NOBLECRAFT INDUSTRIES, INC.

OSHRC Docket No. 3367

Occupational Safety and Health Review Commission

November 21, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Robert A. Friel, Assoc. Regional Solicitor

George J. Tichy, for the employer

Robert E. Babcock, for the intervenor

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

I. Introduction

The decision of Administrative Law Judge Garl Watkins of August 8, 1974, is before the full Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"]. Judge Watkins vacated the citation issued to respondent, Noblecraft Industries, Inc., for alleged violation of section 5(a)(2) of the Act for non-compliance with safety standard 29 CFR 1910.213(h)(1). n1 He also vacated the penalty of six hundred dollars proposed by the Secretary of Labor to be assessed against respondent and dismissed the Secretary's complaint with prejudice.

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n1 Safety standard 29 CFR 1910.213(h)(1) provides as follows:

1910.213 Woodworking machinery requirements.

* * *

(h) Radial saws. (1) The upper hood shall completely enclose the upper portion of the blade down to a point that will include the end of the saw arbor. The upper hood shall be constructed in such a manner and of such material that it will protect the operator from flying splinters, broken saw teeth, etc., and will deflect sawdust away from the operator. The sides of the lower exposed portion of the blade shall be guarded to the full diameter of the blade by a device that will automatically adjust itself to the thickness of the stock and remain in contact with stock being cut to give meximum protection possible for the operation being performed.

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Judge Watkins based his decision to vacate the citation in this case on three conclusions. First, the Secretary was acting in excess of his statutory authority when he deleted the headnote n2 accompanying American National Standards Institute (ANSI standard 01.1 1954 (R 1961) (hereinafter ANSI 01.1). Second, ANSI standard 01.1 is not a "national consensus standard" as defined in section 3(9) of the Act. Third, the safety standard published in 29 CFR 1910.213(h)(1) was not a valid adoption by the Secretary of a "national consensus standard" under section 6(a) of the Act.

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n2 The headnote reads 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.

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II. Statement of the Case

On May 2, 1973, a compliance officer of the Department of Labor's Occupational Safety and Health Administration inspected Noblecraft's Hillsboro, Oregon, plant. Noblecraft manufactures prefinished modular kitchen cabinets and bathroom vanities. It has 150 to 160 employees. After the inspection, Noblecraft was cited for non-compliance with safety standard section 1910.213(h)(1) for failure to guard its 10" radial saw in its Cutoff Department. Noblecraft timely contested the citation. The Secretary duly filed a complaint with the Commission to which Noblecraft as respondent timely filed an answer.

Respondent's answer alleged seven defenses. Three defenses were based on a claim that the Act denied respondent the protections afforded by the Fifth Amendment to the Federal Constitution; the Act provides for unreasonable search and seizure contrary to the Fourth Amendment; the Act authorizes an unconstitutional delegation of legislative and judicial power to the Secretary of Labor and the Commission respectively; and the standards published in Part 1910 and specifically [*4] section 1910.213(h)(1) are vague, arbitrary, and an illegal delegation of legislative power. Finally, respondent argued that section 1910.213(h)(1) was improperly and illegally "propounded, processed or adopted."

A hearing was begun in Portland, Oregon, on October 29, 1973. The evidence presented by the Secretary established that the lower portion of the radial arm saw blade did not have the lower blade guard required by the safety standard in section 1910.213(h)(1). With respect to a proposed penalty for the alleged violation the compliance officer testified that respondent was anxious to have its plant in compliance with federal safety regulations, that respondent had no history of previous violations, and that inasmuch as respondent employed over 100 people it was given no mitigating credit for its size. On the question of the gravity of the violation in connection with the assessment of the proposed penalty, the compliance officer testified that amputation could result if an employee got his hand into the blade. Respondent established that a limited number of individuals, probably only one or two, would be allowed to use the saw.

After a continuance, the hearing resumed [*5] on November 9, 1973, in Seattle, Washington. Respondent moved that its Exhibits 1 and 2(a)-(e) be accepted in evidence. Respondent's Exhibit 1 is a copy of ANSI Standard 01.1 1954 (R 1961). Respondent's Exhibit 2(a)-(e) is a copy of the transcript of the "special proceeding" held before Judge Watkins on August 28-31 and September 17, 1973. n3 After argument regarding the jurisdiction of the Commission to consider the validity of a safety standard, and therefore the relevance of respondent's Exhibit 1, the exhibit was admitted. With respect to respondent's Exhibit 2(a)-(e), Judge Watkins' deiscusses its admissiblity in his decision. He discusses the problem of admissiblity of testimony given in a different case on identical issues to be used in a proceeding involving one of the same parties (the Secretary of Labor) and concludes that the exhibit is admissible.

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n3 Notice of the "special proceeding" announced the purpose of that proceeding to be for 'receiving evidence and hearing arguments on the question of the validity of certain standards found in 29 CFR 1910.213, and the legality of the acts of the Secretary of Labor in adopting them. Judge Watkins on his own motion sought to accomplish this end by inviting seven witnesses to testify and give evidence about ANSI and its standards and their subsequent adoption by the Secretary.

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Upon concluding that the transcript from the "special proceeding" was admissible, Judge Watkins held that this case was in the same "posture" as the ten cases n4 whose:

. . . record of special proceeding constitutes Respondent's Exhibits 2A through E; and what was said in the decisions in those cases is equally applicable here. n5

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n4 The "special proceeding" was held pursuant to Judge Watkins order in the following ten cases: Weyerhaeuser Co., Nos. 1231 & 1758; Acme Metal, Inc., Nos. 1811 & 1931; Brady Hamilton Stevedore Co., No. 2265; Thunderbird Coos Bay, Inc., No. 2270; Jones Oregon Stevedoring Co., No. 2271; Juhr & Sons, No. 2314; Konkolville Lumber Co., Inc., No, 2437 and Continental Kitchens, Inc., No. 2920.

n5 Decision of Administrative Law Judge Garl Watkins in Noblecraft Industries, Inc., No. 3367, (August 8, 1974) (slip op. at 8) (hereinafter Decision).

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The Judge thereafter vacated [*7] the citation on the single defense raised in respondent's answer that the applicable standard was improperly and illegally adopted.

Judge Watkins posed three questions that he deemed relevant to a disposition of the issue of whether the woodworking machine guarding standard, section 1910.213, is valid. The questions were stated by the Judge as follows:

(1) The effect of the headnote; which was 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 whish afforded an opportunity for diverse views to be sonsidered . . .' Sec. 3(9)(2) of the Act) n6

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n6 Decision, slip op. at 11.

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After framing the questions, Judge Watkins rejected objections raised by the Secretary of Labor; i.e. (1) the Judge's reopening of the hearings and consideration of the evidence not produced by counsel (Judge Watkins overruled this objection to the "special proceeding," concluding that inasmuch as the primary responsibility for developing the record remains with the presiding officer, he had the power to do what was required to see that justice has been properly administered); (2) section 6(f) n7 of the Act provides the exclusive method for challenging the validity of a standard (the Judge accepted the argument of respondents at the special hearing that section 6(f) of the Act was only an alternative method for attacking the validity of a standard). Concerning this, the Judge concluded that:

[T]he 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. n8

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n7 Section 6(f) of the Act provides as follows:

(f) Any person who may be adversely affected by a standard issued under this 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.

n8 Decision, slip op. at 22.

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Judge Watkins concluded that the headnote in question n9 was an integral part of the standard and that the Secretary exceeded his authority by not publishing the headnote with the standard.

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n9 See note 2, supra.

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Concerning his second and third questions, he read section 3(9) as having the following four requirements:

(1) It [the standard] must have been adopted and promulgated by a nationally recognized standards-producing organization;

(2) [u]nder 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) [w]as formulated in a manner which afforded an opportunity for diverse views to be considered; and

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

He thereafter concluded that ANSI 01.1 did not meet the second requirement essentially because he found no meeting of the "consensus" requirement.

The Secretary filed a petition with the full Commission for review of the Judge's decision. Specifically, the Secretary excepted to: (1) the Judge's conclusion that section 6(f) of the Act is not the exclusive method for challenging a standard; [*11] (2) the conclusion that the Commission was a proper forum for determining the validity of a standard; (3) the conclusion that the headnote was an integral part of the standard and was adopted through the language of 29 CFR 1926.304(f); and (4) the conclusion that ANSI 01.1 1954 (R 1961) was not a "national consensus standard" within the meaning of section 3(9).

On September 9, 1974, Commissioner Cleary ordered review on the issues raised by the Secretary. In addition, he directed review on the issue of whether the fact-finding procedure followed by the Administrative Law Judge was within his authority.

II. Decision

For the reasons set forth below we hold that section 1910.213(h)(1) is a valid and enforceable standard and that the Judge's decision to vacate the citation issued to respondent for reasons of the standard's alleged invalidity was error. We adopt the Judge's finding that: "If the standard is valid there was a violation of the Act." n9a We hold respondent in serious violation of section 5(a)(2) of the Act for non-compliance with safety standard 29 CFR 1910.213(h)(1). Chairman Barnako assents only to Parts C adn D of this opinion, thus forming a majority. [*12] He believes that the standard is a national consensus standard and believes its adoption under section 6(a) was mandated by Congress. He does not, however, join in my discussion of Parts A and B of this opinion.

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n9a Decision, slip op. at 3.

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A. The Fact-Finding Procedure

It is incumbent upon this Commission to examine the fact-finding procedures of the Administrative Law Judge. Judge Watkins justifies his elaborate and costly rumination on the validity of the standard by quoting from 20 Am. Jr. 2d, Courts 79 to the effect that:

[C]ourts have inherent power to do all things that are reasonably necessary for the administration of justice within the scope of their jurisdiction (emphasis added). n10

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n10 Decision, slip op. at 13.

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The Commission is an "agency" within the meaning of the Administrative Procedure Act and subject to [*13] its terms in the performance of its quasi-judicial duties. 5 U.S.C. 551(l); 29 U.S.C. 659(c). It is not a court. The Commission operates only under a delegation of statutory authority. Cf. General Electric Co., No. 2739 (April 16, 1975).

Moreover, I am not unmindful of the observation of the Fourth Circuit Court of Appeals in Brennan v. Gilles & Cotting, Inc. & O.S.H.R.C., 504 F.2d 1255, 1262 (1974), that the Commission is more than a "specialized jury." The court there noted that:

. . . [T]he Commission was designed to have a policy role and its discretion therefore includes some questions of law (emphasis added).

The Commission's parameters in this regard are set by its adjudicative role under section 10.

On the other hand under section 6(f) of the Act the validity of a standard may be directly challenged in the Federal Courts of Appeals. Judge Watkins reads section 6(f) and its legislative history as permitting the Commission to take jurisdiction of a standard's validity challenge. In doing so he relies upon the following from page 148 of the Legislative History:

Judicial Review of Standards. -- Section 6(f) provides that any person who may be adversely [*14] 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. n11

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n11 Senate Rep. No. 91-1282, 91st Cong., 2nd Sess. 8, Legislative History of the Occupational Safety and Health Act of 1970, 148 Comm. Print 1974 (hereinafter Leg. Hist.) (emphasis supplied by the Administrative Law Judge).

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The reliance is misplaced. For a careful analysis of this segment of legislative history see U.S. Steel, Nos. 2975 & 4349 (November 14, 1974) (concurring opinion). Or course, an employer may raise an issue involving the validity of the Secretary's rulemaking action in a Commission proceeding. But this is simply [*15] to preserve the objection for judicial consideration. n12 See section 11(a) of the Act; U.S. Steel, supra.

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n12 For the reasons stated above I would disagree with the decision of Administrative Law Judge Louis J. Rubin in Oberhelman-Ritter Foundry, Inc., No. 1572 (June 29, 1973), wherein he, contrary to this opinion, assumed judicial power in this Commission.

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B. The Application of Section 6(a) of the Act

In applying the definition of "national consensus standard" in section 3(9) of the Act, Judge Watkins gave little or no consideration to the Congressional purpose in adopting section 6(a) of the Act. Under section 6(a) the Congress intended the Secretary of Labor to adopt as rapidly as possible national consensus standards and established federal standards. n13 This rulemaking action was to be without the benefit of the notice and public procedure requirements of the Administrative Procedure Act of section 6(b) of this Act. The plain text of section 6(a) indicates this. Moreover, although section [*16] 3(9), the definition of "national consensus standard," speaks of a determination by the Secretary of Labor as to a substantial agreement by persons interested and affected by the standard, the legislative history clearly indicates that the standards of two private organizations (The American National Standards Institute and the National Fire Protection Association) were to be adopted by the Secretary of Labor as "national consensus standards." n14 This was subject only to condition subsequent in section 6(a) itself that the standard be found by the Secretary not to improve safety or health for certain employees and a rule of construction for dealing with conflicting standards.

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n13 H.R. Rep. No. 91-1765, 91st Cong., 2nd Sess. 33, Leg. Hist., 1186.

n14 H.R. Rep. No. 91-1291, 91st Cong., 2nd Sess. 16-17, Leg. Hist., 846-847. Senate Rep. No. 91-1282, 91st Cong., 2nd Sess. 6, Leg. Hist., 146.

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It has been argued that the Committee Report indicate only that the ANSI and NFPA are sources [*17] of national consensus standards and stop short of saying that their standards are actually national consensus standards. The statement of Senator Javits, a member of the Senate Labor Committee and a leading architect of the Act, on the floor of the Senate is in point. Senator Javits stated:

A national consensus standard, under this act, is a standard which has been developed by one of two organizations at the present time: The American National Standards Institute or the Fire Underwriters Association. n15

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n15 Leg. Hist., 504.

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Judge Watkins, however, noted expressly in his decision that:

There are numerous references in the Legislative History to the assumption -- stated as fact -- that national consensus standards of ANSI and NFPA [National Fire Protection Association] met the tests of the definition section of the Act; . . . . n16

At another part of his decision he notes:

It would rather seem from the numerous passages in the [Legislative] history that Congress became enamored of its own definition [of a [*18] national consensus standard] and began to assume that both ANSI and NFPA standards net it. n17

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n16 Decision, slip op. at 57.

n17 Decision, slip op. at 45-6.

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The point missed by the Judge is that the Congressional purpose must be respected rather than a reading of section 3(9) that may not be fully consistent with that purpose. It is a fundamental principle of statutory construction that the purpose of a statute should prevail over its letter in such a situation. Sorrells v. United States, 287 U.S. 435, 446 (1932); Ozawa v. United States, 260 U.S. 178, 194 (1922). Cf. H.K. Porter, Inc., No, 1210-P (March 22, 1974).

It is also arguable that the Congress intended that the Secretary of Labor make some sort of investigation on the consensus issue and the conditions subsequent in section 6(a) that would be short of providing notice and public procedure. An investigation was obviously not expected to take much time. Under the definition in section 3(9) this would mean expressly contacting other [*19] Federal agencies and impliedly examining the standards documents themselves for any recitals of consensus. Indeed, this is apparently the course that the Secretary took. The preamble recites the contacting of other Federal agencies and the making of findings under the definition. Also, I note that the ANSI document involved contains an expression of consensus agreement. The Judge would permit this agreement to be modified by testimony, even though the Secretary himself was not empowered to hear testimony in rulemaking under section 6(a). Even if the Judge had the power to review the Secretary's rulemaking the scope of review would not likely have extended this far.

C. The Headnote to Section 4.1 of ANSI 01.1 n18

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n18 See note 2, supra.

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Judge Watkins notes that the standards contained in the ANSI 01.1 document are written in mandatory terms. The headnote, however, qualifies this mandatory language, and renders the standard not mandatory for all woodworking machinery. Judge Watkins concluded that [*20] the headnote is an integral part of the entire standard and that the Secretary had no authority to adopt the standard while omitting the headnote.

A majority of the Commission concludes that the Judge's analysis is incorrect. Section 3(8) of the Act defines the term "occupational safety and health standard" to mean:

A standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment (emphasis added).

Pursuant to this definition the Secretary may only adopt mandatory rules. The short answer to Judge Watkins' conclusion is that the headnote, even though it is part of the ANSI 01.1 document, is an explanatory note or instruction rather than part of the "standard." n19

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n19 We note that in light of our discussion of the "headnote" issue the Judge's conclusion that it was adopted as part of safety standard 29 CFR 1926.304(f) is incorrect. See this decision supra at page 7.

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If the headnote had been adopted it would not have changed the meaning, scope, or application of 29 CFR 1910.213 in that pursuant to section 5(a)(2) of the Act employers are required to comply with occupational safety and health standards. Cf, section 2(b)(2) of the Act.

The headnote is not directed to employers. It is directed to the "enforcing agency." In addition, its terms are discretionary. In pertinent part the headnote states:

Since there are a number of situations not satisfactorily covered by these standards, the enforcing authority should exercise latitude in allowing the use of other devices which afford adequate protection (emphasis added).

In the "definitions" section of the ANSI 01.1 standard, the words "shall" and "should" are distinguished: "The word 'shall' is to be understood as mandatory; the word 'should' as advisory."

The headnote deals not with the obligations of the employer, but with discretion in the enforcement agency. As the Secretary rightly points out, a grant of prosecutorial discretion in the context of the Act would be redundant and hence unnecessary. n20

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n20 For my own part, I also conclude that the Secretary has correctly stated the law when he notes that to give effect to the headnote would only achieve the same result that occurs when a variance from a standard is granted pursuant to section 6(d) of the Act. An employer would still be required to seek the Secretary's approval if the headnote were applied before he would be allowed to use alternate forms of guarding. To conclude differently would be to ignore the variance provision in subsection (d) which should be read harmoniously with the rulemaking action under subsection (a) of section 6.

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D. The Merits and Penalty

Turning to the merits of the decision we need only note that the facts of this case clearly support the Judge's conclusion, adopted above, that respondent did violate section 5(a)(2) of the Act.

Section 17(j) of the Act requires the Commission to assess all civil penalties giving due consideration to its appropriateness with respect to the size of the business of the employer, the gravity of the violations, the employer's good faith, and [*23] history of previous violations.

Respondent is a large corporation employing at the time of citation over 150 employees. It has no history of previous violations. The employer has demonstrated its good faith by showing a strong desire to comply with Federal safety regulations. The gravity of the violation was moderate in that a severe cut of the hand from the unguarded saw blade was possible. This was mitigated somewhat by the infrequent use made of the saw by respondent's employees. In light of these factors we assess a penalty of $200.

Accordingly, it is ORDERED that the decision of Judge Watkins declaring ANSI 01.1 1954 (R 1961) to be not a national consensus standard as defined in section 3(9) of the Act, declaring ANSI 01.1 not to have been enacted as part of 29 CFR 1910.213(h)(1), and declaring it not to have been a valid enactment of a national consensus standard under section 6(a) of the Act, is reversed. It is further ORDERED that Judge Watkins' conclusion that respondent violated section 5(a)(2) of the Act is affirmed and a $200 penalty is assessed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

My views coincide with those expressed by Judge Watkins whose excellent decision [*24] will be included here in full and complete text. Before discussing the substantive issues involved, however, I feel compelled to comment on the form in which the other two members have presented their views in this case.

It is my opinion that the preceding "majority opinion" represents not only one of the most bizarre written statements ever issued by this Commission but is a shining example of what happens when form triumphs over substance.

In order to reduce the appearance of a division of thought among the three Commission members, it has been decided that there must not be three separate opinions in any one case. Nevermind that there are actually three different views, they will appear in only two separate opinions.

Consequently, clarity of thought and a careful exposition of what is law and what is a minority viewpoint has been sacrificed on the alter of imagery in an effort to create the appearance of a less devisive Commission.

In reading the foregoing opinion we find mysteriously wrapped in between Mr. Cleary's admitted personal views on the status and power of this tribunal and the unwarranted personal attack on Judge Watkins n21 - one of our most able and distinguished [*25] jurists - the cryptically worded rule of this case:

"Chairman Barnako assents only to Parts C and D of this opinion, thus forming a majority."

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n21 Among other criticisms of Judge Watkins, the decision, without mentioning any supporting facts, refers to the Judge's "elaborate and costly rumination" on the validity of a standard. It is unclear whether this represents the individual views of Mr. Cleary or the joint views of both members who assented to this opinion. If it is the latter then it seems to me that a clarification is necessary for the guidance of other Judges so they will know the extent to which "costs" must be considered in the performance of their statutory responsibilities. Where, for example, is the line to be drawn between a trial and decision which fully discloses all matters necessary to a just disposition and one which is too elaborate and costly. Then again, must a Judge who wishes to avoid the type of criticism which is dumped on Judge Watkins in this majority opinion check with the Commission members during the trial to see whether certain witnesses or evidence should be allowed? It is unlikely that other Judges who read the majority opinion will overlook this criticism of one of their colleagues particularly when it is contained in an opinion signed by the Chairman of the agency which employs them and has statutory authority to initiate disciplinary proceedings against them, despite the insertion of the vapidly worded disclaimer that he does not join in Mr. Cleary's "discussion of Parts A and B of this opinion." By his action he has allowed unsubstantiated criticism of a Judge to be featured in a majority opinion. I submit that the concept as well as the reality of an independent judiciary is certain to suffer from this.

[*26]

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A majority for what view, one might rightfully ask? All that is said in Parts C and D? If so, that would include footnote number 19 which refers the reader back to page 7 of the opinion ("We note that in light of our discussion of the 'headnote' issue," etc.). It also includes footnote number 20 which appears to represent only a single member's views ("For my own part, I also conclude," etc.). In view of the express statement (in another part of the opinion) that "Chairman Barnako assents . . . to Parts C and D," it seems rather risky to rely upon traditional wordmeanings and usages.

I submit that decisions written in this manner tend to obfuscate, confuse and mislead when it is generally agreed that improved understanding is needed. n22 I have participated in virtually every decision of this tribunal since its establishment in 1971 - more than one thousand decisions ago - but this is the first time that a "majority" opinion has been allowed to open with 14 paragraphs and nine footnotes detailing views on the law which do not constitute the opinion of this body. But, of course, [*27] we cannot really be sure in view of the way the opinion is worded. Like the Chesire cat of Alice in Wonderland, the majority viewpoint fades in and out of sight in the preceding opinion.

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n22 In an address before the 62d Annual National Safety Congress on October 2, 1974, the Assistant Secretary of Labor for Occupational Safety and Health (OSHA) stated:

"The best way to achieve workplaces free from safety and health hazards is through teamwork, understanding, and the cooperation of all concerned."

During Congressional debate on Labor Department appropriations, Senator Williams of New Jersey stated on September 24, 1975:

"They [OSHA] have presented to us these big stacks of regulations that no one can be expected to understand in detail."

On September 18, 1975, Senator Church of Idaho stated:

"So many of them [employers] have come to me and said 'We know we have the law, and must comply with the law but we do not know how to comply. We lack the resources to find out.' And they are getting no help."

And on the same day during the same debate, Senator Domenici of New Mexico stated:

". . . the small businessman's biggest complaint is that he really does not know what to do . . . ."

[*28]

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In opinions of this type, clarity requires that each Commission member's position be stated in a separate opinion. n23 By so doing, each member could agree or disagree with the resolution of the issues in such a way that there would be no possibility of misunderstanding as to what constitutes the law of the case and what represents the individual views of a single member. Since that has not occurred in this case, I take it upon myself to issue the following warning:

READERS OF THIS DECISION ARE CAUTIONED TO NOTE THAT THE VIEWS EXPRESSED IN THE LEAD OPINION REGARDING THE STATUS OF THE COMMISSION n24 AND ITS AUTHORITY TO CONSIDER THE VALIDITY OF OCCUPATIONAL SAFETY AND HEALTH STANDARDS n25 ARE ONLY THOSE OF THE AUTHOR OF THAT OPINION AND DO NOT OVERRULE LONGSTANDING PRECEDENTS TO THE CONTRARY ON THOSE MATTERS.

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n23 This, incidentally, was the practice in effect from April 1971 until August 1975. It may not have presented a unified image to the public but it enabled each member to give his opinion in his own words - not someone else's - and it allowed readers of the opinion to clearly differentiate between individual views and majority dispositions.

n24 In Secretary v. Metmore & Parman, Inc., 2 OSAHRC 288 (1973), the Commission concluded that it was created to function as a court rather than as a traditional agency. That conclusion has been approved in several appellate decisions. See, e.g., Frank Irey, Jr., Inc. v. OSAHRC, 519 F.2d 1200, 1202 n.3 (3rd Cir. 1974); Brennan v. OSAHRC and Santa Fe Trail Transport Company, 505 F.2d 869, 871 (10th Cir. 1974); Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1262 (4th Cir. 1974); Dale M. Madden Construction, Inc. v. Hodgson, 502 F.2d 278 (9th Cir. 1974).

n25 The Commission's authority to consider the validity of standards has been affirmed by four Circuit Courts by implication in Cape and Vineyard Division of the New Bedford Gas and Edison Light Company v. OSAHRC, 512 F.2d 1148 (1st Cir. 1975); Brennan v. OSAHRC & Santa Fe Trail Transport Company, 505 F.2d 869 (10th Cir. 1974); McLean Trucking Company v. OSAHRC, 503 F.2d 8 (4th Cir. 1974); and Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974).

[*29]

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Hopefully, having made the foregoing clear, I now would like to state that my disagreement with the result reached by the Commission is even more profound than my dissatisfaction with the manner in which it is expressed.

In my opinion, the occupational safety standards codified at 29 C.F.R. 1910.213 were improperly promulgated because they did not include the limitations specified in the headnote to ANSI standard 01.1-1954 (R 1961). n26

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n26 See note 2 supra for its text.

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The regulations in issue were promulgated as national consensus standards under 29 U.S.C. 655(a) which gave the Secretary of Labor authority to adopt interim standards for a period of two years from the effective date of the Act. These standards could be adopted by the Secretary without public scrutiny and without observing the procedural safeguards afforded by the Administrative Procedure Act, 5 U.S.C. 553. n27 As a substitute for these safeguards, Congress [*30] carefully limited what could qualify as additional consensus standard n28 by defining it in 29 U.S.C. 652(9) as:

"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 . . . ."

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n27 Staff of the Senate Comm. on Labor & Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 146 (Comm. Print 1971).

n28 These statutory limitations were necessary. As Chairman Barnako has observed in commenting on the adoption of ANSI standards:

"[T]he standards were drafted as recommendations for optimal workplace safety and health without any idea that they would or should become law. And they were not drafted by industry consensus but frequently by representatives of selected industries for those industries. That is, some were vertical and some were horizontal. All of industry was not represented on all committees, nor did other industries object to the standards as published because such standards were of no concern to them." Barnako, Enforcing Job %safety: A Managerial View, Monthly Labor Review, March 1975, at 37.

The quoted statement (stated as fact - not opinion) is much more consistent with Judge Watkins discussion of the issues in this case and his analysis thereof than is Part C of the majority opinion. Admittedly, consistency may be the hobgoblin of little minds. However, it's not inconsistency of which great minds are made - it's thorough analysis and rational exposition.

[*31]

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In exercising his power under section 655(a), the Secretary of Labor must strictly adhere to the statutory limitations which Congress placed upon him. See Florida Peach Growers Association, Inc. v. U.S. Department of Labor, 489 F.2d 120 (5th Cir. 1974). When an agency of the United States fails to comply with such limitations in promulgating regulations, the regulations so promulgated are void. Utah Power & Light Company v. United States, 243 U.S. 389, 410 (1917); Federal Maritime Commission v. Anglo-Canadian Shipping Company, 335 F.2d 255 (9th Cir. 1964).

The ANSI headnote limited the scope of the standards' applicability and meant that the ANSI version was to be used as a guideline in the exercise of informed judgment. The Secretary of Labor's modification, however, made the standard mandatory and universally applicable within the woodworking industry. This constituted a significant substantive alteration of the consensus standard. The change also eliminated the "consensus" which was reached since it it unlikely that the ANSI committee which adopted the standard would [*32] have included the headnote if it could have agreed upon the standard containing only its mandatory wording. Therefore, 29 C.F.R. 1910.213 does not qualify as a "national consensus standard" since (1) the standard the Secretary promulgated was different from that which was adopted or promulgated by a nationally recognized standards-producing organization, and (2) the Secretary's standard was not formulated in a manner which afforded an opportunity for diverse views to be considered. This was recognized by the Associate Solicitor for Occupational Safety and Health in a memorandum to OSHA's Deputy Assistant Secretary Robbins, dated July 9, 1973, in which he advised that:

"The Secretary 'is without authority under [29 U.S.C. 655(a)] to so modify the operative provisions of a consensus standard . . . .'" n29

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n29 Morey, Mandatory Occupational Safety and Health Standards - Some Legal Problems, 38 Law & Contemp. Prob. 584, 588-589 (1974).

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In order for there to be any validity to the standard at issue, the rulemaking [*33] procedure provided in 29 U.S.C. 655(b) should have been utilized to promulgate the modified version of ANSI standard 01.1-1954 (R 1961) as an occupational safety and health standard. Since this procedure was not followed, 29 C.F.R. 1910.213 is invalid. Secretary v. Oberhelman-Ritter Foundry, Inc., 3 OSAHRC 1212 (1973). Accordingly, the Judge's vacation of the citation should be affirmed.

Judge Watkins's well-reasoned decision in this case follows:

This is an enforcement proceeding under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq.

At issue is one alleged serious violation of Section 5(a)(2) of the Act because one radial arm saw in Respondent's research and development unit admmittedly did not have the lower portion of its ten inch blade guarded as required by 29 CFR 1910.213(h)(1).

Respondent, in business since 1948, and a subsidiary of the Columbia Corporation since 1970, has 150 to 160 employees -- 105 to 110 working in production. It manufactures prefinished modular kitchen cabinets and bathroom vanities.

The plant was inspected May 2, 1973 by a Compliance Officer of the Occupational Safety and Health Administration, United States [*34] Department of Labor. A citation was issued May 24.

The language of the citation, the pertinent allegation of the complaint, the standard in question and the proposed penalty follow:

CITATION FOR SERIOUS VIOLATION NO. 1

"Standard or regulation

allegedly violated

Description of alleged violation

29 CFR 1910.213(h)(1)

The 10" Red Star radial saw in the

Cutoff Department does not have a

guard on the lower half of the saw

blade and the saw is in service."

COMPLAINT

"IV

On May 2, 1973, at the aforesaid worksite and place of business and employment, the respondent violated the safety and health regulations in the following respect:

The 10" Red Star Radial saw in the cutoff Department does not have a guard on the lower half of the saw blade and the saw is in service, contrary to 29 C.F.R. 1910.213(h)(1)."

STANDARD

"1910.213 Woodworking machinery requirements.

(h) Radial saws.

(1) The upper hood shall completely enclose the upper portion of the blade down to a point that will include the end of the saw arbor. The upper hood shall be constructed in such a manner and of such material that it will protect the opetator from flying splinters, broken saw teeth, etc., [*35] and will deflect sawdust away from the operator. The sides of the lower exposed portion of the blade shall be guarded to the full diameter of the blade by a device that will automatically adjust itself to the thickness of the stock and remain in contact with stock being cut to give maximum protection possible for the operation being performed."

PROPOSED PENALTY: $600.00

Respondent's answer contains six defenses, some on constitutional grounds. Sufficient for the purpose of this decision is a denial of the Secretary's allegation that the standard was duly and regularly enacted, and the affirmative allegation of Respondent that it was not "legally propounded . . . . or . . . . adopted."

Hearing opened in Portland, Oregon October 29, 1973 and finished in Seattle November 9. The record discloses compliance with rules of procedure requiring service and posting of notices for additional parties and none appeared.

The evidence is uncontradicted that the lower portion of the radial arm saw blade did not contain the guard required by the standard. If the standard is valid there was a violation of the Act.

At the Portland hearing, Respondent produced its Exhibits 1 and 2A through E. [*36] They were marked for identification, but neither identified nor offered in evidence. The continuance was to give counsel for Respondent a chance to see if he could get the two identified and admitted -- by stipulation or otherwise.

Respondent's Exhibit 1 is a copy of the American Standard Safety Code for Woodworking Machinery, approved November 29, 1954 by the American Standards Association (now American National Standards Institute). It is commonly referred to as ANSI 01.1 1954 (R. "reaffirmed" 1961). Exhibits 2A through E are the transcripts of testimony of a supplemental hearing in ten other cases on the question of the validity of 29 CFR 1910.213 and the legality of the acts of the Secretary of Labor in adopting them; held in Seattle, Washington on August 28 (pre-hearing), 29, 30, 31 and September 17, 1973, along with exhibits. (Respondent's 2E was not physically presented -- it had not been written up.)

On November 9, at the Seattle and concluding portion of the hearing, the identification and authenticity of the exhibits were stipulated. Exhibit 1 was admitted in evidence. Ruling on the admission of Respondent's Exhibits 2A through E was reserved until this decision. [*37]

Counsel for the Secretary, on page 8 of his reply brief, denies there had been a stipulation as to the authenticity of the transcripts of the previous proceedings. This is the first time in the case this position was taken, or the question raised. The brief states:

"ADMISSIBILITY OF RECORDS IN SPECIAL PROCEEDINGS INVOLVING WEYERHAEUSER, KONKOLVILLE, AND OTHER EMPLOYERS AND 29 C.F.R. 1910.213

Respondent in the second full paragraph of its brief, page 19, states incorrectly the essence of the stipulation of counsel with respect to the 'second stipulation', Respondent then states in the second

All discussion thereafter assumed the identification and authenticity of both Exhibits. Mr. Scott at no time questioned either. Nor did he, for example, question the proposal to bring in the Respondent's Exhibit 2E later, when it was written up. All arguments were as to admissibility only.

We hold that, even though counsel used the words "reporter's record of the pre-hearing conference and the special proceedings conducted", etc., rather than more specific words indicating the exhibit was the record, or a true copy thereof; there was in fact a stipulation as to identification and [*38] authenticity of both Respondent's Exhibits 1 and 2. The question of admitting or rejecting Respondent's Exhibits 2A through E remains for decision here.

The problem is that of admissibility of previous testimony in a different case, where the issues are identical, and the party against whom the evidence is sought to be used is the same. We have read the authorities cited by both counsel and have conducted additional independent research.

The entire subject is most interesting and could be the subject of an exhaustive treatise, which we do not now propose to writs. We simply hold that Respondent's Exhibits 2A through E are admissible, and they are received in evidence. A few words of explanation are in order.

The precise question is stated well by McCormick.

" 254. Introductory: Is It Hearsay? Scope of Statutes and Rules.

Upon compliance with requirements which are designed to guarantee an adequate opportunity of cross-examination, evidence may be received in the pending case, in the form of a written transcript or an oral report, of a witness's previous testimony. This testimony may have been given by deposition or at a trial, either in a separate case or proceeding, or [*39] in a former hearing of the present pending case. Usually called former testimony, this evidence may be classified, depending upon the precise formulation of the rule against hearsay, as an exception to the hearsay prohibition on the one hand, or as a class of evidence where the requirements of the hearsay rule are complied with, on the other. The former view is accepted generally by the courts and textwriters; the latter is espoused by Wigmore. The present work adheres to the former classification by adopting a definition of hearsay which would include all testimony given by deposition or at a previous trial or hearing, in the present or another litigation, provided it is now offered as evidence of the facts testified to. The reasons for this choice are, first, it follows the usage most familiar to the profession, and second, it probably facilitates the wider admission of former testimony, which is generally of a relatively high degree of trustworthiness, under a liberalized exception. An insistence upon the equivalent of a present opportunity to cross-examine disregards the other elements of special reliability in former testimony such as the oath, the solemnity of the occasion, [*40] and in the case of transcribed testimony, the accuracy of reproduction of the words spoken."

Generally speaking, text writers and authors of law review articles, as well as legislatures and rule making bodies, tend to a more liberal view on the admission of previous testimony than have courts in previous decisions. The reason is also well stated by McCormick.

" 261. The Need for Improvement in Existing Practice.

The traditional restrictions upon the admission of evidence of former testimony are understandable as the reflections of an earlier era when there were no court reporters, and as logical deductions from the premise that cross-examination is the only substantial safeguard for the reliability of this evidence. But when we view them in comparison with doctrines admitting other types of oral declarations as exceptions to the hearsay rule, such as declarations against interest, declarations of present bodily or mental state, and excited or spontaneous utterances, which seem far less reliable, the restrictions upon declarations in the form of sworn testimony in open court of official hearing, seem fantastically strict. As Morgan said, 'Were the same strictness applied to [*41] all hearsay, evidence of reported testimony would constitute the only exception to the hearsay rule.'

In the light of this broader view, therefore, it seems that the most immediate improvement would come from the wider acceptance among the courts of the attitude that the present scheme of admissibility of former testimony should be applied with a reasonable liberality favoring in case of doubt the admission of this type of evidence."

It should be made clear that it is not necessary to "hew to the liberal line" in order to admit the transcripts in this case. They are admissible under anybody's rule. The issues are identical and one of the parties is the same.

Perhaps the most important reason for denying admission would be in a situation where the party against whom the evidence is admitted has not had a right to cross-examine witnesses and produce evidence. The Secretary was a party to all the previous actions and exercised his right to cross-examination, as well as the right to bring in additional evidence.

This case then is in the same posture as were the ten cases whose record of special proceedings constitutes Respondent's Exhibits 2A through E; and what was said in the [*42] decisions in those cases is equally applicable here. It follows. 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.

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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 16 through 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 1910.213(d)(1). The facts of [*43] 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 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 Institute (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 [*44] 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 substantive 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 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 [*45] 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 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, [*46] 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 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 [*47] 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 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 [*48] 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 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 INTERPROGATION 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 [*49] 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 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 simila 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 judici 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 [*50] -- to make sure that all necessary evidence is adduced and to keep the hearing orderly and efficient. . . . The trial examiner shall have authority. . . . (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 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 [*51] -- 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 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 [*52] 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 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 [*53] 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 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 [*54] 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.

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" distinguished from "wisdom") [*55]

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 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 [*56] 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 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 [*57] 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 -- 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 [*58] 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 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 [*59] 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 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 [*60] 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 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 leyality 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 [*61] 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)

(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 [*62] 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 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 [*63] 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 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. . . ." (Sec. 12(e)). Some of these functions are enumerated (Sec. [*64] 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 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 [*65] 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 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 [*66] 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, 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 1.54 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 [*67] 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 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 to 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 the employer then start an action in the United States District [*68] 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 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 [*69] 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. 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 [*70] 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 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 [*71] 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, 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 [*72] 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 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 [*73] to ". . . . by rule promulgate as occupational safety or health" standards under Section 6(a) of the Act.

Nixon deTarnowsky, Scarsdale, New York; Standards Co-ordinator 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; 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 [*74] 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, 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 duespaying 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 [*75] 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 Casually and Surety Companies, a large trade association of the biggest stock casually 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 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 [*76] 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 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 [*77] 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 mandated by Section 6(a) of the Act. They were of two kinds, "national consensus standards" and "established Federal standards." As the man primarily responsible 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 [*78] 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 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 standards with the statutory definition of a national consensus standard was in error.

In his testimony, Mr. Cestrone referred to several [*79] 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 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; [*80] 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 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 [*81] 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 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 [*82] 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 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 [*83] 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 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 Occuational 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 [*84] 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 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 [*85] 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. 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 may 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 [*86] part of the standards?

A. Yes.

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

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 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 removed. 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: [*87]

"(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 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 [*88] 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 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 [*89] 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, 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 [*90] 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 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 [*91] 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 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 [*92] 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 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 [*93] 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 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 [*94] 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 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 [*95] 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. 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 [*96] 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 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 [*97] 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 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 [*98] 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 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. [*99] 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 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 [*100] 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 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 policy holder (in [*101] 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 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 [*102] 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 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 [*103] 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 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 [*104] 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 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 [*105] 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 users of the types of saws found in Section 4.1 of ANSI 01.1 1954 (R 1961) 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 [*106] 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 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 [*107] 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, 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 [*108] change brought about a much wider and more selectiver 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" an to be considered; or who must be "afforded an opportunity." If the "opportunity" and "diverse views" are limited to safety professionals, there would 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 [*109] 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 -- 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 not. All the Congressional views were known to the people in the Labor Department charged with the responsibility of developing the program.

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 [*110] and found to be in the public interest, and specifically in the interest of occupational safety and health. Nothing here should 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 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- - - - - - - - - - - - - - - - -

The citation and proposed penalty must be vacated and the complaint of the Secretary dismissed with prejudice.

Based upon a review of the entire record in this case, the undersigned hereby makes the following:

FINDINGS OF FACT

I

Respondent Noblecraft Industries, Inc. is a corporation with its place of business in Hillsboro, Oregon. It is engaged in the manufacture of pre-finished modular kitchen cabinets and bathroom vanities. It has 150 to 160 employees, 105 to 110 of whom work in [*111] production activities. Its gross business in 1972 was 4.3 million dollars and in 1971, 3.2 million.

II

On May 2, 1973, Respondent's worksite at Hillsboro, Oregon was inspected by a Compliance Officer of the Occupational Safety and Health Administration, United States Department of Labor. As a result a citation was issued May 24, 1973, alleging Respondent was in violation of Section 5(a)(2) of the Occupational Safety and Health Act of 1970, by failing to comply with a machine guarding standard for woodworking machinery set out in 29 CFR 1910.213(h)(1) because its employees used a radial arm saw with no guard covering the lower portion of the blade. Respondent gave Complainant timely notice of the contest of the citation and of the proposed penalty of $600.00.

III

On May 2, 1973, the radial arm saw described was at Respondent's worksite available for use by its employees. It was used on or about that date. The lower portion of the blade was not guarded in the manner described in 29 CFR 1910.213(h)(1).

IV

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 [*112] the American National Standards Institute, adopted in 1954 and reaffirmed in 1961, commonly known as ANSI 01.1 1954 (R 1961).

V

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(h)(1) of Part 1910 was derived from Section 4.1.9 RADIAL SAWS (a) Hoods and Guards of ANSI 01.1 1954 (R 1961). The headnote is an integral part of Section 4.1 and every sub-section and part thereof. Section 4.1.9(a) with the headnote produces the result that the use of lower blade guards for radial arm saws is optional. Section 213(h)(1) of Part 1910 has the effect of requiring the use of lower blade guards [*113] for all radial arm saws, at all times used. Its requirements are mandatory. The meaning, scope and application of the source standard are thereby materially changed.

VI

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 organizational 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.

VII

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 [*114]

I

Respondent is engaged in a business affectig commerce within the provisions of 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(h)(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(h)(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(h)(1) is invalid and unenforceable.

V

The Respondent is entitled to an order vacating the citation and proposed penalty, and dismissing the Complaint of the Secretary with prejudice.

ORDER

Based upon the foregoing:

I

IT IS HEREBY ORDERED:

That the Citation for Serious Violation issued by Complainant to Respondent May 24, 1973 and reciting therein the operation of a radial arm saw in Hillsboro, Oregon on May 2, 1973 in violation of 29 CFR 1910.213(h)(1) and the proposed penalty in the amount of $600.00, [*115] 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.