officer Butler testified that he did not see the grinder being used during the inspection, but that the grinder was available for use was not tagged out of service. He also testified that plant manager Bell told him that the grinder was there for use. The compliance officer stated that, according to his experience, an employee using the grinder would be about one to two feet away and could incur a skull fracture or lose an eye if the unguarded wheel shattered. Plant manager Bell indicated that the grinding wheel revolved at the rate of 3400 rpm. We affirm the judge's decision finding a serious violation. The Secretary established that the grinder was unguarded and available for use. The violation is serious because an employee using the grinder could suffer severe facial or other bodily injuries if the unguarded grinding wheel shattered while revolving at 3400 rpm. For purposes of assessing a penalty, we combine item 3a with item 3b discussed below. _Citation 1, Item 3b--Adjustment of Work Rest on Grinder_ Yazoo allegedly violated 29 C.F.R. § 1910.215(a)(4)[[7]] by failing to properly adjust the work rest on the pedestal grinder involved in item 3a, subitem (b), above. The compliance officer testified that the maximum opening should be 1/8 inch between the work rest and the grinding wheel, but that the opening during the inspection was about 3/4 inch. The compliance officer stated that, from his experience, if the opening is greater than 1/8 inch, small objects may wedge between the work rest and the wheel during grinding and cause the wheel to break. Flying pieces of broken wheel may produce injuries to employees, including skull fractures, eye damage and broken teeth. We affirm the judge's finding of a serious violation. We note that "off- hand grinding" is defined at 29 C.F.R. § 1910.211(b)(11) as "the grinding of any material or part which is held in the operator's hand" and the presence of the small work rests on this pedestal grinder demonstrates that it was used for off-hand grinding. The testimony of the compliance officer is unrefuted and establishes a violation. The violation is serious because of the serious facial or other bodily injuries that could result if a wheel shattered. In view of Yazoo's moderate size, good faith, and lack of prior history, and in view of the violation's moderate gravity based on low employee exposure, we assess a total penalty of $100 for items 3a and 3b. _Citation 1, Item 4 -- Guarding of Mechanical Power Presses_ The Secretary alleged that Yazoo violated 29 C.F.R. § 1910.217(c)(1)(i)[[8]] by failing to use point of operation guards on Bliss press #2034 (subitem (a)) located in the new steel room and on the 25 and 45-ton Bliss presses (subitem (b)) located in the high wheel welding shop. _Subitem (a) -- Bliss Press #2034_ Compliance officer Butler testified that the press in the steel room was a mechanical power press and was not equipped with any point of operation guard or device. He also testified that if an employee's hands were within the unguarded point of operation there was a risk that his hands would be amputated. Employee Griffin testified that he and other Yazoo employees had used the press without any guards or devices. He also stated, both on direct examination and on rebuttal, that the press was capable of being operated on the day of inspection. Although plant manager Bell testified on direct examination that the press was not capable of being operated on the day of inspection, he appeared to be uncertain as to whether the press he thought had operating difficulties was the cited press and stated that Griffin ought to know whether the press was operational. Based on the testimony of employee Griffin and compliance officer Butler, the judge found that the standard had been violated. He classified the violation as nonserious and assessed a total penalty of $100 for this subitem and subitem (b), which will be discussed below. We affirm the judge's finding of a violation. We find, however, that the violation was serious and reverse that portion of the judge's decision. The compliance officer's uncontradicted testimony sufficiently demonstrates that the Bliss press was a mechanically powered machine within the definition of the term "press" at 29 C.F.R. § 1910.211(d)(46).[[9]] The guarding requirements of the cited standard apply without regard to the type of clutch on a press, since the standard requires guards "on every operation performed on a mechanical power press." Employee Griffin's testimony establishes that the press was used in an unguarded condition exposing employees to potential injury. We reject Yazoo's challenge to Griffin's credibility. The judge heard and credited his testimony and the Commission ordinarily defers to credibility determinations made by the administrative law judges. _C_. _Kaufman, Inc_., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1297, 1977-78 CCH OSHD ¶ 22,481 at p. 27,099 (No. 14249, 1978). We find no reason to overturn the judge's determination in this instance. Nor does the record support Yazoo's contention that the Bliss press was provided with alternatives to guarding. The violation is serious because an employee could suffer serious physical harm if his hands were in the press's point of operation and the ram came down on them. We assess a penalty of $100 for this subitem. _Subitem (b) -- 25 and 45 Ton Presses_ Compliance officer Butler testified that these two presses were not equipped with point of operation guards as required by 29 C.F.R. § 1910.217(c)(1)(i), cited above. The compliance officer, however, neither saw the presses in operation during the inspection, nor testified that the presses had ever been operated without guards. Plant manager Bell testified that the presses were not guarded during the inspection because the presses were down for maintenance. He also testified that the presses were always guarded when he saw them in operation and that supervisors were responsible for insuring that guards were used when the presses were operating. The judge found that Yazoo violated the cited standard, relying on the testimony of the compliance officer. We reverse the judge and vacate this subitem. The Secretary did not refute the plant manager's testimony that the presses were down for maintenance during the inspection. The Secretary therefore failed to prove employee exposure to the unguarded presses because he failed to prove that the presses had been operated without guards. _Citation 2, Item 1 -- Locked Shop Door_ The Secretary alleged that Yazoo prevented free escape from the building by locking the exit door located at the rear of the welding shop, thereby violating 29 C.F.R. § 1910.36(b)(4).[[10]] The compliance officer testified that the door led to the outside and that there was an "exit" sign over the door, but that the door was padlocked. He also testified that the welding shop was fairly clean, but that there were objects that could burn in the area and that, because of the exit sign over the door and the door's location at the end of an aisle through the shop, employees might try to use the door in the event of fire. Yazoo's plant manager testified that the door was intended only for ventilation and not as a means of egress. He also testified that there was an automatic sprinkler system in the shop. We affirm the judge's decision finding a nonserious violation of the cited standard and assess no penalty. There is no dispute that a door marked as an exit that could be used by employees in the event of a fire was locked. Yazoo's argument that the door was not intended for use as an exit is rejected because the door was designated with a sign as an exit. Yazoo's contention that it did not violate the standard because it had installed a sprinkler system in the shop is without merit. A sprinkler system is not a defense to a citation alleging noncompliance with section 1910.36(b)(4). _Citation 2, Item 2 -- Unsecured Steel Dock Plate_ Yazoo allegedly violated 29 C.F.R. § 1910.178(n)(11) [[11]] by failing to properly secure a sheet of plate steel being used as a dockboard before permitting employees to drive over it. The compliance officer testified that an employee was driving a forklift truck over the unsecured steel plate between Yazoo's loading dock and the back of a highway truck being loaded when the steel plate slipped off the truck bed and the forklift dropped about four to six inches to the loading dock. The compliance officer stated that a drop such as that could result in bumps and bruises to a forklift operator. Plant manager Bell testified that he did not recall the dock plate slipping during the inspection and knew of no injuries resulting from the occurrence. He also testified that the highway truck involved was owned by a common carrier and was being loaded with lawn mowers for delivery out of state. The judge found a nonserious violation, relying on the compliance officer's unrefuted testimony, and assessed no penalty. On review, Yazoo contends that the Secretary failed to prove there was a hazard and that since the highway truck was a common carrier engaged in interstate shipping, the U.S. Department of Transportation, not OSHA, had jurisdiction over the matter. We reject Yazoo's contention that OSHA does not have jurisdiction here. The Secretary is precluded from enforcing the cited standard only if the Department of Transportation has exercised authority to regulate the working conditions that are the subject of the citation. _See_ _Mushroom Transportation Co_., 73 OSAHRC 51/E10, 1 BNA OSHC 1390, 1973-74 CCH OSHD ¶ 16,881 (No. 1588, 1973), _appeal_ _dismissed_, No. 74-1014 (3d Cir. April 17, 1974). Yazoo has not cited, and we have not found, any Department of Transportation regulation applicable to the facts underlying this item. We affirm the judge's decision finding a violation based on the compliance officer's unrefuted testimony. However, we find that the hazard bore only a negligible relationship to employee safety and health and therefore classify the violation as _de_ _minimis_, assessing no penalty. _See_ _Keco_ _Industries, Inc_., 84 OSAHRC 7/A2, 11 BNA OSHC 1832, 1984 CCH OSHD ¶ 26,810 (No. 81-1976, 1984). _Citation 2, Item 3 -- Ungrounded Drill_ The Secretary alleged that Yazoo violated 29 C.F.R. § 1910.304(f)(4)[[12]] by failing to provide a ground for the electrical supply cord of a 1/2-inch hand-held drill in the cutting section of the assembly area. Compliance officer Butler and Yazoo employee Jones testified that the drill was not equipped with a grounding prong on its plug and that the drill had been used in that condition by several employees over a period of months. The judge, relying on the testimony of the compliance officer, found that Yazoo had violated the cited standard. Yazoo contends on review that the cited standard is inapplicable and that the drill, as cord-and plug-connected equipment, is covered by a different OSHA standard. We agree. The standard at 29 C.F.R. § 1910.304(f)(5)(v)(C)(3)[[13]] is more specifically applicable to the cited condition because it sets forth a grounding requirement for "[h]and-held motor-operated tools" that are "connected by cord and plug." Such a specific standard "prevail[s] over any different general standard which might otherwise be applicable." 29 C.F.R. § 1910.5(c)(1). _See_ _Vicon Corp_., 81 OSAHRC 98/C4, 10 BNA OSHC 1153, 1981 CCH OSHD ¶ 25,749 (No. 78-2923, 1981), _aff'd_, No. 81-2359 (8th Cir. Aug. 4, 1982). Because the Secretary failed to allege or try a violation of section 1910.304(f)(5)(v)(C)(3), we vacate item 3. Consequently, the Commission enters its order in accordance with this decision, and a total penalty of $400 is assessed. FOR THE COMMISSION RAY H. DARLING, JR. EXECUTIVE SECRETARY DATED: DEC 21 1984 ------------------------------------------------------------------------ The Administrative Law Judge decision in this matter is unavailable in this format. To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386). FOOTNOTES: [[1]] Yazoo, appearing pro se throughout these proceedings, also took exception to certain of the judge's procedural rulings. We find no prejudicial error in those rulings. [[2]] Section 1910.212(a)(1) provides: § 1910.212 _General requirements for all machines_. (a) _Machine guarding_ -- (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. [[3]] Section 1910.212(a)(5) provides: § 1910.212 _General requirements for all machines_. (a) _Machine guarding_-- (5) _Exposure of blades_. When the periphery of the blades of a fan is less than seven (7) feet above the floor or working level, the blades shall be guarded. The guard shall have openings no larger than one-half (1/2) inch. [[4]] Section 1910.219(e) (3)(i) provides: § 1910.219 _Mechanical power-transmission apparatus_. (e) _Belt, rope, and chain drive_-- (3) _Vertical and inclined belts_. (i) Vertical and inclined belts shall be enclosed by a guard conforming to standards in paragraphs (m) and (o) of this section. [[5]] Section 1910.219(a)(1) provides: § 1910.219 _Mechanical power-transmission apparatus_. (a) _General requirements_. (1) This section covers all types and shapes of power-transmission belts, except the following when operating at two hundred and fifty (250) feet per minute or less: (i) Flat belts one (1) inch or less in width, (ii) flat belts two (2) inches or less in width which are free from metal lacings or fasteners, (iii) round belts one-half (1/2) inch or less in diameter; and (iv) single strand V-belts, the width of which is thirteen thirty-seconds (13/32) inch or less. [[6]] Section 1910.215(a)(2) provides: § 1910.215 _Abrasive wheel machinery_. (a) _General requirements_-- (2) _Guard design_. The safety guard shall cover the spindle end, nut, and flange projections. The safety guard shall be mounted so as to maintain proper alignment with the wheel, and the strength of the fastenings shall exceed the strength of the guard, except: (i) Safety guards on all operations where the work provides a suitable measure of protection to the operator, may be so constructed that the spindle end, nut, and outer flange are exposed; and where the nature of the work is such as to entirely cover the side of the wheel, the side covers of the guard may be omitted; and (ii) The spindle end, nut, and outer flange may be exposed on machines designed as portable saws. [[7]] Section 1910.215(a)(4) provides: § 1910.215 _Abrasive wheel machinery_. (a) _General requirements_-- (4) _Work rests_. On offhand grinding machines, work rests shall be used to support the work. They shall be of rigid construction and designed to be adjustable to compensate for wheel wear. Work rests shall be kept adjusted closely to the wheel with a maximum opening of one-eighth inch to prevent the work from being jammed between the wheel and the rest, which may cause wheel breakage. The work rest shall be securely clamped after each adjustment. The adjustment shall not be made with the wheel in motion. [[8]] Section 1910.217(c)(1)(i) provides: § 1910.217 _Mechanical power presses_. (c) _Safeguarding the point of operation_ -- (1) _General requirements_. (i) It shall be the responsibility of the employer to provide and insure the usage of "point of operation guards" or properly applied and adjusted point of operation devices on every operation performed on a mechanical power press. See Table 0-10. [[9]] Section 1910.211(d)(46) provides: § 1910.211 _Definitions_. (d) As used in § 1910.217 [Mechanical power presses], unless the context clearly requires otherwise, the following power press terms shall have the meaning prescribed in this paragraph. (46) "Press" means a mechanically powered machine that shears, punches, forms or assembles metal or other material by means of cutting, shaping, or combination dies attached to slides. A press consists of a stationary bed or anvil, and a slide (or slides) having a controlled reciprocating motion toward and away from the bed surface, the slide being guided in a definite path by the frame of the press. [[10]] Section 1910.36(b)(4) concerns means of egress and provides: § 1910.36 _General requirements_. (b) _Fundamental requirements_. (4) In every building or structure exits shall be so arranged and maintained as to provide free and unobstructed egress from all parts of the building or structure at all times when it is occupied. No lock or fastening to prevent free escape from the inside of any building shall be installed except in mental, penal, or corrective institutions where supervisory personnel is continually on duty and effective provisions are made to remove occupants in case of fire or other emergency. [[11]] Section 1910.178(n)(11) provides: § 1910.178 _Powered industrial trucks_. (n) _Traveling_. (11) Dockboard or bridgeplates, shall be properly secured before they are driven over. . . . [[12]] Section 1910.304(f)(4) provides: § 1910.304 _Wiring design protection_. (f) _Grounding_. (4) _Grounding path_. The path to ground from circuits, equipment, and enclosures shall be permanent and continuous. [[13]] Section 1910.304(f)(5)(v)(C)(3) provides: § 1910.304 _Wiring design and protection._ (f) _Grounding_. (5) _Supports, enclosures, and equipment to be grounded_-- (v) _Equipment connected by cord and plug_. Under any of the conditions described in paragraphs (f)(5)(v)(A) through (f)(5)(v)(C) of this section, exposed non-current-carrying metal parts of cord-and plug-connected equipment which may become energized shall be grounded. (C) If the equipment is of the following types: (3) Hand-held motor-operated tools;