“SECRETARY OF LABOR,Complainant,v.SYNTRON, INC.,Respondent.OSHRC Docket No. 81-1491-S_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:A decision of Administrative Law Judge Louis G. LaVecchia is before theCommission for review under 29 U.S.C. ? 661(i). A citation was issuedto Syntron, Inc. alleging that it violated 29 C.F.R. ? 1910.212(a)(1)because the unused portion of the blade of its metal cut-off saw was notguarded. The record indicates that the operator of the saw positionsthe material to be cut in a vise while the machine is off, and thenlowers the top portion of the saw until the blade is near the material. He then turns on the saw, which automatically makes the cut and shutsoff. Both the compliance officer and Syntron’s president testified thatthe operator stands about a foot from the unguarded blade. JudgeLaVecchia vacated the citation on the ground that the evidence wasinsufficient to establish that during the operation of the saw employeeswere exposed to a \”hazard\” within the meaning of the standard.We have examined the entire record–particularly a videotape showing themachine in operation–and we are unconvinced, as was the judge, that theoperator’s hands come, or would have reason to come, close enough to theunused portion of the blade to be exposed to a hazard.[[1]] Accordingly, the judge’s decision is affirmed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: MAR 28 1984CLEARY, Commissioner, dissenting:The majority vacates this citation because it is not convinced that theoperator’s hands \”come, or would have reason to come\” close enough to anunguarded bandsaw blade to be exposed to a hazard. This holding simplyignores the purpose of the standard and long-standing Commissionprecedent by taking no account of the fact that the operator could beinjured through inadvertence. Accordingly, I must dissent.Section 1910.212(a)(1) provides that \”[o]ne or more methods of machineguarding shall be provided to protect the operator and other employeesin the machine area from hazards such as those created by point ofoperation . . . .\” This Commission has long held that \”the standard isplainly intended to eliminate danger from unsafe operating procedures,poor training, or _employee_ _inadvertence_.\” _Signode Corp_., 76OSAHRC 43\/A2, 4 BNA OSHC 1078, 1079, 1975-76 CCH OSHD ? 20,575, p.24,595 (No. 3527, 1976) (emphasis added). It is for this reason thatthe standard requires _physical_ methods of guarding rather than methodsof guarding that depend on correct human behavior. \”The standardrecognizes that men do not discard their personal qualities when they goto work.\” _See_ _Akron_ _Brick and Block Co._, 76 OSAHRC 2\/E2, 3 BNAOSHC 1876, 1878, 1976-77 CCH OSHD ? 20,302, p. 24,212 (No. 4859, 1976).Thus, it is beside the point that — as the majority essentially finds– it has not been shown that the operator would have reason to put hishands into the point of operation during its operating cycle. As statedabove, our precedent unequivocally holds that the standard requiresphysical protection to guard against inadvertence. The facts in thiscase present precisely the conditions at which the machine guardingstandards are directed.It is undisputed that the operator stands only a foot away from thepartially unguarded bandsaw blade. The operator is positioned withdirect access to the point of operation and within reaching distance ofit. The president of the company admitted that an employee couldinadvertently injure himself. The videotape does not prove otherwiseeven though it is a staged presentation prepared by Syntron. Accordingly, I find that the operator is exposed to a hazard of injuryfrom the partially guarded bandsaw blade. _See_ _A.E. Burgess LeatherCo_., 77 OSAHRC 25\/D6, 5 BNA OSHC 1096, 1977-78 CCH OSHD ? 21,273 (No.12501, 1977), _aff’d_, 576 F.2d 948 (1st Cir. 1978). Finally, there was testimony that a guard could have been secured orfabricated for no more than $20.00. If, indeed, the purpose of the Actis to provide safe working conditions and prevent injuries, twentydollars is a small price to pay to protect against an inadvertent injuryhere.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected]), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] The dissent maintains that Syntron’s president testified that themachine operator could inadvertently injure himself. The witness wasasked, however, only whether inadvertent injury was _possible_. Giventhe range of the human imagination, it is understandable that heanswered in the affirmative. The standard was not, however, intended toprotect against the mere possibility of injury. _See_ _StaceyManufacturing Co_., 82 OSAHRC 14\/B1, 10 BNA OSHC 1534, 1537, 1982 CCHOSHD ? 25,965, p. 32,559 (No. 76-1656, 1982). Rather, whether a machinepresents a hazard within the meaning of the standard must be determinedby how the machine functions and how it is operated by the employees. _Id_.”