BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No:  SH-93062

					)  Citation No.  M0072-047-93

	Plaintiff			)

					)

BEND MILLWORKS				)

					)

	Defendant			)  OPINION AND ORDER





	Hearing was convened on March 15, 1994.  The plaintiff, Oregon
Occupational Safety & Health Division, appeared through Special
Compliance Officer, Claudia Marthaller, and was represented by
Assistant Attorney General, J. Kevin Shuba.  The defendant,
Jeld-Wen, and its subsidiary, Bend Millworks, appeared through
Donald M. Baxter, Assistant Safety & Environmental Manager, and
were represented by counsel, Matthew Beddoe.  The proceedings
were recorded by Bobbie Krause of Business Support Services.



	The following exhibits were admitted into evidence:  1 through
21. 



	The hearing was continued for additional testimony and the
matter was reset for May 10, 1994 and again for June 7, 1994. 
However, prior to the June 7, 1994 hearing, the parties
indicated that they wished to forgo further proceedings and
submit written closing argument.   The motion was granted and
said arguments were received on July 6, 1994.  The record closed
as of that date.  



                          ISSUE



	The propriety of a March 25, 1993 safety citation, item 1-1.



                    STIPULATIONS OF THE PARTIES



	The parties represented at hearing that all items of the March
25, 1993 safety citation had been resolved to the satisfaction
of the parties with the exception of item 1-1.



	The parties further stipulated that saw machines 1 though 7 on
cut line #1 were manufactured by Mid-Oregon, whereas saw
machines 8 through 20 were manufactured by Tri-State/Industrial
Woodworking Machine Co. Inc.



                       FINDINGS OF FACT



	On February 9, 1993, Special Compliance Officer, Claudia
Marthaller performed a safety inspection at Bend Millworks. 
Based on her inspection the employer was issued a safety
citation, dated March 25, 1993, in which the department
concluded that the employer had violated OAR 437-02-240, 29 CFR
1910.212(a)(3)(ii).  In accordance with the penalty matrix the
violation was classified as probability low and severity serious
for each saw machine on cut line #1, for a total penalty amount
of $4,200.00.  On May 6, 1994 Referee Johnson issued an interim
order which stayed correction of the above violation.  



	On February 9, 1993 the employer operated cut line #1 which 
was composed of 20 saw machines manufactured by Mid-Oregon and
Tri-State/Industrial Woodworking Machine Co., Inc.  The saws
manufactured by Tri-State and Industrial were 90 percent parts
compatible.  Each saw machine was assigned an operator, who
would stand in an approximate two square foot area next to the
saw machine.  The function of the cut line was to cut 12 to 16
foot pieces of lumber, which would arrive via a conveyor belt, 
into smaller sections.   



	In order to make the required cuts, the operator would stand
close to the saw machine.    The saw machine would be activated
by  pushing a button located on the machine with the knee.  Upon
activation a 14 inch spinning circular saw blade would come up
an estimated half way from inside the machine.  The operator's
hands would be positioned on the lumber to be cut and
approximately 3 inches on either side of the blade.  The
distance from the front of the table to the edge of the blade
would be approximately 5 inches.  



	In order to protect the operator's hands from the blade a metal
hood type guard would come down on machine activation and clamp
over the lumber, the guard automatically adjusting to the
thickness of the lumber.   This action took place immediately
prior to the blade emerging from inside the machine casing. 
However, these hood guards did not cover all of the blade while
in the cut position.  A portion of the leading edge of the blade
remained exposed. (Exs. 7-1-4, 21).  To remedy this defect, at
least partially, there is a device that is placed either on the
front of the hood type guard or in some other fashion is
attached to the machine itself.  These guards are known as a
front entry guards or "nose" guards.  (See exs. 7-5, 20 and
testimony of Special Compliance Officer of various front entry
guards available).  The purpose of the such guards is to prevent
injury to the hand/fingers during operation.  The saw machines
on cut line #1 on February 9, 1993 were equipped with hood type
guard.  The saw machines, however, did not have a front entry
guard.   



	Saw machines with the above described "nose" guards became
standard in the industry for those machines manufactured in the
last four years.  However, the nose guards are unpopular with
users in that the "nose" guards were considered to be burdensome
in that they tend to slow down production.  



	The saw machines at use at the employer's are known in the
industry as "chop saws."  However, they are also known as
cut-offs saws, to include inverted swing cut off saws, and jump
saws.  



                      ULTIMATE FINDING OF FACT



	The 20 saw machines found on cut line #1, did not have a front
entry guard of any type.  Therefore, there remained a zone of
danger wherein an operator's hand/fingers could be placed in
such a position as to cause serious injury to include
amputation.  



               CONCLUSIONS OF LAW AND OPINION



	The undisputed facts are that the 20 saw machines on cut line
#1 had hood guards which came down over the saw blade and
clamped the wood for the purpose of preventing injury to the
operator during saw operations.  However, the saw machines did
not have a front entry guard installed to prevent operator
injury from a hand/finger being inserted underneath the hood
guard.  In assessing whether or not such an operation
constituted a safety hazard, the Special Compliance Officer
applied OAR 437-02-240, 29 CFR 1910.212(a)(3)(ii).  This rule
provides:



	The point of operation of machines whose operation exposes an
employee to injury, shall be guarded.  The guarding devise shall
be in conformity with any appropriate standards therefor, or, in
the absence of applicable specific standards, shall be so
designed and constructed as to prevent the operator from having
any part of his body in the danger zone during the operating
cycle. 



	The Special Compliance Officer concluded that lack of a front
entry guard violated the above rule.  On this basis she assessed
the penalty.  	



	The employer argues that assessment of  the  penalty was
inappropriate because the Special Compliance Office applied the
general standard whereas a specific standard applied in this
case.  The employer asserts that the correct standard is found
at OAR 437-02-240, 29 CFR 1910.213(g)(4).  This rule provides:



	Inverted swing cutoff saws shall be provided with a hood that
will cover the part of  the saw that protrudes above the top of
the table or above the material being cut.  It shall
automatically adjust itself to the thickness of and remain in
contact with the material being cut.



	Applying this rule, the employer argues, the guarding in place
at the time on cut line #1 was in conformance with the specific
standard.  



	Supposedly resolution of which is the most appropriate rule to
apply requires an analysis of the type of saw in operation on
cut line #1.  If  the saws can be defined as inverted swing cut
off saws  then the specific standard, 29 CFR 1910.213(g)(4),
would be the most appropriate.  If, on the other hand, the
state's argument prevails that the saws are best characterized
as jump saws then reference to the general standard, 29 CFR
1910.212(a)(3)(ii), is the appropriate standard.  On this issue
considerable testimony, of a technical nature, was offered.  The
substance of this testimony was that in order to determine the 
type of saw machine required an analysis of the inner workings
of the particular saw machine, i.e., the placement of the arbor
in relation to the pivot point.  However, contrary to the
arguments of the parties, the type of saw machine in use at Bend
Millworks on cut line #1 is simply not determinative. 
Regardless of the type of saw in use, chop saws, jump saws, or
inverted swing cut off saws, application of the various
standards, as discussed below,  results in the same essential
finding.   



	The import of the general standard (29 CFR 1910.212(a)(3)(ii)
is that the point of operation which exposes a worker to injury
shall be guarded and that such a guard shall be designed to
prevent the operator from having any part of his body in the
danger zone during the operating cycle.  Clearly the hood guard
installed on cut line #1 did not provide an adequate front entry
guard.  Testimony was persuasive that a worker could insert his
hand underneath the hood guard injuring it.   Testimony from
Bend Millwork's trainer on cut line #1 testified that hands were
placed in close proximity to the blade, and that there existed a
front gap between the table and the hood guard.  In addition,
the Special Compliance Officer upon observing the operation
during her inspection testified that it was possible for an
operator to trip and fall while entering his station and
inadvertently activate the knee switch while at the same time
placing his hand underneath the hood guard.  In this regard the
trainer further testified that the blade coming out of the
machine was extremely fast moving and that any contact with it
by a body part would most assuredly result in injury.  Although
admittedly the probability of either of these two events
occurring is low, such an occurrence can not be said to be
inconceivable or remote.  Thus, it was not unreasonable for the
Special Compliance Office to conclude that reliance on a hood
guard was inadequate protection.  Although it may be true that
the best protection is a well trained and ever vigilant worker,
this too is an inadequate means of protection. 



	Application of the specific standard (29 CFR 1910.213(g)
pertaining to swing cutoff saws yields the same result.  That
standard provides  that each swing cut off saw shall be provided
with a hood that will completely enclose the upper half of the
saw, the arbor end, and the point of operation at all positions
of the saw.  For the reasons previously stated the operation on
cut line #1 did not provide protection at the point of operation
at all positions of the saw.  Installation of a front entry
guard would have provided such necessary protection.  Although
29 CFR 1910.213(g)(4) goes on to state that inverted swing
cutoff saws shall have a hood that shall cover the part of the
saw that protrudes above the top of the table, I fail to see why
that particular sub-section should be construed, as suggested by
 the employer, to not required, in contravention of 29 CFR
1910.212 and other portions of 29 CFR 1910.213(g),  that the
point of operation be guarded at all positions. 



	Moreover, in this regard, I further note that 29 CFR
1910.213(r)(4) which applies to miscellaneous woodworking
machines states that the mention of specific machines in
paragraphs (a) through (q) and this paragraph (r) of this
section, inclusive,  is not intended to exclude other
woodworking machines from the requirement that suitable guards
and exhaust hoods be provided to reduce to a minimum the hazard
due to the point of operation of such machines.



	Finally, much discussion at hearing was had concerning the fact
that the general and specific standards ultimately derive from
the American National Standard for Woodworking machinery -
Safety Requirements produced and approved by the American
National Standards Institute, Inc. (ANSI) on October 1, 1992. 
Reference to this document, which does provide definitions of
the various saws clearly indicates that the saw machine at issue
here is a undertable cutoff saw of which inverted swing and jump
saws are typical undertable saws.  The ANSI standards state that
such undertable cutoff saws requires fixed guards, the function
of which is to prevent injury by limiting entry into the hazard
areas which it safeguards.   (Ex. 13, codes 5.4.2.3.2.,
5.4.2.3.2.1., 5.2.3.1.).



	Thus, regardless of the standard the primary objective is to
prevent injury by guarding the point of operation, at all
positions, to limit entry of a body part  into a hazardous area.
 The fact these various standards do not spell out the
requirement for a front entry or nose guard for a swing inverted
cut off saw or jump saw or chop saw is ultimately irrelevant. 
The overall intent and aim of these standards is clear.  The
mechanism by which the objective is achieved must be evaluated
on the basis of how well the mechanism achieves the desired
result.  



	In this case, it was the judgment of the Special Compliance
Officer that failure to provide a front entry guard was a
violation of the general standard.   Based on the record I find
the officer's application of the general rule to this situation 
supported by the evidence.  Thus, it was not unreasonable for
the compliance officer to determine these rules were best met by
a front entry guard.  Indeed, although not a factor in deciding
this case, the testimony indicated that at present it is an
industry standard that all such machines come so equipped.  
Further, the evidence supports the findings of the Special
Compliance Officer that the probability of injury was low and
that the severity factor should be rated as serious for an
assessed penalty per machine of $300.  There was no dispute by
the parties with regard to the 30 percent reduction of the
penalty amount to $210.  Therefore, I find the state has carried
it burden of proof  in support of the assessed penalty for Item
1-1.  Accordingly, the total penalty amount of $4,200 ($210 x 20
machines) shall stand.



                          ORDER



	Item 1-1 of the March 25, 1993 safety citation and assessment
of a penalty pertaining to standard violation OAR 437-02-240, 
29 CFR 1910.212(a)(3 (ii) is affirmed in its entirety.

 

	NOTICE TO ALL PARTIES:  You are entitled to judicial review of
this Order.  Proceedings for review are to be instituted by
filing a petition in the Court of Appeals, Supreme Court
Building, Salem, Oregon 97310, within 60 days following the date
this Order is entered and served as shown hereon.  The procedure
for such judicial review is prescribed by ORS 183.480 and ORS
183.482.



	Entered at Salem, Oregon August 8, 1994



				Workers' Compensation Board

				Abigail L. Herman

				Referee