CENTRAL STEEL & TANK CO.

OSHRC Docket No. 2346

Occupational Safety and Health Review Commission

November 25, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Robert A. Friel, Assoc. Regional Solicitor

Leo C. Kendrick, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

The issue in this case is whether Respondent (Central Steel) violated Section 5(a)(2) n1 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"), by failing to guard the point of operation of two hydraulic press brakes. n2 Judge Garl Watkins held there was no violation because the standard Central Steel allegedly violated was unenforceable due to having been invalidly promulgated. We have reviewed the record. For the reasons which follow, we reject the Judge's report.

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

n1 This section requires that employers comply with occupational safety and health standards promulgated by Complainant (Labor) pursuant to the Act.

n2 Central Steel was also charged with failing to guard the point of operation of three mechanical power presses and one mechanical shear. It does not dispute that the mechanical power presses were in violation, and we accordingly affirm the citation with respect to them. The Judge found that the shear was adequately guarded, and Labor now concedes that this finding is correct. We therefore vacate this portion of the citation.

[*2]

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

The relevant facts are these. Central Steel is in the business of custom steel fabrication, and uses the two press brakes for this purpose. Both machines are used to bend metal by the action of a movable upper die against a fixed lower die. The metal to be formed is held by hand against the lower die. When the operator actuates a foot pedal, the upper die descends slowly but with great force. The descent of the upper die can be stopped by the operator lifting his foot from the pedal. Thus, the operator can "inch" the upper die down while he aligns the work piece against the lower die. In order to maintain tolerances as low as one-sixteenth of an inch, the operator performs the final alignment while the two dies are close to each other.

On each brake, when the upper die is in its highest position, the gap between the two dies is several inches. The time required for the upper die to fully descend is ten seconds for one machine and six seconds for the other. On neither machine was there a guard to prevent the operator from having part of his body in the point of operation during the operating [*3] cycle. Central Steel's employees have sustained no injuries at the points of operation of the press brakes since their installation.

The citation alleged that the lack of point of operation guards violated 29 C.F.R. 1910.212(a)(3)(ii). n3 The Judge vacated the citation on the ground that this standard was invalidly promulgated. Central Steel's answer to the complaint admitted that the standards in 29 C.F.R. Part 1910 were duly issued and promulgated pursuant to Section 6 of the Act. It has never argued otherwise. The Judge raised this issue sua sponte, without any notice to the parties that he considered the validity of the standard to be an issue in the case. Thus, rather than ruling on Central Steel's contentions, he disposed of the case on an issue which neither party raised or argued.

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

n3 This standard states:

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.

[*4]

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

We have noted that it is error for a Judge to inject issues which the parties have not raised into a case. Consolidated Pine, Inc., 17 OSAHRC 591 (1975). The error is compounded when the parties are not even informed that the Judge will consider such issues. Such a procedure benefits neither party. Labor has been put to the burden of seeking review of a case which might otherwise have been decided satisfactorily by the Judge. Central Steel has been deprived of the possibility of a favorable Judge's decision on the merits, a decision in which Labor might have acquiesced or which we might have decided did not merit review.

Accordingly, there is no issue concerning the validity of the standard in this case, and we express no opinion on this point. n4

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

n4 We note that, even if the cited standard is invalid, subsection 212(a)(1) of the same section has also been interpreted to require point of operation guarding of press brakes. Paccar, Inc., 17 OSAHRC 595 (1975).

- - - - - - - - - - - - - - - - -End Footnotes- [*5] - - - - - - - - - - - - - - - -

We turn now to Central Steel's defenses. Central Steel claims that Section 212 is inapplicable to press brakes because they are specifically excluded from 29 C.F.R. 1910.217, which also imposes a point of operation guarding requirement. We have previously held to the contrary. Irvington Moore, Division of U.S. Natural Resources, Inc., 16 OSAHRC 608 (1975); pet. for review filed, No. 75-2159 (9th Cir., May 27, 1975). No persuasive reason has been advanced to cause us to depart from this precedent.

Central Steel also contends that, due to the manner in which the machines are operated, employees are not exposed to injury at the point of operation, and the standard is therefore not violated. It is argued that, due to the slow speed with which the upper dies descend, an employee who did get part of his body between the dies would have time to extract it before being injured. This may be true at the start of the operating cycle, when the dies are several inches apart. As the upper die descends, however, at some point it will be in such a position that an employee having part of his body between the dies would not have time to remove it before [*6] suffering injury. Inasmuch as the material being processed is held by hand and is still being aligned when the dies are nearly in contact, the slow speed with which the upper die moves does not eliminate the risk of injury.

Central Steel next claims that it cannot possibly comply with the standard. It contends that various types of available guards, such as barrier guards, a light-beam device, and two hand controls, cannot be used due to the non-repetitive and precision nature of the work with the press brakes. Its evidence to this effect was unrebutted.

Even accepting the validity of this contention, the record does not establish that no practical means of protecting against the hazard exists. We have noted that compliance with the standard can be achieved in ways other than those which Central Steel asserts cannot be used. Garrison and Associates, 17 OSAHRC 188 (1975). Thus, Central Steel has not sustained the burden of proving that compliance is impossible. n5 Garrison & Associates, supra. We conclude that Central Steel has violated the standard as alleged.

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

n5 Commissioner Cleary agrees with the disposition of the respondent's impossibility defense. He does not decide here on the availability of the defense as a matter of law without an initial exhaustion of the Act's variance procedure. Deemer Steel Casting Co., No. 2792 (January 23, 1975). Cf. G.A. Hormel & Co., No. 1410 (September 20, 1974), petition for reconsideration denied (October 21, 1974).

[*7]

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

We turn now to the assessment of an appropriate penalty. A penalty of $550 was proposed for the six machines allegedly in violation. As noted above, there was no violation as to the mechanical shear. As to the remaining machines, the gravity of the violation is moderate. The probability of an accident is low, but an accident could have serious consequences. Respondent is of moderate size, and has no prior history under the Act. It has demonstrated good faith in its attempt to comply with the Act. On balance, we think a penalty of $300 is appropriate.

Accordingly, the citation is modified to delete the allegation with respect to the mechanical shear. As so modified, it is affirmed, and a penalty of $300 is assessed. It is so ORDERED.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

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

I concur in the Commission's disposition regarding the three mechanical power press charges that were not contested as well as its vacation of that part of the citation alleging that a mechanical shear was inadequately guarded.

However, as to the two press brake charges [*8] contested herein, I must respectfully dissent from my colleagues' reversal of the decision below for the reasons stated in my dissenting opinions in Secretary v. Irvington Moore, Division of U.S. Natural Resources, Inc., 16 OSAHRC 608, 612 (1975), and Secretary v. Gem-Top Mfg., Inc., 16 OSAHRC 591 (1975) and for reasons which follow.

Because I believe respondent was cited for failure to comply with a standard inapplicable to the charge, I see no need to discuss at this time respondent's defense based on the alleged impossibility of performance. n6

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

n6 As to my opinion concerning the applicability of this affirmative defense to past situations similar to this case, see Secretary v. Sheet Metal Specialty Company, 17 OSAHRC 212, 214 (1975); Secretary v. Garrison and Associates, Inc., 17 OSAHRC 188, 190 (1975).

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

However, because of the statement in the preceding opinion that the issue of improper promulgation of the 1910.212(a)(3)(ii) standard was raised sua sponte by the judge, I am constrained [*9] to point out that such an issue is a question of subject matter jurisdiction, n7 and therefore may be raised by a party or the court at any time. See Secretary v. Stevens Equipment Co., 2 OSAHRC 1501 (1973); Rule 12(h)(3) of the Federal Rules of Civil Procedure.

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

n7 When an agency promulgates a regulation that does not conform to the statutory restrictions, it is void as not being a proper standard for enforcement under the Act. See my separate opinion in Secretary v. Puterbaugh Enterprises, Inc., 9 OSAHRC 718, 723, 724 (1974), and the cases cited therein.

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

Nevertheless, despite the clear provisions of law permitting jurisdictional issues to be raised sua sponte, Judge Watkins did not do so in this case. My colleagues have given him a bum rap by chastising him for alleged "burdens" and "deprivations" visited upon the parties. Nothing could be further from the truth.

The issue of the standard's validity was explored in response to a request from complainant that the court accept his (complainant's) [*10] interpretation as to its scope and meaning. To quote from Judge Watkins' decision:

"Respondent contends that since under 1910.212(a)(3)(ii) there are specific standards for a category of machines that press brakes fit, namely 'mechanical power presses,' the general provisions of the last cited section do not apply. . . . The Secretary contends on the other hand, that since press brakes are expressly excluded by 217(a)(5), any other applicable standard applies to them, including a general 'catch all,' and they are thus within the purview of the requirements of 212(a)(3)(ii). We are inclined to agree with Respondent's position, but prefer to base our decision on what we consider more basic grounds. To do so, we must scrutinize the standard, and its history in light of the Secretary's contention, in order to determine just what is provided by the Section. . . ." n8 (Emphasis added.)

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

n8 In the process of scrutinizing the standard the judge discovered a possible change of meaning as a result of a wording change made by the Secretary of Labor and that the requirements of law were not observed in making the change. Consequently, it became obvious that the standard had no validity.

[*11]

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

In a post-trial brief filed by complainant, much is made of the respondent's reply to the complaint admitting certain averments made therein. My colleagues pick this up in their decision when they say:

"Central Steel's answer to the complaint admitted that the standards in 29 C.F.R. Part 1910 were duly issued and promulgated pursuant to Section 6 of the Act. It has never argued otherwise."

As indicated by the preceding discussion, only the first of these two sentences is correct.

The interesting point of the quoted statement is that this Commission only holds employers to the strict confines of pleadings. The Secretary of Labor is nearly always permitted to change from one allegation to another even if he violates the plainly stated requirements of our rules when he does so.

Not only do I believe that the requirements of the law should be applied equally to all parties to a case, I submit that it is a virtual impossibility for a respondent to reply intelligently [*12] to an averment of due promulgation of standards within the 15 day time limit allowed in this Commission's rules. 29 C.F.R. 2200.33(b)(1).

Even a cursory examination of the decisions under this Act over the past several years would be sufficient to convince any rational observer that it is very difficult to determine whether any particular occupational safety and health standard has been properly promulgated in accordance with the law. n9

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

n9 See, for example, MOREY, Mandatory Occupational Safety and Health Standards - Some Legal Problems, Law and Contemporary Problems, Duke University School of Law, Summer-Autumn, 1974; MORAN, Occupational Safety and Health Standards as Federal Law: The Hazards of of Haste, 15 William and Mary Law Review 777.

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

To expect an employer in Yakima, Washington to make such a determination within 15 days of receiving a complaint from the Department of Labor - and to forever bind him to the same - is patently ridiculous and unjust. It will become even more so in the future since [*13] the author of the majority opinion in this case has ordered the discontinuance of the official reporter of Commission decisions, OSAHRC Reports, effective with decisions issued October 31, 1975. Employers who do not subscribe to one of the commercial services who will be printing some - but not all - Commission decisions, can only know what the law is by contacting our office and asking for individual copies of past decisions. n10

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

n10 A West Coast employer (like this one) will have some difficulty meeting the 15-day deadline when a complaint avers something as legally complex as "due promulgation of standards" if he has to write to Washington, D.C. requesting copies of applicable decisions, await their arrival, then study them and prepare his answer.

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

Much more could be said about the merits of this case but it couldn't be said better than Judge Watkins has already said it in the decision he rendered on March 5, 1974. I therefore add the full and complete text thereof as follows:

This is an enforcement proceeding [*14] by the Secretary of Labor under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C.A. 651, et seq. It was initiated by Respondent's contest of three of six items in a Citation for Serious Violation of Section 5(a)(2) of the Act by Respondent's allegedly failing to comply with 29 CFR 1910.212(a)(3)(ii), a regulation designated as a general machine guarding requirement.

The Citation was issued February 22, 1973, after a routine inspection of Respondent's shop in Yakima, Washington on January 31 and February 1. It provides:

CITATION FOR SERIOUS VIOLATION

Citation Number 1 (Page 1 of 2 pages)

Date Issued February 22, 1973

EMPLOYER Central Steel and Tank Co., Street 1106 N. 16th Avenue

ADDRESS City Yakima State Washington Zip 98907

An inspection of a workplace under your ownership, operation, or control located at Yakima, Washington and described as follows Metal & Tank Fabrication. has been conducted. On the basis of the inspection it is alleged that you have violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, in the following respects:

Standard or

regulation

Date on which

allegedly violated

Description of alleged violation

alleged violation

29 CFR Part 1910

January 31, 1973

must be corrected

1910.212(a)(3)(ii)

Failure to guard the point of

April 5, 1973.

operation on the following machines

whose operation exposes an employee

to injury:

1) The "Roto-Die" hydraulic press

brake (Serial #80285) located in the

sheet-metal shop.

2) The "Famco 50" mechanical power

punch press located in the sheet-

metal shop.

3) The "Kling Bros." bulldozer mech-

anical power press located in the

structural miscellaneous area.

4) The "No. 7 Kling" mechanically

powered iron worker (combination

punch, shear, and coper) located in

the structural miscellaneous area,

with exposed points of operation on

the punch and both shear portions

of the machine.

5) Hydraulic press brake (designed

and constructed by Central Steel and

Tank Company) located in the struc-

tural miscellaneous area.

6) The "Cincinnati 18" mechanical

shear located in the structural

miscellaneous area.

[*15]

By letters of February 23 and 27 Respondent contested items 1), 5) and 6). The effect was a contest of the citation -- the issue in this case.

The proposed penalty, notification of which was issued the same day as the Citation, was $550.00.

The Complaint alleges the violation in paragraph IV as follows:

"IV.

On January 31, 1973 at the aforesaid worksite and place of business and employment, the respondent violated the safety and health regulations in that, contrary to 29 C.F.R. 1910.212(a)(3)(ii) it failed to guard the point of operation on the following machines whose operation exposes an employee to injury:

1) The "Roto-Die" hydraulic press brake (Serial #80285) located in the sheet metal shop;

2) Hydraulic press brake (designed and constructed by Central Steel and Tank Company) located in the structural miscellaneous area; and,

3) The "Cincinnati 18" mechanical shear located in the structural miscellaneous area.

In alleging that the violation should be categorized as serious, paragraph VII of the Complaint states:

"VII.

The violations alleged in Citation For Serious Violation and charged in paragraph IV above, were each a serious violation within the meaning of [*16] section 17(k) of the Act, in that there was a substantial probability that death or serious physical harm could result from the condition alleged to exist, or the practices, means, methods, operations or processes which are alleged to have been adopted or in use at the aforesaid worksite, and the respondent knew, or could with the exercise of reasonable diligence have known, of the presence of the violation." (Underlining added.)

This is the first indication the Secretary was contending anything other than that all six violations in combination constituted one "serious" violation. The Secretary's evidence attempted to show that each of the three items at issue was in itself a separate serious violation. The dilemma resulting is avoided by our holding there was no violation.

The Secretary's regulation with which he alleges each of Respondent's three machines failed to comply is:

"29 CFR 1910.212: General requirements for all machines.

(a) Machine guarding --

(3) Point of operating 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, [*17] 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.

Issues were joined by Respondent's Anser and the case was heard in Yakima, Washington on May 31, 1973. The record indicates full compliance by Respondent with the Statute and Rules of Procedure regarding service and posting of documents. No one appeared seeking to assert a party status.

At the conclusion of the hearing and accompanied by counsel, the trial judge went to Respondent's shop; where he saw all three machines -- and their operation on one piece of metal each by Howard W. Whitaker, Respondent's superintendent.

Respondent has been in the steel fabrication business in Yakima, Washington for many years, since 1952 under its present name. Before that it was known as Valley Iron Works. It has forty-five to sixty employees and its gross annual business is about one and a half million dollars. H. W. Whitaker its Vice President and General Manager, has 27 years in that type of business, principally with Respondent, and described the operation as follows:

"A. In the case of Central [*18] Steel and Tank Company, it consists of purchasing of materials and fabrication of sheet metal, heavy plate work for tanks and structural steel for buildings and bridges."

(Tr. 47 - 48)

As to type or classification of the business, he further testified:

"A. First of all, it's not what's known as a production shop, there is no repetitive types of work, so it's called, I guess you'd call it in the vernacular a job shop, we do the job which is required at that particular time by the customer."

(Tr. 50)

The record shows continuous and earnest efforts on the part of the Company to comply with the Occupational Safety and Health Act of 1970 from the time of its inception, including the expenditure of $17,000 in the process.

In his "Opening Written Argument on Behalf of Respondent", counsel accurately describes the three machines involved and summarizes the evidence about them. A conflict in evidence in one area regarding the Cincinnati Shear machine will be discussed below.

"Equipment Involved

Equipment consists of two power brakes for bending and shaping metal, one called a Roto-Die (Resp. Exh. 6) located in the sheet metal shop; the other a home-made one located out back in [*19] the structural shop. The third machine (Resp. Exh. 3), also located in the structural shop, is a Cincinnati Shear (Tr. 156).

The Roto-Die was acquired in 1959 (Tr. 73). The other two machines were built or purchased prior to that date. (Tr. 73).

Home-Made Brake:

4" - 4-1/2" gap

10 sec. down time to close gap

12 sec. up time to open gap (Tr. 153)

Operated by two hooded foot controls - one for up, the other for down; have inch control and when foot taken off machine stops moving (Tr. 152)

Delicate enough to close on egg without breaking it (Tr. 152).

Roto-Die Brake:

6" down time to close gap

6" up time to open gap (Tr. 153)

Operated by shielded foot inch controls at several positions under shield. Controls are dead-man controls so if foot removed machine automatically stops and starts cycling to its open position.

It likewise is delicate enough to close on an egg without breaking it.

Cincinnati Shear:

Capacity of machine, 1/4" plate (Tr. 65).

Continuous comb guard full 12 feet, one piece kept at 3/8" above face of table (Tr. 66).

Hold down guards taper from leading edge 3/4" to 3/8" at point hold-downs come down (Tr. 67) to get fingers under middle of [*20] hold-downs, fingers would have to be 3/8" thick for 2-1/2" in length. (Tr. 162).

The alleged violations with respect to the two press brakes will be discussed together. First we shall consider the Secretary's case in connection with the Concinnati Shear. There are three reasons why the Secretary fails to show that the operation of this equipment was in violation of the Act.

1. Respondent was charged under the wrong regulation.

2. Under 29 CFR 1910.217(a)(2), Respondent has until August 31, 1974 to bring this mechanical power press into conformity with the requirements of the standard.

3. The machine is adequately guarded.

A brief discussion on each of these points is in order.

29 CFR 1910.211(d) provides "As used in P1910.217, 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 Cincinnati Shear 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 [*21] attached to slides. A press consists of a stationary bed or anvil, and a slide (or slides) having 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.

Under Subpart A -- "General" of the Occupational Safety and Health standards, 29 CFR 1910.5(c)(1) provides in part:

"If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process. . ."

Since the machine in question was clearly a mechanical power press, it is governed by 1910.217, the specific section applicable to it; and the charge may not be laid under 1910.212. This in itself is sufficient ground for vacating the Citation. Isaacson Structural Steel Company -- Docket 1906.

The second reason is a specific provision delaying application of the standards to certain machines: 29 CFR 1910.217(a)(2) provides:

"Former installations. All mechanical power presses installed prior to August 31, 1971, shall be brought into conformity with [*22] the requirements of this section not later than August 31, 1974."

The evidence is undisputed that the Roto-Die press brake was acquired and installed in 1959; and that the other two machines were installed and in operation before that date. Thus the Secretary's case as to the Cincinnati Shear falls on this account. Stevens Equipment Company, Docket 1060, 1 OSHC 1227.

The third reason for holding there was no violation by Respondent with respect to the Cincinnati Shear machine is that it was adequately guarded. On this point there is a conflict of evidence which will be resolved.

The question is whether the bottom edge of the "teeth" of the comb guard on the shear machine, and likewise the bottom edge of the "hold-down" guards, were 3/4" from the bed of the machine, as testified by the Compliance Officer; or whether they were 3/8", as testified by the General Manager and the General Superintendent of Respondent.

In our view, such resolution of the conflict is unnecessary. However, should a reviewing authority believe there is a significant difference, it would seem to be our duty at this point to resolve the conflict. We accept the evidence of Respondent rather than that of [*23] the Compliance Officer.

The testimony of the latter will be set out in some detail in order to explain our finding. When first on the stand he testified as follows:

"Q. And what were your observations regarding that shear?

A. My observations regarding the shear is it was not in operation at the time that I observed it, that the shear blade itself was 12 feet in length, that the guard in effect to protect the operator was inadequate.

Q. What do you mean when you say inadequate?

A. The particular guard in use on the Cincinnati 18 Mechanical Shear was a so-called saw tooth barrier guard placed immediately in front of the cutting blade or the shear itself. The saw tooth barrier guard appeared to be at a height such that an employee could insert his fingers under the guard, it did not extend -- I measured the opening between the base plate or the bed and the minimum height of the guard and ascertained that it was three-quarters of an inch. Also there are several hold down, mechanical hold down devices immediately in front of this barrier guard, the measurement from the bed to the opening on those particular hold down devices was also three-quarters of an inch such that an employee [*24] could insert his fingers, there was no guard whatever in front of those particular hold down devices."

(Tr. 19 - 20)

"Q. And the hazard that you envisioned in connection with this machine was based on hand feeding also?

A. Yes.

Q. Is it true then that it's based upon a man placing his hand or being able to place his hand into the point of operation for the shear?

A. Yes, definitely."

(Tr. 21)

The record does not disclose whether this was on January 31 or February 1. No reference is made in this or later testimony to the "tapering" of the hold-down guards, which is described fully in Respondent's evidence, and is also obvious from the exhibits. The outer edge of each hold-down guard is considerably farther from the bed of the machine than the inner part, adjacent to where the cylindrical hold-down operates downward and onto the metal stock being cut (or the bed of the machine, as the case may be). Respondent's evidence is that the outer edge of the hold-down guard was 3/4" from the bed of the machine and the inner edge 3/8" from the bed.

Respondent's evidence, from the General Manager and the General Superintendent was definite that the clearance in both cases was 3/8". [*25] In rebuttal the Compliance Officer testified as follows:

"Q. Mr. Strasheim, I think you testified on the record on direct examination that during the course of the inspection of the respondent on January 31, 1973 and February 1, 1973, that you made some measurements of the Cincinnati Shear with regard to the clearance. When you made those measurements did not record that data?

A. Yes, I did.

Q. And where did you record it?

A. On my work sheet that I had on the clip board which is evidenced in the photograph.

Q. Do you have a copy of that work sheet before you?

A. I also have the clip board, yes.

Q. Would you read into the record what your comment was at the time that you made the measurement.

A. No offense to Mr. Whitaker, but this was my measurement taken with a tape at the time, observation number 16, this is from my so-called compliance work sheet written on the date, date of inspection, in reference to the Cincinnati 18 Mechanical Shear, my observation number was observation number 16, location was the structural miscellaneous area, the apparent violation noted was 1910.212(a)(3)(ii). I have noted 15 working days for abatement, this is with input supplied from [*26] the employer, I have noted photographs taken, I have noted the serial number of the machine as being 32540, and my comment at the time was Cincinnati 18 Mechanical Shear, a 12 foot shear, no point of operation guard in front of shear and clamps. Further there is a tooth guard barrier behind the clamps and in front of the shear three-quarters inch high -- inadequate, in use six hours a day by one employee. As I recall the reference to the tooth guard barrier, the words of Mr. Whitaker, the amount of exposure was taken from Mr. Whitaker, and I made the measurement with the tape.

Q. How soon after making the measurement did you reduce this to writing, the comment that you just made?

A. I reduced this to writing at the exact time of the observation, on the spot, in fact the photograph in evidence, if it is available, shows my clip board and these same notes.

Q. Could you identify the exhibit.

A. This is Secretary's Exhibit No. 3, depicting the Cincinnati 18 Mechanical Shear, the photograph was taken on the date of the inspection, it sits on the bed or the plate, my clip board, and these are the same notes, although it's a poor representation, it doesn't show the tape or the [*27] camera, I carried those in my pocket of my work jacket."

(Tr. 166 - 168)

The Compliance Officer made no mention of his notes when testifying in the Secretary's case in chief. His response or rebuttal was in part in answer to leading questions. It is impossible for us to determine from his testimony what part purported to constitute the notes he made at the time, and what part consisted of interpretations of these notes or additional remarks. Finally, the "so-called compliance work sheet" was not offered in evidence or submitted in any way to substantiate the testimony.

There is nothing in the record to show whether the writing was used to refresh the witness' memory (Federal Rule of Evidence 612) or whether it was in the nature of past recollection recorded (Federal Rule of Evidence 803(5)). Hindsight indicates it might have been advisable at the time to examine the notes and determine exactly which parts of the testimony had been recorded; and also find out which parts were present conjecture, which "present recollection refreshed" and which "past recollection recorded." The last could be admissible, although the document would not be unless requested by Respondent. (Federal [*28] Rule of Evidence 803(5)).

In evaluating this testimony we also referred to the exhibits. These are in no way conclusive as to the width of the openings, but tend to substantiate Respondent's evidence.

In any event we saw the witnesses, heard their testimony, visited Respondent's shop and saw all three machines in operation. None of the machines was approached closer than possibly ten feet. Considering the entire record, we find the evidence regarding the openings below the hold-down guards and comb guards on the Cincinnati Shear machine were on the date of the inspection in conformity with the testimony of Respondent's witnesses.

As a practical matter, it would seem to make no difference whether the guards were positioned as the Compliance Officer testified. Since the opening below both guards would have been three-fourths inch (one-half inch with quarter inch material to be sheared in place), it would simply be more difficult to force a workman's hand under the guards instead of impossible as one would conclude from the testimony offered by Respondent. In either case, and whether or not the quarter inch stock took up part of the space, the guards would be notice and warning [*29] to anyone working at the machine before he would be able to get his finger or hand under the guards.

We are inclined to accept the view of Respondent's General Manager that ". . . it is almost impossible, it would take a deliberate effort for a man to stick his finger back in there almost an inch to an inch and a half to get it under that hold-down guard that comes down and clamps the material" (Tr. 83) and his further statement ". . . it is not impossible, but highly improbable for a person to put their fingers, much less their hand, either under the hold-down guard or the comb guard." (Tr. 65)

We also accept the evaluation of Howard W. Whitaker, the General Superintendent of Respondent, when he said, "Well, you've really got to work to get hurt on this thing." (Tr. 150) He was referring to all three pieces of equipment.

The conclusion reached is not affected by the fact that in his letter of February 27, 1973 contesting certain items of the Citation, H. W. Whitaker, Vice President and General Manager of Respondent, referred to ". . . a factory installed guard. . . ." on the Cincinnati mechanical shear and stated ". . . it is set at 5/16" gap above the work entry point." He also [*30] referred to the "hold-down" as ". . . factory guarded with a 5/16" gap. . . .", further stating, ". . . again it would take a deliberate effort for a man to get his finger under them."

The two press brakes present a somewhat different problem. As with the Cincinnati Shear, both fall within the definition of "press" under 29 CFR 1910.211(d)(46).

On the record they would also be classified as "mechanical power presses" under 29 CFR 1910.217. For example, there is nothing in the record to differentiate between a machine operated "mechanically" and one operated "hydraulically". It perhaps should be pointed out that this makes no difference to the decision -- or the reasons for it.

Both machines are power presses within the definition of the standard. Giving "mechanical" its ordinary, and dictionary, meaning as "having to do with a machine or mechanism" (Webster), the press brakes in this case are mechanical power presses within the intent of 1910.217.

29 CFR 1910.217(a)(5) provides:

"Excluded Machines. Press brakes . . . are excluded from the requirements of this section."

Respondent contends that since under 1910.212(a)(3)(ii), there are specific standards for a category [*31] of machines that press brakes fit, namely "mechanical power presses", the general provisions of the last cited section do not apply. It makes no difference that the specific kind of machine is excluded from the application of the more specific standard.

There is logic in Respondent's position. At least one case has so held, reasoning further that, if the Secretary had intended press brakes 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 that the Respondent did not attempt to provide any point of operation guarding on the press brake because it knew 29 CFR 1910.217(a)(5) expressly excluded press brakes, and thus construed that section to provide that guards were not required on the press brake there involved Irvington-Moore, Division of U.S. Natural Resources, Inc., Docket 3116.

The Secretary contends on the other hand, that since press brakes are expressly excluded by 217(a)(5), any other applicable standard applies to them, including a general "catch all", and they are thus within the purview of the requirements of 212(a)(3)(ii).

We are [*32] inclined to agree with Respondent's position, but prefer to base our decision on what we consider more basic grounds. To do so, we must scrutinize the standard, and its history in light of the Secretary's contention, in order to determine just what is provided by the Section. Specifically we shall examine the following wording in 212(a)(3)(ii), "the guarding device shall be in conformity with any appropriate standards therefor. . . ." as it was derived from its source.

The source of 212 is listed as 41 CFR 50-204.5 (29 CFR 1910.221 Sources of standards). Succeeding standards through 1910.219 were derived from National Consensus Standards of the American National Standards Institute (ANSI).

41 CFR 50-204.5 does not provide -- and so far as we are able to determine, never has provided -- that "The guarding device shall be in conformity with any appropriate standards therefor." (Emphasis supplied) Rather the provision under Title 41 -- Chapter 50-204.5 Machine guarding (c)(2) is: "Where existing standards prepared by organizations listed in 50-204.2 provide for point of operating guarding, such standards [*33] shall prevail." (Emphasis added)

The source standards are, of course, adopted under the Walsh-Healey Public Contracts Act. Before the Occupational Safety and Health Act of 1970, the Walsh-Healey regulations pertinent to our inquiry were last revised extensively in May of 1969. Following publication of requests for comments on September 20, 1968, (33 FR 14258), there was another publication January 17, 1969 in 34 FR 788, with the standards in question set out in full and the effective date set at 30 days or February 17. The effective date of the revised regulations was extended to May 17, 1969 by publication on February 14, 1969 in 34 FR 7946.

Because of minor changes there was another publication on May 20, 1969, in 34 FR 7940. Effective on the date of publication, Section 50-204.2 was set out as follows:

" 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 [*34] Fire Protection Association.

American Society of Mechanical Engineers.

American Society for Testing 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 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 [*35]

(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, 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, [*36] 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 Office Building, 911 Walnut Street, Kansas City, Mo. 64106 (Colorado, Iowa, Kansas, Missouri, Montana, Nebtaska, 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 [*37] 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 Contracts Act, as amended (41 USC 35) . . . ."

As later amended on October 18, 1972 in 37 FR 22102, in order, among other things, "to publish fully in one place the present occupational safety and health standards. . . ."" and in such a manner that the "revision does not make any substantive changes in the standards, . . ."; no change is made in the section under [*38] scrutiny. Previous publications under the Walsh-Healey Act purporting to incorporate by reference regulators adopted under one law as regulations under the other, and also to give concurrent effect to the regulation under the two; only strengthen the conclusion reached.

Since 29 CFR 1910.212(a)(3)(ii) was not amended to show Walsh-Healey's "appropriate" or "specific standards", subsequent amendments to the Walsh Healey regulations do not change the picture. The Secretary adopted only those Walsh-Healey regulations "in effect on April 28, 1971. . . .", an in the language in effect on that day.

As amended by publication in 36 FR 9868 on May 21, 1971 to substitute "Part 1910" for the four national standards producing organizations, and thus bring the regulations into conformity with the Occupational Safety and Health Act of 1970, Section 50-204.2 provided:

" 50-204.2 General safety and health standards.

(a) Every contractor shall protect the safety and health of his employees by complying with the standards described in the subparagraphs of this paragraph whenever a standard deals with an occupational safety or health subject or issue involved in the performance of the contract. [*39]

(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.

Part 1910 -- Subpart C through Subpart S (national concensus standards).

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

(i) In Chapter I of Title 30, Code of Federal Regulations, the standards requiring safe and healthful working conditions or surroundings in:

Subchapter B -- Respiratory Protective Apparatus; Tests for Permissibility; Fees.

Subchapter C -- Explosives and Related Articles; Tests for Permissibility and Suitability.

Subchapter D -- Electrical Equipment, Lamps, Methane Detectors; Tests for Permissibility; Fees.

Subchapter O -- Coal Mine Health and Safety.

(ii) In Chapter II of Title 30 the standards requiring safe and healthful working conditions or surroundings in:

Part 211 -- Coal-Mining Operating and Safety Regulations.

Part 216 -- Operating and Safety Regulations Governing the Mining of Coal in Alaska.

Part 221 -- Oil and Gas Operating Regulations.

Part 231 [*40] -- Operating and Safety Regulations Governing the Mining of Potash; Oil Shale, Sodium, and Phosphate; Sulphur; and Gold, Silver, or Quicksilver; and Other Nonmetallic Minerals, Including Silica Sand.

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

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

(b) Information concerning the applicability of the standards prescribed in paragraph (a) of this section may be obtained from the following offices:

(1) Office of the Bureau of Labor Standards, U.S. Department of Labor, Railway Labor Building, Washington, D.C. 20210

(2) The regional and field offices of the Bureau of Labor Standards which are listed in the U.S. Government Organization Manual, 1970-71 edition at p. 324.

* * *

(Secs. 1, 4, 49 Stat. 1036, 1038, as amended; 41 U.S.C. 35, 38

Signed at Washington, D.C., this 20th day of May 1971.

J. D. HODGSON, Secretary of Labor.

When Section 1910.212(a)(3)(ii) states "The guarding device shall be in conformity with any appropriate standards therefor. . . .", there is a clear [*41] inference that such "appropriate standards" are within Part 1910, "Occupational Safety and Health Standards (29 CFR 1910). An employer might be put on notice that he must search for "appropriate standards" or "applicable specific standards", in Part 1910. No employer, however, can be held to be put on notice that he must thereupon research the source of the stand under which he is charged and after finding it, investigate all national consensus standards of private organizations; and all United States government agency promulgations, examples by way of illustration of which are given from the United States Department of Labor; United States Department of Interior, Bureau of Mines; United States Department of Transportation; United States Department of Health, Education and Welfare; United States Department of Defense, and the various services thereunder; and the United States Department of Agriculture.

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 [*42] their meaning, and, as here, enlarging their application and scope. The obvious effect of the effort in this case is to make any charge under 29 CFR 1910.212(a)(3)(ii) meaningless and unenforceable.

The Secretary's case fails with respect to the two press brakes, as well as the Cincinnati Shear. The Citation and proposed penalty must be vacated and the Complaint of the Secretary dismissed.

Based upon the entire record, the undersigned hereby makes the following

FINDINGS OF FACT

I

Respondent Central Steel and Tank Co., is a corporation maintaining a work site and place of business at 1106 N. 16th Avenue, Yakima, Washington. It has been in business in Yakima for many years in the fabrication of metal for tanks, structural steel buildings and bridges. It employs from 45 to 60 workmen. It carries on an effective safety program for all its employees.

For many years a company rule required all machines of the type involved in this case to be operated by journeymen machinists, except in the case of an apprentice who was allowed to operate the machines with a journeyman present and overseeing his work. There is no evidence of a violation of this rule.

Respondent has made [*43] a serious and sincere effort to comply with the provisions of the Occupational Safety and Health Act of 1970.

II

As a result of an inspection by a Compliance Officer of the Occupational Safety and Health Administration, United States Department of Labor on January 31 and February 1, 1973, the Secretary on February 22, 1973 issued Citation No. 1 for Serious Violation. The validity of the citation is at issue here, because of six items Respondent contested three, alleging violations in the operation of:

1. A Cincinnati Shear machine.

2. A Roto-Die press brake.

3. A press brake manufactured by Respondent.

On February 22, 1973, the Secretary issued its Notification of Proposed Penalty for the above violation in the amount of $550.00.

III

All three machines are mechanical power presses as that term is contemplated in 29 CFR 1910.217. At the time of the inspection, the Cincinnati Shear was in place where it had been installed before 1959.

IV

This machine was guarded adequately to prevent the operator or any other person near it from having any part of his body in the point of operation during the operating cycle of the machine. A comb guard extended the entire length of the [*44] machine on the side of the operator away from the point of operation of the shear. The openings between the "teeth" of the comb were too small for a finger to pass through. Underneath the "teeth" of the comb, there was 3/8" clearance from each "tooth" to the bed of the machine.

V

On the side toward the operator from the comb guard were a number of hold-down devices. These were cylindrical metal objects hydraulically operated, which pressed down on the material being sheared to hold it in place during the cutting process. Each had a circular guard surrounding it. The bottom of the hold-down guard tapered upward from the center toward the outer edge. At the center it was 3/8" above the bed of the machine. At the outer edge it was 3/4" from the bed of the machine. The distance from the inner to the outer edge of the hold-down guard was about two inches. The Cincinnati Shear machine was guarded in a manner which would prevent any person from having any part of his fingers or hands in the point of operation of the shear, or in the point of operation of the hold-down guard, unless such person

(1) had an extremely small hand, and

(2) intentionally inserted and forced his fingers [*45] under the comb guard or the hold-down guard.

VI

Each press brake had a horizontal opening between the dies when the machine was not in operation. The width of the opening was from three to four and one-half inches. The machine is used to bend pieces of metal, the upper die coming down very slowly but with great force toward the lower, with the metal between them. The controls on both press brakes allowed them to be "inched" as that term is defined in the standards. The time for the down stroke of the Roto-Die was 6 seconds; and the up stroke 6 seconds. It was operated by any one of three foot pedals, all of which were beneath a shield which would have prevented a falling object from operating the press brake. A release of the foot pedal on the Roto-Die at any point in the operating cycle would cause the upper die to move back upwards. A slight lifting of the foot would cause the die to stop.

VII

The "home-made" press brake of Respondent had a down time of the upper die of 10 seconds, and up time of 12 seconds. It was operated by two foot pedals, each completely covered by a shield. Pressure on one pedal would cause the die to go down; releasing the foot pressure would [*46] cause it to stop at any point. Pressure on the other pedal would cause the die to go up at any point in the operation.

VIII

There was no guard on either press brake to prevent one from putting fingers, hand or arm between the dies and leaving the member or members there 6 or 10 seconds, as the case might be, while the upper die was in the process of going through the downward operating cycle.

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

CONCLUSIONS OF LAW

I

On January 31 and February 1, 1973 Respondent was engaged in a business affecting commerce and was thus an employer within Section 3(5) of the Occupational Safety and Health Act of 1970. The Review Commission has jurisdiction of the parties and the subject matter of this action.

II

All three machines were Mechanical Power Presses as contemplated by 29 CFR 1910.217.

III

Respondent was not in violation of the Occupational Safety and Health Act of 1970. 29 CFR 1910.212(a)(3)(ii) is invalid and unenforceable as to Respondent's operation of its two press brakes.

IV

The Respondent is entitled to an [*47] Order vacating the Citation and proposed penalty, and dismissing the Complaint of the Secretary.

ORDER

Based upon the foregoing:

I

IT IS HEREBY ORDERED:

That the Citation for Serious Violation issued by Complainant to Respondent February 22, 1973 and naming therein a certain workplace in Yakima, Washington, and the proposed penalty in the amount of $550.00 also dated February 22, 1973, be, and the same hereby are Vacated.

II

IT IS FURTHER ORDERED:

That the Complaint of the Secretary be, and the same hereby is dismissed with prejudice.