OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
DEPARTMENT OF INDUSTRIAL RELATIONS
STATE OF CALIFORNIA
In the Matter of the Appeal of:
TERRY ROOF TRUSS
Docket No. 96-R4D3-288
The Occupational Safety and Health Appeals Board (Board), acting pursuant to the authority vested in it by the California Labor Code and having granted the petition for reconsideration filed by Terry Roof Truss (Employer), makes the following decision after reconsideration.
Between July 17, 1995, and January 3, 1996, the Division of Occupational Safety and Health (the Division) conducted an accident investigation at a place of employment maintained by Employer at 43755 North Division, Lancaster, California. On January 4, 1996, the Division issued to Employer a citation alleging a serious violation of section 4186(b) [failure to adjust point of operation guard], and proposed a civil penalty of $5,000.
Employer filed a timely appeal challenging the existence of the violation, its classification as serious, and the reasonableness of the civil penalty.
On September 29, 1997, after a hearing before an administrative law judge (ALJ) of the Board, a decision was issued finding a serious violation, and assessing a civil penalty of $5,000.
On November 3, 1997, Employer filed a petition for reconsideration. The Division did not file an answer. The Board granted Employer’s petition for reconsideration on December 22, 1997.
The Appeals Board has taken no new evidence and relies upon its independent review of the record, including the tape recording of the hearing and the exhibits in making this decision. The Appeals Board adopts the Summary of Evidence at page 5 of the ALJ's decision.
Employer is engaged in the production of wooden roof trusses. The trusses are manufactured at Employer’s plant and shipped for installation as building components.
An employee severed the forefinger of his right hand while operating a radial arm saw. The operator of the radial arm saw holds the lumber to be cut on a wooden shelf or table in front of the saw and pulls the rotating circular blade and its related assembly, which move as a unit, toward himself with the other hand. The operator holds the lumber against a metal "fence," a vertical barrier at the back of the shelf on which the lumber is laid.
The saw was also equipped with a "vertical" guard that fit around the upper half of the rotating blade, but this vertical guard did not reach the saw’s point of operation.
A J-shaped metal plate surrounds the saw where it cuts the wood, (the blade’s point of operation) and functions as a guard to keep the fingers of the operator’s hand holding the wood from contacting the blade’s point of operation.
To be effective, this guard must be manually adjusted. Its bottom surface must be close enough to the top surface of the piece of lumber being cut, or the top of the fence, if the lumber’s width is less than the fence’s height, to prevent the operator’s fingers from reaching the blade. At the time of the accident, the bottom surface of the guard was far enough away from the top surface of the widths of lumber being cut, or the fence, that an operator’s fingers could get between the guard and the wood and reach the saw’s point of operation.
1. Did section 4309 take precedence over the requirement of section 4186(b) to adjust radial arm saw point of operation guards?
2. Was there sufficient evidence to establish a violation of section 4186(b)?
FINDINGS AND REASONS
DECISION AFTER RECONSIDERATION
1. Section 4309 Does Not Take Precedence over the Requirement of Section 4186(b) to Adjust Radial Arm Saw Point of Operation Guards.
Section 4186(b) provides, in relevant part:
The Division contended that the guard fell under the scope of other "guard configurations" referred to in section 4186(a). The Division contended that section 4186(b) required that the guard be adjusted so that the operator’s hand could not pass under the bottom of the guard to the saw’s point of operation.
Employer contends that section 4186(b) does not apply to this saw because another safety order, section 4309, applies specifically to radial arm saws. Employer cites section 3202(a), which provides:
These orders [General Industrial Safety Orders] establish minimum standards and apply to all employments and places of employment in California as defined by Labor Code Section 6303; provided, however, that when the Occupational Safety and Health Standards Board has adopted or adopts safety orders applying to certain industries, occupations or employments exclusively, in which like conditions and hazards exist, those orders shall take precedence wherever they are inconsistent with the General Industry Safety Orders hereinafter set forth.
Section 4309, which is included in Group 8, is silent on point of operation guarding. Section 4309(a), the only subsection Employer specifically identifies as inconsistent with section 4186(b), requires:
The saw blade shall be encased on both sides in such a way that at least the upper half of the blade and the arbor [drive shaft] ends will be completely covered.
The radial arm saw was in compliance with section 4309(a) because it had a blade guard, referred to in the record as a vertical guard. The vertical guard does not provide point of operation guarding.
Section 4184(a) requires point of operation guarding on Group 8 machines generally, and section 4186(b) requires that any point of operation guard be properly adjusted. Section 4309 does not address point of operation guarding. Because section 4309 is included in Group 8, but does not address point of operation guarding, there is no inconsistency between sections 4186(b) and 4309. Section 4188(a) provides that safety orders designated Class B apply "unless the nature of the work, type of machinery, or size and shape of material being worked will not permit" application of the safety order. Section 4309 is not designated a Class B safety order. The Board has held Class B designation of a safety order specific to a particular type of machine to give such specified safety orders precedence over general safety orders like section 4186(b). The silence of section 4309 on point of operation guarding therefore implies that radial arm saws must have a point of operation guard, not that radial arm saws are excused from this requirement, as Employer contends. Section 4186(b), a safety order covering all Group 8 machines, applies to the radial arm saw, and requires that its point of operation guard be properly adjusted.
The Board concludes that section 4309 does not take precedence over section 4186(b).
2. Sufficient Evidence Was Presented to Establish a Violation of Section 4186(b).
The ALJ found that the guard was not adjusted to prevent the employee’s fingers from reaching the point of operation. The ALJ found that a violation of section 4186(b) had been established.
Employer contends that the Division failed to present any evidence that the saw was not in compliance with section 4186(b). Employer further contends that there is no evidence to support the ALJ’s findings that the violation was serious and accident related.
The Board finds that the record contains substantial evidence supporting the ALJ’s findings.
The ALJ credited the compliance officer’s testimony that the guard was adjusted so that its bottom surface was eight inches above the table on which lumber was laid to be cut. The photographic evidence presented by the Division supports the compliance officer’s testimony that the guard was eight inches above the table. This gap between the top surface of the widths of lumber commonly cut by Employer, and the guard, was more than large enough to allow an operator’s fingers to reach the blade, as it did in the case of the injured employee. The gap between the fence and the bottom of the guard was also wide enough to allow the operator’s fingers to reach the saw blade.
Employer contends that the compliance officer did not have any specific assurance that the saw had not been used or the guard adjusted since the occurrence of the accident. The compliance officer testified that Employer’s representative, who was present at the inspection when the compliance officer measured and photographed the radial arm saw, stated that it had not been used since the time of the accident. The only evidence in the record of any person having contact with the saw between the time of the accident on a Thursday and the Division’s inspection on Monday morning was that Employer’s insurance representative had inspected the saw on Friday, the day after the accident. In the absence of any evidence disputing the compliance officer’s testimony or suggesting that the guard’s adjustment had been tampered with, the Board finds that substantial evidence supports the ALJ’s finding that the Division had established that the guard was not adjusted properly at the time of the accident.
3. The Violation Was Properly Classified as Serious.
A violation is classified as serious if the condition involved in the violation produces a serious injury if an accident occurs, and if it was known to Employer or could have been discovered by the exercise of reasonable diligence. The compliance officer’s testimony that an unguarded radial arm saw blade will, more likely than not, produce a serious injury in the event of an accident was undisputed. The gap between the feed table and the bottom of the guard was eight inches. This gap was readily visible in the area of the mill around the machine. The Board has consistently held that an employer, with reasonable diligence, would discover violations that are in plain view in its facility.
The Board finds that the evidence establishes that the violation was properly classified as serious. Employer stipulated that the Division’s calculation of the civil penalty was correct.
The Board therefore affirms the ALJ’s findings that a violation of 4186(b) was established and that the violation was properly classified as serious.
DECISION AFTER RECONSIDERATION
The decision of the ALJ dated September 29, 1997, is reinstated and affirmed.
BILL DUPLISSEA, Member MARCY V. SAUNDERS, Member
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - October 4, 2000