TROXELS, INC.
OSHRC Docket No. 3244
Occupational Safety and Health Review Commission
November 12, 1974
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Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: CLEARY
OPINION:
CLEARY, COMMISSIONER: A decision of Judge Harold A. Kennedy is before this Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (2. U.S.C. § 651 et seq., hereinafter "the Act"). Judge Kennedy found the respondent in serious violation of section 5(a)(2) of the Act for its failure to comply with the standards published at 29 CFR § 1910.213(d)(1), 29 CFR § 1910.213(h)(1), and 29 CFR § 1910.213(r)(1). He assessed a total penalty of $450. Judge Kennedy also vacated the citation and proposed penalty for the respondent's alleged non-compliance with the standard published at 29 CFR § 1910.213(m) based upon the Secretary of Labor's failure to establish the violation.
Having examined the record in its entirety, the Commission finds no prejudicial error. In addition, the Secretary of Labor has withdrawn any exceptions he may have had to Judge Kennedy's decision, and none was filed by respondent. Accordingly, the Judge's decision is affirmed.
[The Judge's decision referred to herein follows]
KENNEDY, JUDGE: On April 30, 1973, Robert D. Langager, a compliance officer [*2] in the employ of the Complainant Secretary of Labor, conducted an inspection under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq. ) of the Respondent Employer's workplace, referred to as "cabinet manufacturing operation," at Troutdale, Oregon. As a result of that inspection, the Secretary on June 1, 1973, issued three "serious" n1 citations, designated Citation for Serious Violation No. 1, Citation for Serious Violation No. 2 and Citation for Serious Violation No. 3, n2 charging Respondent with violating the Act by failing to comply with occupational safety and health standards promulgated under the Act. n3 Also, on June 1, 1973 the Secretary issued a notice proposing a penalty of $850 for each of the alleged serious violations.
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n1 Section 17(k) of the Act provides that "a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."
n2 The Secretary also issued a non-serious citation, alleging violation of 29 CFR 1910.213(r)(4), but it was withdrawn, along with the $40 proposed penalty therefor, at the hearing (Tr. 11-13).
n3 Section 5(a)(2) of the Act provides that each covered employer "shall comply with occupational safety and health standards promulgated under this Act." Section 6 authorizes the Secretary to promulgate such standards.
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Respondent invoked the jurisdiction of the Commission as provided in Section 10 of the Act by timely contesting the citations and the proposed penalties therefor. The Secretary's citations prescribed abatement of all the alleged violatins by July 2, 1973, but none of the abatement dates are in issue in this proceeding. n4
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n4 The Secretary directed that one alleged violation (29 CFR 1910.213(d)(1)) be abated by June 18, 1973.
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Complaint and answer were filed by the parties, and, thereafter, a hearing was held in Portland, Oregon on October 25, 1973. The Secretary and Respondent were represented by counsel. Respondent's employees were not organized, and none appeared at the hearing. Mr. Langager, the inspecting compliance officer, testified for the Secretary, and Mr. Donald Lloyd Bennett, president and owner (with his wife) of Respondent, testified for it.
Citation for Serious Violation No. 1 alleges violation of two standards. The [*4] first standard, appearing at 29 CFR 1910.213(d)(1), was allegedly violated as follows:
Two crosscut table saws located in the Maintenance Area at the west side of the plant are not provided with a hood which encloses the saw blade above the table.
1) Powermatic 10" saw
2) DeWalt saw, Serial #394663
The second standard cited, 29 CFR 1910.213(h)(1), was allegedly violated with respect to three saws as follows:
Two radial arm saws in the postform Department and one radial arm saw in the Maintenance Department are not provided with guards at the lower portion of the saw blades.
1) Old radial arm saw located on the east wall of the Postform Department.
2) A DeWalt 10" Builders radial arm saw located in the Postform Department.
3) A DeWalt Black & Decker radial arm saw in the Maintenance Department, Serial #2270066.
The above 5 instances of failure to guard saws, any one of which could alone be considered serious, have been grouped for citation and penalty purposes to form this one alleged Serious Violation.
The cited standards (29 CFR 1910.213(d)(1) and 1910.213(h)(1) read as follows:
(d) Hand-fed crosscut table saws. (1) Each circular crosscut table saw shall [*5] be guarded by a hood which shall meet all the requirements of paragraph (c)(1) of this section for hoods for circular ripsaws. n5
(h) Radial saws. (1) The upper hood shall completely enclose the upper portion of the blade down to a point that will include the end of the saw arbor. The upper hood shall be constructed in such a manner and of such material that it will protect the operator from flying splinters, broken saw teeth, etc., and will deflect sawdust away from the operator. The sides of the lower exposed portion of the blade shall be guarded to the full diameter of the blade by a device that will automatically adjust itself to the thickness of the stock and remain in contact with stock being cut to give maximum protection possible for the operation being performed.
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n5 Section 213(c)(1) provides: Each circular hand-fed ripsaw shall be guarded by a hood which shall completely enclose that portion of the saw above the table and that portion of the saw above the material being cut. The hood and mounting shall be arranged so that the hood will automatically adjust itself to the thickness of and remain in contact with the material being cut but it shall not offer any considerable resistance to insertion of material to saw or to passage of the material being sawed. The hood shall be made of adequate strength to resist blows and strains incidental to reasonable operation, adjusting, and handling, and shall be so designed as to protect the operator from flying splinters and broken saw teeth. It shall be made of material that is soft enough so that it will be unlikely to cause tooth breakage. The material should not shatter when broken, should be nonexplosive, and should be no more flammable than wood. The hood shall be so mounted as to insure that its operation will be positive, reliable, and in true alignment with the saw; and the mounting shall be adequate in strength to resist any reasonable side thrust or other force tending to throw it out of line.
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Citation for Serious Violation No. 2 alleges violation of 29 CFR 1910.213(m) in the following language:
Two wood shapers, located in the Maintenance Area, are not provided with adequate guards which enclose the cutting heads on each machine.
1) Rockwell heavy duty shaper, Serial #FF-7703
2) Shaper with two hand clamps, Serial #31-3254
The above 2 instances of failure to adequately guard wood shapers, either one of which could alone be considered serious, have been grouped for citation and penalty purposes to form this one alleged Serious Violation.
The cited standard reads as follows:
(m) Wood shapers and similar equipment.
(1) The cutting heads of each wood shaper, hand-fed panel raiser, or other similar machine not automatically fed, shall be enclosed with a cage or adjustable guard so designed as to keep the operator's hand away from the cutting edge. The diameter of circular shaper guards shall be not less than the greatest diameter of the cutter. In no case shall a warning device of leather or other material attached to the spindle be acceptable.
(2) Cylindrical heads should [*7] be used whenever the nature of the work will permit. Single cutter knives in shaper heads shall not be used unless properly balanced.
(3) All double-spindle shapers shall be provided with a spindle starting and stopping device for each spindle.
Citation for Serious Violation No. 3 alleges violation of 29 CFR 1910.213(r)(1) as follows:
The feed rolls of a Black Brothers glue spreader, Series 875, Serial #52974, were not provided with a guard to keep employees from coming in contact with the rolls.
The cited standard reads:
(r) Miscellaneous woodworking machines.
(1) The feed rolls of roll type glue spreaders shall be guarded by a semi-cylindrical guard. The bottom of the guard shall come to within three-eighths inch of a plane formed by bottom or contact face of the feed roll where it touches the stock.
FINDINGS OF FACT
A. Jurisdiction and the Business of Respondent
There is no issue of jurisdiction in the case. The complaint alleges that Respondent is a corporation maintaining a place of business and employment at Troutdale, Oregon, for the production and distribution, including sales outside of Oregon, of countertops and other products. Respondent [*8] admits these averments in its answer, and such allegations, accordingly, are found to be the facts. The complaint, in addition, pleads that Respondent is engaged in a business affecting commerce within the meaning of Section 3 of the Act, and this allegation is also admitted.
President Bennett testified that Respondent manufactures Formica countertops and cabinetry, primarily for use in residential construction. Respondent moved to its present location, a former "wool pullery" or hide factory, in August 1972 and has been in the process of updating its operation since that time (Tr. 77-8).
Respondent grossed approximately $487,000 during the first nine months of 1973, but actually suffered a net loss ($24,391) during that period. The number of its employees fluctuates, but it is, in general, on the decline. On the day of the inspection there were approximately 23 employees. See Tr. 77, 93-101, 107-8.
B. The Proof and Findings on the Charges
(1) As to Citation for Serious Violation No. 1
The first serious citation alleges that two cross-cut table saws, one Powermatic 10" and one DeWalt, did not have hoods enclosing their blades above the table as required by section 213(d)(1). [*9] There are in evidence photographs of the Powermatic (SX 1) and the DeWalt (SX 2) table saws (Tr. 14-15). It was stipulated at the hearing that the facts are as alleged in the complaint with respect to this charge (Tr. 19-20). Inspector Langager said he was told during the inspection that both saws were in use. He said he saw an employee place his hands within 12 to 18 inches of the Powermatic saw blade, and he felt that it was possible that both saws could produce a serious cut, amputation or broken bones (Tr. 26-8). On cross-examination, he agreed that an operator of the Powermatic saw used a guide in operating it, and that the employee's distance from the saw afforded some protection; also that the operator would come into contact with the saw only by leaning into it from the front (Tr. 61-3).
President Bennett testified on defense that both of Respondent's table saws have been replaced with newer equipment (purchased before the inspection) which is properly guarded (Tr. 79-81).
Photographs are also in evidence of the three radial arm saws also subject of the first "serious" citation: SXs 3 and 4 -- "old" radial arm saw; SX 5 -- DeWalt 10" Builder; and SXs 6 and [*10] 7 -- DeWalt Black & Decker (Tr. 16-17). It was further stipulated that the radial arm saws did not have lower guards, and that no further proof on this issue involving Section 213(h)(1) was needed (Tr. 20). Inspector Langager stated during his testimony, however, that he observed the Black & Decker saw in operation and that a representative of Respondent (Nelson) advised that the other two radial saws were in use. Again, the compliance officer felt that the unguarded lower blades on these saws could result in a serious cut, amputation or broken bones (Tr. 28-31).
During his testimony, Mr. Bennett explained that the "old" radial saw is no longer in use, that the Black & Decker saw is now guarded and that guards have been ordered for the DeWalt Builders radial saw (Tr. 82-5, RXs 2 and 3).
The stipulated facts, as well as the evidence of record dealing with the first serious citation, compel the conclusion that Respondent violated Sections 213(d)(1) and 213(h)(1). Respondent does not really deny that its two cross-cut table saws and its three radial arm saws were not guarded as required. It does deny, however, that the lack of guards on the saws constituted a serious violation [*11] under Section 17(k) of the Act, pointing out that an accident was unlikely in view of the conditions under which the saws were used. The difficulty with Respondent's position is the manner in which the Commission has interpreted Section 17(k). According to the Commission, the words "a substantial probability that death or serious physical harm could result" as used in Section 17(k), look to the extent of injury and not to the possibility of an accident occurring. With respect to the chances of an accident, the Commission has said it is enough if it is "simply possible." Natkin and Company, Mechanical Contractors, Docket 401, dated April 27, 1973. See also Crescent Wharf and Warehouse Company, Docket 1, dated April 27, 1973; Standard Glass & Supply Company, Docket 585, dated April 27, 1973; Portland Stevedoring Company, Docket 5, dated July 25, 1973; and Emory H. Mixon, Docket 403, dated December 11, 1973. In view of these decisions and the proof that Respondent's saws could result in substantial injury, it must be concluded that the violation was "serious". n6
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n6 For a violation to be serious the employer, of course, must "know of the presence of the violation" or have reason to know of it. See Natkin and Company, supra; Tr. 70-2.
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B. As to Citation for Serious Violation No. 2
The second serious citation alleges that two wood shapers were not guarded adequately to comply with Section 213(m) of the Secretary's regulations. One shaper, referred to as a Rockwell heavy duty shaper, is shown in the photographs in evidence as Secretary's Exhibits 8 (on the right) and 9. The "other" shaper, equipped with two hand clamps, is shown in Secretary's Exhibit 10 (Tr. 17-18). No facts were stipulated with respect to the shapers (Tr. 21-2).
Compliance Officer Langager testified that he did not see either of the shapers in operation but observed that they had no caged or barrier type guards. The Rockwell shaper had, he said, a cover made of four pieces of wood glued together, and that the other shaper had a similar "guard," which he once referred to as a "wooden cage" (Tr. 37-8). He recalled that Respondent's representative (Nelson) had told him that a state inspector (Beach) had investigated an accident involving one of the shapers, and had found the guarding to be sufficient. He said he did not know whether the wood cover on the [*13] Rockwell shaper was "adjustable" or not. According to Mr. Langager, the shapers were more dangerous than Respondent's saws; he felt that the "partial" (Tr. 57) guards on the shapers would permit the fingers of an operator to enter openings (estimated by him from 1" to 4" (Tr. 58-60, 69) and come into contact with the knives on the shapers (Tr. 31-40, 57-60, 68-71).
According to Respondent's president, Mr. Bennett, both shapers are effectively guarded. The Rockwell shaper is power fed, he said, and "there is no way that a person could get their hands in that equipment" (Tr. 87). He indicated that the other shaper with clamps presented more of a problem, but it was still adequately guarded. Mr. Bennett acknowledged that an employee had lost at least two fingers in an inexplicable accident involving the shaper with clamps. "No one knows how it occurred" ("evidently he didn't have it clamped, or something," Tr. 102-103), and the State never questioned the adequacy of the guarding. See Tr. 85-9, 101-7.
It is impossible to find from this record that either of Respondent's shapers was inadequately guarded. The Rockwell shaper is automatically fed, and the shaper with two [*14] clamps appears to be of the same type. Section 213(m), by its terms, does not apply to such machines. The Secretary did not carry the burden of proof in this respect, and the second serious citation must be dismissed.
C. As to Citation for Serious Violation No. 3
Section 213(r)(1) provides that feed rolls of a glue spreader are to be guarded by a semi-cylindrical guard, properly fitted. It was stipulated that the feed rolls on Respondent's Black Brothers spreader were not provided with a guard to keep employees from coming into contact with the rolls (Tr. 21).
Compliance Officer Langager thought an employee could suffer crushed fingers in feeding the glue spreader, although he did not actually observe the spreader in operation. He understood that the glue spreader was used only every other day or so. Respondent's representative, Mr. Nelson, acknowledged to him, he said, that glue spreaders presented a "serious situation . . . and that these rolls could pull a man's body into them" (Tr. 42). See Tr. 40-2, 63.
President Bennett explained that if a person were to put his hands next to the glue spreader "it would really tear them to pieces" (Tr. 90). An OSHA guard was added [*15] to the spreader after the inspection, but Mr. Bennett felt that it was "worthless" because a person could still put his hand inside and sustain injury (Tr. 91). However, employees stand only within four feet on one side and eight feet on the other and use a grappling hook in picking up sheets that are fed through the rollers. See Tr. 89-93; RX 4.
The cited standard was shown to be applicable to Respondent's glue spreader, and it was not guarded as required. Thus, a violation of Section 213(r)(1) was established.
The gravity of the violation was not great: the spreader is not used continuously, and the nearest employee worked no closer than four feet from it. However, as pointed out, supra, the test of a violation being serious, under decisions of the Commission, is not the chance of an accident but the type of injury that would occur if one occurred. Since substantial injury could occur, the violation was a "serious" one.
PENALTY
Consideration must be given to whether any penalty should be assessed for the violation of Sections 213(d)(1) and 213(h)(1), subject of Citation for Serious Violation No. 1, as well as violation of Section 213(r)(1). In determining [*16] any civil assessment under the Act, the gravity of the violation and Respondent's good faith, size and history must be taken into account. See Section 17(j) of the Act; also Aro, Inc., Docket 465, dated December 27, 1973, and cases cited therein.
As in other cases coming before the Commission (see for example Aro, Inc., supra, Nacirema Operating Co., Inc., Docket No. 4, dated February 7, 1972) the Secretary did not consider the gravity of any of the alleged violations. The gravity of each violation was certainly not more than moderate because the circumstances in each do not suggest that the occurrence of an injury was likely. There was a minimum of employee exposure. The glue spreader operated only part of the time, so the duration of the violation of Section 213(r)(1) was even less than the violation involving the saws.
Respondent had 23 employees on the day of the inspection, but its unprofitable financial status forbids assessment of any severe penalty. There is no credible evidence reflecting on Respondent's "history," so it is entitled to a "high mark" on this factor. n7 The Secretary denied Respondent any credit on the good faith factor because Respondent had [*17] sought to delay the Secretary's inspection. Respondent's initial refusal to permit entry on Respondent's workplace by the compliance officer may not be entirely justifiable, but the record as a whole does indicate Respondent is an employer committed to furnishing its employees with a safe and healthful workplace. Having considered all of the statutory criteria, it is determined that it is appropriate to assess a total penalty of $450, a penalty of $250 for Citation for Serious Violation No. 1 and a penalty of $200 for Citation for Serious Violation No. 2.
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n7 The compliance officer stated that in considering an employer's history, the Secretary takes into account what "other Federal Agencies or other State Agencies" (Tr. 45) find, but this is not in accord with my interpretation of Section 17(j). The compliance officer explained how the proposed penalty was computed at pp 42-47, 52, 64-66, 73-74 of the transcript. See also Tr. 93, et seq.
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CONCLUSIONS OF LAW
Based on the foregoing, the following conclusions [*18] of law are entered:
1. Respondent is now, and at all times material herein, an "employer" engaged in a business affecting commerce within the meaning of Section 3 of the Act.
2. The Commission has jurisdiction over the parties and the subject matter of this proceeding.
3. The Secretary established violation of the occupational safety and health standards appearing at 29 CFR 1910.213(d)(1), 1910.213(h)(1), and 1910.213(r)(1), and that such violations were "serious" as defined in Section 17(k) of the Act.
4. A penalty of $250 is appropriate for the violation of 29 CFR 1910.213(d)(1) and 1910.213(h)(1).
5. A penalty of $200 is appropriate for the violation of 29 CFR 1910.213(r)(1).
6. The Secretary did not establish any violation of the occupational safety and health standard appearing at 29 CFR 1910.213(m).
ORDER
Based on the foregoing, it is ORDERED:
1. The Citation for Serious Violation No. 1 and the Citation for Serious Violation No. 3 are AFFIRMED.
2. The penalty proposed for Citation for Serious Violation No. 1 is vacated and in lieu thereof a penalty of $250 is ASSESSED.
3. The penalty proposed for Citation for Serious Violation No. 3 is vacated and [*19] in lieu thereof a penalty of $200 is ASSESSED.
4. The Citation for Serious Violation No. 2 and the penalty proposed therefor are VACATED.