“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-138 ALLIANCE ENCLOSURES, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0April 27, 1977DECISIONBefore BARNAKO, Chairman;MORAN and CLEARY, Commissioners.??????????? This case is before the Commission pursuant to a sua sponte order for review. The parties have filed noobjections to the Administrative Law Judge?s decision, either by way ofpetitions for discretionary review or response to the order for review.Accordingly, there has been no appeal to the Commission, and no party hasotherwise expressed dissatisfaction with the Administrative Law Judge?sdecision.??????????? In these circumstances, the Commission declines to passupon, modify or change the Judge?s decision in the absence of compelling publicinterest. 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 OSHDpara. 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 thiscase describes no compelling public interest issue.??????????? The Judge?s decision is accorded the significance of anunreviewed Judge?s decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975?76CCH OSHD para. 20,387 (No. 4090, 1976).?It is ORDERED that thedecision be affirmed.Dated: APR 27, 1977FOR THE COMMISSION:William S. McLaughlinExecutive Secretary(SEAL)?MORAN, Commissioner,Concurring in Part, Dissenting in Part:??????????? I agree with my colleagues? affirmance of Judge Fier?s vacation of the charge alleging that respondentfailed to comply with the requirements of 29 C.F.R. ? 1910.213(h)(3). However,vacation of that charge, as well as the charge alleging that respondent failedto comply with the requirements of 29 C.F.R. ? 1910.213(h)(1), is warrantedbecause the standards codified at 29 C.F.R. ? 1910.213 were improperlypromulgated and are therefore invalid: See Secretary v. NoblecraftIndustries, Inc., OSAHRC Docket No. 3367, November 21, 1975 (dissentingopinion). Also, vacation of all charges is required because complainant failedto establish that any employees of respondent were actually exposed to anyhazard as a result of the alleged noncomplying conditions. See Secretary v.Gilles & Cotting, Inc., OSAHRC Docket No.504, February 20, 1976 (dissenting opinion).??????????? Furthermore, for the reasons expressed in my separateopinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No.14046, December 20, 1976, I disagree with the manner in which my colleagues aredisposing of this case and with their views regarding the significance ofdecisions rendered by Review Commission Judges. Since my colleagues do notaddress any of the matters covered in Judge Fier?sdecision, his decision is attached hereto as Appendix A so that the law in thiscase may be known.\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-138 ALLIANCE ENCLOSURES, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0July 12, 1976Apperances:Francis V. LaRuffa, Regional SolicitorU.S. Department ofLabor1515 Broadway,Room 3555New York, New York10036Attorney forcomplainant\u00a0by Louis D. DeBernardo, Esq.Allan Richard Henis, Esq.295 Madison AvenueEleventh FloorNew York, New York10017Attorney for respondent\u00a0DECISIONAND ORDERFIER, Judge:PRELIMINARYSTATEMENT??????????? This is a proceeding pursuant to section 659 of theOccupational Safety and Health Act of 1970 (29 U.S.C. ? 651 et seq.,hereinafter called the Act), wherein the respondent contests the citation andpenalty for three serious violations. The citations dated December 10, 1975,were based on an inspection conducted December 5, 1975. The citation andproposed penalties were issued pursuant to sections 9(a) and 10(a) of the Act.??????????? Pursuant to section 10(c) of the Act (29 U.S.C. ? 659(c))respondent, through a letter dated December 23, 1975 from its attorney, notedits timely contest of the violations and proposed penalties.??????????? The citation for the alleged serious violations set forththe following:? ??????????? CITATION NO. 1 Item No. Standard Violation 1 29 CFR 1910.212(a)(1) page 23712 as specified in 1910.213(h)(1) and 1910.213(h)(3) page 23714 \u00a0 The 16 inch De Walt radial arm metal saw serial no. 32600205 located at the approximate center of the shop was not equipped with a guard which covered the lower exposed sides of the blade to their full diameter and would automatically adjust itself to the thickness of the stock and remain in contact with the stock being cut so as to give maximum protection. The saw also was not provided with an adjustable stop to prevent forward travel of the blade beyond the position necessary to complete the cut in repetitive operations. \u00a0 ???????????? A penalty of $500.00 was proposed.??????????? CITATION NO. 2 Item No. Standard Violation 1 29 CFR 1910.212(a)(3)(ii) page 23712 \u00a0 A 10 foot Chicago, Dreis Krump Power Brake serial no. 18044 and a 10 foot Wysong Power Shear serial no. 32923 located at the N\/W and S\/W areas of the shop respectively, were not provided with point of operation guarding that would prevent the operator from placing his hand or fingers in the danger zone when the ram descended. ? \u00a0??????????? A penalty of $500.00 was proposed.??????????? CITATION NO. 3 Item No. Standard Violation 1 29 CFR 1910.217(c)(1)(i) as specified in 1910.217(c)(3)(i) page 23725 \u00a0 4 power presses located adjacent to the center of the west wall of the shop were not provided with point of operation guarding to prevent entry of the operator? hands and fingers into the danger zone during the operating cycle or closing of the dies. They were:? A 50 ton Russell E serial no. 14243 model 66 A 5 ton press adjacent to the wall (identification not discernible) A 10 ton Continental Can Co. type 133p No 2321 A Havir 5 ton press (identification numbers obscured) \u00a0 \u00a0??????????? A penalty of $500.00 was proposed.STANDARDSAS PROMULGATED29 CFR ? 1910.212General requirements for all machines.\u00a0(a) Machineguarding?(1) Types of guarding. One or more methods of machine guarding shallbe provided to protect the operator and other employees in the machine areafrom hazards such as those created by point of operation, ingoing nip points,rotating parts, flying chips and sparks. Examples of guarding methodsare?barrier guards, two-hand tripping devices, electronic safety devices, etc.?(3) Point ofoperation guarding. (i) Point of operation is thearea on a machine where work is actually performed upon the material beingprocessed.?(ii) The point ofoperation of machines whose operation exposes an employee to injury, shall beguarded. The guarding device shall be in conformity with any appropriatestandards therefor, or, in the absence of applicable specific standards, shallbe so designed and constructed as to prevent the operator from having any partof his body in the danger zone during the operating cycle.?? 29 CFR ? 1910.213Woodworking machinery requirements.?(h) Radial saws.(1) The upper hood shall completely enclose the upper portion of the blade downto a point that will include the end of the saw arbor. The upper hood shall beconstructed in such a manner and of such material that it will protect theoperator from flying splinters, broken saw teeth, etc., and will deflectsawdust away from the operator. The sides of the lower exposed portion of theblade shall be guarded to the full diameter of the blade by a device that willautomatically adjust itself to the thickness of the stock and remain in contactwith stock being cut to give maximum protection possible for the operationbeing performed.?(3) An adjustablestop shall be provided to prevent the forward travel of the blade beyond theposition necessary to complete the cut in repetitive operations.?29 CFR ? 1910.217(c)Safeguarding the point of operation?(1) Generalrequirements. (i) It shall be the responsibility ofthe employer to provide and insure the usage of ?point of operation guards? orproperly applied and adjusted point of operation devices on every operationperformed on a mechanical power press. See Table O?10.?(3) Point ofoperation devices. (i) Point of operation devicesshall protect the operator by:?(a) Preventingand\/or stopping normal stroking of the press if the operator?s hands areinadvertently placed in the point of operation; or?(b) Preventing theoperator from inadvertently reaching into the point of operation or withdrawinghis hands if they are inadvertently located in the point of operation, as thedies close; or?(c) Preventing theoperator from inadvertently reaching into the point of operation at all times;or?(d) Requiringapplication of both of the operator?s hands to machine operating controlsduring the die closing portion of the press stroke; or?*3 (e) Locatingsingle cycle operating controls so that the slide completes its downward travelbefore the operator?s hands can inadvertently reach into the point ofoperation.?ISSUES??????????? 1. Whether the respondent violated the OccupationalSafety and Health Act as alleged.??????????? 2. Whether the respondent failed to comply with 29 CFR1910.212(a)(1), 1910.213(h)(1) and 1910.213(h)(3); 29 CFR 1910.212(a)(3)(ii);29 CFR 1910.217(c)(1)(i) and 29 CFR 1910.217(c)(3)(i); if so, did it violates section 29 U.S.C. ? 654(a) ofthe Act.??????????? 3. If the respondent is shown to have violated thestandards as alleged, what penalties, if any, are appropriate.STATEMENTOF THE EVIDENCE??????????? The respondent through testimony and stipulation admittedthat it does work occasionally outside of New York State. It also receivesgoods manufactured from other states. The respondent is a corporation organizedunder the laws of New York (Tr. 6?10).*??????????? On December 5, 1975, John Brennan, a compliance officer(hereafter referred to as C.O.) for the Department of Labor, made an inspectionof premises of Alliance Enclosures Inc., the respondent (hereafter referred toas Alliance). During the walk-around inspection, in the company of the officemanager and the acting shop steward, the C.O. observed four workers on thepremises who were identified as respondent?s employees (Tr. 23, 24). The C.O.observed a 16-inch DeWalt radial arm metal saw which was not equipped with aguard over the lower exposed sides of the blade (Tr. 18?20). In addition, thesaw was also not provided with an adjustable stop to prevent the saw from goingbeyond the limits of the work being cut (Tr. 18, 19). The respondent takesissue with the C.O.?s observations as to the adjustment controls. It contendsthat since the saw was not in use and it sometimes is necessary to useextension tables, the adjustment on the arm of the saw was probably adjusted tothe last cut (Tr. 51).??????????? The respondent readily admitted that a guard for thelower part of the blade was not on the saw and introduced Exhibit R?1 to showthat it has since been ordered from the manufacturer (Tr. 52). A penalty of$500.00 was proposed for the two violations.??????????? The C.O. next observed that a 10-foot WysongPower Shear was not provided with a point of operation guard to protect theemployee?s hands or fingers from amputation (Tr. 25). In addition, a 10?footChicago power brake machine lacked a point of operation guard (Tr. 30). Thehazard here to the employees, is the possibility of loss of hands or fingers (Exh. C?2). A penalty of $500.00 was proposed for the aboveserious violation.??????????? Finally, the C.O. observed four power presses that werenot with point of operation guarding to prevent injury to the operators? handsor fingers (Tr. 37?42). The evidence indicated that in all of the above mattersthe machines were capable of being used, and in fact, two employees wereactually observed using some of the machines (Tr. 66). The respondent testifiedthat the guards were not on the machines because the machinery was beingcleaned (Tr. 62). The respondent also asserts that the two people using themachines were field employees and not shop people (Tr. 66). It is also assertedthat the respondent had reduced his workforce by 95% because of a work stoppage(Tr. 62). Alliance alleges that no work was being performed but only a cleaningoperation was observed (Tr. 62).OPINION??????????? The respondent readily admits that there was no guardingdevice on the lower sides of the saw. The evidence sufficiently establishesthat the power brake and power shear were also without the guard devices.Respondent admits that it has the guards but they were not mounted because themachinery was being cleaned. This is essentially the same circumstance in thethird citation for the absence of guards on the four power presses. All of themachines were located in an accessible work area and two of respondent?semployees actually did use the machines. As for the adjustments of thepower-saw, the respondent indicated that there were adjustable stops on the armof the saw (Tr. 51). The C.O. did not refute this. The explanation givenregarding the operation of the saw beyond the limit of the work being cut,creates a doubt sufficient to justify vacating thatportion of the citation. The remainder of the three citations must be affirmed.??????????? As to the assessment of penalties, the evidence indicatesthat the respondent has no prior history of violations. In addition, theexplanation that 95% of the employees were not working at the time,demonstrates that the exposure to the cited hazards were reduced considerably.Finally, the respondent?s statement that the machines were being cleaned at thetime and the guards necessarily removed, to effectuate, this cannot be totallydiscounted. It thus appears that the penalty in the first citation should bereduced to $100.00. The penalty for the second citation should be reduced to$200.00. The penalty in the third citation should be reduced to $200.00. Thecriteria set forth in section 17 of the Act have been considered.FINDINGSOF FACT??????????? The credible evidence and the record as a whole establishes preponderant proof of the following facts:??????????? 1. Respondent, Alliance Enclosures Inc., is a corporationorganized under the laws of the State of New York. It does work across statelines. It also uses materials manufactured and shipped from other states.??????????? 2. Respondent?s employees were exposed to the hazard ofinjury by the use of a radial arm metal saw that was not equipped with a guardto cover the lower portion of the blade.??????????? 3. The respondent?s radial arm saw was equipped with anadjustable stop to prevent the saw from traveling beyond the cutting position.??????????? 4. The respondent?s power brake machine and power sheardid not have guards at the point of operation at the time of inspection.??????????? 5. The respondent?s four power presses did not haveguards at the point of operation at the time of inspection.CONCLUSIONSOF LAW??????????? 1. The respondent is and was at all times herein engagedin a business affecting commerce within the meaning of section 3 (5) of theOccupational Safety and Health Act of 1970.??????????? 2. The Occupational Safety and Health Review Commissionhas jurisdiction over the subject matter and parties to this action.??????????? 3. Respondent did not fail to comply with 29 CFR1910.213(h)(3).??????????? 4. Respondent violated 29 U.S.C. 654(a)(2) by failing tocomply with following standards 29 CFR 1910.212(a)(1) as specified in 29 CFR1910.213(h)(1); 29 CFR 1910.212(a)(3)(ii); 29 CFR 1910.217(c)(1)(i) as specified in 29 CFR 1910.217(c)(3)(i).ORDER??????????? Upon the basis of the foregoing findings of fact andconclusions of law, and upon the entire record, it is hereby ORDERED that;??????????? Citations numbered one, two and three are affirmed asmodified. Penalties of $100.00, $200.00 and $200.00 respectively, are assessedfor a total penalty of $500.00.?SEYMOUR FIERJUDGE, OSHRCDated: July 12, 1976New York, New York* Denotestranscript page.”