ML20129J644
| ML20129J644 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 11/05/1980 |
| From: | Hoefling R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Jocelyn Craig, Harpster T, Moseley N NRC OFFICE OF INSPECTION & ENFORCEMENT (IE) |
| Shared Package | |
| ML20127A105 | List:
|
| References | |
| FOIA-84-311 NUDOCS 8507230189 | |
| Download: ML20129J644 (22) | |
Text
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/S November 5, 1980 Note to: Norman Moseley, I&E Terry Harpster, John Craig, I&E [I&E TMI-2 CURRENT INVESTIGATION Attached are two cases where the Court of Appeals overturned citations on grounds of due process and failure on.the part of the agency to prove.that employer's conduct fell below demonstrated practices in the industr.y. .
I think these cases will be helpful in shaping the final report on your current investigation of infomation flow at TMI-2.
/
/ r LRic ard Hoefling, A orn y Rulemaking & Enforcemen Div ion OELD Attachments:
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DIEBOLD, INC. v. MARSHALL 1327 :.
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- 2. Labor Relations ==9.5 0 DIEBOLD, INCORPORATED, Petitioner, Occupational Safety and Health Com- g [, .
N PORTO mission is entitled to great deference m its y
y, l3p,gg,,, reasonable interpretations of regulations al., F. Ray MARSHALL, Secretary of Labor, promulgated under the Occupational Safety W
- and Occupational Safety and Health and Health Act; that deference is especial-j j Review Commission, Respondents. ly appropriate in a case where the Commis- 4 No. 76-1278. sion has expressly addressed historical and f,, g, technical arguments. Occupational Safety /) l f) j .f'_,{.'
United States Court of Appeals, and Health Act of 1970, ) 12(a),29 U.S.C.A. y ,
Sixth Circuit. I:.
MSHIP $661(a). # i Argued Oct. 14, 1977. 3. Labor Relations ==9.5 y
ant, Decided Nov. 3,1978. Evidence sustained Occupational Safe- I ty and Health Commission's determination g.
that regulation relating to point of opera- ).
IllN,in Employer sought review of decision of tion guarding on power presses, a standard [
. the Occupational Safety and Health Review which was taken from one previously pro- .,,
I'*- i' Commission that the employer had violated mulgated by the Secretary of Labor under I.
a safety regulation. The Court of Appeals, the Walsh-Healey Public Contracts Act,
,,1,'
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Walinski, District Judge, for the Northern was applicable to press brakes. Occupa- h. . .
District of Ohio, sitting by designation, held tional Safety and Health Act of 1970, i that: (1) OSHA re;;ulation reldiw to point s 6h m U.S.C.A. & 65 da); Walsh-Healey of operation guarding on power presses was Act. 5 1-12,41 U.S.C.A. 66 35-45. ,
- 9. properly applied to press brakes; but (2) in view of inartful drafting of a relatul regu- 4. Labor Relatione a=9.5 '.
District f Juisiana; lation,in view of past industry practice, and Evidence sustained determination of
- in view of past enforcement history, the Occupational Safety and Health Commis- U i regulation had not giver. suffici nt warning sion that a standsrd promulgated by the
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to the employer, ana (Q in view of subse- Secretary of Labor under the Walsh-Healey fey, Jr.. i ;
quent intervening indic.al interpretation of Act, and subsequently adopted by the See-the regulation, the regu:ctica cauld be con- retary an an OSHA standard, relating to pi l- .m -
stitutionally applied to press brakes in the point, of operation gusrds on power presses I '
f*5". "I future. had required press brake guarding, despite a conter. tion that such guarding was impos-Vacated.
sible. Occupational Safety and Health Act ;
fn*-
j 0@ of 1970, G 6(a),29 U.S.C.A. % 655(a): Walsh-I
., g ,, 1. Labor Relations c=9.5 Healey Act, 4} 1-12,41 U.S.C.A. 66 35-45.
Ctcupational Safety and Pealth Act re- 5. Labor Relations =0.5 quires adoption of established feceral and OSHA standard relating to pomt of
'. q: .. r. 6tx n.d concensus standach .tithout s.eb. oluati n guarding on power presses does sitsntise moniification; Secretare of Labor ~
may not enferceably con:.true such a stan-n } require guarding in cases where mstal-lati n of such guards would in fact render ,
dard to impose r$1uirements which the *# E # ## *
- ' s'andard's source did not iminne Secretary may extend the sti.n. lard to cove.r emt.foy- identifiab!c ptandard appl.ies and practical means only wnere there exists an for guard-ees whose cmployers were not gav.-rned by ing the specific machme m the sprific uses the wurce standar. =, as lon- n ti r exten- to w.wh the partvet r emp!< 3er puts it.
1A sion does not operate to create a y rotection which h-d rot Mn affor&d to workers 6. Labor Relations c= 27 Fn. ,o . . w, ..e. .5 . s . m . . ,
b Qab W U.S.C.A. % tea (a).
ance, Seerttary of Later n s uw tmran oi s n . m ,,, , .^ ~ ' .
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s 1328 585 FEDERAL REPORTER,2d SERIES 1 establishing the existence of a specific and
- 10. Constitutional Law =251.4 prise w technologically feasible means of compli-Among the myriad applications of the regulati.
ance as an element of his showing that a due process clause is the fundamental prin, what q violation has occurred: where the regula-tion itself specifies the means for compli- cio!e that statutes and regulations which a buw ance, the burden rests on the employer to purport to govern conduct must give an the P'"I.
show the technological imlosibility of the adequate warning of what they command terest it specified means. Occupational Safety and or forbid. U.S.C.A.Const. Amend. 5. C'C^
Health Act of 1970, 5(a)(2), 29 U.S.C.A. .
IL Admimstrative Law and Procedure 15. Con ;
5 654(aK2). #
- 7. Administrative Law and Procedure '" a regulati n which governs pure- perat h 413 ly ec n m.e or commercial activitics, if its P.85 ".
Court's deference to administrative 8 n can engen penahs, met be so t ramad as to provide a constitutionally ade- a constructions of regulations founded pri-marily on the special expertise of each quatt warning to thase whose activities are c]g.
agency in its particular field and only sec. governed. U.S.C.A.Const. Amend. 5. L.
k] S.C ondarily on matters of authorship. 12. Constitutional Law c=>275(2) U.S.C'.A
- 8. Labor Relations c=>9.5 In view of inartful drafting of OSHA
- 16. Adi Occupational Safety and Health Com- p Wer press guarding standard in such a <-
mission did not err in determining that way which mignt lead an employer reason-OSHA standard relating to point of opera- ably to believe that press brakes had been 97 ey of a tion guarding on power presses w .s applica. sp(cifically exempted from the generally authori ble to press brakes. cven though another applicable point of operation guarding re-regulation setting out both a general rule quircments, in view of the common under- wprc'.
3otye 3 that power press points of operation he standing and commercial practice relative guarded and a detailed specificaticn of the to brane guarding which indicated that U-acceptable means for achieving that end press braks point of operation guarding had Be:
excluded press brakes "from the require. been rarely used, and in view of the confir- suff.,icit ments of this section." Occupational Safety mation of the industry practice by the pat- by O .,(
- and Health Act of 1970,6 6(a),29 U.S.C.A. tern of administrative enforcement, it was Op'rati 6655(a). a denial of due process to charge an em- of the .
- 9. Labor Relations e=>9.5 ployer with a violation of the Occupational Fact that Occupational Safety and a ty and Health Act because of its failure C {S3
"' l Health Commission's resolution of ambigui- ""88 P . int of operation guards on its press g ty in one regulation which' set forth a gen- brakes; in view of subsequent intervening g eral rule that power press points of opera- judicial interpretation of the standard, the tion be guarded and also set forth a detailed standard could be so applied in the future. htg cy,;, ,
specification of the acceptable means for U.S.C.A.Const. Amend. 5; Occupational gyc y,7 ,
achieving that end created something of an Safety ana Health Act of 1970, $ 5(a)(2),29 inconsistency in the structure of guarding U.S.C.A. @ 654(a)(2). .
the fa t 37c, y requirements because the temporary exclu-sion of some existing power presses from
- 13. Administrative Law and Procedure of wa o=,390 order the guarding requirements of the power press standard did not operate to subject The fairness of a regulatory warning is could i:
those presses to the immediately effective governed by a less stringent standard in the Occup:
requirements of another regulation dealing absence of criminal penalties or First 1970, with point of operation guards on power Amendment implications. U.S.C.A.Const.
presses did not preclude the Commission Amen s- .. Huh from applying the latter regulation to press 14. Administrative Law and Procedure nati, f brakes. Occupational Safety and Health *=* 391
. n,
. Act of 1970, 5(a)(2), 6(a), 29 U.S.C.A. Duty of inquiry may properly be im- on
$$ 654(a)(2),655(a). posed on one engaged in a business enter-i i:
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m.....,.-. . . .....a: A LL m29 Cde as Shs 7.2d 1327 (i976) ('
- -i.e who e! aim. tl .at an adm.nkr.-tin . Genera Counsel. Occupational Safety &
r.gulation fails to give fair warr.ing of Health Review Com'n, Washington, D. C., i what is required of the business enterprise, William J. Kilberg, Stephen A. Boka',t Bar- l as business enterprises should be alert to tah A. Fellner, Allen H. Feldman, Jeffrey y the protability that their conduct is of in- la 3 Berger, Michael H. Levin, U. S. Dept. .
terest to one or more admtmstrative agen- of Labor, Washington, D. C., William S. 8 cies. Kk>cpfer, Assoc. Regional Sol., U. S. Dept. h, ;
, 13. Constitutional Law c=>275(2) of Labor, Cleveland, Ohio, for respondents.
If employer had been aware of point ef e; cration guarding requirement for it, Before WEICK and LIVELY, Circuit 5 press brakes, it would have received consti. Judges, and WALINSKI' District Judge.
tutionally sufficient warning and could not complain that the OSH A standard did not WALINSKI, District Judge. (
give the notice required by due process. Petitioncr Diebold, Inc. seeks judicial re-U.S.C.A.Const. Amend. 5; Occupational view of a decision by the Occupational Safe-Safety and Hcalth Act of 1970, C 5(a)(2),29 ty and Health Review Commission (hcrein-flJ U.S.C.A. 6 654(a)(2). after "the Commission") that Diebold has b'
- 16. Administrative Law and Procedure vi lated a safety regulation promulgated by c=> 412, 413 the Secretary of Labor pursuant to the Oc- j,(2
[l Defects in the constitutional sufficien- cupational Safety and Health Act of 1970, {,
ey of a regulatory warning may be cured by 29 U.S.C. 6 651-78 (hereinafter "the Act"). ,
authoritative judicial or administrative ini Dicbold contends that the CommisMon erred terpretations which clarify obscurities or re- in its interpretation of the app;icab!e regu-
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solve ambiguities. lations and that, even if the Commi:sion's
. interpretation is correct, the regulations are -
-e 17. Labor Relations e=>27 h so vacue as to be unenforceable under the
.i . Because of a lack of constitutionally due process clause of the Fifth Amendment.
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sufficient warning as to what was required For the reasons which follow, we accept the M.
by OSHA regulation relating to pomt of Commission's interpretation of the regula-
[# '5-w operation guarding on press brakes, order tions in question but hold that on the facts cr- of the Occupational Safety and Health of this case their application to Diebold 5,'
f
- n. Commission which imposed f,nes i for past
.v violations could not stand; where the Com-would be a denial of due process. We "['
. . , therefore set as.de i that portion of the Com- i sv mission s order that the emplover provide .. . ..
mission,s order which is challenged on ap-y press brake guarding in the future rested
- ..e on the Commission's rejection of a claim Peal.
- 3. that guarding was impossible, where that
-2 claim was rejected because of the failure of I' p l"
.y the employer to seek a variance, and where Diebold is a manufacturer of security j the failure of the employer to seek a vari- files, safes, and other record handling and i
- i ance was attributable to the insufficiency retrieval systems. At the times which are We of warning given by the regulation, the relevant here, Diebold operated plants at d
._ order directed to future compliance also Hamilton, Wooster, and Malvern, Ohio, c.
could not stand. U.S.C.A.Const. Amend. 5; where its employees used various kinds of i Occupational Safety and Health Act of presses, including press brakes, to shape a 1970, 5(a)(2), 29 U.S.C.A. S 654(a)(2). Variety of metals for use in the assembly of Diebold's products. Q Hulse Hays, Jr., Roger Ac Weber, Cincin- The press brake, which is the kind of l
- nati, Ohio, for petitioner. machine at issue on this appeal,is a species
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- The Honorable Nicholas J. Walinski. Judge, United States Distnct Court for the Northern
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' bendirg sheet mwer metal. press used pri- Comrivion rejected Diebold's wnttnu ,
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" stock," or metal to be formed, is plaud on that the regulations were impniperly ; r - 2 a bottom die attached to the bol of the mulgated, impossible to comply with, 3 . .-
impermissibly vague. DiUbold, machir.e, and the operator then causes the Jrc. W (OSHRC Docket Nos. 6767,7721,9496j,_... metal to be struck with a matching top die OSAHRC c. .
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which is attached to a raovable ram mount-ed on rai!s. The area between 'hc dies,i. e., 76 CCH-OS11D t 20.333 (1976), rc v*g, l';74
- the area where the stock is placed,i, called 75 cejg.-OSHD ' 19.214 (Ad.L. Judge,19,..,
the " point of operation." When the press b"b. 0" I"8 . phe:al rrview on the Comm?"! P'"U " I"' brake is in use, the descending ram stri;.. imon s deci: 7 the point of operation with a pressure of P"##"*"I l* N C'b C' . 660(a), advancing several hundred tons per square inch. the same claim thct it made before the Commission. ,, Based on inspections of Diebold's plants in January,31 arch, r.r.d July,1974, the Sec. a 3L *- retarv issued a Jtation as to each plant charging Diebold with having violated f* l e Act.s central parpose is "to assum so w 5(a)(2) of the Act,29 U.S.C. $ 651(a)(2)3 ar as p ssible every working man and by failing to provide point of operation woman in the Nation safe and healthful {n ,, guards on its press brakes as require by 29 w rking corditias and to preserve our hu. n
' C.P.R. $ 1910.212. The Secretary propbsed ****""S ' U.S.C. % C51(b). As the p
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penalties totalling $190. Diebold contested P.mcipal method for achieving this ambi. , L the citations and proposed penalties, and trous end. the Act authorizes the Secretary the charges as to all three plants were f Labor to promulgate national standards 3 c.f wcupational safety and health,29 U.S.C. A. consolidated for administrative review.2
- - In his decision, the Administrative Law ' "" P'"##* "E " *ach covered employ. e c)
Judge vacated ti.e o.tation, aia: poposed er* a duty to cornplv vith the promulgated
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penalties, having concluded that a regula- ' ' 'I *)I b " s tion specifically applicable to mechanical In general, the Secretary's standard-set-
". power presses,29 C.F.R. 1910.217, relieved ting authority is to be exercised as the Pt L:
press brakes from any point of operation product of substantial prior research, advis- tr guarding requirement. The Commission ory committee review, and notice-and-com- le thereupon called the case for review, 29 ment rule-making. 29 U.S.C. 9 655(b). p U.S.C. 6 661(i), and a Commission majority Congress recognized, however, that these of 2-1 reversed the Administrative Law procedures would be highly time-consuming Judge, reinstating the citations and pro- and in the first years of the Act would run 5 posed penalties. The Commission majority counter to the congressional interest in "im-determined that, although press brakes are mediately providing a nationwide minimum excluded from the guarding requirements level of health and safety." S. Rep.No. applicable to power presses ( 1910.217), 22, 91st Cong. 2d Sess.,1970 U.SCode
. .- they remain subject to the requirements Cong. & Admin. News, pp. 5177, 5182. For which the regulations set out for machines that reason the Act provided that,"as soon generally (% 1910.212). In addition, the as practicable" and without regard to the
- 1. Each employer-cating the citation as to these machines was affirmed by the Commission, and the Secretary (2) shall comply with occupational safety has not raised any challenge to that determma. 4-
' and health standards promulgated under this tion in the instant proceedmg.
Act. ' 29 U.S.C. 5 654(a). .t 3. The term " employer" means a person en.
- 2. Diebold was also charged in the same cita- gaged in a business affecting commerce who
". tions with having failed to provide. point of has employees, but does not include the Unit-operation Fuardmg on several punch presses. ed St.s'es or any State or pohtical subdnisson The Administrative Law Judge's decision va- of a State.
29 U.S.C. 6 652(5).
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k usual rule-making procedurea, the Secretary inju y. sha!! be guarded. The guarding was to adopt as his own any existing health device shall be in conformity with any I and safety standards already promulgated appropriate standards therefor, or,in the under federal law (" established Federal I absence of applicable specific standards, ! standards") or issued by a nationally-recog- shall be so designed and constructed as to nized standards-setting creanization based {. on full public discussion and on the substan- prevent the operator from having any part of his body in the danger zone dur-g tial agreement of those affected (" national , ing the operating cycle. consensus standards"). 29 U.S.C. # 65~>(as. , , , , , , Notice-and-comment requirements could be i dispensed with, thereby permitting enab- (iv) The follu*ing are some of the ma-lishment of the " nationwide minimum lev- chines which usually require point of op-el" of safety with the desired rapidity, be- eration guarding: cause these 655(a) " interim standards"8 . . ['
. . . . I would have already been subiected to close public scrutiny through the usc of equiva- (d) Power presses. i '
lent procedures in their original issuance. p. It is conceded that Diebo!d's press brakes ' Shortly after the Act's passage, the Sec. are a form of mechanical power press, that o retary exercised his 5 655(a) authority and their operators are exposed to point of oper- y promulgated a volumincus collection of ation injuries, and that no guarding devices ' standards drawn from existing federal and are used to protect them from this hazard. , _' consensus sources. 36 Fed. Reg.10466 (May In the Secretary's view, those facts estab. 29, 1971), codified at 29 C.F.R. Part 1910. lish a violation of 1910.212 beyond any Among these was the gencral machine possibility of dispute. Diebold advances j y guarding requirement which Dietold is ecteral reasons for its position that the g charged with having violated in the instant regulation cannot properly be construed as ' case. The stand:.rd, 29 C.F.IL i 1010.212 appiying to press brakes. n embodies an " established Federal standard" previously promulgated by the Secretary of The company argues first that, despite [<) 3- ' Labor under the Walsh Healey Public Con- the facial breadth of 1910.212, the regula-
;< tracts Act,41 U.S.c. 65 35-45. It provide' tion's Walsh-11ealey predecessor was never b. ~
in pertinent part: understood to require point of operation (a) Nachine guardm.g--(1) Types of guarding on press brakes; indeed, it claims, di /t'
; guarding. One or more methods of ma- such guarding was impossible in 1971,5 the .
; chme guarding shall be provided to p E tect the operator and other the in employees? year in Walsh-Healey regulation which as an "estab- the Secretary prom
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, the machine area from hazards such as lished Federal standard" under the Act. .
those created by pomt of operation TM b dim's sin, the standard could (( "
- p. h not have been m. tended to cover press J. , . ,
, , , , , , brakes, and the Secretary's application of it q to such machines necessarily modifies the '
(3) Point of operation guarding. substantive content of the Walsh-Healey ll [ original without adherence to the rule-mak-(ii) The point of operation of machines ing procedures which the Act prescribes for K whose operation exposes an employee to such modifications. (" I ?
- 4. The " interim" label was affixed to the S. Diebold raises as a separate issue its claim i 45
$ 655(a) standards by the Conference Commit. that press brake guardmg remains impossible ,P.... ' p -i tee report on the final version of the Act. today. Because of our disposition of the due Conf. Rep.No. 1765. 91st Cong: 2d Sess 1970 ...!
process claim. part III. infra, we do not reach i.? , U.S. Code Cong. & Admin. News, pp. 5228, $229. - In point of fact, the vast majority of standards this question. But see text and notes following n.16. infra. p3[f in force have been, and continue to be. " interim E standards" adopted pursuant to the Secretary's
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[1] We agree with Diebo!d's premise that 29 U.S.C. 655(a) required adopti.m of dred historical arid technological argu. 'P'd IF'
" established Federal" and " national consen- ments and resohed them adversely to the petitioncr. reparem sus" standards without substantive modifi- the Comt cat, ion, and that the Secretary may not en- [3] Thus, we find no reason to second- '"
forceably construe a { 655(a) standard to g us the Commission's rejection of the I4l W' impose requirements which the standard's claim that industrial practice and belief the Comn source did not impose.' See Dunlop v. Ash- contradicted the applicability to press claim tha' worth, 53S F.2d 502, 563 (4th Cir.197ti): braken of 41910.212's Walsh-H'ealey source nn* haw Diamond Rooting Co., Inc. v. OSHRC, 52S To be sure, the Secretary has noted on cam suci F.2d 615,053 (5th Cir.1976). Thus, we also ameal that press brake guarding is rare!v In the fir agrec that the question whether s 1910.212 used in practice, a fact u hich certainly indi. ed under apph,es to press brakes is determmed by cates a widespread belief that guarding was s me whc whether its Walsh-Healey source applied to not required. However, assuming that no press brakes. one in industry was aware of any guarding *Brennan i * "", [2] As Diebold's arguments make clear, requirement applicable to prcss brakes, we D**"* however, resolution of that issue depends in do not consider that fact to be dispositive of "" "
- large part upon essentially historical er fac- the guarding standard's rneaning. It is I ' .E
- tual determinations relating to industrial true that the Act's authorization of expedit- **'."
and technological conditions at the time the ed rule. making was based on a congression-al belief that industry would already be p~ standard was promulgated. Those are pre- thoroughly familiar with the " interim stan- . cisely the kinds of determinations which the dards." S. Rep.No.1282, supra,1970 U.S. t Commission is peculiarly fitted to make by Code Cong. & Admin. News at 5182. As has which art virtue of its members'" education, training, become obviaus in the years since the Act's or experience." 29 U.S.C. ately cap: 661(a). As a pggfe, y general matter the Commission is entitled passage, however, Congress was mistaken: 1301,ISOC to great deference in its reasonab:e inter- Neither the " established Federal" nor the
" national consensus" standards were widely Stevedore pretations of regulations promulgated un.
1 known to or understood by industry at the 548 (3d C l der the Act. Dunlop v. Ashworth, supra, time of their' promulgation by the Secre- v. Depart 538 F.2d at 563; Brennan v. OSHRC (Ron 659, 671-tary. See Gov't Res. Corp., Occupational 3f. Fiegen, Inc.), 513 F.2d 113, 715-16 (8th Safety and Health: A Policy Analysis, pp. Safety i, At
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Cir.1975). Cf. Dunlop v. RocAwellInterna- 21-22 (1973); N. Ashford, Crisis in the is correct
- tional,540 F.2d 1283,1289 (6th Cir.1976) Workplace: Occupational Disease and Inju- generally (deference to Commission constructions of ry, pp. 22, 295 (Ford Foundation Rep. necessaril.
Q9 the Act itself). That deference is especially 1976). See, e. g., Brennan v. Smoke-Craft, rectness c appropriate in a case like the present one Walsh-He j Inc., 530 F.2d 843, 845 (9th Cir.1976).7 where the Commission has expressly ad- Thus, we can hardly conclude that wide- ing. 6.
*d The Secretary concedes that his 5 655(a) au.
ed by the source. See SRep.No.1282. supra. h
' thority extended only to the adoption of source Commissi-1970, U.S. Code Cong. & Admin. News at 5182*
2 standards without substantive modification and Compare, c. g., Underhill Construction Corp. v. impossibh R that any modification would require use of the 1 full rule. making procedures set out in 29 U.S.C. Secretary of Labor. 526 F.2d 53 (2d Cis.1975). g 5 655(b). Thus, he also agrees that the expedit. with Langer Roohng & Sheet Metal. Inc. v. conceded ed procedures used in promulgatmg 1910.212 Secretary of labor 524 F.2d 1337 (7th Cir. 1975). many situ g would render the standard unenforceable if and point of ( to the extent that it varied the requirements of 7. Congressman William Steiger, one of the Its source. Cf Umred States v. Anley Coal %ould in 1 f Co., 493 F.2d 285 (6th Cir.). cert. denied, 419 Act*s principal sponsors, has ruefully noted theirInte 1 that, despite congressional expectations to the
' U.S.1089, 95 S.Ct. 679, 42 led.2d 68,1 (1974).
Of course. the Secretary could properly extend contrary, the sources of the 6 655(a) standards 8. Of cou-
"are not widery used. are hardly recognized, g, the 6 655(a) standards to cover employees j whose employers were not govern?d by the and if they were recognized, nobody knew on the er source standards, as long as the extension did what they were " The Architect, the Engineer.
not operate to create a protection which had and OSHA. pp. 7-6 (Proceedmgs of the confer- {ssibiht Burgs not been afforded to workers who were cover. ence of the Amer. Inst. of Architects. June 948. 952 25-26. 1973). (
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.b DIEllOLD, INC. v. 31ARSilALL
. cm as ses r.za i327 tis 7s>
1333 i' .
. s wn,.nnee of a pw bruke tnmrdine formation 5femorandum No. 75--M. CCH- .
r n - ' r mt, $ 9 m .. r n n. it,;:o. %.3.erw id
,h a requirement existed in 1971. rective No.100-44, CCH-ESHG T 10,204 i r n cimih.-lv urp. r.ua. ed ;h: t (January 21,1976) n975-76 Dev(!npments I
. ,' r Wel'nmmi<rion erred in re.iecting D.'eleid's Transfer Binder), revised, id. 510,650 (Octo- ,
- dm that the Walsh-Healey standani could ber 26,1976) (1977 Developments Transfer ;
..t haw required press brake guarding be. Binder). It is implicit in the Commission's
... s such guarding was imposrible in 1971. 'lecision, however, that 9 1910.212 would l in the first plaec, the standards promulgat- not, and its Walsh-Healey source did not, l
. i un.ler s G55(a) appear to have included require guarding in such cases. Rather, the g
. .. who,e scurces irdisputably set impos- standard applies only where there exists an !
. Me requirements. See, c. g., AFL-CiO v. identifiab'e and practical means for guard- i li.vnnan. 530 F.2d 109,120-22 (3d Ci..1975) ing the specific machine in the specifie uses 8 ca.ational consensus standaru imposing a to wruch the cited employcr puts it. See,e. ,
universal "no-hands-in-dies" requirement g., Production Control Units, Inc. (OSHRC
, for power presses, revoked by the Secr tary Docket No. 6976) 15 OSAHRC 617,2 BNA-as impossible). Second, we recornize that OSHC 3291,1975-76 CCH-OSHD T20,238 r.stional safety legislatien is r.ot limitcd to (Ad.L. Judge,1975). -
the present " state-of-the-art" but mav '
" properly force technological advances [6] We believe that this approach places
, through the promulgation of requirement, an eminently reasonable limitation on the which are beyond what industry is immedi- breadth to which the standard's literal lan-([
[,..
,, ately capable of attaining. See Society of guage might otherwise be extended. Fur-Plastics Industry, Inc. v. OSHA, 509 F.2d ther, it comports with the principle that {-
. . . , 1301,1309 (2d Cir.1975): Atlantic & Gulf where a standard imposes a duty without ;
, Stevedores, Inc. v. OSHRC. 534 F.2d 541, specifying the mear.s of compliance, the -
,,, 548 (3d Cir.1976). See also Chrysler Co.p. Secretary has the burden of establishing
- v. Department of Tran.5portation,472 F.2d the existence of a specific and technologi- -
., 659, 671-74 (6th Cir.1972) (Automobile cally feasible means of r.ompliance as an k Safety Act of 19CS). Thus, etcn if Dickld elemen'. of his shnwing that a violation has I'
.., is correct that press brake guarding was occurred. See General Electric Co. v. . .t
- . ,, . generally impossible in 1971, that would not OSHRC,540 F.2d 67,70 (2d Cir.1976); Ace I g necessarily be incompatible with the cor- Sheeting & Repair Co. v. OSHRC,555 F.2d
. ft, rectness of the Commission's view that the 439, 440-41 (5th Cir. 1977); Irvington (('(
s" e,,e Walsh-Healey source required such guard- Moore, Division of U. S. Natural Resources, M ing. Inc. v. OSHRC,556 F.2d 431,433 n. 3 (9th
&t
[5] In any event, we do not read the Cir.1977).8 Finally, and most importantly, &' Q Commission's interpretation as requiring an we believe that this construction embodies a {
'h impossible performance. It is true, as the reasonable assessment of the intended na-Secretary has recognized in the past and ture of 61910.212 (and its Walsh-Healey gj pi .]
conceded on this appeal, that there are source) as a general " catch-all" or " gap-fil-many situations in which the installation of ler" intended to impose a point of operation G!
.lt .,
point of operation guards on press brakes guarding requirement in any case where a v would in fact render the machines unfit for hazard exists and guarding is feasible but h! ts
,] their intended uses. See OSHA Field In- no other regulation addresses the problem.
3 E
- 8. Of course, where the regulation itself speci- 513 F.2d 1032,1035 (2d Cir.1975). See also 4
fies the means for compliance. the burden rests on the employer to show the technological im-f.T.O. Corp. of New England v. OSHRC, 540 f*, F.2d 543,546 (1st Cir.1976) (burden relative to e. .
- possibihty of the specified means. See, e. g., A.
E. Burgess Leather Co. v. OSHRC, 576 F.2d economic nonfeasibility rests on the employer); }' 948,952 (1st Cir.1978); Ace Sheeting, supra; Arkansas.Best Freight Systems, Inc. OSHRC, 529 F.2d 649, 654 (8th Cir.1976)
- v. lVi
{ '4 Brennan v. OSHRC (Underhill Constr. Corp.), (same). ijj y,
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1334 585 FEDERAL REPORTER,2d SERIES Diebold claims, however, that there is sec' tion," and thnse requirements include : another regulation which does address press point of operation guarding, press brakes : brakes and which in fact exempts them are, in Diebold's view, excluded or exempt- t from any point of operation guarding re- ed from the guarding requirements of the ' quirements. In the same package of" inter- sole standant which could properly impose 1 im standards" with which the Secretary them. adopted the general machine guarding re- ' quirement from the Walsh-Healey Act reg- In contrast to Diebold's reading of ulations, he also promulgated guarding re- t 1910.217(a)(5) as an exemption of press quirements specifically applicable to me- brakes from guarding requirements, the chanical power presses. 36 Fed. Reg.10466, Secretary construes the language " excluded 10f43 (May 29,1971), codified at 29 C.F.R. from the requirements of this section" as no
$ 1910.217. These requirements were more than a definition of the power press '
drawn from a " national consensus" source standard's scope or coverage. Thus, in the standard originally issued by the American Secrete's view, 1910.217 is "specifically ' National Star.dards Institute (heremafter appliable only to a class of machines com-
" ANSI"). Section 1910.217 sets out both a posed of all mechanical power presses ex-general rule that power press pomts of op- cept press brakes, so that there is no stan-t
, eration be guarded and a detailed specifica- dd "specifically applicable" to press tion of the acceptable means for achieving brakes and the general requirements of I 1910.212 can properly be applied.
that end. 29 C.P.R. $ 1910.217(c). In addi- I tion, the section states: [7,8] Given the i'iartful drafting of f (5) Excluded roachincs. Press brakes & 1910.217(a)(5), neither interpretation can
* * * '{
are excluded from the require- be branded as particularly unreasonable. ments of this section. In tnis instance, however, the Commission , 29 C.F.R. 1910.217(a)(5). has adopted the Secretary's resolution of " Diebold argues that the exclusion of press the ambiguity, and we are mindful cf the brakes ,'from the requirements of', s 1910.- great deference which we owe to the Com- I 217 should be read as an exemption of press ,s reasonable interpretations of the - g ,,s regulations.3' Dunlop v. Ash- ( brakes from point of eperation guarding requirements altogether. Applying the worth, supra; Ron M. Fiegen, Inc, supts. I pnneiple that '[i]f a particular standard is Our examination of the source standards i it shall for specifically applicable , , , . 1910.212 and 1910.217 persuades us , prevail over any different general standard that the Commission's interpretation is not - which might otherwise be applicable * *,,, merely reas nable but probably the most 29 C.F.R. 1910.5(c)(1), Diebold contends reasonable of the available alternatives. that in relation to power presses (and there- Thus, the Walsh-Healey source from fore press brakes') the general guarding which the Secretary derived r 1910.212 ,, requirements of 1910.212 are pre-empted reads: . by the provisions of 1910.217 as the stan. ( Where existing standards prepared by I dard "specifically applicable" to such ma- [ designated organizations including ( chines. Since the latter standard excludes ANSI] provide for point of operation g press brakes "from the requirements of this guarding such standards shall prevail.
- 9. As noted above, it is undisputed that a press which is founded primarily on the special ex. t brake falls within the general class of machines pertise of each agency in its particular field and b which the regulations label '* power presses." only secondarily on matters of authorship. See a Brennan v. OSHRC (Repubhc Creosoting Co.). ~
- 10. Diebold argues that the usual we!ght which 501 F.2d 1196.1198-99 (7th Cir.1974). Bren-we accord to admirustrative constructions is nan v. Gdles & CotDng. Inc., 504 F.2d 1255 t knappropriate in relation to $ 1910.217 because 1262 (4th Cir.1974). In any case. the meaning i that standard is an ANSI product and the ad- of i 1910.217 is at issue here only insofar as it t.
mamstrative agencies had no role in its incep- relates to the scope of % 1910.212. and the ; tion. 'Dus argument mistakes the nature of our Secretary was the author of the Walsh-Healey , deference to adnunistrative constructions. predecessor to the latter standa-d. I
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4 L DIEH01.D. INC. s. MARSIIALL ]33.5 - t v .e .. *. f .?d 1.'.M t h o 6v c ,, ..y m a f !ai). That language tends to support, F.2d at 70 n. 2. Given the wide variety of
.. , rh it hardly comliela, the Ocmmission's sources for the initial standards package
[ sjew that s 1910 21 . gives precedence only and the rapidity of its promulgation, we j to thee ,pecific nandards which, unlike would be frankly surprised if ther:e were , 6 1910.217, affirmatively impose a point of not anomatics. See, c. g., Builders Steel Co. A onration guarding requirement on the ma- v. 4farshall, 575 F.2d 663, 666 (8th Cir. cnine in question. In addition, the exclu- 1978); Diamond Roofing Co., supra, 528 k sion larguage in % 1910.217-which Diebold E F.2d at 649-50; Dunlop v. Ashworth, supra,
- reads as an nemption and the Commission 538 F.2d at 563. Cf. AFlcCIO, supra,530
- c. r.eruel a< a definitien of the 8ection's F.2d at 115 n.15. Indeed, a thoroughly 3 cope-appeared under the heading" Scope" integrated and internally consistent initial i: the origimd ANSI source standard. I '
standards pakage probO!v would have re-ASSI B-11.1-1971 ' 1.1. .\1ost importantly. quired modification of some source stan-as the product of a private organization, ANSI guidelines are dependent for their dards, thereby raising scrious questions as *
'i - '
to the validity of their prornulgation with- eh .' obscr ance on the voluntary compliance of the affected employers. Because the ANSI out benefit of the Act's full rule-making l: predecessor to 5 1910.217 was therefore procedures. See note 6, supra. [i J, precatory rather than mandatory, we be- Igt U *: lieve it unlikely that its drafters intended to
. hile we are persuaded that the Commis-
. Lp, relieve employers from legally enforceable duties imposed by other sources such as the si n,s interpretation of the applicable regu-p jg p, -
Walsh-Healey predecessor to 6 1910.212. lati m is e mt, that does not lead inexor-See AFIcCIO v. Brennan, supra,530 P.2d ably to a conclusion that the regulations {4
,g 3 3',~ may be applied m the mstant case. Here, yu Jj as it did before the Commission, Diebold
[9] Finally, Diebold argues that, as the , Commission recognized, its resolution of the argues that even if the Commission pp 1 ly construed 6 1910.212. the reculation is so ! ambiguity in % 1910.217 creates something ' of an inconsistency m the structure of vague in its requirements that its enforce_. n inent would violate the due process clause guarding requirementa established by the regulations. Specifically, the Commission of the Fifth Amendment. Within.sertain
, l.
a, i; f , 4 has determined that the temporary exclu- limits, we find ourselves in agreement with_ that contention. hI sion of some existing power presses from the guarding requirements of the power [10,11] Among the myriad applications }L a r. ; . press standard does not operate to subject of the due process clause is the fundamental those presses to the immediately effective principle that statutes and regulations requirements of fi. e 1910.212 as a generally which purport to govern conduct must give b - applicable standard. Stevens Equipment an adequate warning of what they com- j. Co. (OSHRC Docket No.1060),2 OSAHRC mand or forbid. In our jurisprudence, 1501,1 BNA-OSHC 1227,1971-73 CCH-T .;
- because we assume that man is free to OSHD 515,691 (1973). See 29 C.F.R. steer between lawful and unlawful con- [1 l ~
$ 1910.217(a)(1}-{3). d_uct, we insist that laws give the person.
The inconsistency of that decision with of ordinary intelligence a reasonable op. p; the Commission's treatment of the press portunity to know what is prohibited, so b-brake exclusion in $ 1910.217 may be more that he may act accordingly. apparent than real, since the temporary Grayned v. City of Rockford,408 U.S.104, !'
" exclusion"is really more in the nature of a 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 time-phased inclusion. Assuming, however, (1972). The principle applies with special y that there is an inconsistency, we do not force to statutes which regulate in the area ?t '
believe it is fatal. After all,it should hard . of First Amendment rights, but the due , ly be surprising that anomalies occur in process requirement of fundamental fair- l3, "the Byzantine pattern of OSHA stan- ness is hardly limited to that context. Even ' t
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Me Andahabh %Ew em. C." L m % b, - r 9 130G T#~ FEWP.M. REPORTrR, 2d SFJt1P4 a regulation whien roserns teuren ecormmic se, Suut, supra, @J.l f.2d at W.f4. 'j huugn or commercial activities, if its vintation can. the guarding requirement of $ 1910.212 i, ' engender penalties. nust be so framed as to stated quite generally, the generality is a provide a constitutionally adequate warning necessary by-product of the broad scope i,f l. to tnose whor as.tintiys are coverned. Sce' the subject matter and the nearly infiniu .,- Joseph E. Seagram & Sons, Inc. v. Hostet- variety of machines which might pose haz. . r. ter, 3E4 U.S. 35, 48-50, S6 S.Ct.1254,16 ards of the sort within the rule's coverage. ... L.Ed.2d 336 (1966); Boyce Motor Lines v. Thus, if our concern here were simply the r.a! United State, 342 U.S. 337, 340, 72 S.Ct. non-specificity of the regulation, there g6 , 329,96 L.Ed. 367 (1952). would be little room for debate. . There is no doubt that the violation of [12] In the instant case, however, the I-
$ 1910.212 exposed Diebold to penalties. nona;ecificity of the general guardirg *'
See 29 U.S.C. $ 666. See also Brennan v. standard is but one in a collection of several Winters Battery Nfg. Co., 531 F.2d 317 factors which we believe operated together 'f 324-25 (6th Cir.1975). Our concern, there- to deprive Diebold of a constitutionally suf- 'N fore, is with the question whether the rn- ficient warning. First is the inartful draft. t*. Iation cave Dichnid sorricier.t warnine that ing of s 1910.217, the power press guarding t. . press brakes were within the scope of its standard. As describcd in $ II, supra, that sir l point of operation guarding requirements. regulation is framed in terms which could 10
, The question is to tie answered, of coune.- well lead an employer reasonably to believe far "in the light of the ennduct to which Ithe- that press brakes had been specifically ex- w
', regulation] is,_ art lie.d," United States v. empted from the generally applicable point tra
' ,3 NiiTTJn2 Dairy Products Corp.,372 U.S. 29, of operating guarding requirementa. th
.3 36, 83 S.Ct. 594, 600, 9 L.Ed.2d 561 (1963). Second is the undisputed " common underJ. ~
do
" =
Moreover, the constitutional adequacy or s'tandir.g and commercial pr'actice" relative. - - h! inadequacy of the warning given must be (;rWss Gk'elarIFEr.' A's statdd in the ra!
"meaTured by common understardine and Secreta.y's brief on this appeal, press brake rm commercial _ practice!' United States ex rel. point of operation guarding has been " rare- ,
the Shott v. Tenan,365 F.2d 101,155 (Gdi Cir. Iv used" in practice. Brief for the Seen- . 1966), cert. denied,385 U.S.1012, 87 S.Ct. t'ary of Labor, Addendum C (at p. n2 of the qui . 716,17 L.Ed.2d 548 (1967). See also Jordan ch; Addendum). Thus. unless we avahrne* th.
- v. De George,341 U.S. 223,231-32,71 S.Ct. untenable assumption that industry han, br:
703,95 L.Ed. 886 (1951); Stout v. Dallman, "been habitually disregarding a known legal ht: 492 F.2d 992,994 (6th Cir.1974). r'equirement, we must concede __that _ tis [ sb Certainly,if $ 1910.212 stood alone, with average employer nas been unaware that fai its meaning (and hence the sufficiency of its Ge muiations required point of operation pr'
-k 8
warning) evaluated in the abstract, there guarmngyThird is the canfirada= af.ina. Me
.. would be substantially less merit to Die- dustry practice by the, paH= ^f " ' '- LI
- bold's claim. The due process clause does trative enforcement: Prior to the Commis- het l
not impose drafting requirements of mathe- sion s accision inEirigton Moore,88 which ir..
~
M matical precision or impossible specificity. was decided after the citations in the in- in United States v. Powell,423 U.S. 87,94,96 stant case, a clear majority of Administra- , S.Ct. 316, 46 L.Ed.2d 228 (1975); Boyce tive Law Judges had held $ 1910.212 inap- g Motor Lines, supra,342 U.S. at 340,72 S.Ct. plicable to press brakes.88
- r
- 11. Irvington Moore. Div'n of fl. S. Natural Re- (ALJ Watkms), rev'd.17 OSAHRC 595,3 BNA- ;
sources, Inc. (OSHRC Docket No. 3116), 16 ,OSHC 1133, 1974-75 CCH4SHD !19.595 ; OSAHRC 606, 3 BNA-OSHC 1018, 1974-75 (1975); Collator Corp. (OSHRC Docket No. 1 CCH-OSHD ! 19.523 (1975), rev'g. 1973-74 2004). 1973-74 CCH-OSHD S 17,464 (1974) *
, &, CCH-OSHD i 17,162 (Ad.I. Judge,1974), aYd. (ALI Winters), afd on other grounds, t W 556 F.2d 431 (9th Cir.1977) d
. AHRC . 3 BNA-OSHC 2041,1975-76 CCH-OSHD i 20.446 (1976); Sheet Metal Specialty t
j t(' II. See Irvington Moore. note ll, supra (ALI Co. (OSHRC Docket No. 5022),1973-74 CCH- 2 N Kennedy); Paccar. Inc. (OSHRC Docket No. OSHD 517.773 (1974) (ALI Chaplin). rev'd 17 1 1885). 1973-74 CCH-OSHD ! 17,331 (1974) OSAHRC 212, 3 BNA-OSHC 1104, 1974-75 *
. S.W . " a
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m s.w a,u, 4.u . i. .. . h611ALL G , Cite as sAs F.2d Is27 (197s) [ t [, g la,i s] While nor.e of thee f:.cto is [15] Nor are we persuaded by the Secre-
. peticu'arly cem;dlin; on its own. their tary's argument that, whatever the adequa- l
- c.,r ulative effcet is such that we cannot _ cy of the warning as to other employers, F
. g. u e recognize that the fairness of Ditbold must he held to have received no-
.. , [
r 4- a regu!sto'y warmng is governed by a less tre because it was awr.re of the guardtag
'rc .,trirgent standard in the absence of crimi- requirement prior to i,suance of the instant i' t.! penaltics or First Amendment implica- citations. Certainly, if Dicbold had been p'iri!h r. Gaguen, 415 U.S. 566. 573 aware of the guarding requirement, it
( n .10,94 S.Ct.1242,29 LD12d cn5 (1974); would have received a constitutionally suf- ,
" ..2chr!:tou v. Citr of Jachonville, 405 ficient warning and could have no com-
. . . l'.4. 156, 162, 92 S.Ct. SZt, 31 led.2d 110 plaint on that score. ;
., . , rc d972). Further, we are aware that a dug., [0]ne to whom application of a [ rule) is
; a,e d inquiry may ornncHy L ""r constitutional will not be heard to attack P. y of. tnese engared in busincu m tc @ m . the [ rule] on the ground that impliedly it K
. . .r:. they should be alert to the prob:.bility., thal. 3rdght also be taken as applying to other ll
...rd. g thir conduct is of intnest to one or mog. persons or other situations in which its ,,
. tb adEifEIEiltse agencies. S., 405 U.S. at application might be unconstitutional.
C c...d i ID'"!Q S.Ct. 839. nut on the undisputed United States v. Raines,362 U.S.17,21,80 jf ',[ A
.4 ie a.
facts of this case, wegry,y,p,bje to see h0F S.Ct. 519,522,4 led.2d 524 (1960). There suck a~ duty of inoutrv ed hm " is nothing in the record before us, however, Uk i-J knt triggered._ Whether an employer looked to to show that Diebold was so aware. The {1/9: :
- "'ents. - the language of the regulations 88 or to in- Commission did not rest its rejection of the a b r- destry practice, it would have been led to due process claim on this ground but relied f,f '
.ht ?. s believe that press brakes had been sIweifi- on its earlier stated view that reasonable F
.r. tht cally exempted from guarding require- men could not be led as'. ray by the unfortu. E
' ' rat.c ments. To hold that in those circumstances nate wording of the press brake standard. p, (rev- the employer should have nonctneless t,een See Irvington Moore, note 11, supra. For
& cre- . put on notice by a general guarding re- the reasons stated above, we disagree with H, .i
- of the quirement which was applicable to ali ma- that premise and we are not empowered to E' w the chines, and which made no mention of press substitute a new ground for decision which j(
i has brakes, would be to indulge a fiction having the Comrhission itself did not invoke. S. E. g,W
- k Ral little relation to reality. "[G]reat caution C. v. Chenery Corp.,318 U.S. 80,95,63 S.Ct. J 2: the should be used not to let fiction deny the 454,87 led. 626 (1943). La a catun t% fair play that can be secured only by a Moreover, even if the Commission had h' pretty close adhesion to fact." Mcdonald v, found that Diebold was aware of the re- i,f
- d in- Mabee, 243 U.S. 90, 91, 37 S.Ct. 343, 61 quirement, we would be hard put to dis- p3
",I'- led. 608 (1917). Adhering to the. facts cover substantial evidence in this record di
' " 88- here, we believe that the regulations were upon which to affirm such a finding. See V! ahich insufficient to warn employers that guard- 29 U.S.C. 6 660(a). The sole evidentiary Ot se in-
* /tra*
ing of press brakes was required.. basis put forward by the Secretary is the h(
- anap. - CCH-OSHD f 19.546 (1975); Clark Equipment bNA.OSlic 3294, 1974-75 CCH-OSHD li 19.- .I Co. (OSHRC Docket No. 7925),1974-75 CCH- 193 (1975) (ALI Burroughs). I,! .
OSHD r 19,399 (1975) (ALI Worcester), rev'd, b BNA~ - OSAHRC ,3 BNA-OSHC 1834,1975- 13. Our conclusion in i II, supra, that the Secre- .,
.1,MS 76 CCH-OSHD t 20.238 (1975). Contra: Gem- tary's construction of the regulations is the '}
N3 Top Af/g., Inc. (OSHRC Docket No. 2795), most reasonable of the available alternatives is l
;374; 1973-74 CCH.OSHD ! 17,280 (1974) (ALJ prenused not on the language of the regulations ;
_ rys. Mitcliell), affd.16 OSAHRC 591, 3 BNA- but on a careful exammation of their source ,r
- OSHC 1022, 1974-75 CCH-OSHD 5 19.524 standards. We do not believe that the average :
?.CH. businessman, or even his attorney (given the y
.u!ry (1975), aff'd,556 F.2d 431 (9th Cir.1977); Con-fcg. sohdated Afetal Products (OSHRC Docket No. thousands of regulations promulgated under 4; 3620),11 OSA!!RC 621, 2 BNA-OSHC 3152, the Act), should be held to have conducted a v ,
. 3; g$ 1974-75 CCH-OSHD
- 18,474 (1974) (ALI Do. sinular exanunation in the absence of some ,,
negan); Productson Control Units. Inc. additional factor warning that the particular !, (OSHRC Docket No. 6976),15 OSAHRC 617,2 regulation might be applicable, f
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n -id u y < sr. Q . m.% 6t h f W q. M gr .c5, W ,3 y g m s* M e ,,- ,
D u .a u.a - i. 4i U ;u.Lixt m,,. m .:- s k h L .l aki..r..;,ak _,, ___ ; , t y - : , p. . - .. c . .CTW ' MP ot h e t-fact that, prior to issuance of the instant solve ambiguities.n Once such a construe- <- . ' - citations, Dieboldi d.mt I (ngineer.4 1.:.d al- tion has I,een provided. wh illy prospectiv pea ready been seeking out a workable point of application of the rule thus established docs e;'4 not offend due process since the interpre-operation guarding device for the Compa- tive decision itself provides the requisite h, h r, r.y's press brakes. Considered simply in 9, ,., 7 3.. terms of probative value, an employ (r's at-warning. In relation to press brake guard-p . . . ., 4 , tempts to render machinery or working ing, the Commission's decision in Irvington 3foore no doubt filled such a curative func- tbW -' premises more safe, without anything more, tion, definitively establishing that the gen- cannot reannably support an inference that '_ eral machine guarding standard applies to the attempts were made because the em- , ployer believed them to be legally required. press brakes. Thus, the prospective appli-Further, the drawing of such an inference cation of this interpretation-whether to would be repugnant to the purpwes of the Diebold or to other employers-is not af. 5P'* "* ' Act. Congress expected that safety in the fected by our decision.
., a.
[17] The validity of prospective enforce. nation's workplaces would be achieved as h,-[,,,ri i much by the voluntary efforts of employers ment of the Commission's interpretation
; as by the enforcement programs of the does raise a question es to the precise dispo.
7 government. See Dunlop v. Rockwell In- sition of the instant proceeling. since the sf the 'or
.d ternational, 540 F.2d 1283,1.'92 (6th Cir. Commission not only fined Diebold for ita
.p g 1976). If employers are not to be dissuaded failure to provide et$arding on the days the u[
from tak,mg precautions beyond the mim- citations were issued but also ortiered the h t" m mum regulatory requirements, they must Company to provide such guarding in the t*- be able to do so w,ithout concern that their future. As to the fines, of coure, the lack p(}( efforts willlater provide the sole evidentia- of a constitutiona;ly sufficient waming pr.e _- [n
- ry basis for an adverse finding of the rort cludes enforcement of the Commission's or-
- urged here. See Cape and Vineyard Div'n As to the requirement of future
.)*
of New Bedford Gas Co. v. OSHRC, 512 gua g. iding on the other hand, it is at least ' "k' F.2d 1145,1154 (1st Cir,1975). arguable that procetive enforcement of "" I ^ [16] We emphasize that our holding as the order would be inoffensive to the con- In if 1.) to the insufficiency of the warning given is stitutional guarantee. Cf. F. T. C. v. Ru- der the h reached with reference to the particular beroid Co., 343 U.S. 470, 4S3-94, 72 S.Ct. mg m M " facts of the case at hand." United States 800, 96 L.Ed.1081 (1952) (Jackson, J. dis. Commi
>T '
- v. Afazurie,419 U.S. 544,550,95 S.Ct. 710, senting); Note, Tbc Void-for Vagueness such r j was r -
714,42 L.Ed.2d 706 (1975).t* It is axiomatic Doctrine in the Supreme Court,109 U.Pa.L. 3 that defects in the constitutional sufficiency Rev. 67,77 n. 55 (1960). However, while we half 11
"}i ,
of a regulatory warning may be cured by recognize that there are probably cases in which an order such as the present one mined authoritative judicial or administrative in- anee.
.WN' terpretations which clarify obscurities or re-could properly be treated as severable,ns ante i
- 15. Rose v. Locke. 423 U.S. 48,52,96 S.Ct. 243.
in uff i ',
- 14. In this regard, we note that somewhat simi- 46 led.2d 185 (1975): Parker v. Lesy,417 U.S. ftM lar due process claims regarding press brake
*4 g.
f guardmg were raised and rejected in tryington 733. 752-54. 94 S.Ct. 2547. 41 led.2d 439 (1974); Smurh v. Goguen. 4l5 U.S. 566,575. 94 tt.ssot hfoore. Dsv'n of U. S. Natural Resources. Inc. v. S.Ct.1242,39 led.2d 605 (1974); Wainwnght quhr
' gl;*i OSHRC,556 F.2d 431 (9th Cir.1977), and Long Afanufactunng Co. v. OSHRC, 554 F.2d 903
- v. Stone. 414 U.S. 21, 22-23, 94 S.Ct.190, 38
- 17. 3
+M led.2d 179 (1973); Jackson v. Dorr'ar, 424 05; Q
(8th Cir.1977). Our conclusion is not at odds with those decisions, however. In Long. the F.2d 213, 217-18 (6th Cir.), cert. denied, 400 U.S. 850, 91 S.Ct. 55, 27 led.2d 88 (1970L 39;. employer had actual knowledge of the reguia- 05) f"}_ .. tory requirement prior to the citations under 16. The Act itself distinguishes between cita- p,, review. 554 F.2d at 905-906. Similarly, in tions for past violations and proceedings fol- 279 Jrvington Afoore, the employer's claims of hav- gg7 Mi'.t ing been misled were rejected by the court-lowing the employer's failure to correct viola-tions once it has been cited. Compare 29 c,,
. l. ' 7,2
^M (with one judge concurnng and'one judge dis-U.S C. il 659(a) and 666(b) and (c) with id. En senting) as "not credible." 556 F.2d at 435.
4-R Here, by contrast, there is nothing of record to $$ 659(b) and 666(d). See Afarshall v. B. W. g g. Harnson Lwnber Co.,569 F.2d 1303 (5th Cir.
" ' ' 'f indicate Diebold's actual knowledge that guard-1978).
sA; ing was required. g I I'OM $# y W*"
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e DIEBOI.D. INC. v. MARSHALL 1339 Cite as ses F.2d is27 (Is7s) [ with enforcement denied on due process the requirement exists. Thus, even if we f grounds only in relation to the penalties for limited enforcement of the Commission's
)
past conduct, we do not believe that this is order to its prospective elements, we would j such a case. nonetheless be enforcing an obligation ~, Before the Comminion, Diebold relied in which very well might not have been im-large part on its contention that the re. posed had Dicbold received a fair opportuni- [ quired guarding of its press brakes was . ty to seek a variance and,if unsuccessful in t technologicsliy imp.issible. Both ti e Com- that quest, had it then bun t.b!: te procad , mission and the courta have habitually without the procedural disadvantages visit-looked on such claims with a jaundiced eye ed on those who sidestep their variance when they have been raised for the first oPportunitier. [i time in enforcement proceedings by em-Because the lack of a constitutionally suf- _ ! ployers who made no prior effort to seek ficient warning thus affected the whole of ,' cither a variance,29 U.S.C. $ 055(d), or a [ the Commission's decision and order, we are i modification of the applicable standard, id. unable to regard the prospective elementa i0;,
% 635(c)." Indeed, in the instant case, one of the order as severable from the penalties. [ . Y; if '
of the two Commissioners constituting the majority was of the view that Dietmid's Rather, the only way by which to give 1 Diebold the full benefit of the notice denied h~1 claim could not be addressed on its merits by the regulations is to vacate the order in f 1,.7 because of the Company's failure to "ex-its entirety. haust" these preliminary administrative ~ 1 ' remedies.is Whether such exhaustion is re-quired or is merely to be preferred, the fact IV. i f. remains that an employer which has not for the foregoing reasons, the decision of - i previously sought a variance or modifica. tion starts with a distinct disadvantage the Commission is reversed, the order of the U f when it cla,msi impossibility in an enforce- Commission'is vacated, and the underlying } ?, citations are dismissed. No costa are taxed; ment proceeding. In the instant case, the Commission's or-each party will bear its own costs on this appeal. l h@[1 ' b der that Diebold provide press brake guard-ing in the future necessarily rests on the Commission's rejcetion of the claim that " such guarding is impossible, a holding which '
, was substantially affected (indeed, as to
- half the Commission majority, was deter-
, g ,,,,,y,y,,y
~=
(2
;l' f . c ,.
mined) by Diebold's failure to seek a vari-ance. But Diebold's failure to seek a vari-
.)I ance is directly attributable in turn to the insufficiency of the warning given by the 4 3 >
j regulations: Plainly, an employer has no ,, , reason to seek relief from a regulatory re-quirement unless it is first on notice that .E
- 17. See, e. g., Atlantic A Gulf Stewdores, fac. v. 18. Though the matter is not entirely clear, it 4. -
.r.y . ,
OSHRC,534 F.2d $41. 548-51, 555-56 (3d Cir. - appears that the other majority Commissioner t" 1976); Arkansas-Best Freight Systems, Inc. v. may have viewed the failure to exhaust as r OSHRC, 529 F.2d 649, 653 (8th Cir.1976); shifting the burden of proof as to impossibility, Deemer Steel Casting Co. (OSHRC Docket No. see text and note at n. 8. supra, or as altering . yD ' 2792). 15 OSAHRC 162. 2 BNA-OSHC 1577 . the standard of proof. Of course, given the V - 1974-75 CCH-OSHD ! 19,221 (1975). See also 1 mited scope of judicial review available under General Electric Co. v. Secretary of labor,576 the Act, the Comnussion's treatment of bur. W W"- F.2d 558, 560-62 (3d Cir.1978 A frwm Steel dens and standards of proof will often be deter. Erectors v. OSHRC. 574 F.2d 222,223 (5th Cir.\ nunative of the employer's rights. 1978). j m A. y P. ..
>y.
z
a V
}0G1 5S:: PEDERAL REPORTER,2d SERIES that any spill which causes a sheen is Health Review Commission 'which deter.
" harmful" and therefore prohibited by mined that it violated OSHA by failing to t
{ 1321th)(3). Evidence of a sheen thus pro- comply with safety standard promulgated , vides a >ufficient basis for the Gosernment thereunder. The Court of Appeals, Roncy,
/
to aws the $ 1321(b)(6) civil penalty un- Circuit Judge, held that in the absence of le.w defendant proves that its rpill was evidence that employer's conduct fell below # not harmful und(r the circumstances. If a demonstrated practice in industry, Commis-defendant introduces such evidence, as sion's decision that employer violated gen. Chevron did here through Dr. Mackin, the eral federal admonition to require the t. Government must rebut with evidcnce that " wearing of personal protective equipment" - defendant's spill was of a harmful quantity where there is "an exposure to hazardous , e under the circumstances.82 Since the conditions" was not supported by substan- . Government in the case sub judice did not tial evidence. come ic,rward with any evidence at the Reversed. administrative hearing, the penalty cannot be enforced.
- 1. Iabor Relations *=9.5 Accordingly, the district court.s grant of .
An employer cannot be held in viola-summary judgment is reversed and the t. ion of general federal admomtion to re-case is remanded for entry of summary quire the " wearing of personal protective . judgment for defendant Chevron. equipment' where there is "an exposure to ' REVERSED AND REMANDED. hazardous conditions" when his conduct is ! representative o~ that of employers in his . a industry under similar circumstances. Oc-h "'M"*"9 cupational Safety and Health Act of 1970. I 2 et seq., 29 U.S.C.A. $ 651 et seq. ,
- 2. Labor Relations *=9.5 i General federal admonition to require f B & B INSULATION, INC., Petitioner, I the " wearing of personal protective equip-Y- ment" where there is "an exposure to has- 1 OCCUPATIONAL SAFETY AND ardous conditions" is not unenforceably ,
- HEALTH REVIEW COMMISSION and vague since standard requires only those -
F. Ray Marshall, Secretary of labor, protective measures which knowledge and Respondents, experience of employer's industry, which emPl oyer is presumed to share, would clear- , No. 77-2211. ly deem appropriate under circumstances. , United States Court of Appeals, Occupational Safety and Health Act of l Fifth Circuit. 1970, 6 2 et seq.,29 U.S.C.A. $ 651 et seq. j Nov.16,1978. 3. Administrative Law and Procedure
*= 390 Employer petitioned for review of a Vagueness charge against agency regu- ,
final order of the Occupational Safety and lation must be considered in light of reguls- : (harTnful quantity is determined at the time of the same, the purpose of the reporting requim the spill rather than after defendant's cleanup ment is to enable an expeditious cleanup of the i . efforts. so that defendant's remedial action af- spill rather than to penalize for it, and that - j ter a spill is irrelevant to the determination of might allow the sheen test to serve as an Irm
" harmfulness"). United States v. W. B. Enter- buttable presumption in that context. Since ;
-' rnses. Inc. 378 F.Supp. 420, 422 (S.D.N.Y. Chevron reported the spill and also concedes l 197 8) (same) the vahdity of the reporting requiremer.t mn on the facts of this case, the sheen test as
? 12. We need not now decide whether the sheen applied to i 1321(b)(5)'s reporung requirement l
test also creates only a rebuttable presumption is not before us. in the tuntext of l 1321(b)(5)'s duty to report harmful spill *. While the statutory language is kt (. . eks _,,r
- - m .a L ee*" 7
r
.s .
r . . w.w.u .m i B & H INSULATION, INC. v. O. S. H. R. C. 1365 4 Che as s93 F.2d 1364 (1978) t ..n's aj plication wherc remedial tisil legis- employer whose activity is not yet ad- {
- which dette. .:1..n, rather than criminal,is involved and dressed by specific regulation and whose !
- :.y failing t., *
. Eromu?gatei
" re is no potential deterrence of First conduct conforms to common practice of Amendment activity. U.S.C.A.Const. those similarly situated in his industry a pals. Rore should generally not bear an extra burden.
absence h Unend.1. Occupational Safety and Health Act of
- et fell beia 651 et seq.
- y. Conn.%. L N'EIIK'"C' *"4 1970, s 2 et seq., :.9 U.S.C.A.
.iolated gcr.. " Reasonable man"is a fictional charac.
- 11. labor Relations c=>9.5 ,
require tat. tir of tort law wherein his condact sets the Where Govern'nent seeks to encourage ( a equipment" etandard below which behavior constitutes
- o hazardous negligence. higher stamlard of safety performance in ;
. by substan- See pubhestion Words and Phrases int astry thr.n custo nary industry practices i
I for other b.dicial constructions and exg,gt, proper recourse is to standard-mak-definitions. ing machinery priviGd in OSHA, selective f cnf reem.nt of general standards being in- ',
- 5. Negligence o=124(3) t appropriata to achi-vc such purpose. Occu-
***"** ' ** " ** "" * "P* pational Safety and llealth Act of 1970,6 2
' t.dd in viola. snr.ifies community ideal of reasonable be-et seq.,29 U.S.C.A. b 651 et seq. ,
- r.itio2 to re.
natior, evidence of customary conduct of
- th.ne similarly situated may be probative in 12. Labor Relationa >27
.. 4tctmtmng his behavior. Fir. dings of thc Occupation?! Safety s conduct i, )
~~:oy;rs in hi' and Henith Review Commission are conclu- ,
- 6. Negligence *=5 siw with remect to questions of fact where i i'.ances. Or . . .. .
c.- Act cf 1970, Custom is not dispositive m negh.gence substantial evidence on record considered as cases. whole supports them. Occupational Safety ] 3 651 et seg. and Health Act of 1970, $ 11(a),29 U.S.C.A. ,
- 7. Labor Relations *=9.5
- n to require I *b Purpose of OSHA is preventive rather C '9 than compensatory. Occupational Safety 13. Labor Relations *=9.5 I..
and Henkh Act of 1970, 6 2 et seq., 29 Secretary of Labor has burden of prov-
' br.entarceable U.S.C.A. $ 651 et seq.
m only thoE- ing all elements of a violation of OSHA. t sn.wledge and
- labor Relations e=9.5 Occupational Safety and Health Act of [ r astry, which 1970, 9 2 et seq.,29 U.S.C.A. { 651 et seq. '
OSHA does not affect workmen,a com-
. would cicar- '
. ;umstances. 17nsation in any way and creates no private 14. Labor Relations *=9.5 ha:th Act of "dt Of action for an injured employee in absence of evidence that employer's
- 1651 et seg. 'cainst h.is employer. Occupational Safety conduct fell below demonstrated practice in and Health Act of 1970, S 4(b)(4),29 U.S. .industry, Occupational Safety and Health
.~ Procedure C.A. 6 653(b)(4)~ Review Commission's decision finding that
.p employer violated general federal admoni-egency regu- 9. Labor Relations *=9.5 ti n t require the wearing of personal I"I** Preventive goals of OSHA are not ad- Protective equipment; where an there is vrting requir, sanced where broad standards are extended exposure to hazardous condit,ons i was not
. chanup of the to encompass every situation which gives supported by substantial evidence. Occupa-wr st. and that .
nw to an unlikely accident. Occupat.ional tional Safety and Health Act of 1970,6 2 et c.,,,,,, Safety and Health Act of 1970, $ 2 et seq., f ant:xt. sine,
' seq.,29 U.S.C.A. 6 651 et seq.
- eso concedes a U.S.C.A. 651 et seq.
% dement eVr0
'. f,Q"jr'5 10. I. abor Relations *=9.5 '
in light of OSHA's preventive purpose P. Al!an Port, Houston, Tex., for petition- , M inh nded specif: city of its st: 4nis, e r. 1 k'
._ . .. m m .m -6 . ,_-__-m-- n. . .
% %,.qg, . ..., ,a a 136G sc rEDERAL REPORTER,2d SERIES Carin A. Clauss, Sol. of Labor, U. S. Dept. twt we of Labor, Benjamin W. Mintz, Assoc. Sol. ord to support a finding that a reasona'b wLhw for OSilC, Allen 11. Feldman, Asst. Counse.1 prudent employer in the insulation industn n d. . T would have understood that the use of safe.
for Appellate Litigation, Nancy L South- ty belts was mandated by the conditions for the rack ard, Att.n, lhy H. Darlinr, Jr., Ewcutive which B&B was cited. placed 11 Secrctary, OSHRC, Thomas L R.'zma:i, . . Michael Levm, Counsel for App (llate Liti- . The employer, B & B Insulation, Inc. st wr gation, U. S. %pt. of Labar, Ehiytoi,, (B&B). pursuant to @ 11 of the Occupation.d Nis D. C., for respondents. Safety and Health Act of 1970 (Act), 29 the gre. U.S.C.A. $ 651 et seq., petitioned for review from th Petition for Review of an Order of the f a final rder of the Occupational Safety Nine ns Occupational Safety and Health Review and Health Review Commission (Commis. run th Commission. s n). This Court has junsdiction under 29 lines of a U.S.C.A. 660(a). The Commission deter. lu mber. Before RONEY, RUBIN and VANCE, mined that B&B violated section 5(a)(2) of On ths Circuit Judges. the Act,29 U.S.C.A. 5 654(a)(2), by failing carr.e int '. to comply with 29 C.F.R. { 1926.28(a), a electrocs safety standard promulgated thereunder.' RONEY, Circuit Judge: employe. The facts of an accident which led to the body, he [1] This Occupational Safety and Health citation are undisputed."B&B is an insula- C""5CI'* Act case raises the question of whether an tion subcontractor which employs approxi- P' pes an. ensplupr can be held in violation of a gen- mately 250 employees. On August 9,1974, tunng h eral federal admonition [29 C.F.R. f 1926.. B&B was engaged in insulation of steam the empi 28(a)] to require the " wearing of personal pipes at a lumber company. The 8. inch In resi protective equipment" where there is "an steam pipe being insulated was located ap. tinnal S exposure to hazardous conditions" where proximately 23 feet above the ground.
- 3. his conduct is representative of that of em. Two feet above the steam pipe was a net,
! (OSHA) g< worksite ployers in his industry under similar cir- work of steel girders supporting a conveyor { was cite 1 cumstances. In holding that the emplover belt. Two feet below was a series or " rack" i cause of cannot be so held. we sustain the rerula' tion of three parallel pipes on which the fore- . u q Pers.
against a facial constitutional challenge, man and one employee stood. The rack i quired by but limit its application to those conditions consisted of a 16-inch and a 14-inch pipe M' which the cited employer's industry would separated by a 15-inch space through which *
- 2. 't he A.
" "- recognize as hazards requiring the use of ran a third pipe of unspecified diameter. t'{ga ]
safety equipment, the absence of which con- The foreman and an employee straddled the ) issued
- i stitutes a violation. The result in this case center pipe with one foot on each outside ness te ,
would t
' is to reverse the Commission's assessment pipe and walked down the rack as insula-of a nonserious violation on the ground that tion of the steam pipe progressed. A third
[, l P empio>e {nere is not substantial evidence in the rec; employee, who remained on the ground, i Mmm I. The purpose of the Act, to assure safe and } eratsons standards issued pursuant to the Act, which ; The A healthful working conditions, is accomplished may also articulate general duties. Ed in part by authorizing the Secretary of Labor to t4on" es
. 5 654(aX2). abiht) a set mandatory occupational safety and health 29 C.F.R. $ 1926.28(a), a i 654(aX2) stan- could te standards. 29 U.S.C.A. $ 651(b)(3). The sta'n- dard. provides dards, applicable to all businesses affecting in. "*
terstate commerce, id., impose two types of The employer is responsible for requiring the ; wearing of appropriate personal protectiw d',h] duties on employers. The employer's " general a equipment in all operations where there is an 3. B&D w duty"is to furnish employment and a place of employment free from " recognized hazards exposure to hasardous conditions rr where 29 Cl > that are causing or are likely to cause death or thn part indicates the need for using such *s to u equipment to reduce the hazards to the ern- im, s w t serious physical harm." Id $ 654(a)f t). The ployees. employer must also comply with the specific 1" 'IF O, 4, _1- _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ . _ _ _ . _ _ __ s
.._..-.w...o...- . W"--- ~ '
i s it & H I N' l . l. O tm. f t.t . v. O. S.11. R. C.
. ,m,
)W tied sections of the insulation to a rope tion was grounded on the failure to require
)*
w hich was pullut up by the (mpInyee on the the use of .<afety bt.Its or lifelines. rack. The sections were then carried along B&B timely contcsted the citation and i the rack and delisered to the foreman who ! the $90 penalty, 29 U.S C.A. f59(c), and placed them around the steam pipe. the Secretary of Labor filed a formal com- . The insulation was secured with stainless plaint. 29 C.I'.R. p 2200.33. The adminis- . steel wire until a permanent covering could trative law judge vacated the citation and f' be installed. The coil of wire remained on proposed penalty, finding "no evidence in the ground with the running end trailing the record to show that a reasonably pru-from the foreman's position on the rack, dent person, fully knowledgeable of the in- t Nine feet below the rack, mounted on poles, sulation in>taLtion businew would have ran the energized and uninsulated power known that safety belts and lifelines would' lines of an electric trolley used to transport be necessary equipment within the meaning ( lumber. and intent of section 29 C.F.R. $ 1926.- 5 On the date in question, the trailing wire 28(a)." On review the Commissi m reversed .,' came into contact with the power line and the decision by a 2-1 vote, affirming the f electrocuted the foreman. When the other citation and imposing a $90 penalty. l employee on the rack touched the foreman's } body, he received an electrical shock, lost [2] B&B arem that 29 C.F.R. $ 1926.. { i consciousness, and fell backward over the 2S(a) is unenfor:cably vague for failure to, f ,
.I pipes and into a concrete ditch below, frac- provide emplovers with reasonibic notice pf . i ,} y, turing his skull. Neither the foreman nor what is required. We share B&b's concern the employee wore a safety belt.
' J' t with the generality of the standard's com-In response to this accident, an Occupa, mand.' We conclude, herever, that its re- ;
tional Safety and Health Administration quirements are not unforeseeable if the g (OSHA) compliance officer inspected the standard la rtad to require only those pro. worksite on August 13 and 14,1974. B&B tective measures which the knowledge and was cited for a nonserious violations be- exPertence of the employer's industry, , cause of failure to require its employees to which the employer is presumed to shd, , , use personal protective equipment, as re- would clearly deem appropriate under the ., , quired by 29 C.F.R. $ 1926.28(a).8 The cita- circumstances. F*- - -
- 2. The Act does not defme a "nonsenous" viola. the administrative law judge and further re- ly tion. The OSHA field operations manual states view was not sought.
that nonscrious violation citations are to be ( s j ,; issued "where an accident or occupational ill- 4. Uncertainty as to what a standard requires {g ness resulting from violation of a standard has an economic impact on employers in the would probably not cause death or serious [ construction industry. Only the employer L i physical harm. but which would have a direct aware of his responsibihty for often costly safe. ' or immediate relationship to safety or health of ty equipment is able to cover its cost in con. i employees." Occupational Safety and Health d Administration. U. S Dep't of Labor, field OP-tract bids submitted belote construction be. gins. If a contract bid includes costs which an
} '
erations AfanualVill-B2 (1974). empinyer thought required by the standard, but , The Act itself provides that a " serious viola- were not, his bid may be noncompetitive with ,
~
tion" exists where "there is a substantial prob- those which did not include such cost and he abihty that death or serious physical harm may lose the job. See Stokes. Legal Considers. > could result . unless the employer did tions of the Occupational Safety and Health not, and could not with the exercise of reasona- Act of 1970, in the Occupational Safety and 't ble dihgence, know of the presence of the viola. Health Act 7576 (B Walls ed.1972); Sabo, ;.s tion." 29 U.S.C.A.1666()). OSHA Problenu in the Construction industry, ;
- 3. B&B was also cited for a senous violation of Proceedmgs of the American Bar Association e 29 CJ.R.11926.400(c) for pernutting employ. National Institute on Occ.spational Safety and E ,
ees to work in close proximity to electric power hnes which had not been de-energized or effec. Health law (1976) 21F217,222. pe, tively insulated. That citation was affirmed by
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[3] Because this is remedhi civil keish tions and where this part indicato tr. tion, rather than criminal, and because no t-need for using such equipment to reo . p potential deterrence of First Amendment- the hazards to the employees. . activity is involved, the vagueness charre-must be considered in light of the_ recula _ (Emphasis added). tion's application. United States v. .Varion- As so worded, the standard was held ur.. o al Dairy Products Corp.,372 U.S. 29,36, F3 enf reeably vague by the Ninth Circuit i . S.Ct. 594, 9 L.Ed.2d 561 (1963): Ryder N"#"#" C#"'""#'"" b " @# 1 l r. Truck Lines, Inc. v. Brennan,497 F.2d 230, F.2d 2S1 (9th Cir.1976), when applied to tn, < 233 (5th Cir.1974). amted need for safety lines attached i Due process considerations mandate stant structure on which employees were woridt - , dards carrvine "sufficiently definite un' forty feet above the ground. The court .
.ing as to the proscribed conduct when meas- acknowledged the danger involved as a ured by common ur:derstanding and one- matter of " general intuition." Noting the conjunctive structure of the standard's com.
tkes " UnitedS! ares v. Petrillo,332 U.S.1, D 8,67 S.Ct.1538,1542,91 L.Ed.1877 (1947). . mand, however, the court found no specific Instructions among the subsections of Part No Circuit Court of Appeals has yet con- 1926 to tell the employer when protectise ! sidered a vaguer.ess challenge to 29 C.F.R. " equipment is required. 546 F.2d at 2<1
$ 1926.28(a)in its present form. The regu. I'
-)..
lation was imtially promulgated pursuant to The regulation was reworded cn Decem-p authon.ty granted the Secretary of Labor m. ber IG.1972 to subttitute "or" for the "and"
. . . i T
$ 107 of the Contract Work llom and m italics abom 37 Mg 27,5M (D e n Safety Standards Act, 40 U.S C.A 6 333 The Ho# man court expressly declined t. J (1969). When adoptt.d by the Secret [ry on c mment on the revised versions.* 546 F.:',1 f.
Ly 29,1971 as an OMIA nandard under at 283 n.5. . 29 U.S.C.A. 655(a), this " established Fed. Although the Ccmmission has consistent. . eral standard"5 read as follows: ly upheld the standard as not unenforceab!3
- The employer is responsible for requiring vague, each decision by t'ie Commission has T the wearing of appropriate personal pro- produced as many conflicting interpreta- b, tective equipment in all operations where tions as there were participating comm>>-
there is an exposure to hazardous condi- sioners, both under the old regulation,' and jJ
" 8. The Act authorizes standards of three types: "and in the Secretary's December 16. 1972 1
national consensus standards or estabhshe1 rension of construction standards. See 37 s federal standards adcpted for OSHA use within Fed Rt g. 27.503 (1972). Commissioner Moran two years of the Act's effective date. 29 U.S. argues that the original version remains in ef-
.'. C.A. 9 CS5(a). permanent standards developed fect and requires, as suggested in Ho# man.
+
by the Secretary of Labor along with an adviso- designation of a particular construction stan ry committee. 29 U.S C.A. 9 E.,5(b). and emer. gen <.y temporary standards, 29 U.S C.A. dard requiring use of such equipment. 5 & 8 Insulation. Inc., OSHRC Docket No. 9985. BN A 6 655(c). 5 O S.H C.1265 (1977) (Moran, dissenting). An " established Federal standard"is any op. erative occupational safety and health standard In light of the "nonsubstantive" nature of the , estabhshed by any federal agency in effect at amendment, the other two commissioners ha$e the enactment of the Act. 29 U.S C.A. held that the amended version is to be read the 5652(10). " National consensus' standards are same as the onginal. Dchleay Corp., OSHRC those emanating from a nationally recognized Docket No. 2610. BNA 2 O.S.H.C.1635 (1975i standard producing organization. Id. t 652(9), B&B cites the Hoffman case as precedent td f
, ded resul8
- 6. Commissioner Moran mamtains that the tion's invahdity on procedural grounds.
standard in its present' form is invalid because the Secretary failed to comply with rulemaking 7. See, Hoffman Construction compen . t" procedures of 29 U.5 C.A. 6 655(b) in accom. OSHRC Docket No. 644. BNA 2 0.S.H C. I phshing the revision. The amendment, which (1975); Carpenter Riggmg & contracts claimed to make no substantive change, was Corp., OSHRC Docket No.1399, BNA 2 0 achieved by mere substitution of "or" for H.C.1544 (1975).
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/t a O. N II. Is. C. 7,9 L,te as W & .JJ 144,4 (ivle) the new.' Thi< caw it< elf was decided with protretive footwear was that of foot inju-three different wraten op nion.<. This cen- ries to dock workers in contact with heavy tinuing "three-.ay spht in the ir.terpreta- freight and equipment in a confined area. '
' tion of the standard," as ref(rred to in the The ** reasonable person" test was also concurring opinion of Commissioner Cleary, retd into 29 C.F.R. $ 1910.132(a) by the b' might well evidence to some the very Fourth Circuit in McLean Trucking Co. v. .
vagueness charged by the petitioner. If the OSHRC,503 F.2d 8 (4th Cir.1974). Again regulation a sch that the commissioners the use of protective footwear for loading , themselve> cannot agree upon what it de- dock workers was the safety obligation of l mands,i ,t rray seem to require different which the employer w.u deemed to have I things to different emplours, the corner- not. ice. The reasonable person approach, stone of the uncertainty argument. the Court noted, accords with congressional {,' For the oh.iectivity needed to rescue __. purpose as reflected in the general duty 6 1926.23a) from unconstitutional uncer- clause of the statute itself," the language , taint,v, h_oweler, _ we l_ook to cases con _struing_ of which is at least as imprecise as that of analogous OSHATandards and to the tort 29 C.F.R. 61910.132(a), law concept of the " reasonable man.#N In a third protect.ive footwear case, Ar- bl. I -
- 1-eral circui r .ts have upheld, despite its lack of kansas-Best Freight Systems, Inc. v. .
'U precision,29 C.F.R. 61910.132(a), the sul- OSHRC,529 F.2d C49,655 (8th Cir.1976), L, r ject standar8s general m, dustry ana,iogue., the Eig e-i This Court rejected the emplover,s vay,uf _* pers n,,hth Circuit endorse (g
' %~ ness claim in 'Arder Truck Lines, Inc. v. ,
anger wanan mg pMedtw eqmp-
'" Brennan,497 F.2d 230, 23W5th Cir.197I),ment, Iy to determme the applicability of the
!l, ,'
# fiEdiiig~thit action drafted "with as mu'ch difficult Protective equipment standard. [
exactitude as possible in light of the myriad P conceiv'a'lile situations wnica could arise ani in Cape & 1*ineyard Dir. v. OSHRC,512
. e. . .
which wouThe ca~ p Ettrof t i% injury."~ F.2d 1148 (1st Cir.1975), $ 1910.132(a) was '} g
. .al.s h.
The Court identified as inherent in the applied to an alleged failure of the employ- U.. standard. the test of whether or not a rea- er to require protective equipment against
;c 4 m ..-
sonable person would have recognized tiIe" electrical shock in utility company repair h'
%i hazard. In Ryder the hazard recognized by" work. The " reasonable person" test was ' amt the " reasonable person" to warrant use of embellished to ask "whether a reasonably 4' "8 ', '
M*2 encountered in a manner See, e. g, L'ehr Construction Co., OSHRC ment,
- l' 8. i t!
Docket No. 7240. BNA G O.S.H.C. 1352 (1978); capable of causing injury or impairment in
*
- rn4 *!;
the function of any part of the body
.r. ef State Home loprovement Co., OSHRC Docket No. 14096. BNA 6 0.S.II C. 1249 (1977);
t .a v.
*t n Sweetman Construction Co.. OSHRC Docket 10. The statutory general duty clause [29 U.S. Y[-
No. 3750. 3 BNA O S.H.C. 2056 (1976); isseks C.A. i 654(a)(1)] see note 1, supra, addresses i 9f=%A C Brothers. inc.. OSHRC Docket No. 6415. BNA 3
- recognized hazards." In a floor speech pro- }j
- 0.S.H C.1954 (1976). posmg an amendment wluch became the fmal version of the general duty clause, Representa-d*
i Ns> 9. Construction work is governed by Part 1926 tive Daniels stated: of the OSHA regulations. General industry A recognized hazard is a condition that is d tte HF standards catalogued in Part 1910 may als known to be hazardous, and is known not ",f 7
.A"4 apply to the construction industry where no g g 2 n Nt Part 1926 standards exist to cover working ployer but is kmwn taking into account the
- e d e condations in issue. 29 CJ.R. $$ 1910.5,1910 standard of knowledge in the industry. In .g 12* other words. whether or not a hazard is ** rec- 7
+ pan, 29 Cf.R. $ 1910.132(a), a general industry ognised"is a matter for objective determina- E 3%23 standard provides; tion. It does not depend on whether the par-Protective equipment . shall be pro. ticular employer is aware of it. . , es vided. used, and mamtained in a sanitary and 116 Cong. Rec. 38377 (1970).
,os reliable condition wherever it is necessary by e reason of hazards of processes or environ-N'-
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F 4 -_ . _ A :_Y :.:s,i&Eulk Mr. .k W 2n- E m= :m 1. s . , .s 1370 583 FEDERAL REPORTER,2d SERIES prudent man familiar with the circumstanc. employed by the Government and depends _ o es of the industry would have protected, not at aH upon the evidence drawn fromlhx._ p agair.st the _ hazard," 512 F.2d at 1152. people employed by the industry. _This aP-r The Cape & Vineyard _ test was relied Pli cation of the reasonable _ persony!{ , upon by the Ninth Circuit in Brennan v. stands the principle on its head. The cpja-b SmoAc-Craft, Inc., 530 P.2d 843, S45 (9th rron law reasonable man standar.d.flault_ t Cir.1976) to determine the need for protec- sei ped and applied in direct reference._to , I tive gloves in the sausage manufacturing Persons who would be subject tojudgment, s industry. It was endorsed most recently by by that standard. _Here, the Commission t the Second Circuit in American Airlines, would decide ad hoc what would be reason- r Inc. v. Secretary of Labor,578 F.2d 38,41 able conduct for normons of particular ex-_ (2d Cir.1978), in the context of a require- pertise and experience without reference to ment for protective footwear for airline the actual conduct which that experience' _ t cargo handlers. has engendered. In other words, the Com , I _The clarity of the =t=Maed sub fudiegjs mission would assert _the authority to decid~t t i what a reasonable prudent employer would egually well served by the " reasonable peg- e
" do under particular circumstances, even gon" approach if applied with a sensitivitt c to the circumstances in which.jt is used. though in an industry of multiple employ c ers, not ontqLtheta 3dl3]iEfoMid j
[4-4] The "rcasonable man" is, of ** "" course, a fictional character borrowed from This disregard of demonstra.ted industry - tort !aw whereir. his conduct sets the stan. custom is clearly beyon:! the intention of dard below which behavior constitutes neg. Ech7irst borrowed th]e[Leasona _, ligence. See generally, W. Prosser, Law of ble man theory to cor.strue OSHA stan-
^
, Torta at 149-80. Because the reasonable dards. As the Court said in Ryder, supra:
man personifies the community ideal of rea- So long as the mandate affords a reason-
'E sonable behavior, evidence of customary able warning of the proscribed conduct in
- conduct of those similarly situated may be light of common understanding and prae- i probative in determining his behavior. Id.at Lices, it will pass constitutional muster. i
, 166-68. See, e. g., Ward v. Nobart Manut. ,
497 F.2d at 233. In Cape & Vineyard, supra
- Co., 450 F.2d 1176,1185 (5th Cir.1971) at 1152, the court observed that conduct of (where defendant manufacturer conformed the reasonably prudent employer would with standards prevailing in the industry generally be established by reference to in-and no strong evidence countered custom- dustry custom and practice. The Smoke-ary practices, this Court found little to ir.di- Craft court, only after failing to find a cate defendant's conduct was unreason- relevant industry custom with which to able). Custom is, however, not dispositive compare the employer's , conduct, sought ;
in negligence actions. *[3] hat anarht in he other evidence that a reasonably prudent done is _ fixed by a n'=u- d af e---* prudence, whether it usually is complied _ employer would have protected against the alleged hazard. Smoke-Craft, supra at 845. with or nat." Texas & Pacific Ry. Co. v. But see, Allis-Chalmers Corpu v. OSHRC, Behymer,189 U.S. 468, 470, 23 S.Ct. 622, 542 F.2d 27,30-31 (7th Cir.1976). 628,47 L.Ed. 906 (1908). g y [7-9] Where the reasonable man is used ! The Commission herep ~ urported to decide to iriterpolate specific duties from general
'j what the reasonable employer in B&B's in- OSHA regulations, the character and pur- '
' dustry would have done under the condi- poses of the Act suggest a closer identifica-
+ tions for which Bats was cited. The Com- tion between ti.e projected behavior of the rnission's conclusion is inaccurate because it reasonable man and the customary practice is based entirelv unna the opinion of a-6 of employers in the industry. The purpose m
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)
t H & H INWLATION, INC. v. O. S. H. R. C. 1371 E i'
' Che as $s3 02d 1364 e1979)
{9
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- w. .w eien.lari3 m,M it, hi.,i.4.>ty
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relucing industrial accidents dept nds upon ; e,i.!.m r mmphm.: thecurl clirc.inmion of [11] There the Government seeks to en- J legi<!aiiwly identified safety and health 0.ourage a h3her standard of saTety per ' , huards by prescribed remedial measures. formance from the industry than customar{ _ Preventive goals are obviou,1y not ad. industryyractices exhibit u the Isroper re. , sanced where broad standards arc extendej course is to the standard-making machinery
}
A , to encompass every situation which gives provided~inVMt{s'e15ct,iyTeiiTorcemerp rire to an unlikely accident. of general standards being inapprop,riate_to, I achieve suel} a, purpose," The use of stan- ; [10] The Act indicates that Con; ress dard-making protedurts assures that not . thnuchi stecificity of standards desirabic." only would employers be apprised of the b 1n hght of the Acts preventive puriwe and_ conduct required of them and responsibility , the intended snysihcits of its stwhh tb for upgrading the safety of the industry employer whose activity is not yet ad- would be borne equal!y by allits members, $ dressed by a swcific regulaimn and wnose - but the resulting standard would benefit [. conduyLgurforms in the common oractice from input of the industry's experts,is both A
,,, yu II. Id. For example, the Act does not affect ments in existing technologies or which require *1 workmen's compensation in any way 29 U.S. the development of new technology ." 1.
, C.A $ 653(b)(4), and creates no private right of Socsery of Plastics Industry, Inc. v. OSHA,509 }. J - '
action for an injured employee agamst his em- F.2d 1301,1309 (2d Cir.), cert. denied. 421 U.S. ; 3 ' plo> cr. Jeter v. St Regis Paper Co, ",07 F.2d 992,95 S.Ct.12,4a Ltd.2d 462 (1975)(stan- 'C
- 973 (5th Cir.1975). Tort law, on the contrary, dard prohibits worker exposure to concentra-
- t.
w is concerned with providu.g for after-the-fact tions of vmyl chloride). payment of damages by one whose neghgence .
. D, caused the injury. See 116 Crng. Rec. 3S371 14. For a discussion of standards formulation #j ,
- * (1970) in whkh Congressman Steiger v'arned through ad-.enistratsve ru:emaking raser than b
, of the d.mgens r,f npdly applying the tort !aw ad hoc adpadication, see Sec.imies & Etchange {
concept in an OSHA enforcement context. ComMn v. Chenery Corp., 332 U.S.194, 202, 07 5 Ct.1575,15f19! led.1995 flN7). The h'
'"*' 12. The Senate Report, refernns to standards Court advised "The function of filling the inter. ,'
stices of the [Holdmg Company] Act should be L,.
,, ,; a promulgated by the Secretary under $ 655(b). j .
expresses the intention that they " shill rep- performed, as much as possible, through this 5t 4 resent feasible req.urements, which, where ap- quasi-legislative promulgation of rules to be y ' {..
' _ ' ' ,* propnate, shall be based on research, expen- applied in the future." p,i g
se m. ments, demonstrations, past expenence, and Arguments against ad hoc standard setting in kd. u, the latest scientific data. Insofar as practicable, standards are to be expressed in apphcation of the Act's general duty clause are pg presented m Andrews and Cross, Defendmg An 3* terms of objective critena and the performance
- t. '
Employer Against An Alleged Violation of the hils desired." S. Rep. No. 91-1287, Dist Cong.,2d F' General Duty Clause. 9 Gonzaga LRev. 399,
.ght Sess. Reprinted in il970] U.S. Code Coeg, &
Admin. News, pp. 5177, 5163-84. Detailed oc-408-09 (1974); Morey, The General Duty [f8 M' 4
,, n g Clause of the Occupational Safety and Health cupational safety and health regulations fill Act of 1970,66 Harv.LRev. 968,992-93 (1973). 4 1,* well over I.000 pages of the Code of Federal '
But se+. National Realty & Constr. Co., Inc, v. 6 17. Regulations. See 29 C.F.R. $ 1910 et seg The OSHRC,160 U.S. App.D.C. 133,142, 489 F.2d g,p, Senate Report emphasizes that the general duty clause would not be a substitute for re-1257,1266 n. 37 (1973). [h' I
%+
1 liance on specific standards. It would, rather, 15. See generally, National Rooting Centractors
" simply enable the Secretary to insure the pro. Ass'n v. Brennan,495 F.2d 1294 (7th Cir.1974), f
". 4 tection of emp!nyees who are working under discussing promulgation of construction indus- .(
' KI special csrcumstances for which no standard try standards. '
ar. has yet l'een adopted." [19701 L*.S Code Cong. When the Secretary determmes the need for f* r, c. & Adnun. News, supra at 5166 (einphasis add- a specific standard, he may receive comments ed). from an advisory comnuttee which must in-
, g' ', clude persons qualified b) expenence and affili- 'f ' " " 13. "In the area of safety, , the Secre- ation to present the views of employers and 7 l yn.w tary is not restricted by the status quo. He employees in the industry. 29 U.S.C.A. 66 655, i may raise standards which require improve- 656(b). The proposed standard is published o
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1372 583 FEDERAL REPORTER,2d SERIES employer and employee, cost and technolo. decision below that where a full ha_. . gy obstacles faced by the industry could be eiists it must be, protected against_rpf weighed, and more interested parties can less of the degree of hazard or prot %., I"' participate in the process. of a fall.87 _ Y.iLS.tLin,the light of,a constitutionally Although huipgagrne. simplistic ag w,j ayplied regulation, B&B's challenge of the
~
~
5.uch an approach to fall hazards % evide~ritia'r'y"b'a's'is fiir~the CoininIss' ion's deci- SAELto requiFs~a'fety beltsfor sirois!.r.... ..
~ ~
- s'ioii must be sustained.
set of stairst becsuse pEopje~du l.d'd-b stairs from time to time, and are seriol, . [12,13] The Commission's findings are i.n,Qured. To state suchiproposition'is i.7'.' t t' of course conclusive with rerpect to ques. ficient to refute}7tuggestiorithatTi.T.~ tions of fact where substantial evidence on F_e.58_.'ntenyded,_its reg.alations top sor the record considered as a whole supports The Secretarv of_ Labor introduced ny
~
them. 29 U.S.C.A. 5 660(a). The Secretary evidence of customary, procedufes in the ~ - I has the burden of_pr_oying allhstilfI, industry._BlB[~o'n'the(co~n'traryljrodua j violation. 29 C.F.R. 6 2200.73. In this case a variety of witnenes representing lafor ~
+
that burden included a demonstratiorLthe; an'{l man'a'gement tojdemonstratithat the c rpu i a reasonable insulation industryyployer " reasonable man" wouTd have done no more
~ ~
t* nit - s'ouid h'aie"u's~c'd safety bilts where BfB' thEB&B under these EisuiniitanisIF . -r. ! did 7 tot.-Of the eleEn Tvitnessei~while's'ti'.
- d*
[14] In absence of evidence that B&lfs 11ed at the hearing, nowever, onTj~1 Tis conduct fell below the demonstrated pr:,<. O'EHA compYance officer who,Issied~the tice'1h'the industry,' the' Commission' ids.' t'.'#P' citation ~to'B&B~be.ieved that rafety belts sid Mas not~s~uppLrtEd ~ ' " ~ ~ ~ ~ by ~substanti.il M wat!1d'have been3ppropriate under the cir. dan C ~~ I *!"#' cumstances._ The complian,ce officer had REVERSED. D.*_Ver_ before issued a et ton _toJmployees, working on a pipegluvithoyt.sefpty_belta,
* ' ~
[L',E 88
'.~
aridTiad no statistics or personal knowledge w E*fd cEncerniriffalis~ frim~ pipe rack'.
~
s ' ile ex." h '"*f'N 'W p{reMiksitidn~s'linilFtTihat b Com_m[issio'n'ECieary in_the Comminiini espoused" and interested persons are permitted to submit 18. For example, the business manager of As- any written comments and may demand a public bestos Local 22 testified that the danaer of ts m; hearir.g on the proposal. 29 U.S.C.A. construction people failing off pipes is nununal ,g 7 $ 65L(bX2). (3). The foreman of Union Carbide and president of the local said that he would not have morn a fuln
- 16. See American Petroleum Institute v O.S.
H.A.,581 F.2d 493 (5th C,r.1978); American safety belt under these conditions, considenns pm.. Federation of Labut v. Brennan,530 F.2d 109, them nonhazardous. The local superusor the Construedon Men Msen d M* 121 122 (3d Cir.1975); Industrial Union Dep't, AFL-CIO v. Hodgson,162 U.S. App.D.C. 331, Coming Fibe$ ass intdied that accM M8 m. . tistics do not emst for thne ekcumstance o, 342,499 F.2d 467,478 (1974).
, it is probably not a risk area. He would n.*
have thought safety belts required by 05 rest
- 17. Commissioner Cleary found the risk of a fall
{ in this case to be demonstrated by the fatal fall which occurred and regarded resort to industry f,"," ",, * * * ( ' ,,uad practice or even injury records unnecessary. wf my mepurn
- this' situation. He had served as a member d g, j B&B, supra at 1270. We reject Commissioner the National Insulation Contractors Assons Cleary's approach, obserwng that prevention is tion committee on OSHA matters several years t
not served by hindsight determinations of ha2 b before and would not have interpreted the stam ardous conditions and that the Act is not in. dard to require further safety measurn # I
,*~ tended to make the employer guarantor of his gg ,,
employees safety in circumstances where oc. currence of injury is neither hkely nor foresees. I* bie. It .
*..j.3 + s '. ..~~? ~}}