Petition to review an order of the Occupational Safety and Health Review Commission holding Carlyle Compressor Company to be in violation of §§ 5(a) (1) and (2) of the Occupational Safety and Helath Act, 29 U.S.C. §§ 654(a) (1) and (a) (2) (1976), for failing to protect its employees from the danger of being injured by shafts thrown from an abrasive grinding machine.
Timbers, Kearse and Pierce, Circuit Judges.
Petitioner Carlyle Compressor Company (Carlyle) seeks review of an order of the Occupational Health and Safety Review Commission (the Commission) which upheld a citation by the Secretary of Labor (the Secretary) for a serious violation*fn1 of §§ 5(a)(1) and (2) of the Occupational Safety and Health Act (the Act), 29 U.S.C. §§ 654(a)(1) and (2) (1976).*fn2 We deny the petition to review and affirm the final order of the Commission.
Carlyle, a division of Carrier Corporation, is a New York corporation with its principal place of business in DeWitt, New York. It manufactures air conditioning compressors.
On March 27, 1979, a compliance officer of the Occupational Safety and Health Administration (OSHA), conducted an inspection of the Carlyle plant. On March 30, 1979, he issued a citation and assessed a $300 penalty against Carlyle for failing to provide a guard on a Warner & Swasey cylindrical grinder to protect the operator of the machine and other workers from the hazard created by flying shafts from the machine. Carlyle contested the citation.
On May 14, 1979, the Secretary filed a complaint which, as amended, alleged violations of OSHA's general machine guarding standard, 29 C.F.R. § 1910.212(a)(1) (1981), and, alternatively, the general duty clause, 29 U.S.C. § 654(a)(1) (1976). An Administrative Law Judge (ALJ) affirmed the citation but reduced the penalty to $150 in a decision and order dated May 4, 1981. The Commission denied Carlyle's petition for discretionary review and adopted the ALJ's decision as its final order on June 3, 1981. This petition to review under § 11(a) of the Act, 29 U.S.C. § 660(a) (1976), followed.
The cited machine is a grinder that performs a step in the production of P-eccentric shafts. The machine operator places a cam locking device, known as a driver dog,*fn3 on the motor end of a shaft. The driver dog holds the shaft in place by means of screws tightened against the shaft. The operator then places the shaft in the machine and, after checking the position of the device, activates the grinder's centering device. After some checking, the operator pushes two buttons to activate the grinding cycle. A pin engages the driver dog and turns it and the shaft at an increasing speed. The grinding wheels gradually engage the shaft, which is timed at a lower speed controlled by the driver dog.
The OSHA compliance officer determined that there was a danger that shafts could be thrown from the machine and injure a worker in its vicinity. At least five incidents had been recorded in which shafts had been thrown from the machine.*fn4 The first incident occurred in August 1976, when the driver dog was inserted backwards, causing ejection of the shaft and serious injury to the operator. The driver dogs subsequently were redesigned so that they could not be inserted backwards. No one was injured in the other incidents.
The compliance officer determined that the driver dog was inadequate to prevent flying shafts because an operator was required to use his judgment as to how tightly to adjust the screws. The effect of screws insufficiently tightened is that the driver dog will not turn the shaft, causing the shaft to accelerate to the speed of the wheel and to be propelled out of the machine. The accidents that did occur, however, were due to a variety of additional malfunctions.*fn5
We turn first to Carlyle's claim that the ALJ incorrectly held that Carlyle had violated 29 U.S.C. § 654(a)(2) (1976), which requires that employers comply with occupational safety and health standards promulgated by OSHA. Carlyle argues that the ALJ erroneously concluded that the general machine guarding standard, 29 C.F.R. § 1910.212(a)(1) (1981), applied, rather than § 1910.215, the standard specifically governing abrasive wheel machinery. Carlyle contends (1) that the ...