Johnson Brothers Planing Mill, Inc.

Read the official release (oshrc.gov)

Plain-English summary

Johnson Brothers manufactured wood products using radial and table saws, sanding equipment, belt-driven machinery, and electrical equipment with several cited guarding or grounding deficiencies. The serious citation involved unguarded lower portions of two radial-saw blades and an unguarded homemade hand-fed table saw. The Commission upheld the woodworking-machine standards and rejected the employer's claims that the requirements were vague, impractical, or more hazardous than noncompliance. It affirmed the serious saw violation with a reduced $150 penalty. The remaining machine, sander, electrical, and radial-saw-stop violations were affirmed as nonserious without penalties.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.213(c)(1); 29 C.F.R. § 1910.213(h)(1); 29 C.F.R. § 1910.213(h)(3); 29 C.F.R. § 1910.213(p)(4); 29 C.F.R. § 1910.219(e)(1)(i); 29 C.F.R. § 1910.219(e)(3)(i); 29 C.F.R. § 1910.309(a)
• Outcome: The Commission affirmed the serious saw citation with a $150 penalty and affirmed the nonserious items without penalties.
• Key point: An employer must prove that required guards create hazards that clearly outweigh their protection before noncompliance can be excused.

Full text (OSHRC public release)

Docket No. 5933

JOHNSON BROTHERS PLANING MILL, INC.
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OSHRC Docket No. 5933

Occupational Safety and Health Review Commission

December 9, 1975

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[*1]
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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
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COUNSEL:

Altero D'Agostini, Regional Solicitor, USDOL

W. Brent Eames, for the employer

OPINION:

DECISION

BY THE COMMISSION:

In this case Administrative Law Judge Thomas J. Donegan affirmed Complainant's citations alleging that Respondent committed one serious and two nonserious violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. �
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651 et seq., hereinafter "the Act") by failing to comply with various provisions of 29 C.F.R. �
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1910.213. n1 The judge assessed a penalty of $150 for the serious violation and no penalties for the nonserious violations.

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n1 Specifically, the judge found Respondent in serious violation for failure to comply with paragraphs (c)(1) and (h)(1) of this standard, which respectively provide, in pertinent part, that "[e]ach 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" and that "[t]he sides of the lower exposed portion of the blade [of a radial saw] 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."

The judge found nonserious violations for Respondent's failure to comply with paragraphs (h)(3) and (p)(4) which respectively require that "[a]n adjustable stop shall be provided to prevent the forward travel of the blade [of a radial saw] beyond the position necessary to complete the cut in repetitive operations" and that "[b]elt sanding machines shall be provided with guards at each nip point where the sanding belt runs on to a pulley. . . ."

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• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

In its brief before the judge Respondent raised the same issue which we have since decided in Noblecraft Industries, Inc., Docket No. 3367 (11/21/75).
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We concluded that this standard had been validly adopted in accordance with the rulemaking provisions of the Act.
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In rejecting the defense in this case Judge Donegan properly anticipated our reasoning in Noblecraft. Moreover, on our review of the judge's decision Respondent filed no brief and did not otherwise present any argument to us concerning the validity issue.

We further conclude that Judge Donegan's disposition of the other issues before him is fully supported by the evidence of record and that his penalty assessment is appropriate for the reasons given by him.
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We also note that neither party takes exception to the assessment.
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Accordingly, the judge's decision is affirmed.
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DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

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occupational safety standards codified at 29 C.F.R. �
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1910.213 because those standards were improperly promulgated.

Since the foregoing opinion does not address all of the matters covered by Judge Donegan's decision, the same is attached hereto as Appendix A.

APPENDIX A

DECISION AND ORDER

Mildred L. Wheeler, Office of the Regional Solicitor, U.S. Department of Labor, for the complainant

W. Brent Eames, for the respondent

Donegan, Judge, OSAHRC: This is a proceeding pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act.)

The Respondent was engaged in millwork (manufacture of wood products) at Idaho Falls, Idaho on December 11, 1973, when this place of employment was inspected by an OSHA compliance officer.

As a result of this inspection the Complainant issued to the Respondent on December 18, 1973, a citation number 1 for five items of alleged non-serious violations, a citation number 2 for an alleged serious violation consisting of two items, and a notification of proposed penalty.

The Respondent timely contested the citations and the notification of proposed penalty.

The [*4]
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alleged violations, abatement dates, proposed penalties and standards allegedly violated are as follows:

Citation number 1 (non-serious):

Item

Description of

Abatement

Proposed

Standard allegedly

Number

alleged violation

Date

Penalty

violated

1

The vertical

1/21/74

None

29 CFR 1910.219(e)(3)(i)

mechanical power

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1910.219 Mechanical power-

transmission,

transmission apparatus.

belt drive on the

(e) Belt, rope, and chain

Dowler machine

drives.

was not enclosed

(3) Vertical and inclined belts.

by a guard.

(i) Vertical and inclined belts

shall be enclosed by a guard

Amended in

conforming to standards in

Complaint

paragraphs (m) and (o) of this

to read:

section.

Failure to enclose

See Appendix A for

the vertical

paragraphs (m) and (o) of

mechanical power

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1910.219.

transmission belt

drive on the Dowler

machine by a

guard.

2

The horizontal

1/21/74

$25.00

29 CFR 219(e)(l)(i)

power

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1910.219 Mechanical power-

transmission,

transmission apparatus.

belt drives, on

(e) Belt, rope, and chain

the following

drives.

equipment were not

(l) Horizontal belts and

enclosed by a

ropes.

guard:

(i) Where both runs of hori-

1) The belt drive

zontal belts are seven (7)

of brush sander.

feet or less from the floor

2) The rear portion

level, the guard shall extend

of the belt

to at least fifteen (15)

drive on Delta

inches above the belt or to a

drill press.

standard height (see Table

0-12), except that where both

Amended in

runs of a horizontal belt are

Complaint

42 inches or less from the

to read:

floor, the belt shall be fully

enclosed in accordance with

Failure to enclose

paragraphs (m) and (o) of

the horizontal

this section.

power transmission

belt drive which

was 7 feet or less

from the floor

level, by a guard

on the following

equipment.

(1) The belt drive

of brush sander;

(2) The rear

portion of

the belt

drive on the Delta

drill press.

3

1) The non-current

1/21/74

None

29 CFR 1910.309(a)

carrying metal

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1910.309 National

parts of the Dowler

Electrical Code.

motor were not

grounded (2-prong

See Appendix B for

plug) which is

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1910.309.

contrary to Article

250-42, National

Electrical Code,

NFPA 70-1971;

ANSI Cl-1971.

Amended in

Complaint

to read:

Failure to ground:

(1) The

non-current

carrying

metal parts of the

Dowler motor,

contrary to

Article 250-42,

National Electric

Code, NFPA

70-1971: ANSI

Cl-1971:

(2) The

non-current

carrying

metal parts of

the Rockwell

portable sander,

contrary to

Article 250-45(d)

(3), National

Electric Code, NFPA

70-1971; ANSI

Cl-1971.

4

The Beech belt

1/21/74

$30.00

29 CFR 1910.213(p)(4)

sander was not

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1910.213 Woodworking

provided with

machinery requirements.

guards at

(p) Sanding machines.

each nip

(4) Belt sanding machines

point where the

shall be provided with guards

sanding belt runs

at each nip point where the

on to the pulleys.

sanding belt runs on to a

pulley.
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These guards shall

Amended in

effectively prevent the hands

Complaint

or fingers of the operator from

to read:

coming in contact with the nip

points.
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The unused run of the

Failure to provide

sanding belt shall be guarded

the Beech belt

against accidental contact.

sander with guards

at each nip point

where the sanding

belt runs

to a pulley.

5

The blade of the

1/21/74

None

29 CFR 1910.213(h)(3)

Dewalt radial

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1910.213 Woodworking

arm saw extended

machinery requirements.

approximately

(h) Radial saws.

6" beyond the end

(3) An adjustable stop shall be

of the cutting

provided to prevent the forward

table.

travel of the blade beyond the

position necessary to complete

Amended in

the cut in repetitive

Complaint

operations.

to read:

Failure to provide

an adjustable

stop to prevent the

forward travel

of the blade of the

Dewalt radial

arm saw beyond

the position

necessary

to complete the cut

in repetitive

operation.

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Citation number 2 (serious):

Item

Description of

Abatement

Proposed

Standard allegedly

Number

alleged violation

Date

Penalty

violated

1

The sides of the

2/28/74

$500

29 CFR 1910.213(h)(l)

lower exposed

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1910.213 Woodworking

portion of the

machinery requirements.

blades on

(h) Radial saws.

the Delta

(1) The upper hood shall

990 and Dewalt

completely enclose the upper

radial arm

portion of the blade down to a

saws in

point that will include the end

use in the plant

of the saw arbor.
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The upper

were not guarded

hood shall be constructed

to the full

in such a manner

diameter of

and of such material that it

the blade

will protect the

by a device that

operator from flying

automatically

splinters, broken saw teeth

adjusts itself

etc., and will

to the

deflect sawdust away

thickness of

from the operator.

the stock

The sides of the lower exposed

being cut.

portion of the blade shall be

guarded to the full diameter of

Amended in

the blade by a device that will

Complaint

automatically adjust itself to

to read:

the thickness of the stock and

remain in contact with stock

Failure to guard

being cut to give maximum pro-

the sides of the

tection possible for the

lower exposed

operation being performed.

portion of

the blades

of the Delta

990 and

Dewalt radial

arm saws to

the full

diameter of the

blade by a device

that will auto-

matically 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.

2

The home-made

2/28/74

29 CFR 1910.213(c)(l)

table saw being

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1910.213 Woodworking

used in the plant

machinery requirements.

was not

(c) Hand-fed ripsaws.

guarded by an

(1) Each circular hand-fed

automatically

ripsaw shall be guarded by a

adjusted hood

hood which shall completely

which completely

enclose that portion of the saw

enclosed the upper

above the table and that portion

portion of the

of the saw above the material

saw blade above the

being cut.
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The hood and

table and the

mounting shall be arranged

portion of the saw

so that the hood will

blade above

will automatically adjust itself

the material

to the thickness of and remain

being cut.

in contact with the material

being cut but it shall

THE ABOVE TWO (2)

not offer any considerable

INSTANCES OF

resistance to insertion

FAILURE TO GUARD

of material to saw or to

WOOD WORKING

passage of the material

EQUIPMENT, EITHER

being sawed. The hood

OF WHICH COULD

shall be made of adequate

ALONE BE CONSIDERED

strength to resist blows and

SERIOUS, HAVE

strains incidental to

BEEN GROUPED FOR

reasonable operation, adjusting,

CITATION AND

and handling, and shall

PENALTY PURPOSES

be so designed as to

TO FORM THIS ONE

protect the operator from

ALLEGED SERIOUS

flying splinters and broken

CITATION.

saw teeth. It shall be

made of material that is

Amended in

soft enough so that it

Complaint

will be unlikely to

to read:

cause tooth breakage. The

maerial should not shatter

Failure to guard

when broke, should be

each circular

nonexplosive, and should be

handfed ripsaw by

no more flammable than

a hood which

wood. The hood shall be

shall completely

so mounted as to insure

enclose that

that its operation will

portion of the saw

be positive, reliable, and

above the

in true alignment with

table and that

the saw; and the

portion of the

mounting shall be adequate

saw above the

in strength to resist

material being

any reasonable side thrust

cut, in that a

thrust or other force

homemade table

tending to throw it out of line.

saw of respondent

was not

guarded by

such a hood.

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The language of the complaint, describing the alleged violations, differs from the descriptions of the violations set forth in the citations.
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In support of these amendments, the Complainant asserts that the descriptions of the alleged violations in the complaint are more in conformity with the language of the cited standards.
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The Respondent does not take exception to the amendments and agrees that they do not involve substantial changes which prejudice the Respondent (T. 15).
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Accordingly, the amendments are allowed pursuant to Commission Rule of Procedure 33(a)(3).

The Respondent's answer denies the allegations of the complaint concerning the violations and proposed penalties, and in an affirmative defense raises an issue concerning constitutionality and the alleged vague and indefinite nature of the cited standards.

The answer alleges that the five items of citation number 1 had been abated prior to the prescribed abatement date (paragraph V), and that the Respondent had been unable to abate items 1 and 2 of citation number 2 (paragraph VI).

The parties submitted, at the opening of the hearing, a stipulation dated May 7, 1974 which was entered in the record (T. 4).

In the [*7]
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stipulation (paragraph 6) the respondent admits the non-serious violation alleged in item 5 of citation number 1.
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There was no penalty proposed for this violation (T. 6).

The Respondent agreed that the stipulation admits the facts and conditions of the alleged violations as described in the citations and complaint (T. 7-8).

The Respondent denied that the admitted facts and conditions involve violations of the cited standards or are indicative of the gravity and seriousness of these alleged violations, and does not admit that the proposed penalties are appropriate if a finding is made that the admitted facts and conditions constitute violations of the cited standards (T. 8-9).

No affected employees or representatives of affected employees have intervened or have elected to participate in this proceeding as a party.

The Complainant and the Respondent have submitted briefs in this case.

ISSUES AND FINDINGS

The Commission does not have jurisdiction to rule on the constitutional issues raised by the Respondent in the affirmative defense in the answer (paragraph IV). n1 The authority to make a determination on constitutional issues involving this Act initially rests with the
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United States Court of Appeals. n2

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n2 See: Beall Construction Company, Petitioner v. Occupational Safety and Health Review Commission, et al., Respondent's, No. 74-1297, December 18, 1974,    F.2d    (8th Cir. 1974).

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

The Respondent's affirmative defense that the standards applied in this case are vague and indefinite and do not have a reasonable relation to safety and health is not sustained by the substantial evidence of record.

The cited standards are concerned with guarding of mechanical power-transmission apparatus, woodworking machinery and electrical installations.
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The standards are not unenforceably vague. An employer of average intelligence is not required to guess as to the application and requirements of the standards.

The evidence does not sustain the Respondent's [*9]
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contention that the cited standards impose impossible or highly impractical guarding requirements when applied to the saws named in citation number two.

It may be that the application of the woodworking machinery requirements standard (29 CFR 1910.213) to the radial saws and the home-made table saw does not safeguard the operators of the saws in all instances; nevertheless, it is reasonable to conclude from the evidence that the required guarding does offer some protection to an employee who may be operating one of these saws.
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There is no support in this case for a finding that this protection to the employee is negated by the creation of hazards.

It may be that the Secretary could have done much better in accomplishing the purposes of the Act by promulgating a woodworking machinery requirement standard which would insure a greater degree of safety without the possibility of creating any hazards. But, in the absence of a showing by a preponderance of credible substantial evidence that the requirements of a standard creates unacceptable hazards, which clearly outweigh any possible degree of safety that is achieved; it is not in accord with the intent and purposes of the Act for [*10]
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this Judge to substitute his opinion for the presumed expertise and wisdom of the Secretary in adopting and promulgating the standard.

In his brief, which was submitted after the hearing was closed, the Attorney for the Respondent raises the issue as to whether the Secretary of Labor complied with the requirements of the Act when he adopted and promulgated the ANSI standards covering woodworking machinery. He contends that 29 CFR 1910.213(h)(1) is invalid and unenforceable becuase the Secretary deleted an essential headnote in adopting the national consensus standard.
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In support of this contention the Respondent refers to ten cases which were consolidated and in which the Judge held the ANSI headnote was an integral part of the standard. n3 The Commission has these cases under review and at the time of this writing has not issued a decision.

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -
• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

In a decision, n4 which became a final Commission [*11]
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decision, this Judge concluded, in substance, that the Act does not require the Secretary to literally, in every detail, adopt the ANSI standard.
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The Secretary is presumed to exercise wisdom and expertise in the exercise of his discretionary authority to adopt and promulgate safety and health standards.
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There has been no evidence offered in this case to overcome this presumption.

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -
• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

The stipulation admits, in substance, the facts and conditions of the alleged violations as described in the citations and complaint and in the absence of any credible substantial evidence in the record that conflicts with these admitted facts and conditions, it is concluded that on December 11, 1973, the Respondent was in violation of the standards cited in items 1, 2, 3 and 4 of citation number one for non-serious violations and of the standards cited in items 1 and 2 of citation number two for a serious violation.

In determining the gravity [*12]
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of these violations, the employee exposure as set forth in the stipulation, and the evidence of record concerning elements which would affect the degree of probability of the occurrence of an injury have been taken into consideration (T. 22, 39, 48, 56, 59, 65-68, 71, 74, 76, 98, 109, 112, 116, 117, 136-137, 155, 158).
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It is concluded that the non-serious violations (items 1, 2, 3 and 4) of citation number one and the serious violation (items 1 and 2) of citation number two are of a low degree of gravity.

The evidence sustains a finding that the violations set forth in items 1, 2, 3 and 4 of citation number one are not serious violations within the meaning of Section 17(k) of the Act. n5

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n5 Section 17(k) provides: "For purposes of this section, 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."

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• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

The violation involving items 1 and 2 of citation number two is found to be a serious violation since the Respondent knew of the violation (T. 75, 95, 98, 123).
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There was a substantial probability that serious physical harm could result if a part of the body (particularly a hand) of the operators of the two radial saws and the hand-made table saw came in contact with the revolving saw blade. The measure of the serious nature of this violation is not the probability that an accident would occur, but the existence of a substantial probability that serious physical harm would result if an accident should occur (T. 34-35, 38-39, 74, 180-181, 214).

The respondent was allowed full credit for good faith in the computation of the proposed penalties. The evidence of record supports a finding of the Respondent's good faith interest in safeguarding the safety and health of its employees (T. 39, 43, 75, 85, 92-96, 98, 114, 119).

The Respondent has no history of prior violations under the Act.

The Respondent's millwork shop is of average size for the Idaho Falls area.
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It was stipulated that there are nine
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[*14]
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employees working in this shop.
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The business grosses approximately $500,000 per year.

Penalties of $25 and $30 are proposed for the non-serious violations set forth in items 2 and 4 of citation number one.
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After considering the findings in this decision as to the low gravity of each of these violations, and the Respondent's good faith, size and history; it is concluded that no penalty should be assessed for each of these non-serious violations. n6

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n6 Section 17(j) provides: "The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations."

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

A penalty of $500 is proposed for the serious violation involving items 1 and 2 of citation number two.
�
From the findings in this decision as to the low gravity of this serious violation and the Respondent's good faith,
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[*15]
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size and history; it is concluded that $150 is an appropriate civil penalty for the serious violation involving the two radial saws and the home-made table saw.

There is no issue to be resolved as to the abatement dates in this case (T. 83, 86, 119).

CONCLUSIONS OF LAW

1.
�
The Respondent, Johnson Brothers Planing Mill, Inc., was at all times material to this proceeding an employer engaged in business affecting interstate commerce within the meaning of section 3 of the Act.

2.
�
The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter of this proceeding as provided in section 10 of the Act.

3.
�
The Occupational Safety and Health Review Commission does not have jurisdiction to rule on the constitutionality of the Act.

4.
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The place of employment maintained by the Respondent at Idaho Falls, Idaho was inspected by an authorized employee of the Secretary of Labor on December 11, 1973 in accordance with the requirements of section 8 of the Act.

5.
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The Respondent was in violation of section 5(a)(2) of the Act on December 11, 1973, as a result of not being in compliance, at its place of employment in Idaho Falls, Idaho with the [*16]
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following regulations and standards promulgated by the Secretary of Labor as provided in section 6 of the Act:

29 C.F.R. 1910.219(e)(3)(i)

29 C.F.R. 1910.219(e)(1)(i)

29 C.F.R. 1910.309(a)

29 C.F.R. 1910.213(p)(4)

29 C.F.R. 1910.213(h)(3)

29 C.F.R. 1910.213(h)(1)

29 C.F.R. 1910.213(c)(1)

6.
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The violation involving the two radial arm saws and the hand-made table saw was of a serious nature within the meaning of section 17(k) of the Act.

7.
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Civil penalties for the violation of section 5(a)(2) of the Act are assessed pursuant to section 17(j) of the Act as follows:

For the non-serious

violations of citation

number one

Item No. 1

None

Item No. 2

None

Item No. 3

None

Item No. 4

None

Item No. 5

None

For the serious

violation of citation

number two

Items No. 1 and 2

$150

�

ORDER

Based on the foregoing findings of fact and conclusions of law, it is ORDERED:

1.
�
That citations numbered one and two be, and are hereby affirmed.

2.
�
That the proposed penalties of $25 and $30 for the non-serious violations of items 2 and 4 of citation number one, and the proposed penalty of $500 for the serious violation of citation number two be, and are hereby [*17]
�
vacated.

3.
�
That no civil penalties be assessed for the non-serious violations of citation number one, and that a civil penalty of $150 be, and is hereby assessed for the serious violation of citation number two.

THOMAS J. DONEGAN, Judge, OSHARC

DATED: February 12, 1975

Seattle, Washington