“Docket No. 84-0058 84-0155 SECRETARY OF LABOR, Complainant,v.VAC-AIR ALLOYS CORPORATION, Respondent.OSHRC DOCKET NOs. 84-0058 & 84-0155ORDER The Commission approves the settlement agreementand amends the citation to conform to the settlement agreement.\u00a0 The Commission alsovacates the direction for review.\u00a0 Since Respondent withdraws its notice of contestto the amended citation, that citation becomes a final order.FOR THE COMMISSION Ray H. Darling, Jr.Executive Secretary Dated:\u00a0 APR 1 1985Secretary of Labor,Complainant,-against-Vac Air Alloys Corporation, Respondent.OSHRC Docket Nos. 84-0058 and 84-0155Stipulation and Settlement Agreement IThe parties have reached agreement on a full andcomplete settlement of the instant matter which is presently pending before theCommission.IIThe parties stipulate as follows:(a) The Occupational Safety and Health ReviewCommission (hereinafter \”the Commission\”) has jurisdiction of this matterpursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (85 Stat.1590; 29 U.S.C. 651 et seq.) (hereinafter \”the Act\”).(b) Respondent, Vac Air Alloys Corporation, is acorporation with its principal place of business located at Falconer-Frewsburg Road inFrewsburg, New York 14738.\u00a0 It is engaged in the business of metal processing andduring the course of its business its employees perform various tasks in the nature ofmetal processing and cutting.\u00a0 During the course of its business, respondent, at alltimes material to this matter, used materials and equipment which is received from placeslocated outside the state of New York. Respondent, as a result of the aforesaidactivities, is an employer engaged in a business affecting commerce as defined by section3(3) and 3(5) of the Act and has employees as defined by section 3(6) of the Act and issubject to the requirements of the Act.(c) As a result of an inspection conducted fromDecember 5-9, 1983 at respondent’s facility in Frewsburg, New York, a citation for oneserious violation was issued to respondent on December 12, 1983, along with a proposedrelated penalty of $360.\u00a0 The citation alleged a violation of the standard of 29 CFR1910.212(a)(3)(ii) in that the point of operation on six (6) hydraulic shears was notguarded to prevent employees from having a part of their body in the danger zone duringoperating cycles.(d) Respondent elected to contest the citationand the Secretary filed his complaint in February 29, 1984.\u00a0 On March 6, 1984,respondent filed its answer and on July 12, 1984, a hearing was held in New York Citybefore Administrative Law Judge Richard DeBennedetto.(e) On October 30, 1984, Judge DeBennedettoissued his Decision and Order affirming the citation and assessing the recommended $360penalty.(f) Respondent filed a timely petition for review and on December 27, 1984, CommissionerBuckley ordered a review of the judge’s decision.\u00a0 On January 29, 1985, a notice wasissued by the Commission requesting briefs from the parties.NOW, in order to avoid further review andlitigation, the parties agree to the following:I Respondent hereby agrees to abate the citedconditions as follows:a) Respondent will designate and install anadjustable barrier-type guard on one of the six cited shears.\u00a0 (Model:\u00a0Constellation 1 1\/2 – 18, or models similar thereto).b) The guard shall be placed just before the point of operation in such a manner that theoperator shall be prevented from having any part of his body enter the point of operationduring the operating cycle.c) The vertical movement of this guard shall be adjustable in such a manner as to allow atall times a minimum clearance of one quarter (1\/4) inch between the anvil of the shear andthe bottom of the guard.d) The guard shall simultaneously serve as a restraining device for the pieces to be cutand at no time during the operating cycle shall the distance between the bottom of theguard and the top of the piece to be cut exceed one quarter (1\/4) inch.e) The guard shall remain immovable at all time during the operating cycle.f) At all times during the operating cycle the operator’s hands must stay clear of theguard by a distance of more than one (1) inch. Whenever the distance between theoperator’s hands and the guard is less than that distance, hand tools must be used.g) The guarded shear will be used for all operations involving cutting stock of fourinches or less.h) operations involving cutting of stock more than four inches in length shall beperformed on the five remaining shears which may remain unguarded.i) A plaque, prominently displayed near the shears, shall indicate that when a machine isunguarded it is to be used only for cutting stock more than four inches in length.j) A similar plaque near the guarded shear shall instruct employees that only a guardedshear is to be used for cutting of stock four inches or less in length.\u00a0 The plaquewill al so caution employees never to remove the barrier guard except for routinemaintenance and repairs of the guard or shear, or unless specifically directed bysupervisory personnel to remove the guard in order to permit the use of the machine in anyother manner consistent with this agreement.IIComplainant hereby agrees to reduce the penaltyproposed for the citation for serious violation from $360 to $150.IIIRespondent hereby agrees to withdraw its notice of contest to the citation as well as itsPetition for Discretionary Review and submits that the violation of the Act as set forthin the above-mentioned citation will be immediately abated according to the terms of thisagreement within thirty days of the execution hereof and shall remain abated.IVRespondent agrees to pay the penalty of $150within ten (10) days after issuance of the Commission’s order approving this Stipulationand Settlement Agreement, by mailing a check to the complainant as full and completepayment of the penalty.V The parties agree that this Stipulation andSettlement Agreement applies only to the instant cited conditions and in no way is to beconsidered precedential or binding in other situations involving similar conditions ormachinery of this or any other employer.VI The parties agree to bear their own attorney’sfees, expenses and costs incurred as the result of the instant litigation.VIIRespondent agrees to post this Stipulation andSettlement Agreement in accordance with Commission Rule 7.Wherefore, the parties request that thisStipulation and Settlement Agreement be approved by the Commission.For the ComplainantCounsel for the SecretaryFor the Respondent”