SECRETARY OF LABOR, Complainant, v. VAC-AIR ALLOYS CORPORATION, Respondent. OSHRC DOCKET NOs. 84-0058 & 84-0155 _ORDER_ The Commission approves the settlement agreement and amends the citation to conform to the settlement agreement. The Commission also vacates the direction for review. Since Respondent withdraws its notice of contest to the amended citation, that citation becomes a final order. FOR THE COMMISSION Ray H. Darling, Jr. Executive Secretary Dated: APR 1 1985 Secretary of Labor, Complainant, -against- Vac Air Alloys Corporation, Respondent. OSHRC Docket Nos. 84-0058 and 84-0155 _Stipulation and Settlement Agreement_ I The parties have reached agreement on a full and complete settlement of the instant matter which is presently pending before the Commission. II The parties stipulate as follows: (a) The Occupational Safety and Health Review Commission (hereinafter "the Commission") has jurisdiction of this matter pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (85 Stat. 1590; 29 U.S.C. 651 _et_ _seq_.) (hereinafter "the Act"). (b) Respondent, Vac Air Alloys Corporation, is a corporation with its principal place of business located at Falconer-Frewsburg Road in Frewsburg, New York 14738. It is engaged in the business of metal processing and during the course of its business its employees perform various tasks in the nature of metal processing and cutting. During the course of its business, respondent, at all times material to this matter, used materials and equipment which is received from places located outside the state of New York. Respondent, as a result of the aforesaid activities, is an employer engaged in a business affecting commerce as defined by section 3(3) and 3(5) of the Act and has employees as defined by section 3(6) of the Act and is subject to the requirements of the Act. (c) As a result of an inspection conducted from December 5-9, 1983 at respondent's facility in Frewsburg, New York, a citation for one serious violation was issued to respondent on December 12, 1983, along with a proposed related penalty of $360. The citation alleged a violation of the standard of 29 CFR 1910.212(a)(3)(ii) in that the point of operation on six (6) hydraulic shears was not guarded to prevent employees from having a part of their body in the danger zone during operating cycles. (d) Respondent elected to contest the citation and the Secretary filed his complaint in February 29, 1984. On March 6, 1984, respondent filed its answer and on July 12, 1984, a hearing was held in New York City before Administrative Law Judge Richard DeBennedetto. (e) On October 30, 1984, Judge DeBennedetto issued his Decision and Order affirming the citation and assessing the recommended $360 penalty. (f) Respondent filed a timely petition for review and on December 27, 1984, Commissioner Buckley ordered a review of the judge's decision. On January 29, 1985, a notice was issued by the Commission requesting briefs from the parties. NOW, in order to avoid further review and litigation, the parties agree to the following: I Respondent hereby agrees to abate the cited conditions as follows: a) Respondent will designate and install an adjustable barrier-type guard on one of the six cited shears. (Model: Constellation 1 1/2 - 18, or models similar thereto). b) The guard shall be placed just before the point of operation in such a manner that the operator shall be prevented from having any part of his body enter the point of operation during the operating cycle. c) The vertical movement of this guard shall be adjustable in such a manner as to allow at all times a minimum clearance of one quarter (1/4) inch between the anvil of the shear and the bottom of the guard. d) The guard shall simultaneously serve as a restraining device for the pieces to be cut and at no time during the operating cycle shall the distance between the bottom of the guard and the top of the piece to be cut exceed one quarter (1/4) inch. e) The guard shall remain immovable at all time during the operating cycle. f) At all times during the operating cycle the operator's hands must stay clear of the guard by a distance of more than one (1) inch. Whenever the distance between the operator's hands and the guard is less than that distance, hand tools must be used. g) The guarded shear will be used for all operations involving cutting stock of four inches or less. h) operations involving cutting of stock more than four inches in length shall be performed on the five remaining shears which may remain unguarded. i) A plaque, prominently displayed near the shears, shall indicate that when a machine is unguarded it is to be used only for cutting stock more than four inches in length. j) A similar plaque near the guarded shear shall instruct employees that only a guarded shear is to be used for cutting of stock four inches or less in length. The plaque will al so caution employees never to remove the barrier guard except for routine maintenance and repairs of the guard or shear, or unless specifically directed by supervisory personnel to remove the guard in order to permit the use of the machine in any other manner consistent with this agreement. II Complainant hereby agrees to reduce the penalty proposed for the citation for serious violation from $360 to $150. III Respondent hereby agrees to withdraw its notice of contest to the citation as well as its Petition for Discretionary Review and submits that the violation of the Act as set forth in the above-mentioned citation will be immediately abated according to the terms of this agreement within thirty days of the execution hereof and shall remain abated. IV Respondent agrees to pay the penalty of $150 within ten (10) days after issuance of the Commission's order approving this Stipulation and Settlement Agreement, by mailing a check to the complainant as full and complete payment of the penalty. V The parties agree that this Stipulation and Settlement Agreement applies only to the instant cited conditions and in no way is to be considered precedential or binding in other situations involving similar conditions or machinery of this or any other employer. VI The parties agree to bear their own attorney's fees, expenses and costs incurred as the result of the instant litigation. VII Respondent agrees to post this Stipulation and Settlement Agreement in accordance with Commission Rule 7. Wherefore, the parties request that this Stipulation and Settlement Agreement be approved by the Commission. For the Complainant Counsel for the Secretary For the Respondent ------------------------------------------------------------------------