UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

November 11, 1974

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

VAN NAMEE, COMMISSIONER:

This matter is before the Commission in accordance with my order directing review of a decision of Judge Garl Watkins. Judge Watkins vacated a citation charging a serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter ‘the Act’). He further affirmed one item and vacated the remaining item of Complainant’s citation charging non-serious violations of the above cited provision of the Act. The Judge assessed a penalty in the amount of $25.

We have reviewed the record and find no prejudicial error therein.

Accordingly, it is ORDERED that the Judge’s disposition be and the same is hereby affirmed.

CLEARY, COMMISSIONER, concurring:

I concur with my colleagues in their affirmance of Judge Watkin’s disposition of this case. I find it necessary, however, to comment upon the Judge’s vacation of the citation alleging a serious violation of section 5(a)(2) of the Act.

The citation for a serious violation alleged respondent’s non-compliance with the occupational safety and health standard published at 29 CFR § 1910.213(d)(1).

The standard provides:

(d) Hand-fed crosscut table saws (1) Each circular crosscut table saw shall be guarded by a hood which shall meet the requirements of paragraph (c)(1) of this section for hoods for circular ripsaws.

There was no dispute that the respondent’s ‘trim saw,’ for which it was cited, was an unguarded crosscut table saw. In vacating the citation, the Judge held that the ‘trim saw’ was not ‘hand-fed’ within the meaning of the standard. I agree with Judge Watkins’ interpretation of the standard. Moreover, I agree with the precise language employed by the Judge in making this holding.

Judge Watkins said:

It should be noted here—as in the Consolidated Pine case—that this is not a holding that the trim saws were adequately guarded. It is not a holding that persons passing the trim saws were not exposed to some danger from them. It is a holding that the standard Respondent is charged with violating does not contemplate the trim saws Respondent operated.

Although I agree with the interpretation reached by the Judge in this case, I cannot agree with the Judge’s statement that the language of a standard ‘will be construed most strongly in favor of one charged with a breach of a duty imposed by it—in this case Respondent.’

It is a settled principle of law that remedial social legislation, such as this Act, should be construed in favor of those it seeks to protect. Wirtz v. Ti Ti Peat Humus Co., 373 F.2d 209, 212 (4th Cir. 1967), cert. denied 389 U.S. 834 (1967). The declared purpose of the Act is ‘to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.’ Section 2(b) of the Act. In order to achieve this purpose, Congress, in section 6 of the Act, granted the Secretary the power to promulgate standards. Thus, the Commission must construe standards in favor of the workers whom the Act seeks to protect. Indeed, the Second Circuit has held that it is of paramount importance that the standards be construed to effectuate congressional objectives. Brennan v. O.S.H.R.C. & Gerosa, Inc., 491 F.2d 1340, 1343 (2d Cir. 1974)

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

April 20, 1973

WATKINS, JUDGE:

The Secretary alleges that on May 17, 1972, Respondent Prineville Mouldings, Inc. was in one serious violation of a woodworking machine guarding standard adopted under the provisions of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., at its linear pine moulding plant at Prineville, Oregon. It is also alleged that on the same day there were two violations not of a serious character, one involving the absence of a cover on a floor opening (29 CFR 1910.23(a)(5)) and the other a failure to guard belts, pulleys, gears, shafts and other moving parts of woodworking machinery. (29 CFR 1910.213(a)(9)). The latter two are Items 2 and 3 of the Citation for Non-Serious Violation issued June 12, 1972, the same day as were also issued the Citation for Serious Violation and the Notification of Proposed Penalty for the three alleged violations. Respondent contends there has been a failure of proof on the part of the Secretary of any violation. With particular reference to the complaint to serious violation, Prineville Mouldings claims its ‘trim saws’ are not ‘Hand-fed crosscut table saws’ as contemplated by the standard in question (29 CFR 1910.213(d)(1)).

As to all violations Respondent claims arbitrary and capricious action on the part of the Area Director of the Occupational Safety and Health Administration, United States Department of Labor; and further, that findings of violations would deprive it of property without due process of law in violation of the Fifth Amendment to the United States Constitution.

The language of the allegations of the Citations, the proposed penalties, the specific allegations of the Secretary’s Complaint and the standards in question with respect to each violation are as follows:

CITATION FOR SERIOUS VIOLATION

Citation Number: One Date Issued: June 12, 1972 EMPLOYER: Prineville Mouldings, Incorporated ADDRESS: (Street) P.O. Box 548 (City) Prineville (State) Oregon (Zip) 97754

An inspection of a workplace under your ownership, operation or control located at: Lamonta Road, 3 Miles West of Prineville, Orgon and described as follows: a moulding plant has been conducted. On the basis of the inspection it is alleged that you have violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, in the following respects:

Standard or regulation allegedly violated—Description of alleged violation—Date on which alleged violation must be corrected

29 CFR 1910.213(d)(1)—May 17, 1972—Eight trimsaws used at this plant have no guards to enclose the exposed and moving say teeth.—July 12, 1972

PROPOSED PENALTY: $550.00

COMPLAINT:

IV. On May 17, 1972, at the aforesaid worksite and place of employment, the respondent violated the safety and health regulations, Specifically 29 CFR 1910.213(d)(1), in that eight trimsaws in use had no guards to enclose and protect against the exposed and moving saw teeth.

VII. The violation alleged in Citation For Serious Violation Number 1 and charged in paragraph IV above, was a serious violation within the meaning of section 17(k) of the Act, in that there was a substantial probability that death or serious physical harm could result from the condition alleged to exist, or the practices, means methods, operations or processes which are alleged to have been adopted or in use at the aforesaid worksite, and the respondent knew, or could with the exercise of re reasonable diligence have known, of the presence of the violation.

STANDARD: 29 CFR 1910.213(d)(1): Hand-fed Crosscut Table Saws

Each circular crosscut table saw shall be guarded by a hood which shall meet all requirements of paragraph (c)(1) of this section for hoods for circular ripsaws.

CITATION

Citation Number: One Page 1 of 3 Date Issued: June 12, 1972 EMPLOYER: Prineville Mouldings, Incorporated ADDRESS: (Street P. O. Box 548 (City) Prineville (State) Oregon (Zip) 97754

An inspection of a workplace under your ownership, operation, or control located at: Lamonta Road, 3 miles West of Prineville, Oregon and Described as follows: moulding plant has been conducted. On the basis of the inspection it is alleged that you have violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, in the following respects:

Item Number—Standard or regulation allegedly violate—Description of alleged violation—Date on which alleged violation must be corrected

2—29 CFR Part 1910.23(a)(5)—May 17, 1972—Covers left off the conveyor located under the floor of the plant, and leading to the chipper, hazards of falling or walking into it.—June 19, 1972

PROPOSED PENALTY: $25.00

COMPLAINT:

V. On May 17, 1972, at the aforesaid worksite and place of employment, the respondent further violated the safety and health regulations in the following respects:

1. Covers had been left off the conveyor located under the floor of the plaint and leading to the chipper, thereby creating hazards of falling or walking into it, contrary to 29 CFR 1910.23(a)(5);

STANDARD: 29 CFR 1910.23(a)(5): Protection for floor openings

Every pit and trapdoor floor opening, infrequently used, shall be guarded by a floor opening cover of standard strength and construction which should be hinged in place. While the cover is not in place, the pit or trap opening shall be constantly attended by someone or shall be protected on all exposed sides by removable standard railings.

CITATION

Citation Number: One Page 2 of 3 Date Issued: June 12, 1972 EMPLOYER: Prineville Mouldings, Incorporated ADDRESS: (Street) P. O. Box 548 (City) Princeville (State) Oregon (Zip) 97754

An inspection of a workplace under your ownership, operation, or control located at: Lamonta Road, 3 miles West of Prineville, Oregon and described as follows a moulding plant has been conducted. On the basis of the inspection it is alleged that you have violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, in the following respects:

Item Number—Standard or regulation allegedly violated—Description of alleged violation—Date on which alleged violation must be corrected

6—29 CFR Part 1910.213(a)(9)—May 17, 1972—(1) No guard to enclose the exposed V-belts and pulley drive to the Chipper. (2) No guard to enclose the exposed flywheel on the chipper. (3) No guard to enclose the exposed gear and chain drive to the Chipper conveyor, and the V-belt and pulley drive. (4) Guard has been removed from the east side of the #2 moulder exposing the belt drives. (5) Incomplete guards on the swinging cut-off saw exposes the V-belt and pulley drive. (6) Exposed gear and chain drive to the transfer from the rip saw, has no guard. (7) No guard to enclose the gear and chain drive to the transfer belt from the rip saw.—July 12, 1972

PROPOSED PENALTY: $65.00

COMPLAINT:

V.2. There were either no guards or inadequate guards to enclose and to protect against the following exposed parts on the following equipment:

a. V-belts and pulley drive to the chipper;

b. Flywheel on the chipper,

c. Gear and chain drive to the chipper conveyor, and the V-belt and pulley drive thereto,

d. Belt drives on the east side of the #2 moulder,

e. V-belt and pulley drive on the swinging cutoff saw,

f. Gear and chain drive to the conveyor leading from the rip saw, and

g. Gear and chain drive to the transfer belt from the rip saw, all contrary to 29 CFR 1910.213(a)(9).

STANDARD: 29 CFR 1910.213(a)(9):

All belts, pulleys, gears, shafts, and moving parts shall be guarded in accordance with the specific requirements of § 1910.219.

§ 1910.219 Mechanical power-transmission apparatus.

(a) General requirements. (1) This section covers all types and shapes of power-transmission belts, except the following when operating at two hundred and fifty (250) feet per minute or less: (i) Flat belts one (1) inch or less in width, (ii) flat belts two (2) inches or less in width which are free from metal lacings or fasteners, (iii) round belts one-half (1/2) inch or less in diameter; and (iv) single strand V-belts, the width of which is thirteen thirty-seconds (13/32) inch or less.

(2) Vertical and inclined belts (paragraphs (e)(3) and (4) of this section) if not more than two and one-half (2 1/2) inches wide and running at a speed of less than one thousand (1,000) feet per minute, and if free from metal lacings or fastenings may be guarded with a nip-point belt and pulley guard.

(3) For the Textile Industry, because of the presence of excessive deposits of lint, which constitute a serious fire hazard, the sides and face sections only of nip-point belt and pulley guards are required, provided the guard shall extend at least six (6) inches beyond the rim of the pulley on the in-running and off-running sides of the belt and at least two (2) inches away from the rim and face of the pulley in all other directions.

(4) This section covers the principal features with which power transmission safeguards shall comply.

(b) Prime-mover guards—(1) flywheels. Flywheels located so that any part is seven (7) feet or less above floor or platform shall be guarded in accordance with the requirements of this subparagraph:

(i) With an enclosure of sheet, perforated, or expanded metal, or woven wire;

(ii) With guard rails placed not less than fifteen (15) inches nor more than twenty (20) inches from rim. When flywheel extends into pit or is within 12 inches of floor, a standard toeboard shall also be provided;

(iii) When the upper rim of flywheel protrudes through a working floor, it shall be entirely enclosed or surrounded by a guardrail and toeboard.

(iv) For flywheels with smooth rims five (5) feet or less in diameter, where the preceding methods cannot be applied, the following may be used: A disk attached to the flywheel in such manner as to cover the spokes of the wheel on the exposed side and present a smooth surface and edge, at the same time providing means for periodic inspection. An open space, not exceeding four (4) inches in width, may be left between the outside edge of the disk and the rim of the wheel if desired, to facilitate turning the wheel over. Where a disk is used, the keys or other dangerous projections not covered by disk shall be cut off or covered. This subdivision does not apply to flywheels with solid web centers.

(v) Adjustable guard to be used for starting engine or for running adjustment may be provided at the flywheel of gas or oil engines. A slot opening for jack bar will be permitted.

(vi) Wherever flywheels are above working areas, guards shall be installed having sufficient strength to hold the weight of the flywheel in the event of a shaft or wheel mounting failure.

(2) Cranks and connecting rods. Cranks and connecting rods, when exposed to contact shall be guarded in accordance with paragraphs (m) and (n) of this section, or by a guardrail as described in paragraph (o)(5) of this section.

(3) Tail rods or extension piston rods. Tail rods or extension piston rods shall be guarded in accordance with paragraphs (m) and (o) of this section, or by a guardrail on sides and end, with a clearance of not less than fifteen (15) nor more than twenty (20) inches when rod is fully extended.

(4) Governor balls. Governor balls six (6) feet or less from the floor or other working level, when exposed to contact, shall be provided with an enclosure extending to the top of the governor balls when at their highest position. The material used in the construction of this enclosure shall conform to paragraphs (m) and (o) of this section.

(c) Shafting—(1) Installation. (i) Each continuous line of shafting shall be secured in position against excessive endwise movement.

(ii) Inclined and vertical shafts, particularly inclined idler shafts, shall be securely held in position against end-wise thrust.

(2) Guarding horizontal shafting. (i) All exposed parts of horizontal shafting seven (7) feet or less from floor or working platform, excepting runways used exclusively for oiling, or running adjustments, shall be protected by a stationary casing enclosing shafting completely or by a trough enclosing sides and top or sides and bottom of shafting as location requires.

(ii) Shafting under bench machines shall be enclosed by a stationary casing, or by a trough at sides and top or sides and bottom, as location requires. The sides of the trough shall come within at least six (6) inches of the underside of table, or if shafting is located near floor within six (6) inches of floor. In every case the sides of trough shall extend at least two (2) inches beyond the shafting or protuberance.

(3) Guarding vertical and inclined shafting. Vertical and inclined shafting seven (7) feet or less from floor or working platform, excepting maintenance runways, shall be enclosed with a stationary casing in accordance with requirements of paragraphs (m) and (o) of this section.

(4) Projecting shaft ends. (i) Projecting shaft ends shall present a smooth edge and end and shall not project more than one-half the diameter of the shaft unless guarded by nonrotating caps or safety sleeves.

(ii) Unused keyways shall be filled up or covered.

(5) Power-transmission apparatus located in basements. All mechanical power transmission apparatus located in basements, towers, and rooms used exclusively for power transmission equipment shall be guarded in accordance with this section, except that the requirements for safeguarding belts, pulleys, and shafting need not be complied with when the following requirements are met:

(i) The basement, tower, or room occupied by transmission equipment is locked against unauthorized entrance.

(ii) The vertical clearance in passageways between the floor and power transmission beams, ceiling, or any other objects, is not less than five feet six inches (5 ft. 6 in.).

(iii) The intensity of illumination conforms to the requirements of ANSI A11.1—1965 (R–1970).

(iv) The footing is dry, firm, and level.

(v) The route followed by the oiler is protected in such manner as to prevent accident.

(d) Pulleys—(1) Guarding. Pulleys, and parts of which are seven (7) feet or less from the floor or working platform, shall be guarded in accordance with the standards specified in paragraphs (m) and (o) of this section. Pulleys serving as balance wheels (e.g., punch presses) on which the point of contact between belt and pulley is more than six feet six inches (6 ft. 6 in.) from the floor or platform may be guarded with a disk covering the spokes.

(2) Location of pulleys. (i) Unless the distance to the nearest fixed pulley, clutch, or hanger exceeds the width of the belt used, a guide shall be provided to prevent the belt from leaving the pulley on the side where insufficient clearance exists.

(ii) Where there are overhanging pulleys on line, jack, or countershafts with no bearing between the pulley and the outer end of the shaft, a guide to prevent the belt from running off the pulley should be provided.

(3) Broken pulleys. Pulleys with cracks, or pieces broken out of rims, shall not be used.

(5) Pulley speeds. Pulleys intended to operate at rim speed in excess of manufacturers normal recommendations shall be specially designed and carefully balanced for the speed at which they are to operate.

(5) Composition and wood pulleys. Composition or laminated wood pulleys shall not be installed where they are subjected to influences detrimental to their structural composition.

(e) Belt, rope, and chain drives—(1) Horizontal belts and ropes. (i) Where both runs of horizontal belts are seven (7) feet or less from the floor level, the guard shall extend to at least fifteen (15) inches above the belt or to a standard height (see Table O–13), except that where both runs of a horizontal belt are 42 inches or less from the floor, the belt shall be fully enclosed in accordance with paragraphs (m) and (o) of this section.

(ii) In powerplants or power-development rooms, a guardrail may be used in lieu of the guard required by subdivision (i) of this subparagraph.

(2) Overhead horizontal belts. (i) Overhead horizontal belts, with lower parts seven (7) feet or less from the floor or platform, shall be guarded on sides and bottom in accordance with paragraph (o)(3) of this section.

(ii) Horizontal overhead belts more than seven (7) feet above floor or platform shall be guarded for their entire length under the following conditions:

(a) If located over passageways or work places and traveling 1,800 feet or more per minute.

(b) If center to center distance between

(c) If belt is eight (8) inches or more

(c) If belt is eight (8) inches or more in width.

(iii) Where the upper and lower runs of horizontal belts are so located that passage of persons between them would be possible, the passage shall be either:

(a) Completely barred by a guardrail or other barrier in accordance with paragraphs (m) and (o) of this section; or

(b) Where passage is regarded as necessary, there shall be a platform over the lower run guarded on either side by a railing completely filled in with wire mesh or other filler, or by a solid barrier. The upper run shall be so guarded as to prevent contact therewith either by the worker or by objects carried by him. In powerplants only the lower run of the belt need be guarded.

(iv) Overhead chain and link belt drives are governed by the same rules as overhead horizontal belts and shall be guarded in the same manner as belts.

(v) American or Continuous System rope drives so located that the condition of the rope (particularly the splice) cannot be constantly and conveniently observed, shall be equipped with a telltale device (preferably electric-bell type) that will give warning when rope begins to fray.

3) Vertical and inclined belts. (i) Vertical and inclined belts shall be enclosed by a guard conforming to standards in paragraphs (m) and (o) of this section.

(ii) All guards for inclined belts shall be arranged in such a manner that a minimum clearance of seven (7) feet is maintained between belt and floor at any point outside of guard.

(4) Vertical belts. Vertical belts running over a lower pulley more than seven (7) feet above floor or platform shall be guarded at the bottom in the same manner as horizontal overhead belts, if conditions are as stated in subparagraphs (2)(ii)(a) and (c) of this paragraph.

(5) Cone—pulley belts. (i) The cone belt and pulley shall be equipped with a belt shifter so constructed as to adequately guard the nip point of the belt and pulley. If the frame of the belt shifter does not adequately guard the nip point of the belt and pulley, the nip point shall be further protected by means of a vertical guard placed in front of the pulley and extending at least to the top of the largest step of the cone.

(ii) If the belt is of the endless type or laced with rawhide laces, and a belt shifter is not desired, the belt will be considered guarded if the nip point of the belt and pulley is protected by a nip point guard located in front of the cone extending at least to the top of the largest step of the cone, and formed to show the contour of the cone in order to give the nip point of the belt and pulley the maximum protection.

(iii) If the cone is located less than 3 feet from the floor or working platform, the cone pulley and belt shall be guarded to a height of 3 feet regardless of whether the belt is endless or laced with rawhide.

(6) Belt tighteners. (i) Suspended counterbalanced tighteners and all parts thereof shall be of substantial construction and securely fastened; the bearings shall be securely capped. Means must be provided to prevent tightener from falling, in case the belt breaks.

(ii) Where suspended counterweights are used and not guarded by location, they shall be so encased as to prevent accident.

(f) Gears, sprockets, and chains—(1) Gears. Gears shall be guarded in accordance with one of the following methods:

(i) By a complete enclosure; or

(ii) By a standard guard as described in paragraph (o) of this section, at least seven (7) feet high extending six (6) inches above the mesh point of the gears; or

(iii) By a band guard covering the face of gear and having flanges extended inward beyond the root of the teeth on the exposed side or sides. Where any portion of the train of gears guarded by a band guard is less than six (6) feet from the floor a disk guard or a complete enclosure to the height of six (6) feet shall be required.

(2) Hand-operated gears. Subparagraph (1) of this paragraph does not apply to tand-operated gears used only to adjust machine parts and which do not continue to move after had power is removed. However, the guarding of these gears is highly recommended.

(4) Sprockets and chains. All sprocket wheels and chains shall be enclosed unless they are more than seven (7) feet above the floor or platform. Where the drive extends over other machine of working areas, protection against falling shall be provided. This subparagraph does not apply to manually operated sprockets.

(4) Openings for oiling. When frequent oiling must be done, openings with hinged or sliding self-closing covers shall be provided. All points not readily accessible shall have oil feed tubes if lubricant is to be added while machinery is in motion.

(g) Guarding friction drives. The driving point of all friction drives when exposed to contact shall be guarded, all arm or spoke friction drives and all web friction drives with holes in the web shall be entirely enclosed, and all projecting belts on friction drives where exposed to contact shall be guarded.

(h) Keys, setscrews, and other projections. (1) All projecting keys, setscrews, and other projections in revolving parts shall be removed or made flush or guarded by metal cover. This subparagraph does not apply to keys or setscrews within gear or sprocket casings or other enclosures, nor to keys, setscrews, or oilcups in hubs of pulleys less than twenty (20) inches in diameter where they are within the plane of the rim of the pulley.

(2) It is recommended, however, that no projecting setscrews or oilcups be used in any revolving pulley or part of machinery.

(i) Collars and couplings—(1) Collars. All revolving collars, including split collars, shall be cylindrical, and screws or bolts used in collars shall not project beyond the largest periphery of the collar.

(2) Couplings. Shaft couplings shall be so constructed as to present no hazard from bolts, nuts, setscrews, or revolving surfaces. Bolts, nuts, and setscrews will, however, be permitted where they are covered with safety sleeves or where they are used parallel with the shafting and are countersunk or else do not extended beyond the flange of the coupling.

(j) Bearings and facilities for oiling. Self lubricating bearings are recommended and all drip cups and pans shall be securely fastened.

(k) Guarding of clutches, cutoff couplings, and clutch pulleys—(1) Guards. Clutches, cutoff couplings, or clutch pulleys having projecting parts, where such clutches are located seven (7) feet or less above the floor or working platform, shall be enclosed by a stationary guard constructed in accordance with this section. A ‘U’ type guard is permissible.

(2) Engine rooms. In engine rooms a guardrail, preferably with toeboard, may be used instead of the guard required by subparagraph (1) of this paragraph, provided such a room is occupied only by engine room attendants.

(3) Bearings. A bearing support immediately adjacent to a friction clutch or cutoff coupling shall have self-lubricating bearings requiring attention at infrequent intervals.

(1) Belt shifters, clutches, shippers, poles, perches, and fasteners—(1) Belt shifters. (i) Tight and loose pulleys on all new installations made on or after August 31, 1971, shall be equipped with a permanent belt shifter provided with mechanical means to prevent belt from creeping from loose to tight pulley. It is recommended that old installations be changed to conform to this rule.

(ii) Belt shifter and clutch handles shall be rounded and be located as far as possible from danger of accidental contact, but within easy reach of the operator. Where belt shifters are not directly located over a machine or bench, the handles shall be cut off six feet six inches (6 ft. 6 in.) above floor level.

(iii) All belt and clutch shifters of the same type in each shop should move in the same direction to stop machines, i.e., either all right or all left. This does not apply to friction clutch on countershaft carrying two clutch pulleys with open and crossed belts, respectively. In this case the shifter handle has three positions and the machine is at a standstill when clutch handle is in the neutral or center position.

(2) Belt shippers and shipper poles. The used of belt poles as substitutes for mechanical shifters is not recommended. Where necessity compels their use, they shall be of sufficient size to enable workmen to grasp them securely. (A two-inch (2 in.) diameter or 1 1 2 by 2 inches cross-section is suggested.) Poles shall be smooth and preferably of straight grain hardwood, such as ash or hickory. The edges of rectangular poles should be rounded. Poles should extend from the top of the pulley to within about forty (40) inches of floor or working platform.

(3) Belt perches. Where loose pulleys or idlers are not practicable, belt perches in form of brackets, rollers, etc., shall be used to keep idle belts away from the shafts. Perches should be substantial and designed for the safe shifting of belts.

(4) Belt fasteners. Belts which of necessity must be shifted by hand and belts within seven (7) feet of the floor or working platform which are not guarded in accordance with this section shall not be fastened with metal in any case, nor with any other fastening which by construction or wear will constitute an accident hazard.

(m) Standard guards—general requirements—(1) Materials. (i) Standard conditions shall be secured by the use of the following materials. Expanded metal, perforated or solid sheet metal, wire mesh on a frame of angle iron, or iron pipe securely fastened to floor or to frame of machine

(ii) All metal should be free from burrs and sharp edges.

(iii) Wire mesh should be of the type in which the wires are secrely fastened at every cross point either by welding, soldering, or galvanizing, except in case of diamond or square wire mesh made of No. 14 gage wire, 3/4-inch mesh or heavier.

(2) Methods of manufacture. (i) Expanded metal, sheet or perforated metal, and wire mesh shall be securely fastened to frame by one of the following methods:

(a) With rivets or bolts spaced not more than five (5) inches center to center. In case of expanded metal or wire mesh, metal strips or clips shall be used to form a washer for rivets or bolts.

(b) by welding to frame every four (4) inches.

(c) By weaving through channel or angle frame, or if No. 14 gage 3/4-inch mesh or heavier is used by bending entirely around rod frames.

(d) Where openings in pipe railing are to be filled in with expanded metal, wire mesh or sheet metal, the filler material shall be made into panels with rolled edges of bound with ‘V’ of ‘U’ edging of No. 24 gage or heavier sheet metal fastened to the panels with bolts or rivets spaced not more than five (5) inches center to center. The bound panels shall be fastened to the railing by sheet-metal clips spaced not more than five (5) inches center to center.

(e) Diamond or square mesh made of crimped wire fastened into channels, angle or round-iron frames, may also be used as a filler in guards. Size of mesh shall correspond to Table O–12.

(ii) Where the design of guards requires filler material of greater area than 12 square feet, additional frame members shall be provided to maintain panel area within this limit.

(iii) All joints of framework shall be made equivalent in strength to the material of the frame.

(n) Disk, shield, and ‘U’ guards—(1) Disk guards. A disk guard shall consist of a sheet-metal disk not less than No. 22 gage fastened by ‘U’ bolts or rivets to spokes of pulleys, flywheels, or gears. Where possibility of contact with sharp edges of the disk exists, the edge shall be rolled or wired. In all cases the nuts shall be provided with locknuts which shall be placed on the unexposed side of the wheel.

(2) Shield guards. (i) A shield guard shall consist of a frame filled in with wire mesh, expanded, perforated, or solid sheet metal.

(ii) If area of shield does not exceed six (6) square feet the wire mesh or expanded metal may be fastened in a framework of 3/8-inch solid rod, 3/4-inch by 3/4-inch by 1/8-inch angle iron or metal construction of equivalent strength. Metal shields may have edges entirely rolled around a 3/8-inch solid iron rod.

(3) ‘U’ guards. A ‘U’ guard consisting of a flat surface with edge members shall be designed to cover the under surface and lower edge of a belt, multiple chain, or rope drive. It shall be constructed of materials specified in table O–12, and shall conform to the requirements of paragraphs (o)(3) and (4) of this section. Edges shall be smooth and, if size of guard requires, these edges shall be reinforced by rolling, wiring, or by binding with angle or flat iron.

(o) Approved materials—(1) Minimum requirements. The materials and dimensions specified in this paragraph shall apply to all guards, except horizontal overhead belts, rope, cable, or chain guards more than seven (7) feet above floor, or platform. (For the latter, see Table O–13.)

(i) Minimum dimensions of materials for the framework of all guards, except as noted in subdivision (i)(c) shall be angle iron 1 inch by 1 inch by 1/8 inch, metal pipe of 3/4-inch inside diameter or metal construction of equivalent strength.

(a) All guards shall be rigidly braced every three (3) feet or fractional part of their height to some fixed part of machinery or building structure. Where guard is exposed to contact with moving equipment additional strength may be necessary.

(b) The framework for all guards fastened to floor or working platform and without other support or bracing shall consist of 1 1/2-inch by 1 1/2-inch by 1/8-inch angle iron, metal pipe of 1 1/2-inch inside diameter, or metal construction of equivalent strength. All rectangular guards shall have at least four upright frame members each of which shall be carried to the floor and be securely fastened thereto. Cylindrical guards shall have at least three supporting members carried to floor.

(c) Guards thirty (30) inches or less in height and with a total surface area not in excess of ten (10) square feet may have a framework of 3 8-inch solid rod, 3/4-inch by 3/4-inch by 1/8-inch angle, or metal construction of equivalent strength. The filling material shall correspond to the requirements of Table O–12.

(ii) The specifications given in Table O–12 and subdivision (i) of this subparagraph are minimum requirements; where guards are exposed to unusual wear, deterioration or impact, heavier material and construction should be used to protect amply against the specific hazards involved.

(2) Wood guards. (i) Wood guards may be used in the woodworking and chemical industries, in industries where the presence of fumes or where manufacturing conditions would cause the rapid deterioration of metal guards; also in construction work and in locations outdoors where extreme cold or extreme heat make metal guards and railings undesirable. In all other industries, wood guards shall not be used.

(ii) (a) Wood shall be sound, tough, and free from any loose knots.

(b) Guards shall be made of planed lumber not less than one (1) inch rough board measure, and edges and corners rounded off.

(c) Wood guards shall be securely fastened together with wood screws, hardwood dowel pins, bolts, or rivets.

(d) While no definite dimensions are given under this heading for framework or filler materials, wood guards shall be equal in strength and rigidity to metal guards specified in subparagraphs (1)(i) and (ii) of this paragraph and Table O–12.

(e) For construction of standard wood railing, see subparagraph (5) of this paragraph.

(3) Guards for horizontal overhead belts. (i) Guards for horizontal overhead belts shall run the entire length of the belt and follow the line of the pulley to the ceiling or be carried to the nearest wall, thus enclosing the belt effectively. Where belts are so located as to make it impracticable to carry the guard to wall or ceiling, construction of guard shall be such as to enclose completely the top and bottom runs of belt and the face of pulleys.

(ii) The guard and all its supporting members shall be securely fastened to wall or ceiling by gimlet-point lag screws or through bolts. In case of masonry construction, expansion bolts shall be used. The use of bolts placed horizontally through floor beams or ceiling rafters is recommended.

TABLE O–12–TABLE OF STANDARD MATERIALS AND DIMENSIONS

(iii) Suitable reinforcement shall be provided for the ceiling rafters or overhead floor beams, where such is necessary, to sustain safely the weight and stress likely to be imposed by the guard. The interior surface of all guards, by which is meant the surface of the guard with which a belt will come in contact, shall be smooth and free from all projections of any character, except where construction demands it; protruding shallow roundhead rivets may be used. Overhead belt guards shall be at least one-quarter wider than belt which they protect, except that this clearance need not in any case exceed six (6) inches on each side. Overhead rope drive and block and roller-chain-drive guards shall be not less than six (6) inches wider than the drive on each side. In overhead silent chain-drive guards where the chain is held from lateral displacement on the sprockets, the side clearances required on drives of twenty (20) inch centers or under shall be not less than one-fourth inch from the nearest moving chain part, and on drives of over twenty (20) inch centers a minimum of one-half inch from the nearest moving chain part.

(iv) Table O–13 gives the sizes of materials to be used and the general construction specifications of guards for belts ten (10) inches or more in width. No material for overhead belt guards should be smaller than that specified in Table O–13 for belts ten (10) to fourteen (14) inches wide, even if the overhead belt is less than ten (10) inches in width. However, No. 20 gage sheet metal may be used as a filler on guards for belts less than ten (10) inches wide. Expanded metal, because of the sharp edges, should not be used as a filler in horizontal belt guards.

(v) For clearance between guards and belts, ropes or chains of various center to center dimensions between the shafts, see bottom of Table O–13.

TABLE O–13—HORIZONTAL OVERHEAD BELTS, ROPES, AND CHAINS 7 FEET OR MORE ABOVE FLOOR OR PLATFORM

(4) Guards for horizontal overhead rope and chain drives. Overhead-rope and chain-drive guard construction shall conform to the rules for overhead-belt guard construction of similar width, except that the filler material shall be of the solid type as shown in Table O–13, unless the fire hazard demands the use of open construction. A side guard member of the same solid filling material should be carried up in a vertical position two (2) inches above the level of the lower run of the rope of chain drive and two (2) inches within the periphery of the pulleys which the guard encloses thus forming a trough. These side filler members should be reinforced on the edges with 1 1/2-inch by 1/4-inch flat steel, riveted to the filling material at not greater than eight (8) inch centers; the reinforcing strip should be fastened or bolted to all guard supporting members with at least one 3/8-inch rivet or bolt at each intersection, and the ends should be secured to the ceiling with lag screws or bolts. The filling material shall be fastened to the framework of the guard and the filler supports by 3/16-inch rivets spaced on 4-inch centers. The width of the multiple drive shall be determined by measuring the distance from the outside of the first to the outside of the last rope or chain in the group accommodated by the pulley.

(5) Guardrails and toeboards. (i) Guardrail shall be forty-two (42) inches in height, with midrail between top rail and floor.

(ii) Posts shall be not more than eight (8) feet apart; they are to be permanent and substantial, smooth, and free from protruding nails, bolts, and splinters. If made of pipe, the post shall be one and one-fourth (1 1/4) inches inside diameter, or larger. If made of metal shapes or bars, their section shall be equal in strength to that of one and one-half (1 1/2) by one and one-half (1 1/2) by three-sixteenths (3 1/4 16) inch angle iron. If made of wood, the posts shall be two by four (2 x 4) inches or larger. The upper rail shall be two by four (2 x 4) inches, or two one by four (1 x 4) strips, one at the top and one at the side of posts. The midrail may be one by four (1 x 4) inches or more. The rails (metal shapes, metal bars, or wood), should be on that side of the posts which gives the best protection and support. Where panels are fitted with expanded metal or wire mesh as noted in Table O–12 the middle rails may be omitted. Where guard is exposed to contact with moving equipment, additional strength may be necessary.

(iii) Toeboards shall be four (4) inches or more in height, of wood, metal, or of metal grill not exceeding one (1) inch mesh. Toeboards at flywheel pits should preferably be placed as close to edge of the pit as possible.

(p) Care of equipment—(1) General. All power-transmission equipment shall be inspected at intervals not exceeding 60 days and be kept in good working condition at all times.

(2) Shafting. (i) Shafting shall be kept in alignment, free from rust and excess oil or grease.

(ii) Where explosives, explosive dusts, flammable vapors or flammable liquids exist, the hazard of static sparks from shafting shall be carefully considered.

(3) Bearings. Bearings shall be kept in alignment and properly adjusted.

(4) Hangers. Hangers shall be inspected to make certain that all supporting bolts and screws are tight and that supports of hanger boxes are adjusted properly.

(5) Pulleys. (i) Pulleys shall be kept in proper alignment to prevent belts from running off.

(ii) One or both pulleys carrying a nonshifting belt should have crowned faces.

(iii) Cast-iron pulleys should be tested frequently with a hammer to disclose cracks in rim or spokes. It should be borne in mind that the sound is usually the pulley.

(iv) Split pulleys should be inspected to ascertain if all bolts holding together the sections of the pulley are tight.

(6) Care of belts. (i) Quarter-twist belts when installed without an idler can be used on drives running in one direction only. They will run off a pulley when direction of motion is reversed.

(ii) Inspection shall be made of belts, lacings, and fasteners and such equipment kept in good repair.

(iii) Where possible, dressing should not be applied when belt or rope is in motion; but, if this is necessary, it should be applied where belts or rope leave pulley, not where they approach. The same precautions apply to lubricating chains. In the case of V-belts, belt dressing is neither necessary nor advisable.

(7) Lubrication. The regular oilers shall wear tight-fitting clothing and should use cans with long spouts to keep their hands out of danger. Machinery shall be oiled when not in motion, wherever possible.

The hearing was held in Prineville, Oregon September 7, 1972. Although there was full compliance with procedural requirements for notice to additional parties, none appeared.

The principal question in the case involves the Citation for Serious Violation and is whether the trim saws operated by Respondent were ‘hand-fed crosscut table saws’ within the contemplation of 29 CFR 1910.213(d)(1). Here, as in the companion case of Consolidated Pine, Inc., Docket No. 945, we hold they were not.

The reason for this holding is that the trim saws were not ‘hand-fed.’ At best, this term is ambiguous and susceptible of more than one meaning under the facts of this particular case. Construing it most strongly in favor of Respondent, therefore, results in a vacation of the Citation alleging the violation. Some discussion of at least the more important material facts would be useful in showing the reason for this holding.

Eight trim saws are alleged to be in violation of the standard in this case. One is at each end of a sixteen foot long grading table, at the center of which stands the operator, or ‘grader.’ At this point the table is its narrowest width and from across it the grader lifts moulding from a trough—about twelve inches deep and of equal width—in front of him and trims each piece on one or both of the saws. Each saw is eight feet from the point in the center of the table exactly in front of the workman. The purpose of this operation is to remove knots, pitch pockets and other imperfections from the moulding, and also to see it ends up in standard marketable lengths such as eight, ten, twelve, fourteen or sixteen feet, etc. Secretary’s Exhibits 1 and 2 show either two such tables or one photographed twice.

In his testimony John Goodman, the Compliance Officer, stated that Secretary’s Exhibit 2 shows the workman ‘.....reaching across the top of the saw, on the lower end of the saw table, with his feet in the air . . .’ (TR 13). Perhaps it should be noted in passing that Goodman’s conclusion is impossible. The workman’s right heel is off the floor, as possibly is his right toe. The outer aspect of his left thigh and left hip are upright and against a point almost exactly in the center of the sixteen foot table; which is said to be thirty-six inches high but looks higher. From this position neither Wilt Chamberlain nor Kareem Jabbar could come within two feet of reaching the saw at the other end of the table with his fingertips.

Each of the radial trim saws is about twelve inches in diameter and a little less than half the blade extends above the table top. The blade is circled by a guard except for the center of the top portion where there is an opening of approximately six inches for trimming the moulding. The guards appear to be several inches in width. That portion not immediately around the blade extends toward the center of the table.

The testimony varies somewhat as to the distance of the workman—or his hand—from either of the saws while performing his duties. As in the Consolidated Pine case, John Goodman, the Compliance Officer, testified the hazard involved with the saws was not to the workmen using them, but to one who might be passing by. Although there is some testimony the operator might be four or five feet from a saw while performing his duties, it is reasonable to find there would be no reason for his hand to be closer than five feet from either saw in the normal course of the grader’s work.

Prineville Mouldings, Inc. had operated a moulding plant at Prineville, Oregon four or five years at the time of the inspection in May of 1972. It employed twenty-six to twenty-eight people manufacturing lineal pine moulding.

As is true of all other moulding manufacturing operations in the region (the managers of two others testified in this case) the type of saw used by Respondent is the only one used for the particular operation described in trimming moulding. The three plant managers with experience of thirty, twenty and twenty years respectively knew of no other method used in the lumber industry anywhere to trim lineal moulding; except in small operations where speed of operation is not important.

Prineville Mouldings, as have a number of other operators, has tried various types of guards for the trim saws. Their experiments have gone farther than, for example, those of Consolidated Pine.

Using a guard which complied with the standard they are charged with violating, with the blade of the trim saws completely covered, one moulding machine operated for several shifts to determine the effect on production. It was reduced from an average of about 8,000 lineal feet per shift to 6,000 lineal feet per shift. This decrease in production, along with other factors such as a large amount of damaged and wasted moulding, made this operation economically impossible.

Respondent had also constructed a guard for the grading tables and trim saws which was in use at the time of the hearing. It was not described in detail but was stated to be made of welded rebar made into a ‘cage’ around the table and saws in such a manner it would be impossible for anyone to come in contact with the offending saws.

Eugene Moorman is manager of Respondent. It was his opinion—shared by the others—that the standard in question does not apply to the trim saws Respondent uses. Referring to the Federal Register handed him and containing the standard, he testified:

Q. Had you read those before?

A. Yes, I read them, but I couldn’t comprehend.

Q When you read them, did you believe that they applied to trim saws?

A. No.

Q Why not?

A Well, when I read that one, it applied to a table saw or a hand-fed table saw, which is—well, you feed it by hand, directly into the saw. (TR 75)

At another point in his testimony is the following on Cross Examination:

Q. The word ‘trim’, that is kind of a local word, isn’t it, sir?

A. Well, it’s not a local word. It’s throughout the industry.

Q. I understand, but it just trims the material?

A. That’s right.

Q. Now, with reference—when you say ‘throughout the industry’, by the way, you meant the moulding industry?

A. Right. The lumber industry.

Q. Pardon me?

A. It’s a term used throughout the lumber industry.

Q. Anything that trims materials is a trim saw?

A. Right.

Q. It is not a manufacturer’s term; it is not a special term that has any meaning, it just does a function of trimming, correct?

A. When you—if you specified—if you ordered a saw, for example, and you—I don’t care what manufacturer you ordered it from and you ordered a trim saw, this is what he would specify which type trim saw. He wouldn’t say ‘Well’—he would know immediately you need a trim saw. All you have to do is specify which type trim saw. (TR 84)

On pages 93 and 94 of the transcript may be found a reasonably knowledgeable explanation of a ‘hand-fed’ saw by Mr. Moorman.

Q. When you were first reading it and even up until today, did you regard that trim saw as a hand-fed saw?

A. No, not really.

Q. Normally, to you, when you think of a hand-fed saw, what type of saw are you thinking of?

A. I am thinking of a table saw, which is a saw that is used—it is on a table, maybe 4 feet square.

Q. Where you actually push the material into?

A. The material is fed actually into the saw by hand and into the saw itself by hand.

Again we come to the problem of construing the language of the standard. If the trim saws of Respondent are contemplated by this language as ‘hand-fed crosscut table saws’ within the guarding requirements for ‘woodworking machinery,’ then they must be:

1. woodworking machinery

2. table saws

3. crosscut saws

4. circular saws

5. hand-fed

As was stated above, the holding here is the standard does not contemplate the trim saws of Respondent because they are not hand-fed.

The language of the regulation will be construed most strongly in favor of one charged with a breach of a duty imposed by it—in this case Respondent. A further reason for construing the language in this manner is the fact that the statute here involved is in derogation of common law and creates new duties on the part of employers, including Respondent. Thus the wording will be construed most strongly ‘In favor of those against whom such statutes may be employed.’ 50 Am. Jur. States., Sec. 402, p. 425. If there is an ambiguity as to the meaning of the word ‘hand-fed’ then the Secretary cannot prevail.

We should refer again to the uniform holding of all courts that unless a contrary intention appears from the context, words will be given their ordinary, every day accepted meaning. The plain, simple, direct inference from the words ‘hand-fed crosscut table saws’ is that the hands of the workmen are endangered and exposed to the saws—and that the ‘feeding’ is direct control from close proximity, in the immediate area.

It is within common knowledge that many types of saws, particularly in the woodworking industry, are fed directly by hand. Here the grader or trim saw operator has at least one hand on a length of newly formed moulding when its ends are trimmed by one or both of the saws at the table where he works. He is not in the position of one feeding the material directly to the saw where the machine guard required is installed for his benefit. The workman operating a ‘hand-fed’ saw is within reach of it, and is in immediate and direct danger of injury from the hazard the guard seeks to eliminate.

Another basis might be assigned for this holding, although it need not be. It might be argued that there is involved here a technical or specialized field of knowledge—the lumber—or perhaps the moulding manufacturing, industry. Applicable to it are certain safety standards, set in the same framework of specialized knowledge. Then in context the words ‘Hand-fed crosscut table saws’ do not have their usual, ordinary, accepted meaning. Rather, they have a meaning within the specialized field of knowledge.

If this be so, then opinion evidence is proper to aid the trier of the fact (Rule 702, Federal Rules of Evidence). Eugene Moorman qualified quite adequately as an expert in the field. His opinion is that Respondent’s trim saws are not ‘Hand-fed crosscut table saws’ covered by the standard.

His opinion is clear, complete, reasonable; and is accepted. And there is no evidence to the contrary.

It should be noted here—as in the Consolidated Pine case—that this is not a holding that the trim saws were adequately guarded. It is not a holding that persons passing the trim saws were not exposed to some danger from them. It is a holding that the standard Respondent is charged with violating does not contemplate the trim saws Respondent operated.

Although it is in no way responsible for this holding, it is interesting to note that if a contrary result had been reached, it would then be necessary to decide whether the Secretary violated his statutory duty. A ‘national consensus standard’ was adopted, with mandatory application to all machinery defined therein, when the ANSI woodworking machinery standard stated at its beginning:

Note: It is recognized that the standards for saw guards in 4.1 are not perfectly applicable to all operations for which saws are used. The standards given are those which woodworkers have agreed are most generally useful. Since there are a considerable number of cases not satisfactorily met by these standards, the enforcing authority should exercise rather wide latitude in allowing the use of other devices which give promise of affording adequate protection. It may be expected that by so doing further progress in saw guarding will be encouraged.

The precautions of limited applicability were not adopted by the Secretary. It is conceivable that because of statutory language he could not adopt them.

Many interesting questions ‘leap out’ of the quoted language without study. Did this precautionary and limiting head note actually defeat any claim the ANSI standard had to being a ‘national consensus standard?’ Did the Secretary exceed his statutory duty in adopting the standard as a ‘national consensus standard?’ Did he have a right to limit its application as did the people who complied it? If he had such a right, what is the effect of his failing to do so? Is the standard void as adopted?

These are more interesting questions than those faced in the actual decision of the case. It is unfortunate they are moot.

Disposition must be made of the two items constituting alleged non-serious violations. As to Item 2, although there is testimony of the necessity of leaving the covers off the holes in question to prevent the piling up of scrap wood, this is minimized considerably by the fact that other testimony shows that all violations charged except for the guarding of the trim saws had been corrected before the hearing. Whatever the difficulty may have been it was removed. A preponderance of the evidence shows the violation was proved.

Item 6 presents a more difficult problem, but only because of the complexity of studying the requirements of 29 CFR 1910.219. It is sufficient to say that a careful review of the evidence fails to reveal sufficient proof to show a violation of any of the multiple provisions regarding guarding requirements for mechanical power transmission apparatus. The evidence lacks sufficient particularity and detail as to each belt, pulley, gear, chain drive and the flywheel. This item of the Citation must therefore be vacated along with its proposed penalty.

Based upon a review of the entire record, the undersigned makes the following.

FINDINGS OF FACT

I

Prineville Mouldings, Inc. on all dates mentioned operated a lineal pine moulding manufacturing plant at Prineville, Oregon employing twenty-six to twenty-eight people. It had been in this business in this location four to five years when it was inspected on May 17, 1972 by a representative of the Secretary acting under Section 8 of the Occupational Safety and Health Act of 1970, supra. This inspection resulted in the issuance June 12, 1972 of Citations on which there are contests on a Citation for Serious Violation in the operation of trim saws in Respondent’s plant, and Citation, Item 2, for failure to guard a floor opening and Item 6, for failure to guard mechanical power transmission apparatus.

II

After notice of contest as to these items, issues were joined by Complaint and Answer and the case was heard in Prineville, Oregon on September 7, 1972. There was full compliance with all procedural rules with respect to notice to prospective additional parties and none appeared.

III

On May 17, 1972, Respondent at its plant at Prineville, Oregon did not operate hand-fed crosscut table saws.

IV

On May 17, 1972, Respondent left off covers from floor openings leading to its conveyor, which in turn led to the chipper, in violation of 29 CFR 1910.23(a)(5). Twenty-five dollars is a reasonable penalty for this violation.

V

The Secretary failed to prove by a preponderance of the evidence that on the date alleged Respondent was in violation of 29 CFR 1910.213(a)(9) in failing to guard mechanical power transmission apparatus.

Based upon the foregoing findings and upon all facts admitted, stipulated or proved by uncontroverted substantial credible relevant evidence, the undersigned makes the following

CONCLUSIONS OF LAW

I

On the dates alleged and named in the foregoing Findings of Fact, the Respondent was not in violation of 29 CFR 1910.213(a)(1) for failing to guard hand-fed crosscut table saws within the contemplation of the standard in question. Respondent is entitled to an order dismissing the Complaint as to this alleged violation and vacating the Citation and proposed penalty.

II

On the date alleged and mentioned in the foregoing findings, Respondent was in violation of 29 CFR 1910.23(a)(5) for failure to guard floor openings by leaving the covers thereof off the openings leading to a conveyor, which in turn led to the chipper at the plant. Twenty-five dollars should be assessed for this violation.

III

On the date alleged, Respondent was not in violation of 29 CFR 1910.213(a)(9) for failure to provide guards required for mechanical power transmission apparatus to any woodworking machinery it maintained at its Prineville, Oregon plant. Respondent is entitled to an order dismissing the Complaint as to this item of the Citation and vacating the Citation and proposed penalty.

ORDER

Based upon the foregoing, it is hereby ORDERED

I

The Citation for Serious Violation issued by the Secretary June 12, 1972 naming the Respondent therein and alleging a violation of 29 CFR 1910.213(d)(1) for failure to guard hand-fed crosscut table saws be and the same hereby is vacated. The proposed penalty in the amount of $550.00 in connection with this Citation is likewise vacated. The allegations of the Complaint of the Secretary alleging this violation are dismissed.

II

As to the allegations of the Citation issued by the Secretary June 12, 1972 naming therein the Respondent and its operation of a moulding plant at Prineville, Oregon, the following disposition is made:

(a) Item 2 of the Citation alleging a violation of 29 CFR 1910.23(a)(5) for failing to guard a floor opening by leaving a cover off the opening is affirmed and the proposed penalty in the amount of $25.00 is affirmed.

(b) Item 6 alleging a violation of 29 CFR 1910.213(a)(9) for failing to guard woodworking machinery of Respondent in the manner required for guarding of mechanical power transmission apparatus be and the same hereby is vacated. The proposed penalty in the amount of $65.00—amended by the proof to $55.00—be and the same hereby is vacated.