“\ufeff\t\tDocument\t\t\t\t p.hiddenParagraph { visibility:hidden } p { margin-top:0; margin-bottom:0; font-family:Times New Roman; color:WindowText; font-size:10pt; font-size:10pt; } p { font-family:Times New Roman; font-size:12pt; } p.style_Normal { } span.style_DefaultParagraphFont { } table.style_TableNormal { } span.X3AS7TOCHyperlink { color:#000000; text-decoration:none; } p.X3AS7TABSTYLE { } span.BulletSymbol { font-family:’Symbol’; } body { margin-left:0px;margin-top:0px;margin-bottom:0px;margin-right:0px;} div.basic { width:21.59cm;height:27.94cm;} p.hiddenParagraph { font-size:2pt; visibility:hidden; } \t\t\t\t\t\t\t\t\tvar useragent = navigator.userAgent;\t\t\t\t\t\t\tvar navigatorname;\t\t\t\t\t\t\tif (useragent.indexOf(‘MSIE’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”MSIE\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Gecko’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (useragent.indexOf(‘Chrome’)!= -1)\t\t\t\t\t\t\tnavigatorname=\”Google Chrome\”;\t\t\t\t\t\t\telse\t\t\t\t\t\t\tnavigatorname=\”Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Mozilla’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”old Netscape or Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Opera’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”Opera\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\tfunction symbol(code1,code2)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (navigatorname == ‘MSIE’)\t\t\t\t\t\t\t\tdocument.write(code1);\t\t\t\t\t\t\telse\t\t\t\t\t\t\t\tdocument.write(code2);\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 14046\t\t\t\t\t\t\t\t\t\tSCHULTZ ROOF TRUSS INC.\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDECISION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.\t\t\t\t\t\t\t\t\t\tThis case is before the Commission pursuant to a sua sponte order for review. The parties\t\t\t\t\t\t\t\t\t\thave filed no objections to the Administrative Law Judge\u2019s decision, either by way of petitions\t\t\t\t\t\t\t\t\t\tfor discretionary review or response to the order for review. Accordingly, there has been no\t\t\t\t\t\t\t\t\t\tappeal to the Commission, and no party has otherwise expressed dissatisfaction with the\t\t\t\t\t\t\t\t\t\tAdministrative Law Judge\u2019s decision.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIn these circumstances, the Commission declines to pass upon, modify or change the\t\t\t\t\t\t\t\t\t\tJudge\u2019s decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA\t\t\t\t\t\t\t\t\t\tOSHC 2032, 1975\u201376 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC\t\t\t\t\t\t\t\t\t\t1015, 1975\u201376 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc.,\t\t\t\t\t\t\t\t\t\tv. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no\t\t\t\t\t\t\t\t\t\tcompelling public interest issue.\t\t\t\t\t\t\t\t\t\tThe Judge\u2019s decision is accorded the significance of an unreviewed Judge\u2019s decision.\t\t\t\t\t\t\t\t\t\tLeone Constr. Co., 3 BNA OSHC 1979, 1975\u201376 CCH OSHD para. 20,387 (No. 4090, 1976).\t\t\t\t\t\t\t\t\t\tIt is ORDERED that the decision be affirmed.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDATED: DEC 20,1976\t\t\t\t\t\t\t\t\t\tFOR THE COMMISSION:\t\t\t\t\t\t\t\t\t\tWilliam S. McLaughlin\t\t\t\t\t\t\t\t\t\tExecutive Secretary\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t(SEAL)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tMORAN, Commissioner, Concurring in Part, Dissenting in Part:\t\t\t\t\t\t\t\t\t\tSince February 6, 1976, my colleagues have vacated approximately 100 directions for\t\t\t\t\t\t\t\t\t\treview filed by the author of this opinion on the ground that specific reasons for so doing should\t\t\t\t\t\t\t\t\t\thave been set forth in the direction for review. See, e.g., Secretary v. Francisco Tower Service,\t\t\t\t\t\t\t\t\t\tOSAHRC Docket No. 4845, February 6, 1976. In my dissenting opinion in Francisco Tower, I\t\t\t\t\t\t\t\t\t\toutlined why such action by the majority was illegal. Apparently, they have now decided to\t\t\t\t\t\t\t\t\t\tabandon this unlawful procedure.\t\t\t\t\t\t\t\t\t\tIn Secretary v. Rollins Outdoor Advertising Corporation, OSAHRC Docket No. 6954,\t\t\t\t\t\t\t\t\t\tNovember 24, 1976, Chairman Barnako attempts to justify the departure from his position in\t\t\t\t\t\t\t\t\t\tFrancisco Tower, supra, on the basis of the addition of two words in the direction for review.\t\t\t\t\t\t\t\t\t\tThat case also involved a sua sponte direction for review which did not specify any particular\t\t\t\t\t\t\t\t\t\tissue for review. Rather than vacating the direction for review, however, my colleagues reversed\t\t\t\t\t\t\t\t\t\tthe Judge\u2019s vacation of the citation and entered a decision favorable to the Secretary of Labor. In\t\t\t\t\t\t\t\t\t\tmy dissenting opinion, I pointed out that the prevailing difference between Rollins and the prior\t\t\t\t\t\t\t\t\t\tcases was that Commissioner Cleary had directed the Rollins case for review. I also explained\t\t\t\t\t\t\t\t\t\twhy the Chairman\u2019s justification for changing the procedure lacked merit.\t\t\t\t\t\t\t\t\t\tThe Commission has recently announced the following policy regarding sua sponte\t\t\t\t\t\t\t\t\t\tdirections for review which do not state any specific issue for adjudication:\t\t\t\t\t\t\t\t\t\t1. The Commission will affirm the judge\u2019s decision in those cases where\t\t\t\t\t\t\t\t\t\tno party has petitioned for review and no party has responded to a \u2018no issue\u2019 or\t\t\t\t\t\t\t\t\t\t\u2018for error\u2019 direction for review seeking modification or reversal of the judge\u2019s\t\t\t\t\t\t\t\t\t\tdecision. Such action will not be considered binding Commission precedent. See\t\t\t\t\t\t\t\t\t\tAbbott-Sommer, Inc., Docket No. 9507, BNA 3 OSHC 2032, CCH OSHD para.\t\t\t\t\t\t\t\t\t\t20,428 (February 17, 1976).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2. When one or more parties has filed a petition for review, a brief on\t\t\t\t\t\t\t\t\t\treview, or otherwise responded to a \u2018no issue\u2019 or \u2018for error\u2019 direction for review\t\t\t\t\t\t\t\t\t\tand does seek modification or reversal of the judge\u2019s decision, the Commission\t\t\t\t\t\t\t\t\t\twill review the issues raised by such petition or response. If, as a result of such\t\t\t\t\t\t\t\t\t\treview, the Commission determines that an issue or issues should be decided by\t\t\t\t\t\t\t\t\t\tthe Commission, the parties will be notified and afforded an opportunity to file\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\tsuch other briefs as may be appropriate.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe justification for the change in procedure is stated as follows:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\t41 Fed. Reg. 53015 (1976).\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThe Commission has determined that vacation of directions for review\t\t\t\t\t\t\t\t\t\twhich state no specific issue would be inequitable in pending cases wherein the\t\t\t\t\t\t\t\t\t\tparties or one of them have petitioned for review or filed responses to the\t\t\t\t\t\t\t\t\t\tdirections for review or both. In such cases the filing parties may have relied on\t\t\t\t\t\t\t\t\t\tthe directions for review and have presumed their cases are properly on review.\t\t\t\t\t\t\t\t\t\tOn the other hand, the Commission realizes that some parties may have believed,\t\t\t\t\t\t\t\t\t\tin view of decisions cited above, that their cases were not properly on review and\t\t\t\t\t\t\t\t\t\tthat the direction for review would be vacated.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe Commission has therefore decided to implement the following policy\t\t\t\t\t\t\t\t\t\tin cases pending on the date of publication of this document in which no specific\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tissue for adjudication is stated by the direction for review.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tObviously, this justification is not the same as that relied on by Chairman Barnako in the\t\t\t\t\t\t\t\t\t\tRollins case. In my opinion, neither properly expresses he reasons why my colleagues have\t\t\t\t\t\t\t\t\t\tdecided to change their procedure. I submit that the purpose of the change is to make it appear\t\t\t\t\t\t\t\t\t\tthat all general directions for review are given like treatment. Otherwise, consistency would\t\t\t\t\t\t\t\t\t\trequire vacation of many of Commissioner Cleary\u2019s directions for review. For another case\t\t\t\t\t\t\t\t\t\twhere my colleagues have reversed a Judge\u2019s vacation of a citation and replaced it with a\t\t\t\t\t\t\t\t\t\tdecision favorable to the Secretary of Labor following a sua sponte direction for review by\t\t\t\t\t\t\t\t\t\tCommissioner Cleary which did not specify any issue for adjudication, see Secretary v. Alfred S.\t\t\t\t\t\t\t\t\t\tAustin Construction Company, OSAHRC Docket No. 4809, April 28, 1976.\t\t\t\t\t\t\t\t\t\tAlthough I am pleased that my colleagues have decided to discontinue their illegal action\t\t\t\t\t\t\t\t\t\tvacating my directions for review, their manner of disposing of the instant case is also improper.\t\t\t\t\t\t\t\t\t\tThe authority for a Commission member to direct review of a case is contained in 29 U.S.C. \u00a7\t\t\t\t\t\t\t\t\t\t661(i) which provides that:\t\t\t\t\t\t\t\t\t\t\u2018The report of the hearing examiner shall become the final order of the\t\t\t\t\t\t\t\t\t\tCommission within thirty days after such report by the hearing examiner, unless\t\t\t\t\t\t\t\t\t\twithin such period any Commission member has directed that such report shall be\t\t\t\t\t\t\t\t\t\treviewed by the Commission.\u2019 (Emphasis added.)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThat authority is not qualified by any requirement in the Act or elsewhere that the interested\t\t\t\t\t\t\t\t\t\tparties must petition for review or submit briefs on the issues directed for review or that the case\t\t\t\t\t\t\t\t\t\tinvolve a matter of \u2018compelling public interest.\u2019\t\t\t\t\t\t\t\t\t\tObviously, if review of a case is contingent upon a petition for review filed by one of the\t\t\t\t\t\t\t\t\t\tparties, there would be no purpose in the statute\u2019s authorizing discretionary review by the\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tId.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tmembers of the Commission. Therefore, my colleagues finding that \u2018there has been no appeal to\t\t\t\t\t\t\t\t\t\tthe Commission\u2019 is irrelevant because there is no right of appeal to the members of this\t\t\t\t\t\t\t\t\t\tCommission. Review by the members is not a right of any party. It is authorized only when any\t\t\t\t\t\t\t\t\t\t\u2018Commission member\u2019 directs review within the time specified in 29 U.S.C. \u00a7 661(i).\t\t\t\t\t\t\t\t\t\tConsequently, since a party has no right to Commission review and there is no requirement that\t\t\t\t\t\t\t\t\t\tbriefs be filed on cases directed for review, no adverse inference to a party\u2019s claim may be drawn\t\t\t\t\t\t\t\t\t\tfrom a party\u2019s having not done what it need not do.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIf my colleagues truly believe that this Commission should only consider issues when\t\t\t\t\t\t\t\t\t\tone of the parties to the case files a petition so requesting, they should call for an amendment to\t\t\t\t\t\t\t\t\t\tthe Act to eliminate the power of a Commission member to direct a Judge\u2019s decision for review.\t\t\t\t\t\t\t\t\t\tThey also should not direct review in the absence of such a petition. The fallaciousness of the\t\t\t\t\t\t\t\t\t\tposition they take in this case is demonstrated in no uncertain terms by these two uncontroverted\t\t\t\t\t\t\t\t\t\tfacts:\t\t\t\t\t\t\t\t\t\t(1) neither of them has ever called for\u2014or supported\u2014legislation to eliminate the\t\t\t\t\t\t\t\t\t\tAct\u2019s present discretionary review provision, and\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(2) between them, they have issued more than 200 directions for review where\t\t\t\t\t\t\t\t\t\tneither employer or the Secretary of Labor filed a petition seeking review.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe majority\u2019s affirmance of the Judge\u2019s decision herein on the basis that the aggrieved\t\t\t\t\t\t\t\t\t\tparty has displayed disinterest in the case is not well-founded and conflicts with the position\t\t\t\t\t\t\t\t\t\ttaken by the United States Court of Appeals in similar circumstances. There are number of\t\t\t\t\t\t\t\t\t\treasons why an issue may not be pursued at the Commission level. One possibility is lack of\t\t\t\t\t\t\t\t\t\tknowledge by pro se respondents of Review Commission procedures and defenses cognizable\t\t\t\t\t\t\t\t\t\tunder Act. Other possibilities include insufficient time, finances, or other resources to pursue the\t\t\t\t\t\t\t\t\t\tmatter here or to discover what defenses should be advocated before the Commission. Thus,\t\t\t\t\t\t\t\t\t\tvarious and sundry reasons exist which could explain respondent\u2019s silence. The majority\u2019s\t\t\t\t\t\t\t\t\t\tconclusion that disinterest is the reason defies logic, is unfair to respondent, shirks our\t\t\t\t\t\t\t\t\t\tresponsibility to address viable issues, and is unsupported by the record before us. If respondent\t\t\t\t\t\t\t\t\t\twas disinterested in the disposition of the case it would not have contested the citation. This has\t\t\t\t\t\t\t\t\t\tbeen recognized by there Circuit Courts.\t\t\t\t\t\t\t\t\t\tIn Brennan v. Smoke-Craft, Inc., 530 F.2d 843, 844 n. 6 (9th Cir. 1976), the Court states\t\t\t\t\t\t\t\t\t\tthe following:\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tRespondent did not file a brief with this court although it had actively contested\t\t\t\t\t\t\t\t\t\tthis citation in the proceedings below. We do not infer that respondent has\t\t\t\t\t\t\t\t\t\twithdrawn its contest.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe same position was taken by another Circuit Court which stated that an employer who\t\t\t\t\t\t\t\t\t\tcontested a citation and had not withdrawn that contest\t\t\t\t\t\t\t\t\t\t. . . has an interest in the controversy even though it is unwilling to do anything to\t\t\t\t\t\t\t\t\t\tprotect that interest.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBrennan v. OSAHRC and Santa Fe Trail Transport Company, 505 F.2d 869, 871 (5th Cir. 1975).\t\t\t\t\t\t\t\t\t\tIn still another case where the employer contested a citation and had not responded to the\t\t\t\t\t\t\t\t\t\tSecretary of Labor\u2019s petition for review, the Circuit Court ruled as follows:\t\t\t\t\t\t\t\t\t\t[T]he employer has not withdrawn its contest of the Secretary\u2019s citation. Thus we\t\t\t\t\t\t\t\t\t\tconclude that there is a continuing case or controversy warranting judicial review\t\t\t\t\t\t\t\t\t\teven though [the employer] has not responded to the petition for review.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBrennan v. OSAHRC and Hanovia Lamp Division, Canrad Precision Industries, 562 F.2d 946,\t\t\t\t\t\t\t\t\t\t948 (3d Cir. 1974).\t\t\t\t\t\t\t\t\t\tMy colleagues offer no convincing authority to support their unwarranted departure from\t\t\t\t\t\t\t\t\t\tthe above precedents. Similarly, they cite nothing but their own views as to their position on the\t\t\t\t\t\t\t\t\t\tprecedential value of a Review Commission Judge\u2019s decision. They support their statement that\t\t\t\t\t\t\t\t\t\t\u2018[t]he Judge\u2019s decision is accorded the significance of an unreviewed Judge\u2019s decision,\u2019\t\t\t\t\t\t\t\t\t\twhatever that may mean, by a citation to Secretary v. Leone Construction Company, OSAHRC\t\t\t\t\t\t\t\t\t\tDocket No. 4090, February 10, 1976. They implied in Leone, without any supporting authority,\t\t\t\t\t\t\t\t\t\tthat an unreviewed Judge\u2019s decision which has not been overruled by the Commission has no\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\tprecedential value. However in Secretary v. State, Inc., OSAHRC Docket No. 5740, October\t\t\t\t\t\t\t\t\t\t21, 1976, where my colleagues adhered to this implication by joining in a statement that an\t\t\t\t\t\t\t\t\t\tunreviewed Judge\u2019s decision \u2018is not binding as precedent,\u2019 they also state the following:\t\t\t\t\t\t\t\t\t\t\u2018However, it is a guide in the growing body of occupational safety and health\t\t\t\t\t\t\t\t\t\tlaw.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\tIn referring to one of its prior unreported memorandum decisions to which it had been cited by\t\t\t\t\t\t\t\t\t\ta litigant, the Circuit Court stated the following in Jones v. Superintendent, Virginia State Farm,\t\t\t\t\t\t\t\t\t\t465 F.2d 1091, 1094 (4th Cir. 1972):\t\t\t\t\t\t\t\t\t\tWe concede that any decision is by definition a precedent, and that we cannot\t\t\t\t\t\t\t\t\t\tdeny litigants and the bar the right to urge upon us what we have previously done.\t\t\t\t\t\t\t\t\t\t(Emphasis added.)\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tObviously, the two propositions are contradictory.\t\t\t\t\t\t\t\t\t\tApparently, however, my colleagues believe that there are two different types of\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\t\t\t\t\tCommission final orders. If so, where in the law is that stated? The answer, of course, is that it\t\t\t\t\t\t\t\t\t\tis stated nowhere because it isn\u2019t so.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tEvery appellate court that has ever considered an unreviewed decision of a Review\t\t\t\t\t\t\t\t\t\tCommission Judge has considered such an opinion to be the same as one issued by the\t\t\t\t\t\t\t\t\t\tCommission members themselves. For example, on appeal of Secretary v. Felton Construction\t\t\t\t\t\t\t\t\t\tCompany, 8 OSAHRC 327 (1974), the United States Court of Appeals for the Ninth Circuit\t\t\t\t\t\t\t\t\t\tconsidered a decision of Review Commission Judge Stuller which had not been reviewed by the\t\t\t\t\t\t\t\t\t\tCommission members. Felton Construction Company v. OSAHRC, 518 F.2d 49 (9th Cir. 1975).\t\t\t\t\t\t\t\t\t\tThe Court used the following language in considering the Judge\u2019s decision: \u2018. . . the Commission\t\t\t\t\t\t\t\t\t\tfound,\u2019 \u2018. . . the hearing examiner\u2019s order became the final order of the Commission,\u2019 \u2018. . . the\t\t\t\t\t\t\t\t\t\tCommission\u2019s order.\u2019 In Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975),\t\t\t\t\t\t\t\t\t\tanother Circuit Court relied upon and cited as authority nine decisions of Review Commission\t\t\t\t\t\t\t\t\t\tJudges which had not been reviewed by the Commission members. Additionally, in Brennan v.\t\t\t\t\t\t\t\t\t\tGilles & Cotting, Inc., 504 F.2d 1255 (4th Cir. 1974), a third Circuit Court has expressed\t\t\t\t\t\t\t\t\t\tconcern that the Commission decision was contrary to the holdings of two unreviewed decisions\t\t\t\t\t\t\t\t\t\trendered by Commission Judges. There are many more examples but, as in the past, my\t\t\t\t\t\t\t\t\t\tcolleagues ignore authority in order to suit their purpose.\t\t\t\t\t\t\t\t\t\tClearly, it is wrong for my colleagues to affirm something which they not consider to be\t\t\t\t\t\t\t\t\t\tworthy of precedential value. If Judge Burchmore\u2019s has a fatal defect which should preclude it\t\t\t\t\t\t\t\t\t\tfrom being relied upon cases, it is their judicial responsibility to say so, rather than lying on one-\t\t\t\t\t\t\t\t\t\tdimensional procedural rules of their own making. For my part, I agree with affirmance of the\t\t\t\t\t\t\t\t\t\tJudge\u2019s action on items 2, 3, and 9 of the nonserious citation pursuant to a settlement agreement\t\t\t\t\t\t\t\t\t\tbetween the parties, but I would vacate the two serious citations which were litigated before the\t\t\t\t\t\t\t\t\t\tJudge because the regulation involved therein, 29 C.F.R. \u00a7 1910.213, was improperly\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\tIn this connection, Congress provided in 29 U.S.C. \u00a7 661(i) that:\t\t\t\t\t\t\t\t\t\t\u2018The report of the hearing examiner shall become the final order of the\t\t\t\t\t\t\t\t\t\tCommission within thirty days after such report . . . unless within such period any\t\t\t\t\t\t\t\t\t\tCommission member has directed that such report shall be reviewed by the\t\t\t\t\t\t\t\t\t\tCommission.\u2019 (Emphasis added.)\t\t\t\t\t\t\t\t\t\tThis section makes it clear that Judge\u2019s decisions are decisions of this Commission unless\t\t\t\t\t\t\t\t\t\tmodified by the Commission following a direction for review under this section.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tpromulgated as I explained in my dissenting opinion in Secretary v. Noblecraft Industries, Inc.,\t\t\t\t\t\t\t\t\t\tOSAHRC Docket No. 3367, November 21, 1975. In view of the majority\u2019s action, however, I\t\t\t\t\t\t\t\t\t\tattach Judge Burchmore\u2019s decision hereto as Appendix A so that the law of this case can be\t\t\t\t\t\t\t\t\t\tknown.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NO. 11553\t\t\t\t\t\t\t\t\t\tBURTEX CONSTRUCTORS, INC.,\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\tJack Ostrander for the Secretary of Labor.\t\t\t\t\t\t\t\t\t\tGary Shores for the respondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBURCHMORE, Judge:\t\t\t\t\t\t\t\t\t\tBy citations issued June 23, 1975, the complainant charged that on June 10, 1975, the\t\t\t\t\t\t\t\t\t\trespondent Committed nine non-serious and two serious violations of the Occupational Safety\t\t\t\t\t\t\t\t\t\tand Health Act of 1970, 29 U.S.C. 651 et seq. (the Act), in that respondent failed to comply with\t\t\t\t\t\t\t\t\t\tthe Occupational Safety and Health Standards contained in 29 C.F.R. 1910. Penalties in the\t\t\t\t\t\t\t\t\t\taggregate amount of $1,025 were proposed. Timely notice of contest was filed as to items 2, 3,\t\t\t\t\t\t\t\t\t\tand 9 of non-serious citation No. 1, and as to serious citations Nos. 2 and 3, and the resulting\t\t\t\t\t\t\t\t\t\tproceeding was assigned to the undersigned law judge for hearing and adjudication. Hearing was\t\t\t\t\t\t\t\t\t\theld at Oklahoma City, Oklahoma, on December 17, 1975. The parties have submitted post-\t\t\t\t\t\t\t\t\t\thearing memoranda.\t\t\t\t\t\t\t\t\t\tAt the outset of the hearing agreement as to non-serious citation No. 1 was presented and\t\t\t\t\t\t\t\t\t\tapproved. According to that agreement, items 2, 3, and 9(a) are affirmed, item 9(b) is vacated,\t\t\t\t\t\t\t\t\t\tand a penalty of $25 is assessed for the entire citation.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAt the time of the inspection, respondent was an employer operating a plant in Norman,\t\t\t\t\t\t\t\t\t\tOklahoma, where it was engaged in manufacturing and fabricating wood roof trusses.\t\t\t\t\t\t\t\t\t\tRespondent contends that it is not subject to the Act because it operates wholly within the state.\t\t\t\t\t\t\t\t\t\tHowever, its president testified and I find that it has used lumber that came from out of state and\t\t\t\t\t\t\t\t\t\tthat one of its machines was manufactured in Texas. I conclude that respondent is an employer\t\t\t\t\t\t\t\t\t\tengaged in a business affecting commerce within the meaning of the Act.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tCITATION NO. 2\t\t\t\t\t\t\t\t\t\tOn the date of the alleged violations, respondent\u2019s was inspected by a compliance officer,\t\t\t\t\t\t\t\t\t\tone Joyce who observed an employee working with two Dewalt arm saws mounted on a long\t\t\t\t\t\t\t\t\t\tworkbench along one wall of the plant. Complainant charges a three-part violation with respect\t\t\t\t\t\t\t\t\t\tto those saws: A\u2014the saws lacked lower blade guards in violation of 1910.213(h)(1) which\t\t\t\t\t\t\t\t\t\trequires that \u2018The sides of the lower exposed portion of the blade shall be guarded\u2019; B\u2014one of\t\t\t\t\t\t\t\t\t\tthe sawheads was free to roll way out beyond the edge of the bench when making a cut at right\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\tangles to the bench, in violation of 1910.213(h)(3) ; and C\u2014the saws were not mounted on a\t\t\t\t\t\t\t\t\t\tslope such as would cause the saw to return to the rearward position when released by the\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\toperator, in violation of 1910.213(h)(4) .\t\t\t\t\t\t\t\t\t\tLower blade guard. Respondent does not deny and I find that the saws lacked lower blade\t\t\t\t\t\t\t\t\t\tguards. But respondent showed that most of its cuts were made at an acute angle and it contends\t\t\t\t\t\t\t\t\t\tthat the use of lower blade guards on an acute angle cut creates a hazard greater than exists when\t\t\t\t\t\t\t\t\t\tno lower blade guard is used. After the inspection, respondent obtained lower blade guards and\t\t\t\t\t\t\t\t\t\tinstalled them. But when it operated the saw with the guard installed and attempted to make\t\t\t\t\t\t\t\t\t\tacute angle cuts which removed only a small triangular piece of wood from the end of the stock,\t\t\t\t\t\t\t\t\t\tthe result was that the small pieces would jam and then fly out like projectiles. Lights were\t\t\t\t\t\t\t\t\t\tbroken, pieces stuck in the walls and employees refused to use the equipment.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tComplainant\u2019s area director testified that the guard on one side of the blade should be\t\t\t\t\t\t\t\t\t\traised out of the way when making such small angle cuts to trim ends of the stock. As to this,\t\t\t\t\t\t\t\t\t\trespondent contends that there is a hazard in the employee using his finger to hold the guard up\t\t\t\t\t\t\t\t\t\twhile the saw is in operation. The answer to that contention is that employees must be trained to\t\t\t\t\t\t\t\t\t\tfollow a safe procedure when using the saw; that is, when changing from a right angle cut where\t\t\t\t\t\t\t\t\t\tthe lower blade guard is in use, to an acute angle cutoff of small ends, they must stop the saw,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\tThe regulations provide:\t\t\t\t\t\t\t\t\t\t(3) An adjustable stop shall be provided to prevent the forward travel of the blade\t\t\t\t\t\t\t\t\t\tbeyond the position necessary to complete the cut in repetitive operations.\t\t\t\t\t\t\t\t\t\t(4) Installation shall be in such a manner that the front end of the unit will be\t\t\t\t\t\t\t\t\t\tslightly higher than the rear, so as to cause the cutting head to return gently to the\t\t\t\t\t\t\t\t\t\tstarting position when released by the operator.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tId.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tretract the guard on the side next to the end piece, fasten it in place, then start the saw and\t\t\t\t\t\t\t\t\t\toperate it.\t\t\t\t\t\t\t\t\t\tIt is easy to understand the impatience of employees and management with lengthened\t\t\t\t\t\t\t\t\t\tprocedures to which they are not accustomed, particularly if the opinion of the individual is that\t\t\t\t\t\t\t\t\t\tlittle hazard is involved in using the unguarded lower blade. However, Congress and the\t\t\t\t\t\t\t\t\t\tSecretary have legislated the regulatory requirement in the interests of increased safety for\t\t\t\t\t\t\t\t\t\temployees, and respondent cannot escape the responsibility to comply. I find that it is possible to\t\t\t\t\t\t\t\t\t\tuse the lower guard safely if proper procedure is followed, and I therefore affirm this part of the\t\t\t\t\t\t\t\t\t\tcitation.\t\t\t\t\t\t\t\t\t\tSaw Stop. Respondent contends that there was no violation in having the saw free to\t\t\t\t\t\t\t\t\t\ttravel to its greatest reach because the saw was being used for angular cuts that required full\t\t\t\t\t\t\t\t\t\treach to complete. Respondent\u2019s president testified that 95 percent of the cuts made by that saw\t\t\t\t\t\t\t\t\t\twere of such an acute angle. However, it is not denied and I find that up to 5 percent of the cuts\t\t\t\t\t\t\t\t\t\twere of a lesser angle, and, as the compliance officer testified, she saw an employee making\t\t\t\t\t\t\t\t\t\tright angle cuts with the saw. Full travel was not required for those cuts and the regulation\t\t\t\t\t\t\t\t\t\tplainly requires as to them that the saw be so locked as to prevent excess travel. Here again,\t\t\t\t\t\t\t\t\t\trespondent is obligated to require its employees to follow a safe procedure, which in this instance\t\t\t\t\t\t\t\t\t\tincludes stopping the saw when changing from an acute to a right angle cut, adjusting the saw\t\t\t\t\t\t\t\t\t\tstop to prevent excessive travel, and then restarting and operating the saw. This portion of the\t\t\t\t\t\t\t\t\t\tcitation must also be affirmed.\t\t\t\t\t\t\t\t\t\tSloping the saw. It is conceded and I find that the saws were not sloped in the manner\t\t\t\t\t\t\t\t\t\trequired by the regulation. Respondent\u2019s president testified that it was not feasible to do so\t\t\t\t\t\t\t\t\t\tbecause of the necessity for making acute angle cuts. He stated that the saw table was tilted after\t\t\t\t\t\t\t\t\t\tthe inspection and that the front had to be raised one and three-eights of an inch to produce\t\t\t\t\t\t\t\t\t\tenough tilt so that the head would return after an acute angle cut. Then, when a right angle cut\t\t\t\t\t\t\t\t\t\twas attempted, the slope was so great that the head returned to its starting position with such\t\t\t\t\t\t\t\t\t\tforce that it knocked out a plug, causing the saw to drop into a miter position with the result that\t\t\t\t\t\t\t\t\t\tthe blade hit the table and forced the saw forward with great force; it stopped only when the\t\t\t\t\t\t\t\t\t\tcircuit breaker blew. Respondent contends therefore that there is no violation in having the table\t\t\t\t\t\t\t\t\t\tlevel because a greater hazard is created by tilting it.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tWhen asked whether any adjustment was made to raise the front of the table less than one\t\t\t\t\t\t\t\t\t\tand three-eighths inches, respondent\u2019s president stated that it was lowered to a one-quarter inch\t\t\t\t\t\t\t\t\t\tslope and that it worked beautifully in that position for a right angle cut. However, that much\t\t\t\t\t\t\t\t\t\tslope would not return the saw head when in the acute angle position.\t\t\t\t\t\t\t\t\t\tThe key word in the regulation is \u2018gently,\u2019 and the requirement is that the saw be sloped\t\t\t\t\t\t\t\t\t\tso as to return gently to its starting position. If, with the saw sloped the maximum amount which\t\t\t\t\t\t\t\t\t\twill still produce a gentle return when in the right angle position, the saw fails to return when set\t\t\t\t\t\t\t\t\t\tfor an acute angle cut, then there would be no violation of the regulation. It is obvious, for\t\t\t\t\t\t\t\t\t\texample, that no amount of slope would return the saw head when it is set for ripping, because\t\t\t\t\t\t\t\t\t\tthe saw arm would then be parallel to the long dimension of the bench and at right angles to the\t\t\t\t\t\t\t\t\t\tdirection of the slope. Similarly, as the arm is turned from a right angle position towards the\t\t\t\t\t\t\t\t\t\tripping position, the returning effect of the slope lessens. But by simple experimentation, a tilt\t\t\t\t\t\t\t\t\t\tcan be established which returns the sawhead when set at, say 45\u00b0, yet still produces a gentle\t\t\t\t\t\t\t\t\t\treturn at the right angle position. The regulation requires as much and I conclude that the\t\t\t\t\t\t\t\t\t\tviolation is proven because there was no tilt to the saw at the time of the inspection.\t\t\t\t\t\t\t\t\t\tPenalty. This employer has no prior history of violations. It is a small company with only\t\t\t\t\t\t\t\t\t\ta few employees; the president engages in the work of the shop himself. The demeanor of the\t\t\t\t\t\t\t\t\t\tpresident at the hearing exhibited a good faith concern for safety and a desire to comply with the\t\t\t\t\t\t\t\t\t\tAct. The compliance officer testified that the gravity of the violations was low, albeit that serious\t\t\t\t\t\t\t\t\t\tphysical injury would be the probable result if an accident did occur. Considering all of the\t\t\t\t\t\t\t\t\t\tcircumstances in the light of the criteria prescribed in section 17 of the Act for the assessment of\t\t\t\t\t\t\t\t\t\tpenalties, I find that a penalty of $50 is appropriate to the remedial purpose of the Act. This\t\t\t\t\t\t\t\t\t\temployer will certainly comply in good faith without the imposition of a larger penalty at this\t\t\t\t\t\t\t\t\t\ttime. Its failure to comply prior to the inspection was unintentional because it honestly believed\t\t\t\t\t\t\t\t\t\tthat compliance would create hazards greater than those sought to be avoided.\t\t\t\t\t\t\t\t\t\tCITATION NO. 3\t\t\t\t\t\t\t\t\t\tThe inspecting officer observed an employee working at a Clary double end trim saw\t\t\t\t\t\t\t\t\t\twhich is a special machine with four, radial saws and an automatic feed mechanism. In the\t\t\t\t\t\t\t\t\t\topinion of the inspecting officer, the saw blades were not adequately guarded. However, the saw\t\t\t\t\t\t\t\t\t\twas not one of the conventional types of saws for which specific standards were prescribed in\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tsection 1910.213(a) to (q) so a citation was drawn under 1910.213(r)(4), which provides as\t\t\t\t\t\t\t\t\t\tfollows:\t\t\t\t\t\t\t\t\t\t(4) The mention of specific machines in paragraphs (a) through (q) and this\t\t\t\t\t\t\t\t\t\tparagraph (r) of this section, inclusive, is not intended to exclude other\t\t\t\t\t\t\t\t\t\twoodworking machines from the requirement that suitable guards and exhaust\t\t\t\t\t\t\t\t\t\thoods be provided to reduce to a minimum that hazard due to the point of\t\t\t\t\t\t\t\t\t\toperation of such machines.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAccording to complainant, the \u2018requirement that suitable guards\u2019 be provided, to which\t\t\t\t\t\t\t\t\t\t213(r)(4) refers, is contained in 1910.212(a)(3)(ii), as follows:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a7 1910.212 General Requirements for all machines.\t\t\t\t\t\t\t\t\t\t(3) Point of operation guarding\t\t\t\t\t\t\t\t\t\t(ii) The point of operation of machines whose operation exposes an employee to\t\t\t\t\t\t\t\t\t\tinjury, shall be guarded. The guarding device shall be in conformity with any\t\t\t\t\t\t\t\t\t\tappropriate standards therefor, or, in the absence of applicable specific standards,\t\t\t\t\t\t\t\t\t\tshall be so designed and constructed as to prevent the operator from having any\t\t\t\t\t\t\t\t\t\tpart of his body in the danger zone during the operating cycle.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSince there are no \u2018specific standards\u2019 for this type of machine, the requirement of\t\t\t\t\t\t\t\t\t\tsubparagraph (ii) is plainly that guarding shall be \u2018so designed and constructed as to prevent the\t\t\t\t\t\t\t\t\t\toperator\u2019 from getting into the danger zone.\t\t\t\t\t\t\t\t\t\tThe inspecting officer testified that saw blades on both front and rear of the machine\t\t\t\t\t\t\t\t\t\twere not so guarded as to prevent an employee from coming into contact with them. As to the\t\t\t\t\t\t\t\t\t\tsaw blade on the front of the machine, a photograph (Exhibit C\u20135) shows that a guard was\t\t\t\t\t\t\t\t\t\tactually present on the machine, but that the guard did not extend far enough out and down to\t\t\t\t\t\t\t\t\t\tactually prevent someone coming into contact with the blade. Accordingly, I find that the\t\t\t\t\t\t\t\t\t\tregulation requires respondent to change the guard by extending it as far down as the operation\t\t\t\t\t\t\t\t\t\tof the machine will permit. In so doing, it may be necessary to extend the guard outward as well,\t\t\t\t\t\t\t\t\t\tbut that is a matter of optimum design; the standard requires prevention of employee contact.\t\t\t\t\t\t\t\t\t\tAs for the saw on the rear of the machine, the complainant failed to show that any\t\t\t\t\t\t\t\t\t\temployee was exposed to a possible hazard. One employee was observed working the machine,\t\t\t\t\t\t\t\t\t\tbut he is shown to have been at the front, on the side on which the above mentioned saw was\t\t\t\t\t\t\t\t\t\tlocated (Exhibit C\u20133). Respondent\u2019s president testified that no employer works within reach of\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tthe other saw blades. Accordingly, the citation is affirmed only as to the one saw blade near the\t\t\t\t\t\t\t\t\t\tfront of the machine.\t\t\t\t\t\t\t\t\t\tPenalty. While the citation must be affirmed as serious, because the occurrence of an\t\t\t\t\t\t\t\t\t\taccident would probably result in serious physical injury, the likelihood of an accident happening\t\t\t\t\t\t\t\t\t\tis very low. Moreover, the good faith of the employer in actually providing a guard tends to\t\t\t\t\t\t\t\t\t\tovercome the fact that the guard was not as big and extensive as the regulation requires. I\t\t\t\t\t\t\t\t\t\tconclude from all of the facts that a penalty of $25 is appropriate in this instance.\t\t\t\t\t\t\t\t\t\tIt is ORDERED that items 2, 3, and 9(a) of citation number 1 and citations number 2 and\t\t\t\t\t\t\t\t\t\t3 be and the same are hereby affirmed, that citation 1, item 9(b) be and the same hereby vacated,\t\t\t\t\t\t\t\t\t\tthat a penalty of $100 be and the same is hereby assessed and that this proceeding be and the\t\t\t\t\t\t\t\t\t\tsame is hereby dismissed.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tRobert N. Burchmore\t\t\t\t\t\t\t\t\t\tJudge OSAHRC\t\t\t\t\t\t\t\t\t\tDated: March 11, 1976\t\t\t”