“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 14240 BUILDING PRODUCTS COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0August 26, 1977DECISIONBefore: BARNAKO, Chairman; and CLEARY, Commissioner.BARNAKO, Chairman:??????????? Adecision of Administrative Law Judge James A. Cronin, Jr. is before us forreview pursuant to 29 U.S.C. 661(i).[1] Judge Cronin in partaffirmed and in part vacated a citation which alleged a single seriousviolation of the Act in that Respondent?s radial saws failed to comply withfour requirements of 29 C.F.R. 1910.213(h).[2] The judge assessed anaggregate penalty of $150. The only issue before us is whether he erred invacating that portion of this citation alleging noncompliance with section1910.213(h)(1).[3]For the reasons given below we conclude that he did err; we reverse and affirmthat portion of the citation.??????????? Respondentmanufactures wooden roof trusses for use in building construction. In thisprocess it utilizes, among other things, three radial saws, which, whenoriginally purchased, had been equipped with lower blade guards. According toRespondent?s president, approximately 85 to 90 percent of the work performed onthese saws consists of compound cutting; that is, cutting a single piece ofwood twice in opposing directions so as to form an angular cut. Under certainconditions with the guards in place, this type of cutting caused the productionand ejection of small wood chips. Respondent?s assistant foreman testified thatboth he and an employee had been struck by such chips. Accordingly, the lowerblade guards were considered unsafe, and the employees removed them.??????????? Complainant?sarea director agreed that use of a lower blade guard in some circumstancescould result in injury by ejecting a small wood chip into an employee?s face.However, both he and Complainant?s compliance officer also testified thatcontact with an unguarded saw blade would be likely to result in severe cuts oramputation. The area director stated that both the ejection hazard and thehazard of contact with the blade could be avoided by installing a lower bladeguard only on one side of the blade in the direction from which the operatorfeeds the wood and removing the guard on the opposite side of the blade. He hadsuggested this method to another employer and it worked successfully. Therecord also shows that safety glasses are available for use by Respondent?semployees and Respondent recommends their use in circumstances where it is feltthat a hazard to the eyes exists, such as from flying sawdust.??????????? Onthese facts Respondent argued before the judge that it should not be requiredto provide lower blade guards as their use was shown to be more hazardous thannonuse. In this regard, it contended that the lack of such guards was not shownto present a substantial probability of death or serious injury.[4] Judge Cronin found thatcontact with an unguarded blade could cause serious injury, and he rejectedRespondent?s arguments.??????????? However,the judge determined that while use of the guards would not result in a greaterhazard, it would cause a separate accident hazard in certain operations.Therefore he reasoned that compliance with the cited standard might causeRespondent to be in violation of another standard not cited, 29 C.F.R.1910.212(a)(2).[5]He also reasoned that while the procedure suggested by the area director wouldeliminate the separate hazard of ejected chips it would be violative of therequirement of the cited standard that all sides of the blade be guarded.Accordingly, he vacated this portion of the citation.??????????? Complainantargues that the judge erred because his decision places on Complainant theburden to prove that a method of guarding exists which is not hazardous. Heargues that Commission precedent does not require Complainant to establish aspecific method of abating the violative condition because that method isprescribed by the plain terms of the standard, citing Buckeye Industries,Inc., 75 OSAHRC 21\/B3, 3 OSHC 1837, 1975 76 OSHD para. 20,239 (1975),petition for review docketed, No. 76 1467 (5th Cir., Feb. 19, 1976). Lastly,Complainant contends that Respondent has not established the defense thatcompliance would result in greater hazards as that defense has been defined bythe Commission[6]since it failed to show that compliance would cause a greater hazard of beingcut and failed to show that alternative means of protection against the hazardof being struck by wood chips were unavailable.??????????? Weagree; the circumstances do not show that compliance with the guardingrequirements of the standard would have been more hazardous than noncompliance.And even if we were to assume that the hazard of being struck by a wood chip isa more serious hazard than that presented by contact with an unguarded blade,we still would not vacate absent a showing that no alternative means ofprotection exist. Roanoke Iron, supra note 6; WeyerhaeuserCompany, supra note 4.??????????? Theevidence is that protective equipment is available and could be used to protectagainst eye injuries. Indeed, we had held prior to Judge Cronin?s decision, invirtually identical circumstances, that compliance with the lower blade guardrequirement of section 1910.213(h)(1) is necessary even if such guards wouldcause the ejection of small pieces of wood. We reasoned that employees couldeffectively be protected against the latter hazard by wearing appropriatepersonal protective equipment. Continental Kitchens, Inc., 75 OSAHRC19\/A5, 3 BNA 1859, 1975 76 OSHD para. 20,249 (1975), petition for reviewdocketed, No. 76 1306 (9th Cir., Feb. 12, 1976). See Weyerhaeuser Company,supra. These decisions are dispositive of the issue in this case. They aredispositive as well of the judge?s conclusion that in order to eliminate theejection hazard Respondent necessarily would have to violate the terms of thecited standard by providing only a partial guard. Plainly, his conclusion iserroneous for it ignores the use of the appropriate equipment as an alternativeprotective measure.[7]??????????? Thejudge also erred in vacating based on the terms of section 1910.212(a)(2).[8] We previously said inBuckeye Industries, supra, that this standard does not provide an employer witha defense but rather imposes an affirmative duty on the employer to guard themachine in a manner which does not create a separate hazard to employees.??????????? Furthermore,the question in Buckeye Industries and similar cases[9] concerned guarding thepoint of operation of machinery subject only to the general machine guardingstandard at section 1910.212. The case now before us is distinguishable, for itinvolves woodworking machinery governed by a specific woodworking machinerystandard as cited. The provisions of this specific standard therefore displacethose of the general standard which might otherwise have been applicable. 29C.F.R. ? 1910.5(c)(1). Accordingly, the judge erred in applying the terms ofsection 1910.212 to the facts of this case even assuming he properly construedthat standard. General Supply company, No. 11752, 4 OSHC 2039, 1976 77 OSHDpara. 21,503 (R.C., Jan 25, 1977), petition for review dismissed, No. 77 1614(5th Cir., June 22, 1977).??????????? Wetherefore conclude that the judge erred in vacating that portion of thecitation alleging a serious violation of the Act for failure to provide lowerblade guards contrary to section 1910.213(h)(1). As previously indicated, heassessed a penalty of $150 for that portion of this citation which is notbefore us on review. We conclude that no additional penalty should be imposedfor the lack of lower blade guarding.??????????? Thereis no question that serious injury could easily result in the event of contactwith an unguarded blade. We further conclude, as aid the area director, thatthe other violations of section 1910.213(h) which are not before us could increasethe likelihood of injury.[10] However, the only otherevidence with respect to the gravity of the violation for lack of guarding isthat one of the saws is used by only a few of Respondent?s 20 productionemployees and such use is limited to about one hour each day per employee. Therecord further shows that Respondent has a total of approximately 25 employeesand gross annual income between $750,000 and $1 million. It has no priorhistory of violations of the Act, and the circumstances surrounding theviolation at issue indicate that Respondent acted in good faith. Consideringall these factors, we conclude that a penalty of $150 is appropriate. HamiltonLumber Company, 76 OSAHRC 58\/A2, 4 OSHC 1273, 1976 77 OSHD para. 20,726 (1976);Brady-Hamilton, supra note 4, and cases cited therein.??????????? Therefore,the judge?s decision insofar as it vacates that portion of the citationalleging failure to comply with section 1910.213(h)(1) is reversed, and thecitation is modified accordingly. A penalty of $150 is assessed therefore. So ORDERED.?FOR THE COMMISSION:?William S. McLaughlinExecutive SecretaryDATE: AUG 26, 1977\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 14240 BUILDING PRODUCTS COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February 17, 1976APPEARANCESWilliam E. Everheart,Esq. Douglas White, Esq. For Complainant\u00a0Robert H. Tips, Esq. Bradford Baker, LegalIntern For Respondent\u00a0DECISION AND ORDERCronin, Judge, OSAHRC:??????????? Thisis a proceeding under section 10 of the Occupational Safety and Health Act of1970 (29 U.S.C. 651, et, seq., hereafter called the Act) involving aninspection of respondent?s roof truss manufacturing plant at Broken Arrow,Oklahoma, on June 9, 1975. As a result of this inspection, two citations wereissued to respondent on June 23, 1975. Citation No. 1 alleges 5 non-seriousviolations of the Act, and Citation No. 2 alleges violations of four differentstandards which in combination are alleged to constitute a single ?serious?violation of the Act. The Notification of Proposed Penalty, also issued on June23, 1975, proposes no penalties for items 1 through 4, a $100.00 penalty foritem 5 of Citation No. 1, and a $750.00 penalty for Citation No. 2. A timelynotice of contest to the citations was received by the Secretary of Labor onJuly 2, 1975.??????????? ItemNo. 1 of Citation No. 1 alleges a violation of 29 C.F.R. ? 1904.2(a) asfollows:Occupational Safety and HealthAdministration OSHA Form #100 or private equivalent was not maintained in theestablishment to record all recordable occupational injuries and illnesses for thecurrent calendar year 1975.???????????? Standard? 1904.2(a) as promulgated by the Secretary provides:(a) Each employer shall maintain in eachestablishment a log of all recordable occupational injuries and illnesses forthat establishment, except that under the circumstances described in paragraph?(b) of this section an employer maymaintain the log of occupational injuries and illnesses at a place other thanthe establishment. Each employer shall enter each recordable occupationalinjury and illness on the log as early as practicable but no later than 6working days after receiving information that a recordable case has occurred.For this purpose, Occupational Safety and Health Administration OSHA Form No.100 or any private equivalent may be used. OSHA Form No. 100 or its equivalentshall be completed in the detail provided in the form and the instructioncontained in OSHA Form No. 100. If an equivalent to OSHA Form No. 100 is used,such as a printout from data-processing equipment, the information shall be asreadable and comprehensible to a person not familiar with the data-processingequipment as the OSHA Form No. 100 itself.????????????? ItemNo. 2 of Citation No. 1 alleges a violation of 29 C.F.R. ? 1904.6 as follows:Occupational Safety and HealthAdministration records were not retained available for review as required i.e.,(a) OSHA form 101 for years 1972, 1973 and 1974, (b) OSHA form 102 for the year1972.???????????? Standard? 1904.6 as promulgated by the Secretary provides:Records provided for in ?? 1904.2, 1904.4,and 1904.5 shall be retained in each establishment for 5 years following theend of the year to which they relate.???????????? ItemNo. 3 of Citation No. 1 alleges a violation of 29 C.F.R. ? 1910.22(b)(2) asfollows:Permanent aisles and passageways in thework and storage areas were not designated by appropriate markings; i.e., theshop.???????????? Standard? 1910.22(b)(2) as promulgated by the Secretary provides:(2) Permanent aisles and passageways shallbe appropriately marked.\u00a0??????????? ItemNo. 4 of Citation No. 1 alleges a violation of 29 C.F.R. ? 1910.133(a)(1) asfollows:Suitable protective eye and face equipmentwas not provided and used; i.e., employees operating the component cutter.\u00a0??????????? Standard? 1910.133(a)(1) as promulgated by the Secretary provides:(a) GENERAL. (1) Protective eye and faceequipment shall be required where there is a reasonable probability of injurythat can be prevented by such equipment. In such cases, employers shall makeconveniently available a type of protector suitable for the work to beperformed, and employees shall use such protectors. No unprotected person shallknowingly be subjected to a hazardous environmental condition. Suitable eyeprotectors shall be provided where machines or operations present the hazard offlying objects, glare, liquids, injurious radiation, or a combination of thesehazards.????????????? ItemNo. 5 of Citation No. 1 alleges a violation of 29 C.F.R. 1910.213(r)(4) asfollows:Component cutter was not provided withsuitable guards and exhaust hoods; i.e., (a) component cutter S\/N 308097, ClaryCorp; (b) component cutter, S\/N 840391, General Construction Automatic, Inc.???????????? Standard? 1910.213(r)(4) as promulgated by the Secretary provides:(4) The mention of specific machines inparagraphs (a) thru (q) and this paragraph (r) of this section, inclusive, isnot intended to exclude other woodworking machines from the requirement thatsuitable guards and exhaust hoods be provided to reduce to a minimum the hazarddue to the point of operation of such machines.???????????? ItemNo. 1A of Citation No. 2 alleges a violation of 29 C.F.R. 1910.213(h)(1) asfollows:Radial saws were not provided with guardsto cover the full diameter of the lower portion of the blades and automaticallyadjust to the thickness of the stock and remain in contact with the stock beingcut; i.e., (a) radial saw, Northfield Foundry & Machine Co., S\/N 731232?D,located in the shop; (b) radial arm saw, Northfield Foundry & Machine Co.,S\/N 722598?I in the shop; (c) radial arm saw, Northfield Foundry & MachineCo., S\/N 711254?E.???????????? Standard? 1910.213(h)(1) as promulgated by the Secretary provides:(h) Radial saws. (1) The upper hood shallcompletely enclose the upper portion of the blade down to a point that willinclude the end of the saw arbor. The upper hood shall be constructed in such amanner and of such material that it will protect the operator from flyingsplinters, broken saw teeth, etc., and will deflect sawdust away from theoperator. The sides of the lower exposed portion of the blade shall be guardedto the full diameter of the blade by a device that will automatically adjustitself to the thickness of the stock being cut to give maximum protectionpossible for the operation being performed.???????????? ItemNo. 1B of Citation No. 2 alleges a violation of 29 C.F.R. 1910.213(h)(2) asfollows:Each radial saw used for ripping was notprovided with nonkickback fingers or dogs; i.e.,Northfield Foundry & Machine Co. radial arm saw, S\/N 722598?I.\u00a0??????????? Standard? 1910.213(h)(2) as promulgated by the Secretary provides:(2) Each radial saw used for ripping shallbe provided with nonkickback fingers or dogs locatedon both sides of the saw so as to oppose the thrust or tendency of the saw topick up the material or to throw it back toward the operator. They shall bedesigned to provide adequate holding power for all the thicknesses of materialbeing cut.???????????? ItemNo. 1C of Citation No. 2 alleges a violation of 29 C.F.R. 1910.213(h)(3) asfollows:(3) An adjustable stop was not provided toprevent saw from travel beyond the position necessary to complete cut; i.e.,(a) Northfield Foundry & Machine Co. radial arm saw, S\/N 731232?D, theadjustable stop was not being utilized; (b) Northfield Foundry & MachineCo. radial arm saw, S\/N 722598-I; (c) Northfield Foundry & Machine Co.radial arm saw, S\/N 711254?E.???????????? Standard? 1910.213(h)(3) as promulgated by the Secretary provides:(3) An adjustable stop shall be providedto prevent the forward travel of the blade beyond the position necessary tocomplete the cut in repetitive operations.???????????? ItemNo. 1D of Citation No. 2 alleges a violation of 29 C.F.R. ? 1910.213(h)(4) asfollows:Installation of the radial arm saw was notin such a manner that the front end of the unit will be slightly higher thanthe rear so as to cause the cutting head to return gently to the startingposition when released by the operator; i.e., (a) Northfield Foundry &Machine Co., radial arm saw, S\/N 731232?D, located in the shop; (b) radial armsaw, Northfield Foundry & Machine Co., S\/N 722598?I in the shop; (c)Northfield Foundry & Machine Co., S\/N 711254?E.???????????? Standard? 1910.213(h)(4) as promulgated by the Secretary provides:(4) Installation shall be in such a mannerthat the front end of the unit will be slightly higher than the rear, so as tocause the cutting head to return gently to the starting position when releasedby the operator.???????????? Thehearing took place on November 11, 1975, and post-hearing briefs were receivedfrom both parties.JURISDICTION AND ISSUES??????????? Respondentcontests jurisdiction of the Commission on the ground that section 10(c) of theAct (29 U.S.C. ? 659(c)) is an unconstitutional delegation of judicial power,attacks the constitutionality of the Act on a variety of other bases,affirmatively challenges the validity of certain standards on a number ofgrounds, and denies complainant?s allegations of violation.??????????? Forrespondent to succeed in its broad based attack on the constitutionality of theAct would require this Commission to hold certain sections of the Act to beunconstitutional and unenforceable. But this Commission has no power to declareany portion of its enabling litigation unconstitutional. Montana ChapterAssn. of Civilian Technicians, Inc., v. Young, 514 F. 2d 1165, 1167 (9thCir. 1975); Secretary v. American Smelting and Refinery Company, DocketNo. 10, 4 OSAHRC 445 (1973). Therefore, this Judge declines to consider themerits of respondent?s assertions that the enforcement and recordkeepingprovisions of the Act involve an unlawful delegation of power to the ExecutiveBranch or violate the Fourth, Fifth, and Sixth Amendments to the United StatesConstitution.??????????? Theevidentiary record establishes that respondent is engaged in the manufacturingof wood trusses in the state of Oklahoma and regularly employs 25 employees.Further, respondent?s president testified that some of the materials used byrespondent in its manufacturing process are manufactured or produced outside ofthe state of Oklahoma (Tr. 7?8). On these facts, respondent is found to be anemployer engaged in a business affecting commerce, and jurisdiction isconferred on this Commission.??????????? Thefollowing issues are presented by this record:??????????? 1.Whether the respondent was in violation of the cited standards, as alleged, onJune 9, 1975, and, if so, what penalties, if any, are appropriate???????????? 2.Whether this Commission is empowered to determine questions concerning theconstitutional validity of standards???????????? 3. Ifthe Commission has that power, is ? 1910.213(r)(4) so vague as to render itunenforceable against the respondent???????????? 4.Were standards ? 1910.213(h)(1), (h)(2), (h)(3), and (h)(4) duly promulgated bythe Secretary of Labor pursuant to his authority granted by the Act?DiscussionA. As to violations??????????? Items1, 3, 4, and 5 of Citation No. 1 dated June 23, 1975, will be vacated. Item 2will be modified, and a violation of ? 1904.6 found. Citation No. 1 will beamended to charge a violation of ? 1904.7, and, as amended, a violation isfound.??????????? Items1B and 1D of Citation No. 2 dated June 23, 1975, will be affirmed, Items 1A and1C of Citation No. 2 will be vacated.??????????? Therespondent?s president was unable to testify that the Form OSHA No. 100 for theyear 1975 (Exhibit R?3) was being maintained by respondent, on June 9, 1975,the date of the inspection. However, OSHA 100 forms for the years 1972, 1973,and 1974 had been maintained and retained by respondent, and, therefore, thisJudge believes respondent is entitled to the reasonable inference that the FormOSHA 100 for 1975, introduced at the hearing, also was being maintained on June9, 1975.??????????? Thecompliance officer?s testimony that he was not shown Form OSHA No. 100 for 1975on June 9, 1975, or both of ?Employer?s First Report of Injury? forms for 1975went unrefuted. Respondent?s president conceded that he was not sure what hehad shown to the compliance officer (Tr. 172?173), and in its answer respondentadmitted that ?said log was merely temporarily misplaced.? The failure ofrespondent to have Form OSHA No. 100 for 1975, or private equivalent, availablefor inspection, however, constitutes a violation of ? 1904.7, rather than aviolation of ? 1904.2(a).[11] Accordingly, item 1 ofCitation No. 1 will be vacated, and Citation No. 1 amended to conform to theproof by charging a failure to have Form OSHA No. 100 for 1975, or privateequivalent, available for inspection in violation of ? 1904.7.??????????? Respondenthad retained, and available for inspection on June 9, 1975, ?Employer?s FirstReport of Injury? forms for the years 1972 through 1974. Under the provisionsof 1904.4, these forms are considered acceptable alternative record to FormOSHA No. 101 because they contain the identical information required by FormOSHA No. 101. Therefore, respondent was not in violation of ? 1904.6 on June 9,1975, for not retaining records provided for in ? 1904.4. However, the evidenceof record does establish a violation of ? 1904.6 because of respondent?sfailure to retain Form OSHA No. 102 for 1972, the annual summary record whichis provided for in ? 1904.5. Unlike Form OSHA No. 101, there is no acceptablealternative record, or private equivalent, to Form OSHA 102 recognized by thestandards.??????????? Dueto the nature, and special requirements, of respondent?s manufacturingoperation, this Judge is persuaded that the designation of permanent aisles andpassageways in respondent?s plant would be impractical and unsuitable. Item 3,therefore, will be vacated.??????????? Subsequentto the hearing, the Secretary filed a motion for an order permitting him toamend Citation No. 1 by withdrawing item No. 4, which alleges a violation of ?1910.133(a)(1). That motion is granted and item No. 4 is vacated. Although itnow is unnecessary to consider the merits of respondent?s contentions made inits brief concerning this item, this Judge would be remiss if he didn?t pointout to respondent that the case of Cam Industries, No. 258, 7 OSAHRC 39(1974), on which respondent primarily relies, has been specifically overruledby General Electric Co., Inc., No. 2739, 17 OSAHRC 49, 64 (April 1975).??????????? ThisJudge interprets the general language of ? 1910.213(r)(4) to require respondentto provide blade guards for its component cutters that are capable ofeliminating, to the extent possible for the operation being performed, thehazards created by the cutters? points of operation. The evidentiary recordestablishes that the cutters? points of operations are located inside theperimeter of the machines, and that two types of guarding devices, especiallydesigned by the manufacturer to reduce the hazards created by the points ofoperation on the front and rear saws, are provided.??????????? The?red guards? protect the operator?s hand as he guides the lumber into thefeed-through conveyors, and the Secretary?s Area Director and expert, Mr. Knorpp, appears to concede that these guards, when properlypositioned, are suitable to perform this function. Without evidence that thecutters were operated with the guards in the raised position, a finding thatthe guards were improperly positioned cannot be made.??????????? AlthoughMr. Knorpp, solely on the basis of his examination ofthe Secretary?s photographs, contends that the ?yellow guards? on the rear sawsare too small, and positioned too close to the blade, to properly guard theblades? points of operation, he agrees that this is a subjective judgmentbecause the standard in question does not contain any specific requirementsrelating to the size or location of guards, only to their ?effectiveness.? Therespondent, for its part, introduced credible evidence establishing thatoperators at the rear of the machine are normally positioned a good two feet,or more, from the blades? points of operation and when the blades are inoperation there is no need for them to reach over, under, or around the ?yellowguards.? Also, there is some unrefuted evidence to the effect that, if theguards were larger and positioned lower, the possibility of a separate accidenthazard would be presented. After weighing all of the evidence on this issue,this Judge is unable to reasonably conclude that the guards provided byrespondent were not suitable to reduce to a minimum, for the operation beingperformed, the hazards created by the component cutters? points of operation.Item 5, therefore, must be vacated.??????????? Becauseof the vacation of item 5, it is unnecessary to consider respondent?scontentions that ? 1910.213(r)(4) is so vague as to render it unenforceableagainst the respondent.??????????? Therebuttal testimony of Secretary?s expert, Mr. Knorpp,confirmed respondent?s evidence that, when certain cuts are performed, thelower blade guard designed for, and installed, on respondent?s radial sawscreate a separate hazard to employees. This same testimony, however, alsoestablished that this hazard could be eliminated by guarding only one side ofthe lower exposed blade. But this recommended procedure does not comply withthe standard?s requirement of guarding both sides of the lower exposed blade.??????????? It issuggested that the respondent employer in this case is placed in a difficult,if not impossible, quandary. If respondent had used the lower blade guards,which are appropriate for some operations but not for others, it could havebeen in violation of ? 1910.212(a)(2), which requires that the ?guard shall besuch that it does not offer an accident hazard in itself.?See Secretary of Labor v. Buckeye Industries, Inc., No. 8454 (December22, 1975). On the other hand, if respondent had adopted the procedure proposedby Mr. Knorpp, it still could have been found inviolation of ? 1910.213(h)(1), as written, for failure to guard both sides ofthe lower saw blade. Until the Secretary of Labor publishes an interpretationof the standard in question, which would permit employers to guard only oneside of the lower exposed portion of a radial saw blade when the guarding ofboth lower sides would offer a separate hazard, it would be unreasonable tohold employers, such as respondent, for a violation of ? 1910.213(h)(1). Item1A of Citation No. 2, therefore, will be vacated.??????????? Theevidence establishes that the radial saw shown in Exhibit C?6 is used byrespondent for ripping and was not provided with a nonkickbackdevice. These facts constitute a clear violation of ? 1910.213(h)(2).Respondent is bound by the admissions, knowledge, and actions, of its plantsuperintendent, and it was under an affirmative duty to assure that each radialsaw used for ripping has a nonkickback device locatedon it. This saw was operating, therefore, it is reasonable to infer, in theabsence of evidence to the contrary, that this saw was being used for rippingon June 9, 1975.??????????? TheSecretary?s proof with respect to the alleged violation of ? 1910.213(h)(3)(Item 1C) was insufficient because it did not establish by a preponderance ofthe evidence that the radial saw operating (Exhibit C?6) was making repetitivecuts, or that this saw could travel beyond the position necessary to completethe cuts.??????????? Therecord reflects that the compliance officer?s knowledge concerning respondent?soperations and radial arm saws was severely limited. He erroneously testifiedthat adjustable stops were not provided on all three radial saws. Moreover, hisopinion that the operator was making ?repetitive cuts? was rebutted byrespondent?s evidence that repetitive cuts are made on the component cutters,not on the radial saws. Also, this Judge is unable to determine from examiningExhibit C?6 that the adjustable stops were not being used. On this record, item1C must be vacated.??????????? Theobjective of standard ? 1910.213(h)(4) is plain?to require employers to installand maintain a radial arm saw unit so as to cause the cutting head to returngently to the starting position when released by the operator. Although thefront ends of the radial saw units apparently were being maintained on June 9,1975, slightly higher than the rear, the cutting head of one of respondent?ssaws would not return to its starting position when tested by the complianceofficer. Even assuming arguendo that the presence of dust and grease may havebeen the contributing cause of this failure, that fact would not relieverespondent of its affirmative duty to maintain its radial saw units so that thecutting heads will retract to their starting positions. To adopt respondent?snarrow construction of the standard would defeat its purpose and encouragerespondent to continue its admittedly inefficient and ineffective radial sawmaintenance schedule. The alleged violation of ? 1910.213(h)(4) (Item 1D) willbe affirmed.??????????? Theissue of whether standards ? 1910.213(h)(1), (h)(2), (h)(3), and (h)(4) werelawfully promulgated by the Secretary of Labor was laid to rest in Secretaryv. Noblecraft Industries, Inc., No. 3367(November 21, 1975), where the Commission recently answered this question inthe affirmative with respect to ? 1910.213(h)(1).B. As to penalties??????????? Inview of respondent?s recordkeeping efforts, no penalties for violation of ?1904.6 and ? 1904.7 will be assessed. Although the violations of ?1910.213(h)(2) and (h)(4) are considered non-serious, this Judge believes thatpenalties are warranted in order to encourage respondent to instituteprocedures to assure the employment of a properly equipped radial saw forripping and use of radial saws whose cutting heads will return to theirstarting positions. Because the gravity of respondent?s violation of ?1910.213(h)(2) is greater than its violation of ? 1910.213(h)(4), a penalty of$100.00 will be assessed for the former, and a penalty of $50.00 for thelatter.FINDINGS OF FACT??????????? Uponthe credible evidence of record, the following facts are found. Any proposedfindings of fact inconsistent with these findings are denied.??????????? 1.When requested on June 9, 1975, to make available for inspection by thecompliance officer Form OSHA No. 100 for the year 1975, respondent?s presidentwas unable to produce said form. On June 9, 1975, respondent produced forinspection OSHA #100 forms for the years 1972, 1973, 1974. Respondent also wasin possession of two, completed, ?Employer?s First Report of Injury? formswhich detailed the injuries occurring on January 3, 1975, and May 7, 1975, butonly one of these forms was shown the compliance officer. The detailedinformation contained on respondent?s ?Employer?s First Report of Injury? formsincludes the identical information required to be reported on Form OSHA No.100, except for the Injury and Illness Code information. At the time ofinspection, respondent was maintaining a Form OSHA No. 100 for the year 1975 aswell as acceptable alternative records (Tr. 16, 90?92, 135, 170?173; ExhibitR?3).??????????? 2. OnJune 9, 1975, respondent did not have available for inspection Form OSHA No.101 for the years 1972 through 1974, or Form OSHA No. 102 for the year 1972. Atthe time of inspection, respondent had in its possession ?Employer?s FirstReport of Injury? forms for the years 1972 through 1974, which contain the sameinformation required by Form OSHA No. 101 for the years 1972 through 1974, andthese forms were shown to compliance officer. The information required to bereported on Form OSHA No. 102 for the year 1972 can be obtained from Form OSHANo. 100 for the year 1972 (Tr. 17, 135?136; Exhibits R?4, R?5, and R?6; FormOSHA No. 102).??????????? 3.There are no permanent aisles and passageways in respondent?s shop. It would beimpractical to designate any permanent aisles or passageways in respondent?splant for the movement of material by mechanical handling equipment, becauserespondent?s machinery is subject to relocation, because of storage needsduring the manufacturing process, and because the material being moved variesin width from 20 feet down to widths of 8 feet (Tr. 142?145, 173?181).??????????? 4.Personal protective safety eyeglasses, safety goggles, and nasal masks, aremade available and issued to respondent employees (Tr. 145?146). Respondent?strongly? recommends to its employees that safety glasses be worn whenoperators are working on the reverse, or back, side of component cutter, andhas asked its employees to use goggles whenever ?we felt there was a danger ofinjury.? (Tr. 166?167) On June 9, 1975, two employees were operating componentcutters without safety glasses (Tr. 20, 27, 28; Exhibits C?1, C?2). Otheremployees were observed wearing safety glasses (Tr. 20, 59). The incident shownin Exhibit C?1 was the sole basis for item No. 4 of Citation No. 1, and in thecompliance officer?s opinion this was an ?isolated case? (Tr. 21; Exhibit C?1).??????????? 5.The ?red guards? designated as 1 and 2 on Exhibit C?4 are suitable blade guards,and, when properly positioned, these guards reduce to a minimum, for theoperation being performed, the hazard created by the point of operation ofthese interior blades (Tr. 120; Exhibit C?4, R?8). Although the componentcutter depicted in Exhibit C?4 was in operation on June 9, 1975, there is noevidence that it was being operated at the time the guards were in a raisedposition.??????????? 6.All guards in place on the component cutters came with the cutters whenpurchased by respondent in 1973 and 1975. Respondent?s president was informedby the manufacturers that the guards on both component cutters were ?approvedby OSHA.? (Tr. 120, 149?150, 199?200).??????????? 7.When the component cutters are operating, there is no need for operators toreach over, under, or around the ?yellow guards.? If the ?yellow guards? werelarger and positioned lower, they would impede the cutting operation andpossibly cause a hazard (Tr. 22?23, 68?71, 199?200; Exhibits C?1, C?2, C?3,C?4). The hands of an operator stationed at the rear of the machine during thecutting operation are approximately two feet from the point of operation. Theoperator shown in Exhibit C?3 was positioned more than one foot from the blade(Exhibit C?3).??????????? 8. OnJune 9, 1975, a respondent employee was observed operating a radial saw thatwas not guarded on the sides of the lower exposed portion of the blade (Tr.34?35; Exhibits C?5, C?6, C?7). Lower blade guards had come with three ofrespondent?s radial saws, when purchased, and these guards were installed uponthe saws. Said guards were never removed by the respondent, or at itsinstruction, but rather they were removed by the employees themselves (Tr.151?152). With lower guards installed on both sides of the blade, the guardsthemselves create a separate accident hazard when making certain types of cuts(Tr. 195?196, 205?207). The evidence was insufficient to establish that use ofthese lower guards resulted in a greater hazard than the hazard created by theabsence of said lower blade guards.??????????? 9.Only one per cent of respondent?s cutting operation involves ripping by aradial saw (Tr. 157). No ripping was being performed at the time of inspection(Tr. 75, 157). All of respondent?s ripping is done at a 45?degree angle and,therefore, the use of nonkickback fingers on bothsides of the saw would not completely eliminate the possibility of a kickbackoccurring (Tr. 156?157).??????????? Theradial arm shown in Exhibits C?7 and R?14 is provided with a nonkickback device for ripping (Tr. 157?158, 164). Thecompliance officer was told by respondent?s plant superintendent at the time ofinspection that the radial saw shown in Exhibit C?6, which was being operated,is used for ripping, and that saw did not have nonkickbackfingers, or a nonkickback device, on it. He wasfurther told that respondent?s radial saws either, completely lacked nonkickback fingers, or had only broken fingers in place(Tr. 7, 36?37, 73). At one time respondent?s radial saws had nonkickback fingers or ?dogs? installed on them (Tr.156?157).??????????? 10.If the person of an operator of a radial saw was to come into contact with anunguarded lower blade, severe cuts or amputations could result (Tr. 45, 106).??????????? 11.All of respondent?s radial arm saws on June 9, 1975, were provided withadjustable stops capable of preventing the forward travel of the blade beyondthe position necessary to complete the cut in repetitive operations (Tr.158?159; Exhibits R?11, r?12).??????????? Anoperator of one radial saw was observed making cuts and ?putting it beyond theedge of the table? (Tr. 38, 86?88). There was no evidence indicating that theadjustable stops were not being utilized or that this saw was traveling beyonda position necessary to complete the cut being made. Respondent makesrepetitive cuts on its component cutters and non-repetitive cuts on its radialsaws (Tr. 156).??????????? 12.The front end of the three radial arm saw units wereinstalled slightly higher than the rear. When cleaned and freshly oiled, thecutting head will retract ?to a certain extent * * * not as perfect as it oughtto? when released by the operator; when not cleaned or freshly oiled, they?will not retract very easily.? (Tr. 162?163, 186?187; Exhibit R?13).Respondent?s maintenance schedule for radial saws is not always adhered to (Tr.185).?*10 On June 9, 1975, one of respondent?s saws failedto return to its starting position when tested by the compliance officer (Tr.39?40; Exhibit C?5). The compliance officer checked for the presence of dustand grease and did not observe any (Tr. 84?85).Conclusions of Law??????????? 1. OnJune 9, 1975, respondent was in violation of ? 1904.6, ? 1904.7, ?1910.213(h)(2), and ? 1910.213(h)(4), and all of theseviolations were other than serious.??????????? 2. OnJune 9, 1975, respondent was not in violation of ? 1904.2(a), ? 1910.22(b)(2),? 1910.213(r)(4), ? 1910.213(h)(1), and ? 1910.213(h)(3).??????????? 3. Apenalty of $100.00 for respondent?s violation of ? 1910.213(h)(2), and apenalty of $50.00 for respondent?s violation of ? 1910.213(h)(4), areappropriate. Penalties for respondent?s violation of ? 1904.6 and ? 1904.7would not be appropriate.ORDER??????????? Basedon the foregoing findings, conclusions of law, and the entire record, it isORDERED that:??????????? 1.Item 1, 3, and 5 of Citation No. 1, issued June 23, 1975, and any proposedpenalties based thereon, are VACATED.??????????? 2.Item 2 of Citation No. 1, dated June 23, 1975, as modified by this decision, isAFFIRMED.??????????? 3.Complainant?s motion to withdraw item 4 of Citation No. 1, dated June 23, 1975,is granted, and Item 4 VACATED.??????????? 4.Citation No. 1, dated June 23, 1975, is amended to charge a violation of ?1904.7, and, as amended, a violation of ? 1904.7 is AFFIRMED.??????????? 5.Items 1A and 1C of Citation No. 2, dated June 23, 1975, are VACATED.??????????? 6.Item 1B and 1D of Citation No. 2, dated June 23, 1975, are AFFIRMED.??????????? 7. Penaltiesof $100.00 for item 1B, and $50.00 for item 1D, are ASSESSED.James A. Cronin, Jr.Judge, OSAHRCDated: February 17, 1976[1] Section 12(j) ofthe Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq.,hereinafter ?the Act.?[2]Specifically, itwas alleged that Respondent failed to guard the full diameter of the lowerportion of the blades on radial saws, contrary to section 1910.213(h)(1);failed to provide an adjustable stop to prevent unnecessary forward travel ofthe saw blades contrary to section 1910.213(h)(3); failed to equip each radialsaw used for ripping with devices to prevent kickback of the material, contraryto section 1910.213(h)(2); and failed to install the saws in such a manner asto allow the cutting head to return to the starting position when released bythe operator, contrary to section 1910.213(h)(4). The judge vacated the firsttwo of these charges and affirmed the latter two. He also in part affirmed andin part vacated another citation alleging nonserious violations of the Act.Neither party objects to his disposition with the exception of that pertainingto section 1910.213(h)(1).[3] In pertinent partthis provision requires that Thesides of the lower exposed portion of the blade shall be guarded to the fulldiameter of the blade by a device that will automatically adjust itself to thethickness of the stock and remain in contact with stock being cut to givemaximum protection possible for the operation being performed.[4] Among otherthings, Respondent contended that Complainant?s evidence as to the seriousnessof the alleged violation is not persuasive as it consists only of opiniontestimony unsupported by statistical evidence. The judge, however, creditedthis testimony, and there is no contrary evidence. In any event, violations ofthis kind consistently have been found serious in nature. E.g., WeyerhaeuserCo., Nos. 1231 & 1758, 4 OSHC 1972 at 1977 79, 1976 77 OSHD para.21,465 at 25,751 52 (R.C., Jan. 13, 1977); petition for review docketed, No. 771611 (9th Cir. Mar. 11, 1977); Brady-Hamilton Stevedore Co., 76 OSAHRC5\/D9, 3 OSHC 1925, 1975 76 OSHD para. 20,342 (1976), and cases cited therein.[5]29 C.F.R.1910.212 is entitled ?General requirements for all machines.? Paragraph (a)(2)thereof is entitled ?General requirements for machine guards? and requires that?Guards shall be affixed to the machine where possible and secured elsewhere iffor any reason attachment to the machine is not possible. The guard shall besuch that it does not offer an accident hazard in itself? (emphasissupplied).[6] We have saidthat, in limited circumstances, an employer can affirmatively defend against analleged violation of a standard by showing that compliance would be less safethan the work practice actually used. Roanoke Iron & Bridge Works, Inc.,No. 10411, 5 OSHC 1391 (R.C., May 3, 1977); Weyerhaeuser Co., supra; andcases cited therein.[7] Assuming arguendothat protective equipment would not be feasible the judge still erred. Hisdecision presumes that the Secretary of Labor would not permit use of a partialrather than full guard as suggested by his area director. In circumstances suchas these, where it is contended that strict compliance with the terms of astandard would be hazardous, we also require that an employer apply to theSecretary for an order granting a variance from the requirements of a standardpursuant to 29 U.S.C. 655(a) or demonstrate that such an application would havebeen inappropriate. Roanoke Iron, supra; Weyerhaeuser Co., supra;G.A. Hormel & co., 11 OSAHRC 725, 2 OSHC 1190, 1974 75 OSHD para.18,685 (1974). The record does not show that Respondent filed for a variance.In view of the area director?s testimony we cannot conclude that such anapplication would have been inappropriate.[8]We do not,however, as does Complainant read Judge Cronin?s decision to requireComplainant to prove as part of his case the existence of a method of guardingwhich is not hazardous. Rather, the judge properly determined that Complainantestablished a prima facie case by showing that the saws were unguarded and thatguarding would prevent serious injury. He vacated because, in his view, theprima facie case had been rebutted by evidence showing that compliance with thestandard would result in an additional but not greater hazard.We conclude that in thecircumstances of this case the presence of an additional but lesser hazard isnot a sufficient defense to the requirements of the standard.[9] E.g., Apex Glassd\/b\/a Acme Glass Co., 76 OSAHRC 35\/B13, 3 OSHC 2087, 1975 76 OSHD para. 20,489(1976).[10] We note that thearea director considered only the lack of lower blade guards to be serious innature. He testified that the other charges which are not before us probablywould not have been alleged as serious violations had there been adequateguarding.[11] The first sentence of ? 1904.4 also can beread to require employers to have the log of occupational injuries andillnesses, provided for under ? 1904.2, available for inspection.”