ACME METAL, INC.

OSHRC Docket Nos. 1811; 1931

Occupational Safety and Health Review Commission

January 29, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Robert A. Friel, Assoc. Regional Solicitor

James R. Watts, for the employer

Robert E. Babcock, for the intervenor

OPINION:

DECISION

BY THE COMMISSION:

On July 23, 1974, Judge Watkins rendered his decision and order in these two consolidated cases. On August 21, 1974, the Secretary of Labor's petition for discretionary review was granted pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.). On August 29, 1974, these cases were consolidated, for purposes of review, with other cases raising common issues.

Respondent operates two steel-fabricating plants in Portland, Oregon. Following separate inspections of its plants, respondent was issued several citations and notifications of proposed penalties.

In No. 1811, the amended citation for serious violation No. 1 alleged a failure to comply with 29 CFR 1910.213(d)(1) for not guarding a table saw. The amended citation for serious violation No. 2 alleged non-compliance with 29 CFR 1910.217(c)(1)(i) for not guarding two presses, and also alleged non-compliance with 29 CFR 1910.212(a)(1) for guarding a hydraulic punch [*2] press. Penalties of $650 were proposed for each of these two citations for serious violations.

Respondent's notice of contest in No. 1811 reads as follows: n1

Gentlemen:

We had a follow up inspection two days ago by Betty Freeman, and I believe she found our corrections up to date; much progress on improvements to be made at later dates.

(1) Amended Serious Violation #1 of 2.

As we discussed in our informal interview, since this machine was an employer's personal property, used by only two individuals, we appeal the amount of the fine as excessive and unreasonable.

(2) Amended Serious Violation #2 of 2.

(A) We appeal the first item (Wright Press #30) as being an excess fine under the consideration of the number of and training of people who use this machine.

(B) The second item - Precision Metal Worker - we appeal the time limit, as your inspector Richard Jackson said: "It is the first Iron Worker he had seen" - and could not offer references on others who brought these machines into compliance. I am unable to specify a reasonable time, but will work with you to see what other Plants are doing.

(C) Also, see copy attached - article saying these devices are not yet covered [*3] by O.S.H.A. - per A.N.S.I. # B 11.1.

(D) The third item - Whitney 630-B Hydraulic Press - seems excluded, per 1910.217(a)(5) - "Excluded Machines". Here, again, we want to work with your Department to make this machine safer, but feel that our small concern shouldn't be burdened to develop this by January 8th. There are fifteen of these Units in the Portland area, and several hundred nationwide, and none have any more safety devices than our own that we or the manufacturer know of.

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n1 In an amended answer to the Secretary's complaint in No. 1181, respondent admitted the allegations of the amended citation for serious violation No. 1 (dealing with 29 CFR 1910.213(d)(1)), but alleged that the proposed penalty was excessive.

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Thank you for your cooperation and assistance.

Best Regards!

In No. 1931, the Secretary of Labor issued a citation for a serious violation, accompanied by a proposed penalty of $650, which alleged non-compliance with 29 CFR 1910.212(a)(3)(ii) for failure to guard a cut-off metal saw. A [*4] citation for a non-serious violation was also issued alleging a failure to post an official OSHA poster contrary to 29 CFR 1903.2, and a penalty of $50 was proposed.

Respondent's notice of contest in No. 1931 stated, in pertinent part, that:

Acme Metal, Inc. does wish to appeal two items of your citation:

(1) Serious Violation for inadequate guarding of the cut-off saw. The fine seems to us excessive and we appeal the amount of the fine only. As you note from the inspectors file and photographs the saw had a standard manufacturers guard in place. In addition it is used by men who have been through the Union approved training program and our own foreman advises them further on the proper operation of the saw. (Emphasis added.)

(2) Other Violation #9 At the time your inspectors visited our plant we could not find an official poster. Several men working in the building testify it was up several days earlier on a temporary plywood partition that had been torn down. We searched the scrap lumber pile with your inspectors but could not find the poster. We appeal this fine, as we had the poster up at Plant #1, we had previously posted at Plant #2. (Emphasis added.) [*5]

In his decision, Judge Watkins vacated both citations in No. 1811. He held that respondent had contested both citations for serious violations. The citations were then vacated on the grounds that 29 CFR 1910.213(d)(1) was invalidly promulgated, and that non-compliance with 29 CFR 1910.212(a)(1) had not been proved. Item one of amended serious citation No. 2 was vacated pursuant to a joint motion to dismiss.

In No. 1931, the Judge held that respondent's notice of contest did not contest the citations but only put the penalties in issue. A penalty of $100 for non-compliance with 29 CFR 1910.212(a)(3)(ii) was assessed, but the proposed penalty for non-compliance with 29 CFR 1903.2(a) was vacated.

Review before the full Commission was directed on the following issues:

(1) Whether the Administrative Law Judge erred by finding [in number 1811] that respondent had contested both the citation and proposed penalty,

(2) Whether he had authority to consider the validity of standards, and

(3) Whether the cited "machine guarding" standards were properly construed.

The Secretary urges in his brief that we reject Judge Watkins' dicta to the effect that 29 CFR 1910.212(a)(3)(ii) [*6] was not properly promulgated, and that a penalty must be assessed for a posting violation. The Secretary does, however, withdraw his exception to the Judge's finding that in No. 1811 the proof was insufficient to find non-compliance with 29 CFR 1910.212(a)(1), as alleged in the amended citation for serious violation No. 2. Respondent has not filed a brief before the full Commission.

In No. 1811, with respect to the amended citation for serious violation No. 1 (non-compliance with 29 CFR 1910.213(d)(1)) a fair reading of respondent's notice of contest indicates that it put in issue only the proposed penalties, and in its answer respondent admitted the limited scope of its contest. This distinguishes the case from the holding in Turnbull Millwork Co., No. 7413 (December 15, 1975) because there is no basis for amending the notice of contest by a subsequent pleading under Rule 15(c) of the Federal Rules of Civil Procedure, as that rule was applied to Commission proceedings.

The question of the validity of 29 CFR 1910.213(d)(1) is therefore not before us in this case. Continental Steel Corp., No. 3162 (July 16, 1975); Kaywood Constr. Co., No. 3068 (June 24, 1975). [*7]

With regard to a penalty for non-compliance with 29 CFR 1910.213(d)(1), we assess a penalty in the amount of $100 for these reasons. Respondent employed about 85 persons at the time of inspection, its good faith is clear, and the gravity of the violation was mitigated by the short period of time its employees were exposed. Also, we shall not comment here upon the Judge's dicta in No. 1931 that 29 CFR 1910.212(a)(3)(ii) was invalidly adopted. The Judge correctly found that only the penalties, and not the citation, were in issue. The Judge's assessment of a $100 penalty is affirmed.

We have examined the record in No. 1811 regarding the 29 CFR 1910.212(a)(1) allegations but because the Secretary has withdrawn his exception to Judge Watkin's ruling, we shall decline further consideration of it.

The Judge's ruling in No. 1931, holding that only the proposed penalties were contested is affirmed. Respondent's notice of contest clearly contested only the penalties, and its answer does not indicate that it intended, when it filed its notice, to contest the citations. As in No. 1811 then, this case is not within the rule of Turnbull Millwork Co., supra.

With regard to [*8] the respondent's admitted failure in No. 1931 to comply with 29 CFR 1903.2(a), we find the Judge's order to be in error. We have held that section 17(i) of the Act requires that a penalty be assessed for violation of posting requirements. C & R Cabinet Co., Nos. 4049 & 3736 (May 23, 1975). But because of the obvious good faith of respondent, was assess only a $1 penalty.

The Judge also vacated without clear reasons all remaining items of the citations and proposed penalties in both Nos. 1811 and 1931. There were no notices of contest of these items. Therefore the Judge erred, and the items involved and proposed penalties therefor are final by operation of law under section 10(a) of the Act.

Accordingly, the following order shall be entered:

In No. 1811, amended citation for serious violation No. 1 is declared to be a final order of the Commission, and a $100 penalty is assessed; amended citation for serious violation No. 2 is vacated.

In No. 1931, the citation for serious violation No. 1 is a final order of the Commission, and a $100 penalty is assessed; item 9 of the citation for a non-serious violation is a final order of the Commission, and a $1 penalty is assessed. [*9]

All other items of the citations, and the proposed penalties, in Nos. 1811 and 1931 are final orders of the Commission.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I concur in the Commission's disposition of this case except as to the serious violation in Docket No. 1811, alleging a failure to comply with the standard codified at 29 C.F.R. 1910.213(d)(1).

Respondent's notice of contest for this item stated:

". . . since this machine was an employer's personal property, used by only two individuals, we appeal the amount of the fine as excessive and unreasonable."

The Judge below found this language to be ambiguous, n2 but decided that it contested both the citation and penalty for this item. My colleagues reverse that ruling, stating that "a fair reading of respondent's notice of contest indicates that it put in issue only the proposed penalties . . . ." (Emphasis added.)

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n2 In this connection, he correctly concluded that the word "employer's" in respondent's notice of contest was "obviously intended to be employee's."

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In construing the meaning of a notice of contest, the notice is read in the light most favorable towards the respondent. In each of the above-cited Commission decisions, the Commission's position has been to liberally construe notices of contest and allow a full contestation of the charges. Up to now, we have never wavered from this posture. The opinion in this case, however, appears to be substituting a "fair reading" test therefor. This is a retreat from the genuine "fairness" always previously granted in similar cases. In my opinion, a respondent who wants his day in court should not have the door barred solely out of solecism.

Relying on past precedents, I respectfully disagree with the holding [*11] that the notice of contest does not contest the citation, thus challenging the merits of the 29 C.F.R. 1910.213(d)(1) charge. However, even if the notice of contest only challenged the penalties, the Commission should have addressed the question of the validity of this standard.

One issue below concerned complainant's alteration, without statutory authority, of the substantive aspects of the American National Standards Institute (ANSI) standard from which 29 C.F.R. 1910.213(d)(1) was derived. When regulations are promulgated outside of the powers and directives conferred by Congress, a question of subject matter jurisdiction arises because the regulations are null and void. See Utah Power & Light Company v. United States, 243 U.S. 389, 410-411 (1917). A question of subject matter jurisdiction may be raised at any time before or after a matter has been adjudicated. See Clark v. Paul Gray, Inc., 306 U.S. 583, 588 (1939); Hackner v. Guaranty Trust Company of New York, 117 F.2d 95 (2d Cir. 1941); Fed R. Civ. P. 12(h)(3). This even includes questions not raised in the notice of contest that have become "final orders" under 29 U.S.C. 659(a). Secretary [*12] v. Phoenix, Inc., Legore Quarries Division, 1 OSAHRC 355, 356 (1972).

Accordingly, his vacation of the citation should be affirmed.

APPENDIX A

DECISION AND ORDER

Ernest Scott, Jr., Office of the Solicitor, United States Department of Labor, For the Secretary

James R. Watts, For the Respondent

Robert A. Friel, Associate Regional Solicitor and Jane Ann McKenzie, United States Department of Labor, For the Secretary, At Consolidated Supplemental Hearing

Douglas B. M. Ehlke, For Respondent, Weyerhaeuser Company, in Dockets 1231 and 1758, At Consolidated Supplemental Hearing

George J. Tichy, For Respondent, Konkolville Lumber Company, in Docket 2437, At Consolidated Supplemental Hearing

GARL WATKINS, Judge:

These consolidated cases are enforcement proceedings under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq.

Respondent operates two steel fabricating job shops in Portland, [*13] Oregon. The usual employment varies from 20 to 70 people in both locations, including office personnel, the fluctuation being dependent upon jobs in progress. At the time of Complainant's inspections of the two shops on October 30 and November 7, 1972, there were 85 employees.

In 1972, Acme's operation lost over $100,000 on about $2,000,000 in sales. In 1971, there was a profit of approximately $25,000 on $1,000,000 in sales.

With a number of non-serious items not contested in both cases and with the allegations of serious violations amended in the citations resulting from the first inspection, these two law suits emerged. Docket 1811 results from the October 30 inspection of Plant #1. Two serious violations are alleged. The first is the operation of a hand-fed crosscut table saw without the guard required by 29 CFR 1910.213(d)(1). The second has two items. The first is the alleged failure to comply with 29 CFR 1910.217(c)(1)(i) in failing to guard the point of operation of two mechanical power presses.

Both parties moved that this charge be dismissed with prejudice. Respondent's motion, based on affidavit, was on the ground that both presses were installed before August [*14] 31, 1971 and the standard did not therefore apply because of the provisions of 29 CFR 1910.217(a)(1). The reason for Complainant's motion was not stated. Both motions were granted.

Thus there remains at issue in Docket 1811 only the alleged violation of the standard having to do with hand-fed crosscut table saws, and the second item in the second Citation for Serious Violation. It alleges the operation of a hydraulic punch press not to be in compliance with the general machine guarding standard (29 CFR 1910.212(a)(1).

In Docket 1931, there are two allegations of violation of the Act, one serious. It alleges that a Promacut metal saw was operaed contrary to the provisions of 29 CFR 1910.212(a)(3)(ii). The non-serious violation is for alleged failure to post, and keep posted, a notice to employees of the protections and obligations of the Occupational Safety and Health Act, contrary to 29 CFR 1903.2.

The full language of the citations, the allegations of the Complaints regarding them, the standards in question and the proposed penalties are set out on the Appendix attached and made a part of this decision.

These cases are the last two of the ten consolidated for a supplemental [*15] hearing to take testimony on the question of the validity of the standards found in 29 CFR 1910.213 and the legality of the acts of the Secretary of Labor in adopting them. This supplemental hearing was on August 29, 30 and 31 and September 17, 1973. What has been termed a "supplemental hearing" in the other cases was the first part of the hearing in these. Between the start and finish of the supplemental hearing -- on September 10 and 11, 1973 -- a hearing was held in Portland, Oregon in these cases on the facts leading to the issuance of the citations and the proposed penalties. It should be noted in passing that the record reflects compliance with the rules of procedure regarding service and the posting of notices. Inquire was made both at the Seattle and Portland sessions as to whether any person was present who sought to assert a party status and no one appeared.

At the Portland hearing, it appeared Respondent had been represented by counsel as of some time near the end of July 1973, but no appearance was entered and there was no indication of the presence of counsel in the case until September 10, when the hearing convened in Portland. Certain letters from Respondent's [*16] general manager had been construed as notice of contest in the cases and others as Respondent's answers.

We shall first turn our attention to the two alleged serious violations in Docket 1811. Counsel for the Secretary takes the position that neither violation was contested and that therefore the only question for decision is the amount of penalty to be assessed. He bases this contention on "Respondent's Notice of Contest and other clarifying correspondence." with a footnote that the documents are attached to his brief as Exhibit A.

The letter of December 15, 1972 from Respondent's general manager contesting the citations in Docket 1931 is attached, as is another of January 4, 1973. Also attached to the brief is a copy of a letter from counsel to the general manager of Respondent on January 19, 1973.

The original notice of contest dated November 29, 1972 is not attached. It is on this letter and "other clarifying correspondentce" that we base our holding there was a contest of both the citations and proposed penalties.

In the November 29 letter, in referring to the woodworking saw guard violation, Gene Brown, general manager of Respondent, stated, "As we discussed in our informal [*17] interview, since this machine was an employer's (obviously intended to be employee's) personal property, used by only two individuals, we appeal the amount of the fine as excessive and unreasonable."

As to the Whitney hydraulic punch press, Brown stated it "seems excluded, per 1910.217(a)(5) -- 'Excluded Machines'."

The January 4 letter is too late to be a notice of contest, but it is important in explaining the writer's intention in the language of his November 29 letter. He states, "I contest the fines for both (2) serious violations as excessive." Construing this language most strongly against the writer, one could reach the Solicitor's conclusion that only the "fines" were contested.

We prefer to construe the language most favorably to the writer. In so doing, we find an intention to contest the violation in both cases.

Counsel states, for example, "Respondent did not contest amended Item 2, above (formerly designated Item 3 in the Complaint) for the reason that it believed the "Whitney No. 630B Hydraulic Press seems excluded. In view thereof, only the proposed penalty for the violation charged in Item 1 is before this Judge in view of Section 10(a) of the Act."

As a reason [*18] for contending there is no contest of the violation, counsel has stated the very reason such a contest is shown. If the Press is excluded from the section Respondent is charged with violating, there can be no violation.

The same reasoning applies to the alleged violation of the woodworking machinery guarding section. Brown said, ". . . we appeal the amount of the fine as excessive and unreasonable." The reason he did so, however, was that the property was owned by someone other than the Respondent and was used by only two people. There is clearly an indication of an intention to contest the violation.

At the Portland session, counsel appeared for Respondent and filed an answer, which admitted among other things, that the standard in question was "duly issued and "promulgated." Thereafter there was no express motion and ruling to amend the answer to deny the validity of the standard.

A reading of the record as a whole, however, shows clearly that the alleged violations were treated as though the fact of violation, as well as the penalties, were at issue; and if it was not precisely stated before, we now so hold. It is our recollection also that, although not conceding this to [*19] be the case in connection with the saw guarding violation, counsel for the Secretary did in effect concede it as to the hydraulic punch press.

The hand-fed crosscut table saw is shown by Secretary's Exhibit 1. It is not guarded as required by the standard. Although owned by Respondent's superintendent and used principally by him, there was some use made of the saw for a period of two or three weeks by employees of Respondent in making crates. If the standard in question is valid, there was therefore a violation.

As stated above, at the supplemental hearing in Seattle on August 29, 30 and 31 and September 17, 1973, ten cases were consolidated for the purpose of receiving evidence on the validity of the standards set out in 29 CFR 1910.213, and the legality of the actions of the Secretary in adopting them. These are two of the ten cases. At the conclusion of the session on September 17, an order of severance of the cases was entered but it left the two here consolidated as before. n1

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n1 Wording of the decision from this point will probably be identical to that covering the same questions in the decisions of the other cases. Footnotes will point out the start and finish of the decisional language in each case.

[*20]

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Perhaps a few words about the background of the inquiry and the reasons for the scrutiny of the standards having to do with machine guarding requirements for woodworking machinery would be in order.

After hearing the two consolidated Weyerhaeuser cases (Dockets 1231 and 1758) in Klamath Falls, Oregon on January 15 thru 19, 1973, I was in the process of preparing decisions in two other cases involving lineal pine moulding plants in Prineville, Oregon (Consolidated Pine, Docket #945 and Prineville Mouldings, #1045). The only violation charged in one of those cases and the only serious violation alleged in the other was a deficiency in the guard of hand fed crosscut table saws under 29 CFR 1910.210(d)(1). The facts of both cases were almost identical.

The guards went completely around the circular saws except for about six inches at the top of each where the moulding was lowered onto the saws to be trimmed. They are called "trim saws" in the industry.

The superintendents of the two Respondents and of one other similar plant with 30, 30 and 20 years respective experience and broad knowledge of practices [*21] in the industry, testified the use of such saws was uniform in the kind of plants they managed. They had never heard of such saws being guarded as required by the cited standard.

I became curious about how the guarding requirements could be "national consensus standards." This line of inquiry led me to the Seattle Public Library where I found only the 1971 standard 01.1 -- Revised, of the American National Standards Institution (hereinafter "ANSI", whether reference is to the organization with its present name, or previous names of American Standards Association or United States Standards Association). A telephone call to the New York office of ANSI brought me the source standard -- ANSI 01.1 1954, reaffirmed 1961. (29 CFR 1910.221 lists the source as "AMCI." All parties stipulated this was a misprint. "ANSI" 01.1 1954 R ("reaffirmed") 1961 is correct.)

My curiosity was further aroused by the headnote on Section 4.1 of that standard. This Section includes all substantion material adopted in the OSHA standards in the cases before me. The headnote is:

"NOTE: It is recognized that the standards for saw guards in 4.1 are not perfectly applicable to all operations for which saws [*22] are used. The standards given are those which woodworkers have agreed are most generally useful. Since there are a considerable number of cases not satisfactorily met by these standards, the enforcing authority should exercise rather wide latitude in allowing the use of other devices which give promise of affording adequate protection. It may be expected that by so doing further progress in saw guarding will be encouraged."

Further inquiries within the ANSI organization, with a few members of the ANSI "01" committee which adopted the standard in 1954 and reaffirmed it in 1961, as well as with Mr. Patrick F. Cestrone, who was director of the Office of Safety and Health Standards, United States Department of Labor, when 29 CFR 1910.213 was adopted as a national consensus standard; convinced me it would be advisable to obtain additional evidence in some areas having to do with the question of the validity of the woodworking machine guarding sections of the Occupational Safety and Health standards.

Three rather obvious questions having to do with the validity of the standards seemed not to be answered adequately by the record. They were:

(1) The effect of the headnote; which was [*23] not adopted by the Secretary and which, in itself, constituted an integral part of the standard,

(2) Whether the ANSI 01 standard is in fact a national consensus standard as defined in the Act. Stated more precisely and in the reverse, the real question here is whether Congress adopted a definition of a national consensus standard which could be met by the ANSI promulgation as one adopted "under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption, . . .", (Sec. 3(9)(1) of the Act)

(3) Whether the standards were "formulated in a manner which afforded an opportunity for diverse views to be considered. . . ." (Sec. 3(9)(2) of the Act)

Respondent Weyerhaeuser, and later Konkolville (Docket 2347), squarely raised the question of legality and validity of the standard from every point of approach necessary to test it.

In the meantime, eight more cases (including Konkolville) were assigned to me, all alleging violations of subsections of 29 CFR 1910.213. In some the question of the validity of the standard was raised. In some it was not. Two of the [*24] Respondents were not represented by counsel.

Under the circumstances it seemed unconscionable to me to make an extensive inquiry tending to show whether or not the woodworking machine guarding standards were valid in a few cases, and reach whatever decision might be forthcoming; without going into the same question in all the cases. The two Respondents not represented by counsel had no way of knowing how to raise the defense of invalidity of the standard. Counsel in the others had at best a difficult task in finding out that their clients might be charged under unenforceable regulations.

Consequently, the question was raised at the hearings on the merits in all cases thus far heard. In the case of pro se Respondents, I interpreted their answers to include a defense of illegality and invalidity of the standards. Other counsel were given an opportunity to amend their pleadings. The posture of all cases on which hearings have been held is now such that the question is properly raised in all.

Before proceeding to the three main questions raised, disposition must first be made of certain preliminary matters.

While not arguing the point at length in his briefs, the Secretary has [*25] consistently taken the position that neither the Review Commission as an independent or administrative adjudicatory agency, nor I as a judge conducting its hearings, had the right to reopen the cases, call witnesses and consider evidence not produced by counsel for the parties. (Konkolville was not reopened. The record was left open for the supplemental hearing.) I have been told repeatedly that I am not (and of course the Review Commission is not) a "court." Apparently the feeling is that a "judicial" adjudicatory body can do what an independent or "administrative" adjudicatory body cannot do.

The question is interesting, and it must be resolved contrary to the Secretary's position. While most authorities refer to the "inherent power" of courts to call witnesses in order to develop the truth in a judicial inquiry; the fact is, it is an "inherent duty." However far able and competent advocacy may cause us to digress from some fundamental principles involved in adjudicatory proceedings under our system, the fact remains that the primary responsibility for developing the record lies with the presiding officer of the tribunal.

Briefly expressed, "courts have inherent power [*26] to do all things that are reasonably necessary for the administration of justice within the scope of their jurisdiction." (20 Am Jur 2d, Courts 79)

Federal Rule of Evidence 614(a) provides

"CALLING AND INTERROGATION OF WITNESSES BY JUDGE

(a) Calling by judge. The judge may, on his own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.

(b) Interrogation by judge. The judge may interrogate witnesses, whether called by himself or by a party.

(c) Objections. Objections to the calling of witnesses by the judge or to interrogation by him may be made at the time or at the next available opportunity when the jury is not present."

McCormick has been rather widely quoted. 8, pages 12 - 13 provides:

"8. THE JUDGE MAY EXAMINE AND CALL WITNESSES.

Not only may the judge examine witnesses called by the parties, but in his discretion he may also, for the purpose of bringing out needed facts, call witnesses whom the parties might not have chosen to call."

While the Administrative Procedure Act does not specifically provide for the calling of witnesses by a hearing examiner or administrative law judge, numerous [*27] cases have upheld this right even over the objections of the parties; usually basing it on 5 USCA 556(c)(9).

Professor Davis in his Administrative Law Treatise takes the position that such power and authority are present under the quoted section of the Administrative Procedure Act; and cites authorities encouraging such action in agencies having rules similar to our Rule of Procedure 66, as well as those not having such rules. A clear inference from Davis is that there is a greater need for independent action of this kind on the part of an administrative law judge or hearing examiner than in the case of a judge in the judicial branch of the government. He cites Congressional history in the adoption of the APA:

( 10.02) ". . . that presiding officers have 'the authority and duty -- as a court does -- to make sure that all necessary evidence is adduced and to keep the hearing orderly and efficient. . . . The trial examiner shall have authorit. . . . (j) To call, examine and cross-examine witnesses, and to introduce into the record documentary or other evidence.' The courts have often upheld the active role of examiners: 'It is the function of an examiner, just as it is the recognized [*28] function of a trial judge, to see that facts are clearly and fully developed. He is not required to sit idly by and permit a confused or meaningless record to be made.'"

Rule of Procedure 66 of the Review Commission provides:

"Rule 66 DUTIES AND POWERS OF JUDGES.

It shall be the duty of the Judge to conduct a fair and impartial hearing, to assure that the facts are fully elicited, to adjudicate all issues and avoid delay. The Judge shall have authority. . ., to:

(h) . . . order hearings reopened. . . .

(j) Call and examine witnesses and to introduce into the record documentary or other evidence;"

The only United States Court of Appeals case under our Rule 66 which has come to our attention is: Brennan, Secretary of Labor v. OSAHRC and John J. Gordon Company 2nd Circuit, Feb. 25, 1974 -- Docket 73-1729, 492 F.2d 1027.

The second preliminary question requiring decision is whether Section 6(f) of the Act provides an exclusive method -- the only method which may be used at any time -- to challenge the validity of any standard issued by the Secretary.

The section provides:

SEC.6.(f) "Any person who may be adversely affected by a standard issued under this [*29] section may at any time prior to the sixtieth day after such standard is promulgated file a petition challenging the validity of such standard with the United States court of appeals for the circuit wherein such person resides or has his principal place of business, for a judicial review of such standard. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary. The filing of such petition shall not, unless otherwise ordered by the court, operate as a stay of the standard. The determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole." (Emphasis supplied)

The Solicitor contends that since a specific section of the Act provides a procedure to challenge the validity of a standard if the action is started within sixty days after its effective date, this method is exclusive; even though the Act doesn't say so.

Respondents, on the other hand, take the position that this is a pre-enforcement remedy only, and that the validity of any standard may be challenged in an enforcement proceeding.

Respondents' position seems fundamentally correct. The words underlined above indicate [*30] the action is optional, not mandatory. There is no express language indicating this is an exclusive method for attacking a standard. Additionally it would seem that investing "any person who may be adversely affected" with a right to test the validity of a standard, but limiting that right to 60 days from the effective date indicates an intent on the part of Congress to provide this as a preliminary pre-enforcement procedure, rather than as the sole procedure by which a standard can be challenged.

Respondent Weyerhaeuser quotes from Divesco Roofing & Insulation Company, Docket 345, 1 OSHC 1079:

". . . the legal validity of the standards under the Constitution and Statutes of the United States is necessarily involved in the adjudication of enforcement proceedings, and this function has been reserved for the Commission subject to judicial review."

Admittedly the language of the entire statute could provide a clearer guide to the answer we seek here. Perhaps it is ambiguous or unclear and subject to construction. If so, then it is proper to examine the Legislative History for assistance.

Two such references would seem sufficient. In [*31] the final Senate report, No. 91-1282, page 8, as reprinted in the Legislative History, page 148, we find the following:

"Judicial Review of Standards. -- Section 6(f) provides that any person who may be adversely affected by a standard may, within 60 days of its issuance, seek judicial review in an appropriate United States court of appeals. While this would be the exclusive method for obtaining pre-enforcement judicial review of a standard, the provision does not foreclose an employer from challenging the validity of a standard during an enforcement proceeding. Unless otherwise ordered by the court, the filing of the petition would not operate as a stay of the standard." (Emphasis supplied)

In explaining the real need for a twofold system of standards review, Senator Williams stated in a speech on the Senate floor -- and in support of the provision as it was enacted

"The bill as reported by the committee provides an opportunity for a person affected by the promulgation of a standard to seek judicial review within 60 days of the promulgation of such standard or the standard may also be challenged during an enforcement proceeding. [*32]

This is a very broad-scaled judicial review protection that completely meets any industry concerns regarding the ability to contest the standards in court." (Underlining added)

Legislative History, p. 431

Other references in the Legislative History of the Act are to the same effect, but their inclusion would only lengthen this decision unnecessarily.

Neither the Review Commission nor its judges have hesitated to invalidate a standard for a variety of reasons -- but all on the basic ground that the action of the Secretary in adopting the particular standard was in excess of the power granted him by the Act. A few cases discussing the principle -- most holding the standard invalid -- follow:

Joseph Bucheit and Sons Company, Docket 295, 1 OSHC 3106. ("validity" dist inguished from "wisdom")

Oberhelman-Ritter Foundry, Inc., Docket 572, 1 OSHC 3087, ("should" changed to "shall". Standard invalidated.)

Divesco Roofing & Insulation Company, supra.

Tilo Company, Inc., Docket 211, 1 OSHC 1206 (Standard invalid -- unenforceably vague)

Santa Fe Trail Transport Company, Docket 331, 1 OSHC 1457 (whether hospital, infirmary, or clinic; in "near proximity to work place." Invalid as unenforceably [*33] vague.)

More standards have been held invalid by the Commission -- and judges -- on this ground than on any other.

The third preliminary question for decision before we may reach the heart of the case, is whether the Review Commission has the right to pass on the legality or validity of a standard at all. Whether this be called a "right", "power", "authority" or "jurisdiction" makes no difference. The specific question is whether the validity and legality of those portions of 29 CFR 1910.213 under review, as derived from ANSI 01.1 1954, reaffirmed 1961, may be adjudicated by the Review Commission, an independent or "administrative" adjudicatory tribunal; or whether they must be left untouched until they come before a "judicial" adjudicatory tribunal.

It is worthy of note in passing that insofar as the precise issues involved in this case are concerned, the trial judge's duty, authority and power at the hearing stage of the proceeding, are no different from the Review Commission's duty, authority and power at its review stage of the proceeding. No contention has been made on the part of any party that there is a difference, and no authority in support of any such position has [*34] been cited.

It should likewise be noted that the questions involved here are sufficiently closely related to those last discussed, that some authorities cited are persuasive to the issues in both. There are more differences than similarities, however, and thus the subjects lend themselves more readily to separate discussion.

We may start on the assumption that unless the Secretary acts in some manner authorized by statute to withdraw his regulation (we call it a "standard") or otherwise invalidate it, and if litigation then develops questioning its legality or validity, the answers can only be determined by "adjudication." The question is -- in what forum; considering the precise questions raised and all parts of the particular statute?

The Secretary would have us believe the tribunal must be so marked as to indicate it is a "court" or part of the judicial branch of the government.

I have read and considered the briefs filed, and the cases cited therein; and have conducted some independent research. On the basis of this Act, I find no authority, even persuasive, in support of the Secretary's position.

For example, the Secretary's greatest emphasis as authority for his position [*35] -- as determined by its prominent position and repeated citation in the Solicitor's briefs -- is on the case of Stark v. Wickard (1944), 321 U.S. 559, 88 L.Ed. 733, 64 S.Ct. 559, 571. In that case, the court, speaking through Mr. Justice Reed said:

"The responsibility of determining the limits of statutory grants of authority in such instances is a judicial function entrusted to the courts by Congress by the statutes establishing courts and marking their jurisdiction."

As quoted out of context, this is persuasive language in favor of the position of the Secretary here.

The court neither says nor implies, however, that Congress cannot adopt a law wherein the initial adjudication "to protect justiciable individual rights against administrative action" is by an independent or "administrative court", subject to judicial review by the United States Court of Appeals. The real question involved in our case is whether Congress did adopt such a law.

Nor could the court have so stated or implied, because the holding of the case was simply that the plaintiffs had standing to sue in Federal District Court to question the validity of a milk marketing regulation of the [*36] Secretary of Agriculture.

The authority cited by Mr. Justice Reed in support of the quoted statement above is U.S. v. Morgan (1939) 307 U.S. 183, 83 L.Ed. 1211, 59 S.Ct. 795 - 799, 800. In the opinion by Mr. Justice Stone may be found language even more favorable in this instance to the position of the Respondents in our case; if we consider it out of context also, and assume the "agency" to be the Review Commission, and its "action" adjudicatory.

". . . In construing a statute setting up an administrative agency and providing for judicial review of its action, court and agency are not to be regarded as wholly independent and unrelated instrumentalities of justice, each acting in the performance of its prescribed statutory duty without regard to the appropriate function of the other in securing the plainly indicated objects of the statute. Court and agency are the means adopted to attain the prescribed end, and so far as their duties are defined by the words of the statute, those words should be construed so as to attain that end through co-ordinated action. Neither body should repeat in this day the mistake made by the courts [*37] of law when equity was struggling for recognition as an ameliorating system of justice; neither can rightly be regarded by the other as an alien intruder, to be tolerated if must be, but never to be encouraged or aided by the other in the attainment of the common aim. . . ." (Emphasis added)

If this language could be used literally, it would be decisive of the issue of this case. It cannot, however, because the administrative action to which reference was made was not adjudication. It was the adoption of an order by the Secretary of Agriculture fixing maximum rates to be charged at the Kansas City stock yards; and the question in the case was the validity of the order.

Neither case can be considered as precedent in the one before us.

Judge Burchmore's statement in Divesco, supra, warrants repeating:

". . . the legal validity of the standards under the Constitution and Statutes of the United States is necessarily involved in the adjudication of enforcement proceedings, and this function has been reserved for the Commission subject to judicial review."

The problem is to find the intent of Congress -- either from the plain [*38] language of the Act or from inferences to be drawn from it. If a point is reached where it may be concluded that the language is not clear and unambiguous, that it may be subject to construction, then -- and only then -- may we consult the Legislative History for aid in finding an answer to our inquiry.

There is no specific provision in the Act spelling out in exact words the power of the Review Commission to adjudicate the validity of the standards adopted by the Secretary and the legality of his actions in so adopting them. Our considered conclusion is that this power and authority are so clearly granted by inferences to be drawn from the Act, there is no reasonable ground for disagreement about it. Our further conclusion is that the Review Commission is not only a proper forum for such adjudication, but it is the only one where the question may be raised past the pre-enforcement status of the standard.

Suppose we enumerate and explain briefly the reasons for these statements.

(1) The Review Commission's function is adjudicatory nothing more, nothing less. The basic grant of this power is in Section 2(b) of the Act:

"CONGRESSIONAL FINDINGS AND PURPOSE

SEC. (2) [*39]

(b) The congress declares it to be its purpose and policy, through the exercise of its powers to regulate commerce among the several States and with foreign nations and to provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources --

(3) . . . by creating an Occupational Safety and Health Review Commission for carrying out adjudicatory functions under the Act;"

(2) All findings of violations and imposition of penalties by default -- for failure to contest an action of the Secretary -- are those of the Review Commission. The statute provides: "They shall be deemed a final order of the Commission. . . ." (Sec. 10(a)(3))

(3) With the exception of certain equitable powers to restrain conditions or practices in the event of imminent danger, vested in the United States District Courts (Sec. 13) all civil actions and adjudications under the Act are in the Review Commission. All findings of violations of the Act are functions of the Review Commission.

Under Section 10(c), if a proposal of the Secretary is contested, "the Commission shall afford an opportunity for a [*40] hearing" under the provisions of the Administrative Procedure Act. Thereafter the Commission must enter an order "based on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief, . . . ."

We have referred to a common practice by both the Review Commission and its judges to hold various standards of the Secretary invalid for a variety of announced reasons. In each case the challenge to the standard was in the Commission proceedings and the real basis for the holding was that the Secretary was acting in excess of his statutory power and authority in adopting the standard. A few examples were given.

Of equal -- or greater -- importance is the fact that implicit in every finding of a violation of an occupational safety or health standard under Section 5(a)(2) of the Act, is a holding that the standard is valid -- that it was enacted by the Secretary in a proper exercise of his legislative power and authority.

The Commission is directed to "affirm" a citation and proposed penalty in some cases. If a standard is questioned and can be held valid only by a "judicial" court; the Commission might find itself [*41] in the completely untenable position of being required to affirm a penalty without a finding that the standard is valid.

Can this be the intention of the Congress? We think not

(4) Not only does it have sole power to find violations of the law and standards with respect to occupational safety and health, but "The Commission shall have authority to assess all civil penalties. . . ." (Sec. 17(j)). This is not a review -- it is the first adjudicatory act with respect to the penalty.

(5) Contempt powers are granted as under the National Labor Relations Act (Sec. 12(i)).

(6) The Chairman is authorized to "appoint such hearing examiners . . . as he deems necessary to assist in the performance of the Commission's functions. . . ." (See. 12(e)). Some of these functions are enumerated (Sec. 12(j)). As stated above, and for the purpose of this inquiry, the duties and powers of a hearing examiner (judge) are no greater or less at the hearing level than are those of the Review Commission at the review level.

(7) A direct method of review is provided of all decisions of the Commission to the United States Court of Appeals. Section 11(a) provides:

"JUDICIAL REVIEW

SEC.11.(a) Any person [*42] adversely affected or aggrieved by an order of the Commission issued under subsection (c) of section 10 may obtain a review of such order in any United States court of appeals for the circuit in which the violation is alleged to have occurred or where the employer has its principal office, or in the Court of Appeals for the District of Columbia Circuit, by filing in such court within sixty days following the issuance of such order a written petition praying that the order be modified or set aside. A copy of such petition shall be forthwith transmitted by the clerk of the court to the Commission and to the other parties, and thereupon the Commission shall file in the court the record in the proceeding as provided in section 2112 of title 28, United States Code. Upon such filing, the court shall have jurisdiction of the proceeding and of the question determined therein, and shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter upon the pleadings, testimony, and proceedings set forth in such record a decree affirming, modifying, or setting aside in whole or in part, the order of the Commission and enforcing the same [*43] to the extent that such order is affirmed or modified. The commencement of proceedings under this subsection shall not, unless ordered by the court, operate as a stay of the order of the Commission. No objection that has not been urged before the Commission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. If any party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearing before the Commission, the court may order such additional evidence to be taken before the Commission and to be made a part of the record. The Commission may modify its findings as to the facts, or make new findings, by reason of additional evidence so taken and filed, and it shall file such modified or new findings, which findings with respect to questions of fact, [*44] if supported by substantial evidence on the record considered as a whole, shall be conclusive, and its recommendations, if any, for the modification or setting aside of its original order. Upon the filing of the record with it, the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review by the Supreme Court of the United States, as provided in section 1254 of title 28, United States Code. Petitions filed under this subsection shall be heard expeditiously."

(Underlining added)

Two provisions are particularly worthy of note here. First, no objection that has not been urged before the Commission can be considered by the Court of Appeals. Thus, if there has been no question, or decision, on the validity of a standard; it cannot be considered by the Court of Appeals on review.

Secondly, additional evidence may be ordered in exceptional circumstances. In this case it is taken "before the Commission," which may thereafter modify its findings or make new ones; and any review thereafter shall be considered as from the beginning.

The foregoing should show without question the intent of Congress to allow [*45] the Review Commission the right to pass on the validity and legality of standards adopted by the Secretary; and also require that they be challenged in the Review Commission proceedings. Perhaps viewing the question from a somewhat different angle might be helpful.

As a practical matter, how would an employer test the validity of a standard promulgated by the Secretary in a "court" rather than before the Review Commission?

He could not make his first request for a ruling on review of the United States Court of Appeals under Section 11(a) of the Act after a Commission decision. This Section provides: "No objection that has not been urged before the Commission shall be considered by the court, . . . ."

Should be employer then start an action in the United States District Court seeking an injunction? Again, this action would fail. On the state of the record of every one of the cases I now have before me, relief would be denied because of failure to exhaust administrative remedies. Perhaps not all decisions would be on exactly the same basis as that of the three judge panel in Lance Roofing Co. vs. Hodgson, Secretary of Labor (1972), 1 OSHC 1012, 343 F.Supp. 685. Good [*46] reasons exist in all for holdings other than on the identical ground. For a variety of holdings involving the principle of exhausting administrative remedies, see cases cited in Davis-Administrative Law Treatise, Chapter 20.

An action for declaratory judgment would meet no better fate. The doctrine of exhaustion of administrative remedies applies alike to such actions. In Lance Roofing, supra, the plaintiffs sought declaratory -- as well as injunctive -- relief.

The question was asked as to how an employer wishing to challenge the validity of a standard now may go about doing it in a "judicial" court. The obvious answer is that he has no way of doing it. The first challenge must be made before the trial judge at the hearing stage of the Review Commission proceeding. Failing this, a Respondent will necessarily be held to have failed to exhaust his administrative remedies.

We believe the implication is so clear that the Review Commission proceeding is not only the proper, but the exclusive forum for a current challenge to the validity of a standard of the Secretary, there should be no need to resort to legislative history as an aid in reaching this conclusion. [*47] Since the Act does not so provide by its express terms, however, a contention considered by some to be reasonable might be made that it is subject to construction to the extent that legislative history may be invoked, and we shall therefore turn in this direction for additional assistance.

In the Legislative History, there are references carrying a clear implication of the Congressional intent that the legality and validity of a regulation (standard) of the Secretary may be tested and decided by the Review Commission. These are in two contexts. First, in reference to the fact that Section 6(f) of the Act is a pre-enforcement remedy only and that the standard may be tested in an enforcement proceeding. Secondly in emphasis on the adjudicatory function of the Review Commission.

Two such references have already been cited. Following are additional expressions of Congressional intent.

For example, in the Index itself, under "Standards", is the following:

"Standards, pre-enforcement review. (See Section 6(f) in Section-by-Section Index, 'Judicial Review of Standards')"

In a Section by Section analysis and comparison of the Committee reported Bill S.2193 -- containing the pertinent [*48] language of the present Act -- and substitute Bill S.4044, is this reference to the former:

"6. Judicial Review of Standards Judicial review of standards is provided in the various United States Courts of Appeals. This right may be exercised up to 60 days after the standard is promulgated. (sec. 6(f)). Judicial review of standards would also be possible in enforcement proceedings." (Emphasis supplied)

(Legislative History, p. 304)

Representative Steiger of Wisconsin made the following statement with respect to the specific language of the Bill which became part of the law having to do with the Review Commission and its adjudicatory procedures:

"Persons aggrieved by a citation of the Secretary of Labor will appeal to the Commission rather than to the Secretary, as is the case in the committee bill. We will, with this amendment, provide for a separation of powers. Standards will be promulgated by the Secretary of Labor and contested citations will be considered by an independent court, so to speak, an independent review commission."

(Legislative History, p. 1074)

In preparing this decision, we are not unmindful of the decision in Secretary of Labor vs. Boise Cascade Corporation, [*49] Docket 2944. By stipulation of counsel, Judge Kennedy had before him a transcript of a major portion of the proceedings in our cases, (three of four days of the supplemental hearing), but none of the 17 exhibits.

This brings us to the heart of the case. We are faced squarely with the necessity of deciding the merits of Respondents' challenge to particular sections of 29 CFR 1910.213 -- and only those sections as they apply to the facts in this record.

Perhaps a word of caution -- and of limitation -- might be appropriate here. Not only have there been inferences, but also broad sweeping statements that the effect of this action may be to establish the validity or invalidity of all parts of section 213 of Part 1910. These are all the sections having to do with machine guarding of woodworking machinery. Hopefully such statements were inadvertent, but at best they show a disregard of the actual effect of decisional law.

Neither this forum nor any other can do more than pass on the precise questions before it in a particular case, here the validity or invalidity of enumerated sections or subsections of standards; and then only with reference to the record before it. The practical [*50] effect of some holdings may go much farther; but the adjudications themselves are so limited.

Before going into a detailed consideration of the specific sections of the standards and the grounds on which they are challenged, a brief review of some of the evidence in the record would seem to be in order.

I called six witnesses who testified at the supplemental hearing. They are:

Patrick F. Cestrone, Silver Springs, Maryland; Consultant, Occupational Safety and Health Associates. In 1971, Mr. Cestrone was Director of the Office of Safety and Health Standards, United States Department of Labor. He was charged with the responsibility of what has been aptly termed a "crash program" to develop national consensus standards and established Federal standards for the Secretary to ". . . by rule promulgate as occupational safety or health" standards under Section 6(a) of the Act.

Nixon deTarnowsky, Scarsdale, New York; Standards Coordinator for Safety and Health Standards, American National Standards Institute, New York City.

David Zabriskie, Fairlawn, New Jersey; Manager of Construction Safety Division, Engineering and Safety Services, American Insurance Association, New York City; [*51] Secretary of the ANSI 01 Committee since June of 1970.

Lewis R. Morrison, Ardsley, New York, Corporate Safety Manager, ACF Industries, Inc., New York City. As an employee of the Lumbermen's Mutual Casualty Company of Chicago and as a representative of the National Association of Mutual Casualty Companies, he was a member of the ANSI 01 Committee at the time ANSI 01.1 was adopted in 1954.

A. A. Skonning, Riverside, Illinois; retired Senior Engineer, Western Electric Company; 29 years experience in safety engineering, particularly woodworking; representative of the National Safety Council on the ANSI 01 Committee in 1954 and 1961.

Joseph J. Prabulos, Woodbury, Connecticut; retired Safety Director, National Distillers and Chemical Corporation; member of ANSI 01 Committee in 1954, 1961 and 1971; representative on the committee of a trade association, Associated Cooperage Industries.

Dan Adair, Portland, Oregon; Vice President of consulting firm, Hearing Conservation and Noise Control, Inc.; representative of National Safety Council on ANSI 01 Committee in 1954 and 1961.

In addition, Respondent Weyerhaeuser called Thaden Demas Assistant Director for the Division of Products Approval, [*52] American Plywood Association, Tacoma, Washington.

There is no conflict in evidence on any material fact in this part of the case.

ANSI does not write standards. In case of a consensus standard, one of its prime functions is to certify that standards presented to it are in fact representative of a "consensus" of those parties who have an interest in the subject covered.

Usually the standards are written by committees of the organization, commonly sponsored by one or more members. There are 160 national organizations and 1,000 individual company dues-paying members. The areas of activity of the organization in promulgating standards and approving them are very broad. The Safety Technical Advisory Board involved with the standard here under consideration is only one of 26 such advisory boards, each concerned with its own category of standards.

In this case, the 01 Committee was sponsored by the Association of Casualty and Surety Companies, a large trade association of the biggest stock casualty companies in the country (now a part of the American Insurance Association by reason of merger with the National Board of Fire Underwriters); and the International Association of Government [*53] Labor Officials.

When a request is made for permission to sponsor a standard, and certain formalities have been completed, such as a finding by ANSI of the need for such a standard, approval of its scope, the competence of the proposed sponsors, membership of the committee, including competence and comprehensive interests of committee members (usually trade associations or other organizations of groups of companies rather than individual companies, along with labor and governmental organizations); the committee is pretty much left alone to do its job of writing the standard. In the process, technical assistance is supplied by the ANSI organization only on request. Committee members are usually highly skilled experts in the field in which they are working.

When the job is completed and the proposed standard approved by a "consensus" of the committee, it then undergoes further scrutiny. In this case the Safety Technical Advisory Board passed on the technical competence of the standard and the Board of Standards Review on whether it represented a "consensus." Involved in the process now is a public review and comment period following distribution of the proposed standard to recipients [*54] of "ANSI Reporter." This has a circulation of 10,000, including The Bureau of National Affairs, Commerce Clearing House, National Safety Council, and other publishers of trade periodicals.

Early in 1971, Patrick F. Cestrone had completed about 31 years of government service as a professional safety engineer, most of it in supervisory capacities. He was Director of the Office of Safety and Health Standards, United States Department of Labor. For more than 2 years, Cestrone and those under his supervision had worked on planning for the Labor Department in anticipation of some type of comprehensive Federal occupational safety and health law.

The "crash program" to which reference was made was principally the preparation of a comprehensive set of occupational safety and health standards promulgated by the Secretary of Labor under Section 6(a) of the Occupational Safety and Health Act of 1970. These were published on May 29, 1971 in 36 Federal Register, commencing at page 10466.

Adoption of these standards by the Secretary was mandate by Section 6(a) of the Act. They were of two kinds, "national consensus standards" and "established Federal standards." As the man primarily responsible [*55] for "putting together the package" Cestrone was familiar with all the details of the project.

Cestrone does not remember specifically the details of rewriting ANSI 01.1 and its adoption as 29 CFR 1910.213 and 214. Nor does he have a definite recollection of considering and eliminating the headnote previously quoted at the beginning of Section 4, "Woodworking Machinery", on page 9 of the ANSI printed standard (Respondent's Exhibits S-1 and S-3); or the reason for its omission from Section 213 of Part 1910. He does recall ANSI 01.1, and that it was adopted as a national consensus standard

Among the objectives of the group headed by Mr. Cestrone was to make no changes in either the scope or the substance of any national consensus standard. Part of the job also was to eliminate any consensus standards that were advisory, or recommended. No provision was intended to be included in the final product unless its requirements were mandatory.

Neither Cestrone nor, so far as he knew, anyone else engaged in the project took any steps to insure the legality of the standards being adopted; for example, to determine whether the national consensus standards met the statutory definitions of [*56] Section 3(9) of the Act. As to ANSI 01.1 there were two reasons for this.

First, the Secretary was not only under a mandate of the statute (Section 6(a)) to adopt national consensus standards produced by ANSI and the National Fire Protection Association (NFPA); but the legislative history of the Act contained numerous committee reports and other comments urging speed and purporting to explain why the standards, having already met the "consensus principle", could and should be adopted without further ado.

Further scrutiny will show that the language of the legislative history tending to show compliance of the ANSI standard with the statutory definition of a national consensus standard was in error.

In his testimony, Mr. Cestrone referred to several such passages from the legislative history:

"Q. What part of the legislative history, and to what part of the legislative history do you refer there, if you know?

A. May I sit and refer and to my notes?

Q. Yes, yes, refer to any notes you have.

A. With respect to support of the legislative history and support of interim standards, my reference is to report 21-82, starting on page 141, which accompanied the Senate version of the [*57] bill S 2193, particularly legislative history starting on page 146-6.

Q. Is that in the legislative history?

A. It's in the green June book, and I can read to you if you want me.

Q. If you have the pertinent language it might be good to put it in the record.

A. Senate Report 91-1282, page 141, calendar number 1300; Accompanying Senate Bill S 2193, page 146-6. 'The purpose of this procedure is to establish as rapidly as possible National Occupational Safety and Health standards with which industry is familiar. These standards may not be as effective or up to date as is desirable, but they will be useful for immediately providing a nation wide minimal level of safety and health. Two private organizations are the major sources of consensus standards; the American National Standards Institute, Incorporated and the National Fire Protection Association. By the Act's definition a consensus standard is one which has been adopted under procedures which have given diverse views an opportunity to be considered, and which indicated interested and affected persons have reached substantial agreement on its adoption.'

Q. Pardon me, sir. I'm interested in the part before "affected [*58] persons."

A. Which indicate that interested and affected persons have reached substantial agreement on its adoption.

Q. This is saying what has been done and the statute says it must be done, is that correct, sir?

A. Yes, sir, and if I may finish this last phrase, the point I wanted to make here. I don't know whether I left what I thought was non-applicable language out but it follows that, "It is appropriate to permit the Secretary to promulgate such standards without regard to the provisions of the Administrative Procedures Act. The bill also provides for the issuance in similar fashion of those standards --

Q. Are you quoting now?

A. Yes, sir. ". . . which have been issued under other federal standards and which under this Act may be applicable to additional employees who are not under the protection of such other federal laws. Such standards have already been subjected to the procedural scrutiny mandated by law under which they were issued. Such standards moreover in large part represent the incorporation of voluntary industrial standards."

Your Honor, in the House Report 911291 which accompanied HR 16785 starting on page 831, but the pages of specific reference [*59] are page 847. The intent of this interim standards provision is to give the Secretary of Labor a speedy mechanism to promulgate standards with which industry is familiar. These may not be as effective as the current standards promulgated under formal procedures but they will be useful for immediately providing a nation-wide minimum level of health and safety.

Section 6 --

Q. Does that refer to the reference or standards referred to by the terms of the statement elsewhere? Did those include ANSI national consensus standards?

A. Yes."

(Tr. S54, S55, S56 and S57)

As to the adoption of ANSI 01.1 as a national consensus standard, Cestrone recalled believing the legality of the standard was protected not only by the congressional mandate of the statute and congressional urgency in reports and debates, but also by the fact that the Labor Department's Solicitor advised that the standard had been adopted "by reference" under the Walsh-Healy Act

There is some question as to what was intended by the witness when he referred to adoption "by reference."

Cestrone referred specifically to the provisions of Section 4(b)(2) of the Act. This simply purported to "blanket in" all existing [*60] Walsh-Healy regulations -- as well as those under other safety Acts -- as Occupational Safety and Health standards; by "deeming" all such -- without further identification or reference -- to be occupational safety and health standards.

The witness may have been referring to the adoption "by reference" in 41 CFR 50.204-2. This reference applies to the general machine guarding requirements for all machines and states that all standards on this subject produced by the four named major standards-producing organizations are effective under the Walsh-Healy Act; without specific reference to any such privately produced standards, their provisions, or their application.

This section was mentioned by the Solicitor at the beginning of the supplemental hearing on the Secretary's Motion for Judgment on the pleadings. It was not urged thereafter by the Solicitor except in connection with his argument that 29 CFR 1910.213 is in fact a national consensus standard.

The fact is ANSI 01.1954 (R 1961) was taken apart and reassembled, under the direction of Mr. Cestrone, to become 29 CFR 1910.213 and 214. (See Respondent's Exhibit S-3, showing details of the dismantling and reassembling job.) It [*61] was then adopted as a national consensus standard. In the process the headnote at the beginning of Section 4 was removed and appears nowhere in the Occupational Safety and Health standards.

There was no intent or effort to adopt any standard in the alternative, or as both a national consensus standard and an established Federal standard.

"The new Part 1910 contains Occupational Safety and Health standards which are either national consensus standards or established Federal standards."

(36 Fed. Reg. 10466, May 29, 1971

The Secretary's own regulation showing source -- 29 CFR 1910.221 -- shows that both Sections 213 and 214 were derived from "ANSI-01.1 -- 1954 -- (R-1961) -- Safety Code for Woodworking Machinery."

There is no statutory authority to promulgate the standard except as one or the other.

Thus, the standard under scrutiny in this case -- or portions of it -- is either a valid general industry occupational safety and health standard adopted as a national consensus standard or so far as we are here concerned, it has no relevance.

We now come to consideration of the three principal questions to be answered by this decision.

The first is [*62] the effect of deleting the headnote to Section 4.1 "Woodworking Machinery", page 9, ANSI 01.1 1954 (R 1961). It is as follows:

"NOTE: It is recognized that the standards for saw guards in 4.1 are not perfectly applicable to all operations for which saws are used. The standards given are those which woodworkers have agreed are most generally useful. Since there are a considerable number of cases not satisfactorily met by these standards, the enforcing authority should exercise rather wide latitude in allowing the use of other devices which give promise of affording adequate protection. It may be expected that by so doing further progress in saw guarding will be encouraged."

The record shows a similar note to have been part of the 01.1 standard in 1944. Another is a part of the 1971 revision.

The record further shows that at a meeting in the summer of 1973, for the first time the ANSI 01 Committee considered removing the text of the note as it has appeared and placing its provisions as part of the text of the various sections applicable. (See Secretary's Exhibit S-2.)

A number of undisputed facts should be considered.

First, all of the provisions of 29 CFR 1910.213 are mandatory. [*63] The headnote is not.

The note is not "explanatory", "preliminary", "a suggestion", "a recommendation", "for informational purposes", or even an "exhortation." It is an integral part of the standard itself.

"JUDGE WATKINS: Mr. Ehlke, I forgot to ask Mr. deTarnowsky something. If you want to cover it, okay; if not, I'll ask him again.

I want to make sure he testified as to whether the headnote that we've been talking about is a part of the standard. Would you cover that?

MR. EHLKE: That's my next question.

Q. (By Mr. Ehlke) Turn to page 9 of that document, sir. Is there a note at the beginning of section 4 entitled "Woodworking Machinery?"

A. Yes, it is.

Q. What type of note would that be, sir?

A. We call it a headnote.

Q. Are headnotes an integral part of the standards?

A. Yes.

Q. Is this headnote an integral part of that standard?

A. Yes, it is."

(Tr. S172)

There is considerably more evidence in the record to the same effect. There is no evidence to the contrary.

The saws covered by Section 213 of Part 1910 simply cannot be used for many jobs they are designed to do while guarded as required by the standard. This evidence is also undisputed and from expert [*64] and technically competent witnesses -- members of the Committee.

All Committee members stated that ANSI 01.1 would not be and could not be -- a "consensus" standard with the headnote remove Those asked stated they would not have voted for it as a consensus standard in the absence of the headnote.

It is interesting to note the difference in the method used by the Secretary in adopting ANSI 01.1 in the Construction Standards, from that used here in the General Industry Standards.

Subpart I of the Construction Standards covers "Tools -- Hand and Power", and includes 29 CFR 1926.300 "General Requirements", through Section 305. Section 304 of Part 1926, entitled "Woodworking Tools", has some specific requirements for portable, power driven circular saws (subparagraph (d)); and then provides:

"(f) Other requirements. All woodworking tools and machinery shall meet other applicable requirements of American National Standards Institute, 01.1 -- 1961. Safety Code for Woodworking Machinery."

Leaving aside other questions for the purpose of discussion; the result is the adoption of ANSI 01.1 with its headnote This is the procedure -- and the result -- intended by [*65] Congress in Sec. 6(a) of the Act.

Whatever may be the good or bad things about mandatory standards, or the validity or invalidity of adoption by reference; this was the enactment of what appeared on its face to be a national consensus standard -- as such; not as changed. With the headnote still a part of the standard, enforcement of Construction standards must consider that all parts of Section 4.1 of ANSI 01.1 are optional -- not mandatory.

In adopting Part 1910, including Section 213, on the other hand, the Secretary states in Volume 36, No. 105, Federal Register page 10466, May 29, 1971:

"The national consensus standards contain only mandatory provisions of the standards promulgated by those two organizations. The standards of ANSI and NFPA may also contain advisory provisions and recommendations, the adoption of which by employers is encouraged, but they are not adopted in Part 1910."

Perhaps the Secretary made a mistake in including Section 213 of Part 1910. With the headnote, provisions of Section 4.1 of ANSI 01.1: "are not perfectly applicable to all operations for which saws are used." The standards are only those "which woodworkers have agreed are most generally [*66] useful." ". . . there are a considerable number of cases not satisfactorily met by these standards."

With the headnote, ANSI 01.1 is not mandatory. Without the headnote, all provisions as they appear in 29 CFR 1910.213 are mandatory. The answer is that simple.

The Secretary exceeded his statutory authority in failing to retain the headnote as it was -- an integral part of the standard.

The second and third questions for consideration are whether, in two respects, ANSI 01.1 1954 (R 1961) meets the statutory definition of national consensus standard.

The Act provides:

"SEC. 3. For the purposes of this Act --

(9) The term "national consensus standard" means any occupational safety and health standard or modification thereof which (1), has been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption, (2) was formulated in a manner which afforded an opportunity for diverse views to be considered and (3) has been designated as such a standard by the Secretary, [*67] after consultation with other appropriate Federal agencies."

Although Section 3(9) of the Act contains only three numbered subsections, as we view it two requirements are contained in the first. There are therefore, four requirements for a standard to meet this statutory definition.

(1) It must have been "adopted and promulgated by a nationally recognized standards-producing organization."

(2) "Under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption."

(3) "Was formulated in a manner which afforded an opportunity for diverse views to be considered."

(4) "Has been designated as such a standard by the Secretary, after consultation with other appropriate Federal agencies."

Respondent Konkolville argues in its brief that the first and fourth requirements are not met. We find it unnecessary to decide these questions because we hold that ANSI 01.1 does not meet the statutory definition of a national consensus standard under the second.

A word about the fourth (has been designated, etc.) is in order, however, because it has significance in our [*68] holding that the standard under discussion was adopted as a national consensus standard. It was designated as such, and as nothing else. Further, it was ". . . by rule promulgated" as such by the Secretary, as provided by Section 6(a) of the Act.

In the Federal Register adopting Part 1910, "Occupational Safety and Health Standards" (36 Fed. Reg. 10466, May 29, 1971), the Secretary states:

"The national consensus standards are occupational safety and health standards adopted and promulgated either by the American National Standards Institute (ANSI) or by the National Fire Protection Association (NFPA) under procedures whereby it can be determined that persons interested and affected by the scope or provisions of the standards have reached substantial agreement on their adoption. I have determined that those standards have been adopted and promulgated under such procedures, Accordingly, pursuant to this determination, after consultation with other appropriate Federal agencies, and in accordance with section 3(9) of the Act, I do hereby designate as national consensus standards those standards in Part 1910 which are standards adopted and promulgated by either the American National [*69] Standards Institute or the National Fire Protection Association." (Emphasis added)

The first question which must be decided under this statutory definition (the second of the principal questions in the case) is whether the standard was promulgated

"under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption,"

Assuming first of all that the "procedures" are those of ANSI -- the standards-producing organization -- a number of other unanswered questions are immediately apparent. For example,

(1) Who are persons interested and affected by the scope or provisions of the standards?

(2) How many such persons are there?

(3) How many must "have reached substantial agreement on its adoption?

(4) What is "substantial agreement on its adoption?"

It might be pointed out there is no requirement that the Secretary find or "determine" that the persons contemplated have reached substantial agreement. Rather the requirement is that the circumstances of adoption of the standard be such that these things "can be determined by the Secretary."

The Secretary [*70] does purport to so find in the Federal Register cited. His statement to this effect is in the last quotation from it.

We may assume the Secretary cannot find that which is untrue. He cannot "determine" that something happened when in fact it did not happen. Thus, although the statute does not require the Secretary to "determine" the specific facts regarding the adoption of the standard by ANSI; those facts must exist so that the Secretary could so determine them. Those facts are "that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption

Who are "persons interested and affected by the scope or provisions of the standard?" Little time need be spent in answering this question. The record shows so many thousands of persons who are clearly within this class we need not concern ourselves with the niceties of deciding in a borderline case whether or not a particular person or class of persons is within it.

For example, these are shown by the record:

Workmen who operate the machinery

Labor organizations to which the workmen belong

Employers who hire the workmen

Trade associations of those employers

Workmens [*71] compensation or industrial insurance carriers who insure the employers and workmen, both by reason of their financial interest in the safety of the workmen and the insurance companies' traditional interest in safety.

Trade associations of the workmens compensation insurance carriers

Governmental organizations with an interest in employee safety

Private safety organizations, for example, the National Safety Council

Producers of safety standards, such as ANSI

The last two questions posed above present greater difficulties of solution. How many "persons interested and affected" must have agreed on the adoption of an ANSI standard? The literal language of the statute would be satisfied if the answer were either "two" or "all." Either answer is ridiculous.

Might the answer be "a representative number"; or "a substantial number"; whatever either of these expressions means? I have been unable to find anything in the Legislative History helpful in trying to answer this question.

It would rather seem from numerous passages in the history that Congress became enamored of its own definition and began to assume that both ANSI and NFPA standards met it. At the same time, from some of [*72] the testimony, one might draw the inference that ANSI began to believe its standards met the Congressional definition.

As will be shown, the answer to the question is academic. Since we are talking about "consensus" standards, however, would it not be sensible to believe Congress intended that "a consensus" of "persons interested and affected" agreed to the adoption of the standard?

Consensus means

"General agreement." "Collective opinion. The judgment arrived at by most of those concerned."

(Webster -- 3rd Unabridged)

"Majority of opinion."

(Random House -- College Edition)

DeTarnowsky quoted from one of ANSI's principal publications, "Consensus implies much more than a concept of a simple majority, not necessarily unanimity."

Perhaps it would be helpful to delve slightly deeper into ANSI procedures, particularly in its method of "obtaining a consensus." There is reference to the question in the testimony of Mr. deTarnowsky:

"Q. (By Judge) The other day when we had - well, that was Tuesday - and we had this meeting with all of us there, I asked, I believe, if there is an ANSI -- if ANSI defines consensus anywhere. I didn't ask then, but I meant it, of course, as a guide. [*73] You then consulted your files, and would you tell us what you found about that?

A. The term "consensus in standardization practice is achieved when substantial agreement is reached by concerned interests according to the judgment of duly appointed authority."

Q. Then we ought to identify it. I'm reading in a different place.

A. I'm reading from the "Guide of the Development of American National Standards", dated November 2, 1972, page 6, the third paragraph, "Consensus Principle." I better read the whole paragraph.

Q. Go ahead, sir.

A. The title of this paragraph is "Consensus Principle", "The basic principle underlying ANSI approval of a standard is that a consensus must be reached of those having substantial concern with its scope and provisions. In standardization practice a consensus is achieved when substantial agreement is reached by concerned interests according to the judgment of a duly appointed authority. Consensus implies much more than a concept of a simple majority, not necessarily unanimity."

(Tr. S164 - 165)

From the record it is not clear who is the "duly appointed authority" whose judgment is used to determine when a "consensus is achieved" by "substantial [*74] agreement." Although the Board of Standards Review of ANSI is charged with only one function -- to determine whether or not the standard "represents a consensus" -- other procedures of ANSI apparently also go into the determination.

First there is the selection and approval of the committee which is to write the standard and the determination that it has as broad a base in the particular field as possible. One factor not considered at length in testimony is the theory of placing somewhat unusual duties and responsibilities on members of ANSI, and their individual committee members, to keep the member organization informed of the work of ANSI committees in writing standards. At the same time the individual is charged with the responsibility of interpreting the attitude of the organization he represents -- and its members -- in the development of the standards work.

Testimony of Committee members does not disclose any particular attention having been paid to these responsibilities.

The following quotation from "The ASA System" (Secretary's Exhibit S-1) is of interest in this connection.

"These principles require thoroughgoing responsibility on the part of cooperating bodies [*75] and their representatives -- responsibility in three senses, viz:

(a) Responsibility in representation. It is the duty of a representative (1) to keep sufficiently in touch with his organization so that he can correctly interpret its attitude in the development of the work and can participate in decisions in committees; (2) to keep his organization informed of developments; (3) to act as a leader in the formulation of the policies of his organization in regard to the matters with which he is dealing; and (4) to refer back to his organization questions upon which he feels unauthorized to speak for it; . . . ."

The statement was made above that the number of "persons interested and affected" who reach "substantial agreement" on the adoption of the standard is academic. The fact is, nobody reaches substantial agreement -- or any other kind of agreement -- on the adoption of an ANSI consensus standard except the individual committee members writing the standard and the organizations they represent.

The organizations are usually not the employers but trade or other associations, or the like. "Substantial agreement" could also be said to be reached [*76] by subsequent reviewing authorities within the ANSI organization itself.

It is not only a matter of common knowledge, but it is the uncontradicted evidence in this record; that except in unusual circumstances not here shown, no member of a trade association or similar organization allows the organization to act for it, agree to anything for it, to speak for it, to express an opinion for it, or to commit it in any way.

The evidence in this record does not include all the 13 or 14 organizations constituting the ANSI 01 committee in 1954 and 1961. It does, however, include the following:

Nixon deTarnowsky testified that ANSI's members do not authorize the organization to make any decision for them involving judgment or to speak for them on any matter involving the technical content of a standard. He is familiar with the operation and practices of trade associations and has represented at least one. With respect to the representative and in connection with ANSI procedures, he testified:

"Q. But he normally speaks for the association and industry or the trade association only, not for individual members?

A. That's right. He's a representative of the association. This is his [*77] function.

Q. I wonder if it isn't usually the practice for a trade association representative to be very careful not to speak in the names of the individual members?

A. That is correct, they do. They must remember they are speaking for an association and not for their company or themselves."

(Tr. S166 - 167)

David Zabriskie is an employee of the American Insurance Association and Secretary of the ANSI Committee. "Roughly" all company members who subscribe to the engineering and safety services of the Association write workmens compensation insurance. These are the largest stock casualty companies in the country (formerly constituting the Association of Casualty and Surety Companies). Zabriskie testified that there are some mutual companies who are now members.

There are 150 to 160 of these companies writing workmen's compensation insurance. The record does not show how many million policy holders they have or how many such policy holders own or operate saws of the type covered by the woodworking machine guarding standards in question. A fair inference can be drawn the number is very large.

Neither Zabriskie nor any other representative of the American Insurance Association [*78] had authority from any member company to "agree" to anything, to speak for it, or to make any decision or express an opinion on the question of the adoption of any safety standard. If the committee member is a company employee, he is authorized to speak and vote for the Association only, not for his company. This situation is often the case. Nelson, the current chairman of the ANSI 01 Committee, is an employee of St. Paul Fire and Marine. Steinman, the previous Chairman, was an employee of the United States Fidelity and Guaranty Company.

No company member of the American Insurance Association has authority from any policy holder to speak for it, "agree" for it, take any position for it or express any opinion for it on any matter having to do with a safety standard. Every polic holder (in case of its insurance company) and every company (in case of its trade association) jealously guards its own right to "agree", "assent", "take a position", "take action", or withhold it, and in all respects to form its own opinions and conclusions and to express them on all matters -- including safety.

Lewis R. Morrison was a representative of the National Association of Mutual Casualty Companies [*79] on the ANSI 01 Committee in 1954. He was an employee of the Lumbermens Mutual Casualty Company of Chicago. The trade association he represented was made up of the large mutual companies writing workmens compensation insurance.

The same facts are true with respect to Mr. Morrison as with Mr. Zabriskie. He spoke for -- voted for -- only the trade association -- not his employer or any other company. No company member of the trade association had authority to take any action or position or express any view on behalf of any of its policy holders.

A. A. Skonning, Senior Engineer, Western Electric Company was a representative on the committee in 1954 and 1961 for the National Safety Council. Dan Adair, an employee of the Safety Council, was also a representative. Both were active in the work of the committee for a considerable number of years.

In 1970, the National Safety Council had 9,000 members, 8,000 of them industrial concerns. Others included labor unions and insurance companies. In 1963, a listing was developed of 28,000 industrial plants involved in memberships of the National Safety Council.

No member of the National Safety Council authorized either Skonning or Adair [*80] to speak for it, act for it, or do anything else in connection with safety. As a member of the committee Mr. Skonning voted only on behalf of the National Safety Council, not on behalf of Western Electric.

Joseph J. Prabulos represented the Associated Cooperage Industries, a trade association, on the committee in its work resulting in the revision of the standard in 1954, its reaffirmation in 1961 and its further revision in 1971. He was employed as Safety Director of the National Distillers and Chemical Corporation.

Prabulos' recollection was that the trade association had about 130 member companies. As a committee member, he spoke and voted only for the trade association, not for his employer. In other respects his testimony is the same as that of the witnesses just mentioned except that, in addition, he had no specific instructions or authorization from the trade association on how to cast any vote with respect to the standard.

As with the other witnesses, Mr. Prabulos had no contact or communication with the member companies of his trade association, or with his own company, with respect to the work of the ANSI committee.

In fact, each committee member who testified was [*81] an expert in his field, and used his own judgment in casting his vote in a manner that caused the committee to be in substantial agreement.

It would serve no useful purpose to speculate on the precise meaning of "substantial agreement" to the extent of framing a definition. Certainly it means much less than a formal and recorded agreement, either written or oral. It might be inferred from inaction -- with knowledge of essential facts -- rather than from any positive action.

At a minimum there must be some communication -- or chance to communicate -- by a person held to be in "substantial agreement." In any event, to hold that many thousands of people are in "substantial agreement" means more than the best judgment of safety experts about what they are thinking; when the experts have received no communications from them as to what they are thinking, and no authority from anyone to take or withhold any action.

At the conclusion of the first three days of testimony and at the request of counsel for Respondent, the case was continued to September 17. Although not so limited, this was principally for the purpose of obtaining further evidence tending to improve the record as to the [*82] number of "persons interested and affected by the scope or provisions of the standard."

Most of the evidence we have is general -- some of it vague. From the total, however, certain valid inferences may be drawn, particularly with respect to minimum numbers of persons who may be so interested and affected.

A number of documents, or portions of them, were introduced in evidence. With the background record of the insurance and cooperage industries, the National Safety Council, and the ANSI members, perhaps reference to one and a stipulation in connection with it would be sufficient for our present purpose.

Mr. George J. Tichy, counsel for Konkolville, did not testify. By stipulation, however, the equivalent of his testimony was received.

It was stipulated that, based on Respondent's Exhibit S-8, that portion having to do with lumber, sawmills and wood products, Mr. Tichy would testify if he were called as a witness, and based upon his experience in the industry, not only as counsel but also including extensive experience as a workman; that in 1954, 1961, 1971 and 1973 there were no less than 30,000 industrial used of the types of saws found in Section 4.1 of ANSI 01.1 1954 [*83] (R 196) and adopted thereafter as 29 CFR 1910.213. The stipulation was further that on each of the dates the number of such saws in use was no less than 50,000.

It was further agreed that the stipulation might be accepted in lieu of Mr. Tichy's testimony, that he was qualified to testify to the facts stated, and that the stipulation might be so used even though Tichy was in court and could have taken the witness stand.

It is of interest to note that so far as all the logging and sawmill, as well as the Northwest Plywood industries are concerned; there was no representative -- either company or trade association -- on the ANSI 01 Committee. One of the reasons assigned for this was that at the time a "vertical" standard for sawmills was being considered and prepared. (29 CFR 1910.265)

From the foregoing it is abundantly clear that the ANSI national consensus standard here under consideration does not meet the definition of Section 3(9)(1) of the Act, as having been adopted "under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption."

One can [*84] but conclude that Congress mandated the use of national consensus standards as occupational safety and health standards under the Act, espoused their adoption as interim regulations and under abbreviated procedures, sought to speed their promulgation and implementation; and at the same time adopted a statutory definition that no national consensus standard could meet. At least the standard here under consideration does not meet it.

The third question for decision is whether the ANSI 01.1 1954 (R 1961) standard "was formulated in a manner which afforded an opportunity for diverse views to be considered. . . ."

In an earlier explanation of the working of ANSI, reference was made to "a public review and comment period." References to this procedure under the same or similar language are in several places in the Legislative History.

Nixon deTarnowsky testified the present system started in 1969. Previous efforts, while not haphazard, were much less complete.

"The old ASA system did not include a public review and comment period such as we have now. The old system relied exclusively on the membership of the ASA system. It was published in the Magazine of Standards, [*85] however, which was given general distribution, and was subscribed to by a great many more companies, but as I understand it the public review and comment, as we have it today, did not exist at the time 01 was promulgated."

(Tr. S154 - 155)

The Magazine of Standards was published by ANSI. Its circulation is not shown. Other trade publications reproduced proposals with respect to the adoption of standards.

Mr. Cestrone testified he had no difficulty in knowing of any ANSI action contemplated in which he was interested over the years. At the same time, however, it appears that for many years he was active in ANSI and served on many of its committees and bodies.

In general, the record indicates dissemination of information about proposed actions regarding standards before the change in 1969. The change brought about a much wider and more selective distribution of information, and also brought into effect a number of new procedures with respect to comments received.

The statute does not designate whose "diverse views" are to be considered; or who must be "afforded an opportunity." If the "opportunity" and "diverse views" are limited to safety professionals, there would [*86] be compliance with the statute.

Nor is there a specific provision about who is to do the "considering." By implication, however, this would be some part of the ANSI organization.

There is no indication Congress intended that a procedure such as that provided by Section 6(b) of the Act was thought to be required of private standards-producing organizations. No attempt is made to spell out times, places, manners of publication or other dissemination of information or methods used.

Under all the circumstances, we feel there was no failure on the part of ANSI to meet the requirements of Section 3(9)(2) in its adoption or promulgation of the standard here under consideration.

In order that there may be no misunderstanding, I should like to make it clear there is no intention in this decision to criticize anybody.

First, the Secretary of Labor was required by Section 6(a) of the Act to adopt national consensus standards as occupational safety and health standards "unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees."

There are numerous references in the Legislative History to the assumption [*87] -- stated as fact -- that national consensus standards of ANSI and NFPA met the tests of the definition Section of the Act; even though the ANSI standard here under review did no All the Congressional views were known to the people in the Labor Department charged with the responsibility of developing the progress.

Mr. Cestrone and his organization of about 60 people did a monumental job in about 34 days in putting together the package. There must have been many other people in the Department of Labor under similar pressure. It just happens their identities and efforts have not come to our attention.

Least of all do we consider this decision any criticism of the American National Standards Institute; its philosophies, its procedure or its results. The procedures have been tested by time and found to be in the public interest, and specifically in the interest of occupational safety and health. Nothing here could be construed as in any way reflecting on the integrity or effectiveness of ANSI or of any of its procedures or results. It simply has a statutory definition of "consensus" that its procedures cannot meet -- nor could those of any other private organization setting out [*88] to do the same job. n2

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 This ends that part of the decision which is the same as a number of others, as mentioned in footnote 1.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

ALLEGATION OF FAILURE TO GUARD OR INSURE USE OF A SAFETY DEVICE ON WHITNEY HYDRAULIC PUNCH PRESS -- Citation for Serious Violation No. 2

From the time of the first notice of contest, Respondent has consistently taken the position that there is no valid allegation of a violation of the standards as to the Whitney punch press because it is specifically excluded under the terms of 29 CFR 1910.217(a)(5), which provides: "Mechanical power presses, (a) General Requirements, (5) Excluded Machines . . ., hydraulic . . . power presses . . . are excluded from the requirements of this section."

On the evidence in this record, the hydraulic power press comes within the provisions relating to mechanical power presses. There is nothing in the evidence to differentiate between the two. No differentiation is made in the standards. To the contrary, 29 CFR 1910.211(d) provides: "As used in Section [*89] 1910.217, unless the context further requires otherwise, the following power press terms shall have the meaning prescribed in this paragraph."

In subparagraph 46, (under the same paragraph (d)), is the following definition, clearly bringing the Whitney machine within the purview of 1910.217:

"'Press' means a mechanically powered machine that shears, punches, forms or assembles metal or other material by means of cutting, shaping or combination dies attached to slides. A press consists of a stationary bed or anvil, and a slide (or slides) have a controlled reciprocating motion toward and away from the bed surface, the slide being guided in a definite path by the frame of the press."

Respondent contends that, since there are specific standards for a category of machines, the Whitney punch press fits, namely "Mechanical Power Presses", its machine is not covered by existing standards. Its point of view is supported by excerpts from trade periodicals indicating that standards for hydraulic punch presses are yet to be developed.

The Secretary apparently concedes that the Whitney hydraulic punch press is a "Mechanical Power Press", within the meaning of the standards. He takes the [*90] view, however, that when it is excluded from the application of Section 217 of Part 1910, the general machine guarding requirements come into play again and he may properly charge Respondent with a violation of the most general of all, 29 CFR 1910.212(a)(1).

There is logic in Respondent's position. At least one case involving press brakes (also excluded) has so held. It reasons further that, if the Secretary had intended the machine in question to be governed by the general provisions of Section 212 (29 CFR 1910.212), a cross reference to Section 212 would have been included in Section 217(a)(5). It appeared further in that case -- as in this one -- that the Respondent knew of the exclusion and thus construed the section to provide that guards were not required. Secretary of Labor v. Irvington-Moore, Division of U.S. Natural Resources, Docket 3116. We are inclined to agree with Respondent's position but prefer to base our decision on something more tangible and on which there is less likely to be difference of opinion. The fact is Respondent's Whitney hydraulic punch press was adequately guarded by the "strippers" used in all its operations.

The evidence is undisputed that [*91] the press was never operated without one or the other of two strippers. One was metal and the other red polyurethane. The former was used about 15% of the time and the latter about 85%.

When the metal stripper was used, there was a greater opening between the dies on the upstroke of the punch press. It was 3/16 of an inch, less the thickness of the metal being punched.

When the red polyurethane stripper was used, the distance was about 1/10 of an inch. The operator testified he usually tried to adjust the machine to a lesser clearance -- preferably 20/1000 of an inch -- in order to try to get greater efficiency in production.

The only exception to this distance between the dies is when the ram is raised to change punches. This occurs 50 to 60 times during a normal eight-hour shift. The punch is held in place by the hydraulic pressure, which is released in order to make the charge. This operation also breaks the electric connection so there is no way the machine could operate. Before the first downstroke after the change, the distance between the dies is greater than as described above.

There has been no suggestion as to how the point of operation of the machine might be [*92] guarded at the time of change of dies. Nor has there been an indication that the standards require a guard at this time, since it is not part of the operating cycle (See 29 CFR 1910.212(a)(3)(ii).)

As to this charge against Respondent, we find no way to avoid mentioning the testimony of Richard Jackson, Assistant Area Director, who accompanied the Compliance Officer on the inspection. He saw the machine when it was operating and when it was stopped, approached to a distance where he looked down about 18 inches to the opening between the dies. He said he would have been able to insert his finger between them. He did nothing except look.

Mr. Jackson could have put his finger in the opening. If he was wary of doing that because of possible injury, he could have inserted a pencil or a pen or a stick. Best of all -- he might have measured the opening.

Since the Secretary brought this case to trial, he apparently would have us accept Jackson's testimony over that of two witnesses who had years of experience either in operating the machine, supervising its operation or both. And this when we have no reason to question either the truthfulness, or superior [*93] knowledge of the facts, of both witnesses.

On this conflict in evidence we accept that produced by Respondent. We should also note that on this disputed fact, we find the testimony of the Compliance Officer to be of no value.

The question now may reasonably be asked -- why do we consider 3/16 of an inch clearance, less the thickness of the material being punched, small enough to relieve Respondent of the necessity of providing another guard. One answer may be that in such an opening no one larger than a small child could sustain a direct injury.

Another answer may be found in the standards. While the hydraulic punch press is "excluded" from Section 217 of Part 1910, the requirements of that section for point of operation guarding should serve as a useful guide. 29 CFR 1910.217(c) provides:

"(c) Safeguarding the point of operation --

(1) General requirements. (i) It shall be the responsibility of the employer to provide and insure the usage of "point of operation guards" or properly applied and adjusted point of operation devices on every operation performed on a mechanical power press. See Table 0-10.

(ii) The requirement of subdivision (i) of this subparagraph shall not [*94] apply when the point of operation opening is one-fourth inch or less. See Table 0-10."

So far as we are concerned, this is not only a guide but it is a sufficient reason to find adequate guarding.

Assuming for the purposes of discussion that the Respondent was properly charged under 29 CFR 1910.212(a)(1), Respondent's Whitney hydraulic punch press was not in violation of it.

FAILURE TO GUARD PROMACUT METAL SAW -- SERIOUS VIOLATION CHARGED

FAILURE TO KEEP POSTED OFFICIAL NOTICE INFORMING EMPLOYEES OF RIGHTS AND RESPONSIBILITIES

This citation presents a harder question in determining what conflicting issues need be decided. It involves Plant #2 and citations issued November 27, 1972 after an inspection on November 7, 1972.

The notice of contest was Respondent's manager's letter of December 15, 1972, in which he said in part as to the serious violation, "The fine seems to us excessive and we appeal the amount of the fine only." As to second violation, he said, "We appeal this fine, as we had the poster up at Plant #1, we had previously posted at Plant #2." Thus we note the absence of language indicating that the "fine" is being "appealed" because Respondent contends there was [*95] no violation.

When counsel appeared for Respondent at the Portland hearing, he filed an amended answer in which, as to both citations, he specifically admitted the violation ". . . but alleges that the penalties are excessive."

During the hearing, counsel moved for leave to amend the answer to allow a denial of the violation. The motion was denied (TR 200). Our ruling on this motion causes us some concern. In the first place, we believe 29 CFR 1910.212(a)(3)(ii) -- the standard alleged to have been violated -- is invalid. It provides:

" 1910.212 General requirements for all machines.

(a) Machine guarding --

(1) Types of guarding.

(2) General requirements for machine guards.

(3) Point of operation guarding.

(i) Point of operation is the area on a machine where work is actually performed upon the material being processed.

(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger [*96] zone during the operating cycle."

The source of 212 is 41 CFR 50-204.5 (29 CFR 1910.221 Sources of Standards). The important language of the standard under which Respondent is charged is ". . . the guarding device shall be in conformity with any appropriate standards therefor. . . ." Section 204.5 of Part 50, the source, and adopted under the Walsh-Healey Public Contracts Act, does not so provide. Instead, its Section (c)(2) is "Where existing standards prepared by organizations listed in 50.204.2 provide for point of operation guarding, such standards shall prevail."

As we pointed out in Secretary of Labor v. Central Steel & Tank Co., Docket 2346, this Walsh-Healey standard was not adopted by the Secretary as a general industry OSHA standard, it was rewritten.

Section 204.2 of Part 50 is quite long. If the Secretary had adopted the Walsh-Healey standard, 29 CFR 1910.212(a)(3)(ii) would read something like this, "The guarding device shall be in conformity with (not -- "any appropriate standards therefor", rather, the complete section following). [*97]

" 50-204.2 General safety and health standards; incorporation by reference.

(a) Every contractor shall protect the safety and health of his employees by complying with the applicable standards, specifications, and codes developed and published by the following organizations:

United States of America Standards Institute. (American Standards Association).

National Fire Protection Association.

American Society of Mechanical Engineers.

American Society for Testing and Materials

United States Governmental Agencies, including by way of illustration the following publications of the indicated agencies:

(1) U.S. Department of Labor Title 29 (CFR):

Part 1501 -- Safety and Health Regulations for Ship Repairing.

Part 1502 -- Safety and Health Regulations for Shipbuilding.

Part 1503 -- Safety and Health Regulations for Shipbreaking.

Part 1504 -- Safety and Health Regulations for Longshoring.

(2) U.S. Department of Interior, Bureau of Mines

(i) Safety Code for Bituminous Coal and Lignite Mines of the United States, Part I -- Underground Mines, and Part II -- Strip Mines.

(ii) Safety Code for Anthracite Mines of the United States. Part I -- Underground Mines, and Part II -- Strip [*98] Mines.

(iii) Safety Standards for Surface Auger Mining.

(iv) Respiratory Protective Devices Approved by the Bureau of Mines, Information Circular 8281.

(3) U.S. Department of Transportation. 49 CFR 171-179 and 14 CFR 103 Hazardous materials regulation -- Transportation of compressed gases.

(4) U.S. Department of Health, Education, and Welfare, Public Health Service

(i) Publication No. 24 -- Manual of Individual Water Supply Systems.

(ii) Publication No. 526 -- Manual of Septic-Tank Practices.

(iii) Publication No. 546 -- The Vending of Food and Beverages.

(iv) Publication No. 934 -- Food Service Sanitation Manual.

(v) Publication No. 956 -- Drinking Water Standards.

(vi) Publication No. 1183 -- A Sanitary Standard for Manufactured Ice.

(vii) Publication No. 1518 -- Working with Silver Solder.

(5) U.S. Department of Defense.

(i) AFM 127-100 -- Air Force -- Explosives Safety Manual.

(ii) AMCR 385-224 -- Army Material Command -- AMC Safety Manual.

(iii) NAVORD OP5 -- Navy -- Ammunition Ashore, Handling, Stowing, and Shipping.

(6) U.S. Department of Agriculture. Respiratory Devices for Protection against Certain Pesticides -- ARS 33-76-2.

(b) Information as to the standards, [*99] specifications, and codes applicable to a particular contract or invitation for bids and as to the places where such documents and those incorporated by reference in other sections of this part may be obtained and is available at the Office of the Director of the Bureau of Labor Standards, U.S. Department of Labor, Railway Labor Building, Washington, D.C. 20210, and at any of the following regional offices of the Bureau:

1. North Atlantic Region, 341 Ninth Avenue, Room 920, New York, N.Y. 10001 (Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island, Vermont, New Jersey and Puerto Rico).

2. Middle Atlantic Region, Room 410, Penn Square Building, Juniper and Filbert Streets, Philadelphia, Pa. 19107 (Delaware, District of Columbia, Maryland, North Carolina, Pennsylvania, Virginia and West Virginia).

3. South Atlantic Region, 1371 Peachtree Street N.E., Suite 723, Atlanta, Ga. 30309 (Alabama, Florida, Georgia, Mississippi, South Carolina and Tennessee).

4. Great Lakes Region, 848 Federal Office Building, 219 South Dearborn Street, Chicago, Ill. 60604 (Illinois, Indiana, Kentucky, Michigan, Minnesota, Ohio and Wisconsin).

5. Mid-Western Region, 1906 Federal [*100] Office Building, 911 Walnut Street, Kansas City, Mo. 64106 (Colorado, Iowa, Kansas, Missouri, Montana, Nebraska, North Dakota, South Dakota, Utah, and Wyoming).

6. West Gulf Region, Room 601, Mayflower Building, 411 North Akard Street, Dallas, Tex. 75201 (Arkansas, Louisiana, New Mexico, Oklahoma, and Texas).

7. Pacific Region, 10353 Federal Building, 450 Golden Gate Avenue, Box 36017, San Francisco, Calif. 94102 (Alaska, Arizona, California, Hawaii, Idaho, Nevada, Oregon, Washington and Guam).

(c) In applying the safety and health standards referred to in paragraph (a) of this section the Secretary may add to, strengthen or otherwise modify any standards whenever he considers that the standards do not adequately protect the safety and health of employees as required by the Walsh-Healey Public Contracts Act.

This was the language in effect at the time of the adoption of 29 CFR 1910 -- Occupational Safety and Health Standards -- on April 27, 1971 by 36 FR 10466. As stated therein "the established Federal standards are operative occupational safety and health standards in effect on April 28, 1971, and established by the Department of Labor pursuant to . . . the Walsh Healey Public [*101] Contracts Act, as amended (41 USC 35) . . . ."

When Section 1910.212(a)(3)(ii) states, "The guarding device shall be in conformity with any appropriate standards therefore . . .", there is a clear inference that the "appropriate standards" are within Part 1910, "Occupational Safety and Health Standards." The Secretary was directed under Section 6(a) of the Occupational Safety and Health Act to adopt national consensus standards and established Federal standards; under an abbreviated procedure, and as an interim measure. He was not given authority to rewrite the standards, changing their meaning and enlarging their application and scope. The obvious effect of the action is to make any charge under 29 CFR 1910.212(a)(3)(ii) meaningless and unenforceable, if challenged.

The standard is not void on its face. It looks "official." Then there is some kind of presumption of the validity of the acts of the Secretary.

We can therefore see no reason why an informed Respondent could not admit the violation of an invalid standard if he wanted to. We therefore adhere to our ruling in denying leave to the Respondent to amend its answer contesting the violation as well as the penalty. [*102]

We do not hold there is a lack of jurisdiction in the Commission to pass on the violation as well as the penalty. First, we should keep in mind this hearing was before the decision of the United States Court of Appeals in the case of Secretary of Labor v. Bill Echols, 487 F.2d 230 (5th Cir., November 13, 1973); and also before the decision in one of the cases on which the Secretary relies, Secretary of Labor v. Interstate Glass, 487 F.2d 438 (8th Cir., October 26, 1973). The hearing was about two months after the decision in Secretary of Labor v. Brent Towing, 481 F.2d 619 (5th Cir., July 3, 1973), but that case is of little assistance here.

While it is unnecessary to this decision, we comment in passing that when a Court of Appeals takes a good look at the question -- not operating in a vacuum, or with a "paucity" of briefing and argument -- a different result will be reached. It should seem obvious that the court will decide the question of jurisdiction and the right of the Commission to review a question in conformity with -- rather than contrary to -- the statute. We note Judge Winters' discussion in Secretary of Labor v. Allstate Trailer Sales, Inc., Docket 2446, and [*103] are in complete agreement with it.

We hold that the Commission had jurisdiction and discretion as to both the alleged violation for serious violation and the alleged non-serious violation; over the violations themselves, as well as the penalties. We adhere to our ruling that Respondent admitted facts constituting both violations in Docket 1931.

The question may logically be asked, "Why allow a defense to the violation of the hand-fed crosscut table saw standard in Docket #1811, where counsel for Respondent admitted it in an amended answer filed on the date of hearing; and not allow it in Docket #1931, where essentially the same answer was filed as to both alleged violations?" An examination of the record will disclose the answer.

When the Portland hearing convened, there had already been three days of testimony in this case, tending to show the invalidity of 29 CFR 1910.213. Respondent was not present or represented. It had notice of the hearing, however, and Mr. Brown, its manager, had availed himself of the invitation I extended to be excused in the event I was notified beforehand and an adequate reason given for failure to appear.

Thus, whatever interpretation [*104] we may place on the pleadings of Respondent at that time (letters of the manager), they had long since been amended to conform to the proof adduced, under Rule 15(b) of the Rules of Civil Procedure.

On the question of penalty in the Promacut saw case, it appears the use was limited. From the exhibits we learn that in normal operating posture the operator of the saw is some distance from the blade itself. The record shows the saw was so designed (Secretary's Exhibits 3 and 4). In view of all statutory factors, it would appear that the violation is serious and that a penalty of $100.00 is appropriate.

The poster in the other violation had been on a temporary plywood partition in Plant #2 for an undisclosed number of months before the inspection. Within two or three days before the inspection, the partition had been torn down. No one was able to find the poster.

The Compliance Officer's testimony shows she had no discretion in assessing the penalty -- it was in conformity with the Secretary's Compliance Manual.

Our view is that the violation might well be classified as de minimus; but we do not so hold. We affirm -- with no penalty.

During the course of the hearing, Respondent [*105] moved for leave to contest Items 11 and 12 of the original Citation for Non-Serious Violations in Docket 1811. These have to do with failure to maintain a log of occupational illnesses and injuries and failure to compile an annual summary of occupational illnesses and injuries. The motion was denied and further consideration has been given to it.

This was the first notice to anybody of an intention on the part of Respondent to contest these items. It seems to us we are in a different situation here than where we are trying to construe the language of a layman in a notice of contest where he does in fact refer (even though vaguely) to specific citations or items. The motion was not timely and we adhere to our ruling.

It is interesting to note that these items by number are not correctly specified on the amended Notification of Proposed Penalty. Instead, the penalties ($100.00) are listed under Items "10" and "11". There is no Item 12 on this notification.

The question was never raised by any party and was only noticed in preparing the decision.

Based upon the entire record, the undersigned makes the following

FINDINGS OF FACT

I

Respondent is an Oregon corporation, [*106] maintaining two steel fabricating job shops in Portland, Oregon. Normally it has from 20 to 70 employees, including office help, the number depending upon the jobs under way at the time. On the dates of inspection by Compliance Officers of the Occupational Safety and Health Administration, United States Department of Labor on October 30 and November 7, 1972, it had 85 employees. In 1971, Respondent showed a net profit of $25,000 on $2,000,000 worth of gross business. In 1972, it had a loss of 100,000 on $1,000,000 gross business.

II

As a result of the first inspection, amended citations were issued to Respondent. At issue here are two alleged violations of the Occupational Safety and Health Act of 1970, the first having to do with failure to guard a hand-fed crosscut table saw and the second, failure to guard adequately a Whitney hydraulic punch press. A second item in the second violation was dismissed with prejudice during the hearing on motion of both parties.

III

Citations resulting from the second inspection were issued November 27, 1972. At issue are an alleged serious violation for failure to guard adequately a Promacut metal saw and violation not alleged to be serious [*107] involving failure to keep posted a notice to employees of Respondent, advising them of their rights and obligations under the Occupational Safety and Health Act of 1970.

IV

Respondent contested the violations and penalties of the first citations at issue, and the penalties only of the second citations at issue.

V

The hand-fed crosscut table saw was not guarded as required by 29 CFR 1910.213(d)(1). The Whitney hydraulic punch press was adequately guarded and there was no violation of the standard alleged by the Secretary. At all times when it was used, the punch press was equipped with either a metal or a polyurethane stripper. When the former was used, the gap between the two dies at the upstroke of the press was 3/16". When the polyurethane stripper was used, the gap was less.

VI

As to the second violation growing out of the inspection on November 7, 1972, (Docket #1931), $100.00 should be assessed as a penalty. For the second violation, no monetary penalty should be assessed.

VII

The Secretary purported to promulgate 29 CFR 1910.213 as a national consensus standard by publication on May 29, 1971 in 34 Fed. Reg. 10466. The source standard is one of the American National [*108] Standards Institute, adopted in 1954 and reaffirmed in 1961, commonly known as ANSI 01.1 1954 (R 1961).

VIII

A headnote to ANSI 01.1 1954 (R 1961) at the beginning of Section 4.1 thereof provides:

"NOTE: It is recognized that the standards for saw guards in 4.1 are not perfectly applicable to all operations for which saws are used. The standards given are those which woodworkers have agreed are most generally useful. Since there are a considerable number of cases not satisfactorily met by these standards, the enforcing authority should exercise rather wide latitude in allowing the use of other devices which give promise of affording adequate protection. It may be expected that by so doing further progress in saw guarding will be encouraged."

Section 213(d)(1) of Part 1910 was derived from Section 4.1 RADIAL SAWS of ANSI 01.1 1954 (R 1961). The headnote is an integral part of Section 4.1 and every subsection and part thereof. Section 4.1 with the headnote produces the result that the use of guards prescribed for hand-fed crosscut table saws is optional. Section 213(d)(1) of Part 1910 has the effect of requiring the use of guards for all hand-fed crosscut table saws, at all [*109] times used. Its requirements are mandatory. The meaning, scope and application of the source standard are thereby materially changed.

IX

ANSI 01.1 1954 (R 1961), before its purported adoption by the Secretary, had not been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it could be determined by the Secretary that persons interested and affected by the scope or provisions of the standard had reached substantial agreement on its adoption. In fact, only the 13 or 14 organizationa members of the committee writing the standard -- not the corporations or other persons constituting such organizations -- and the individuals representing them, along with members of the Safety Technical Advisory Board and the Board of Standards Review of ANSI had reached such substantial agreement.

X

ANSI 01.1 1954 (R 1961) was formulated in a manner which afforded an opportunity for diverse views to be considered.

Based upon the foregoing and upon all facts admitted, stipulated or proved by uncontradicted substantial credible evidence, the undersigned hereby makes the following

CONCLUSIONS OF LAW

I

Respondent is engaged in a business [*110] affecting commerce within the provisions of Section 3(3) of the Occupational Safety and Health Act of 1970. The Review Commission has jurisdiction of the parties and subject matter of this action.

II

ANSI 01.1 1954 (R 1961) was not enacted in part as 29 CFR 1910.213(d)(1) because the Secretary was acting in excess of his statutory authority in the deletion of the headnote to Section 4.1.

III

ANSI 01.1 1954 (R 1961) is not a national consensus standard as defined in Section 3(9) of the Act.

IV

29 CFR 1910.213(d)(1) was not a valid enactment by the Secretary of a national consensus standard under Section 6(a) of the Act. 29 CFR 1910.213(d)(1) is invalid and unenforceable.

V

In Docket 1811, Respondent is entitled to an order vacating Citations for Serious Violation No. 1 and No. 2, and proposed penalties; in their entirety.

VI

In Docket 1931, Respondent was in violation of the Act as described in Citation for Serious Violation. The citation should be affirmed and proposed penalty reduced to $100.00 affirmed. Item 9, Citation for Non-Serious Violation should be affirmed, with no monetary penalty.

ORDER

Based upon inspections of Respondent's plant and worksite at Portland, [*111] Oregon on October 30, 1972, resulting in Docket #1811; and on November 7, 1972, resulting in Docket #1931:

IT IS HEREBY ORDERED THAT:

I

Citation for Serious Violation, Docket #1931, issued November 27, 1972, is hereby affirmed as a serious violation. A penalty in the amount of $100.00 is assessed.

II

Citation (Non-Serious), dated November 27, 1972, Item 9 thereof, for failure to post a notice informing employees of their protections and obligations provided in the Occupational Safety and Health Act of 1970, is hereby affirmed. No monetary penalty is assessed therefor.

III

All other citations and items thereof issued to Respondent on November 16 and 27, 1972, growing out of inspections of the worksites of Respondent at Portland, Oregon on October 30 and November 7, 1972, be and the same hereby are vacated and the proposed penalties therefor are vacated.

GARL WATKINS, Judge

Dated: July 23, 1974

APPENDIX

AMENDED CITATION FOR SERIOUS VIOLATION NO. 1

"Standard or regulation

allegedly violated

Description of alleged violation

October 30, 1972

29 CFR 1910.213(d)(1)

Plant #1 - North Bay, Precision

Department, Craftsman 8-inch blade

table saw is not equipped with a

guard to protect the workman from

the upper exposed blade above the

surface of the table."

[*112]

COMPLAINT

"IV

On October 30, 1972, at the aforesaid worksite and place of employment respondent violated the safety and health regulations in the following respects:

1. Plant #1 - North Bay, Precision Department, Craftsman 8-inch blade table saw was not equipped with a guard to protect the workman from the upper exposed blade above the surface of the table, contrary to 29 C.F.R. 1910.213(d)(1)."

STANDARD

"1910.213 Woodworking machinery requirements.

(d) Hand-fed crosscut table saws.

(1) Each circular crosscut table saw shall be guarded by a hood which shall meet all the requirements of paragraph (c)(1) of this section for hoods for circular ripsaws."

PROPOSED PENALTY: $650.00

AMENDED CITATION FOR SERIOUS VIOLATION NO. 2

"Standard or regulation

allegedly violated

Description of alleged violation

October 30, 1972

29 CFR 1910,217(c)(1)(i)

Failure to provide point of operation

guarding or insure the usage of a

safety device on Wright Press #30,

plant #1 - North Bay, Precision

Department, and the Metal Worker

Press, Plant #1 - South Bay."

COMPLAINT

"IV

2. Failure to provide point of operation guarding or insure the usage of a safety device [*113] on Wright Press #30, Plant #1 - North Bay, Precision Department, and the Metal Worker Press, Plant #1 - South Bay, contrary to 29 C.F.R. 1910.217(c)(1)(i)."

STANDARD

"1910.217 Mechanical power presses.

(c) Safeguarding the point of operation

(1) General requirements. (i) It shall be the responsibility of the employer to provide and insure the usage of "point of operation guards" or properly applied and adjusted point of operation devices on every operation performed on a mechanical power press. See Table 0-10."

"Standard or regulation

allegedly violated

Description of alleged violation

29 CFR 1910.212(a)(1)

Failure to provide point of operation

guarding or insure the usage of a

safety device on the W. A. Whitney

630-B Hydraulic Punch Press with

foot pedal or one-hand controls,

Plant #1-North Bay, Precision Department."

COMPLAINT

"IV

3. Failure to provide point of operation guarding or insure the usage of a safety device on the W. A. Whitney 630-B Hydraulic Punch Press with foot pedal or one-hand controls, Plant #1 - North Bay, Precision Department, contrary to 29 C.F.R. 1910.212(a)(1)."

STANDARD

"1910.212 General requirements for all machines. [*114]

(a) Machine guarding -- (1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are -- barrier guards, two-hand tripping devices, electronic safety devices, etc."

PROPOSED PENALTY: $650.00

CITATION FOR SERIOUS VIOLATION NO. 1

"Standard or regulation

allegedly violated

Description of alleged violation

November 7, 1972

29 CFR 1910.212(a)(3)(ii)

Plant #2 Center Area:

Promacat cut off metal saw, the

sides of the lower exposed portion

of the 20" blade and the sides of

the front exposed portion of the

blade is not protected by a guard."

COMPLAINT

(The following paragraph refers to both Citation for Serious Violation No. 1 and Citation No. 1 (Non-Serious))

"V

On November 7, 1972, at the aforesaid worksite and place of employment described in paragraph II, the respondent violated the safety and health regulations and the Posting Regulations in the particulars enumerated in Exhibits A and B attached hereto and incorporated [*115] herein as if fully rewritten. Exhibit A is a Citation for Serious Violation enumerated Citation Number 1 duly issued to the respondent on November 27, 1972 containing one serious violation of 29 C.F.R. 1910.212(a)(3)(ii) involving a Promacat cut off metal saw, which is hereinafter referred to as Citation for Serious Violation, or Exhibit A. Exhibit B is a Citation enumerated Citation Number 1 for other violations duly issued on November 27, 1972 containing eight violations of 29 C.F.R. Part 1910, and one violation of 29 C.F.R. 1903.2(a), all of a non serious nature, which collectively is hereinafter referred to as Citation, or Exhibit B."

STANDARD

"1910.212 General requirements for all machines.

(a) Machine guarding.

(3) Point of operation guarding.

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

PROPOSED PENALTY: $650.00

CITATION NO. [*116] 1 (Non-Serious).

"Item

Standard or regulation

Number

allegedly violated

Description of alleged violation

November 7, 1972

9

29 CFR 1903.2(a)

Failure to post Official Poster to

inform employees of protections and

obligations."

COMPLAINT

(See page 1, Appendix, Docket 1931, Complaint.)

STANDARD

"1903.2 Posting of notice; availability of Act, regulations and applicable standards.

(a) Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to insure that such notices are not altered, defaced, or covered by other material."

PROPOSED PENALTY: $50.00