ALLIS-CHALMERS CORPORATION

OSHRC Docket No. 5599

Occupational Safety and Health Review Commission

October 17, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: The decision of Judge Ben D. Worcester, rendered on July 26, 1974, has been directed for review and is before us pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act].

Allis-Chalmers Corporation, respondent, is a large corporation engaged in manufacturing heavy industrial equipment. From August 20 to September 10, 1973, a safety and health compliance officer of the Department of Labor conducted an inspection of respondent's installation known as the "West Allis Manufacturing Operation." As the result of this lengthy inspection, the Secretary of Labor, complainant, issued a citation to respondent on October 29, 1973, that alleged 118 non-serious violations of the Act and proposed the assessment of penalties totalling $2,145.

Respondent timely contested the citation with respect to subitems (a), (b), and (e) of item 13 and sub-items (b) and (c) of item 41 as well as the corresponding penalties for these sub-items. The remaining uncontested items of the citation have become final orders of this Commission pursuant [*2] to section 10(a) of the Act.

A hearing on the contested items was held before Judge Worcester on April 17 and 18, 1974. In his decision, the Judge vacated both the citation and the proposed penalty for each of the contested sub-items finding that complainant failed to sustain his burden of proof. While the Judge based the outcome on substantive matters, he devoted much of his decision to such matters as the "weight" to be accorded the Secretary's interpretation of a standard, whether jurisprudentially the Act is "civil" or "criminal" in nature, and the sufficiency of the pleadings.

The Secretary filed a petition for discretionary review that was granted on August 26, 1974. The Secretary took exception to the Judge's interpretation of Brennan v. Southern Contractors Service & O.S.H.R.C., 492 F.2d 498 (5th Cir. 1974); to his characterization of the Act as "criminal" in nature and the accordingly narrow construction to be given the Act and the regulations; to the Judge's finding that the citation did not describe with sufficient particularity the nature of the alleged violation to the Judge's assignment of erroneous elements of proof to complainant; and to the vacation [*3] of item 13(e) for failure of proof.

Only the last two items go to the merits of the case.

I. Non-compliance with 29 CFR 1910.28(a)(1) -- The Elements

Respondent was cited for a non-serious violation of the Act for its alleged non-compliance with the standard at 29 CFR 1910.28(a)(1) n1 by failing to provide scaffolds for its employees in the tank and plate shop engaged in work that could not be done safely from the ground or solid construction. n2 In arriving at his decision on this issue, the Judge found that in order to establish a failure to comply with the standard at 1910.28(a)(1), the Secretary must show "(1) the work cannot be done safely from the ground or solid construction and, (2) that a specific type of scaffold mentioned in section 28 be used (emphasis added)."

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n1 The standard reads, in pertinent part, as follows:

1910.28 -- Safety requirements for scaffolding

(a) General requirements for all scaffolds.

(1) Scaffolds shall be furnished and erected in accordance with this standard for persons engaged in work that cannot be done safely from the ground or from solid construction. . .

n2 Sub-item 13(e).

[*4]

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The issue of the elements to be established in order to find a failure to comply with the standard at 29 CFR 1910.28(a)(1) has previously been discussed and decided by this Commission. In Bethlehem Steel Corp., No. 2384 (April 3, 1975), this Commission held as follows:

By its terms, the cited standard mandates that work be performed from scaffolds when it cannot be safely performed from the ground or solid construction. It also mandates that scaffolds be erected in accordance 'with this standard,' but it does not by its terms prescribe construction specifications for scaffolds. Accordingly, when cited alone it can only require that work be performed from scaffolds if it is not safe to work from the ground or solid construction (emphasis added; footnotes omitted).

The Judge, therefore, incorrectly stated the elements of a 1910.28(a)(1) non-compliance. All that need be shown is (1) that scaffolds were not furnished by respondent, and (2) that scaffolds were necessary because the work could not be done safely from the ground or solid construction. The specific type of scaffold [*5] to be used need not be established.

Sub-item 13(e)

While inspecting respondent's installation, the compliance officer had occasion to review the operations in the tank and plate shop. This section of respondent's plant contains tanks, kilns, columns and ball mills. The work area is largely devoted to the kilns and ball mills. These are cylindrical structures having diameters between 12 and 27 feet with heights ranging from 15 to 30 feet. The kilns and ball mills are positioned on their sides during the work process. As positioned, they resemble large cans lying on their sides with both their top and bottom lids removed. n3 At times, these units are placed on rollers so that they may be rotated as the work progresses. This placement on rollers raises the units an additional 2 to 3 feet such that the curved tops of these structures are between 15 to 30 feet above the floor level. The units on rollers are rotated approximately six times a day at a speed of 10 or 12 inches per minute. There are occasions when employees will be standing or sitting on top of the units as they are rotated. When this occurs, the rotation is controlled by the employee on the unit by means of a [*6] control button.

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n3 Stipulation Exhibit E, a photograph of the tank and plate shop, is appended hereto for reference.

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The work to be performed on the units is done primarily by welders. The welders' duties essentially consists of hand welding, cleaning, n4 patching, n5 and grinding. n6 Respondent's employees perform some of their assigned tasks from the floor level, some from elevated devices, and some while either standing or sitting on the top of the unit.

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n4 Cleaning is the process of removing the slag, a coating that covers a weld.

n5 Patching involves the filling of a hole with weld and welding the spot to meet the specifications of the other welds.

n6 Grinding is the process of removing high spots on a weld.

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On the day of the tank and plate shop inspection, the compliance officer observed respondent's employee working on the top [*7] of a ball mill approximately 20 feet above the floor level. The employee was off-Joading a manhole cover and bolts from an overhead crane. Respondent provided no scaffold for this procedure. A photograph of this scene is in evidence as Stipulation Exhibit F.

The inspection resulted in the issuance of a citation to respondent alleging its failure to comply with the standard at 29 CFR 1910.28(a)(1). n7

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n7 See note 1, supra.

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As noted previously, the Judge vacated complainant's citation finding that he failed to establish respondent's non-compliance with the standard at issue. We have already concluded, however, that the Judge erred in stating the elements necessary to establish non-compliance with the standard at 1910.28(a)(1) and that the proper elements are (1) respondent's failure to provide scaffolds, and (2) a showing that scaffolds were necessary because the work could not be done safely from the ground or solid construction.

The testimony adduced at the hearing as well as the photographic evidence [*8] introduced as Stipulation Exhibits E and F establish clearly that respondent failed to supply scaffolding in the instance prompting the allegations in sub-item 13(e). The Judge also found this to be so. In their briefs on review, the parties have argued the issue of whether the tanks, kilns, columns, and ball mills on which some employees work are "solid construction" within the meaning of the standard. We find it unnecessary to address this issue because whether or not these units are "solid construction," the testimony and photographic exhibits convince us that the work performed on their surfaces cannot be done safely. The record shows that the employees who work on top of these cylindrical units carry with them numerous tools, and each piece of equipment represents a tripping hazard. Furthermore, one of respondent's welders testified that the various procedures performed on the units tend to create dust particles making the surface slippery. One misplaced piece of equipment or a single slippery patch could cause an employee to fall from one of the curved surfaces to the floor, which is 15 to 30 feet below. Thus, we find respondent in violation of the Act for its [*9] failure to comply with the standard at 29 CFR 1910.28(a)(1).

Complainant has proposed a penalty of $60 for all of item 13, that is, for sub-items 13(a), (b), (c), (d) and (e). In effect, the Secretary is asserting that the same violation exists in five separate locations and, while $60 is an appropriate penalty for any one of the violations, as long as the situations are abated, only one penalty will be proposed. Respondent has stipulated that the proposed penalty is appropriate and reflects due consideration of the section 17(j) penalty factors.

Respondent, however, contested only sub-items (a), (b) and (e). Sub-items 13(c) and (d), therefore, have become final orders of the Commission pursuant to section 10(a) of the Act. We have reviewed the entire record, keeping in mind the stipulation of the parties. We accept the stipulation as being within our holding in Thorlief Larsen & Sons, Inc., No. 370 (October 11, 1974) and find a single penalty of $60 to be appropriate for the non-serious violations found in sub-items 13(e) and the final orders for sub-items 13(c) and (d). n8

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n8 A similar situation developed as to item 41. Item 41 is composed of three sub-items (a), (b) and (c). Respondent contested only sub-items (b) and (c). Sub-item 41(a), therefore, has become a final order and we would expect that respondent either has paid or will pay the $60 penalty for this final order.

[*10]

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II. Other Issues

Although the Judge vacated the citation for complainant's failure to sustain his burden of proof, he nevertheless found that the Secretary had failed to comply with the "particularity" requirements of section 9(a) of the Act. n9 The Judge objected to the Secretary's failure to mention "any facts" upon which the allegations were based.

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n9 29 U.S.C. 658(a).

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The pertinent part of section 9(a) reads as follows:

Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated.

Under both the Federal Rules of Civil Procedure and our rules, the system of "notice pleading" is employed. Mr. Justice Black, speaking for a unanimous Court in Conley v. Gibson, 355 U.S. 41 (1957), noted the application of the "notice" system of pleading. He said

. . . the [*11] Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is 'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests (emphasis added; footnotes omitted). n10

The United States Court of Appeals for the District of Columbia Circuit, in Nat'l Realty & Constr. Co. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973), speaking on "The Relative Unimportance of the Charge," held as follows:

So long as fair notice is afforded, an issue litigated at an administrative hearing may be decided by the hearing agency even though the formal pleadings did not squarely raise the issue. This follows from the familiar rule that administrative pleadings are very liberally construed and very easily amended. The rule has particular pertinence here, for citations under the 1970 Act are drafted by non-legal personnel, acting with necessary dispatch. Enforcement of the Act would be crippled if the Secretary were inflexibly held to a narrow construction of citations issued by his inspectors (emphasis [*12] added; footnotes omitted). n11

In this case, the Secretary satisfied the "fair notice" test, and he fully complied with the requirements of section 9(a). The citation notified respondent as to the nature of the violation, the standard with which it allegedly failed to comply, and the location of the alleged violation. Moreover, it is plain that respondent fully recognized the nature of the Secretary's assertions, and submitted evidence and argument concerning them. Respondent's defense was not prejudiced by any lack of notice.

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n10 355 U.S. 41 at 47.

n11 489 F.2d 1257 at 1264.

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We do not take up here the Judge's views concerning Brennan v. Southern Contractors Service & O.S.H.R.C., supra, because it is unnecessary to do so, and also because it would open up the larger matter of the respective roles of the Commission and the Secretary. For different shades of view on this subject see such additional cases as Brennam v. O.S.H.R.C. & Ron M. Fiegen, Inc., 513 F.2d 772 (8th Cir. 1975); Brennan [*13] v. O.S.H.R.C. & Kesler & Sons Constr. Co., 513 F.2d 553 (10th Cir. 1975); Brennan v. Gilles & Cotting, Inc. & O.S.H.R.C., 504 F.2d 1255 (4th Cir. 1974).

Accordingly, it is ORDERED that the decision of Judge Ben D. Worcester, insofar as it vacates complainant's citation for sub-item 13(e), be reversed and the Secretary's citation for that item be affirmed; it is further ORDERED that a penalty of $60 be assessed for the non-serious violation with due credit given for any payment made pursuant to the final orders in sub-items 13(c) and (d). The remainder of the Judge's decision is affirmed insofar as it is consistent with this opinion.

DISSENTBY: MORAN

DISSENT:

MORAN, COMMISSIONER, dissenting: I disagree with that portion ofthe majority opinion which affirms a violation of the Act for failure to comply with the requirements of 29 C.F.R. 1910.28(a)(1) [sub-item 13(e) of the citation].

I would affirm the Judge's vacation of this sub-item for the same reason set forth in his decision. My colleagues, on the other hand, would substitute their view of the evidence for that of the trial judge, who alone heard all the witnesses and observed heir demeanor at the trial. As they state, supra, [*14] ". . . the testimony and photographic exhibits convince us that the work performed on their surfaces cannot be done safely." See footnote 14 infra for my view of this conclusion.

The only expert opinion testimony offered to prove that the work involved could not be "done safely" without use of a scaffold was that given by the government's safety inspector, Van Kuiken. It is interesting to note, however, that he had never before observed similar operations and was not aware of industry practice. He nevertheless based his opinions on his "past background and judgment." n12 On the basis of this record I find no justification for reversing the Judge and reaching the conclusion in the Commission's opinion: that work performed on the top surfaces of the units could not, as a matter of law, be done safely.

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n12 In his opinion Judge Worcester comments that "Apparently his [Van Kuiken's] superior officer, Hanna, did not think much of his past experience and judgment because Hanna approved a citation for failure to erect scaffolds in Items 13(a) and (b) instead of failure to use a proper ladder" [as Van Kuiken had recommended].

[*15]

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In Secretary v. Grayson Lumber Company, Inc., 3 OSAHRC 541 (1973), the Commission refused to find the respondent in violation of the Act where the only evidence elicited to establish employee exposure to "hazards" was the opinion evidence of the government safety inspector that injuries were possible. In addition, the record in Grayson indicated a long history of absence of such injuries. Similarly, the record in this case discloses that there have been no employee injuries resulting from the allegedly unsafe work practice involved. n13 It further discloses that respondent employs such devices as platforms, scaffolds and elevators for those work situations where it is determined that the job cannot be done safely without them. n14

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n13 It should be noted that neither of complainant's two employee witnesses testified that working on top of the units was unsafe. My colleagues' opinion states that employees sit or stand on the units as they are rotated. To the contrary, employee Huber testified that employees never sit on the units while they are rotated because such practice would be unsafe.

n14 It is interesting to note that 100 pages of hearing transcript was devoted to testimony adduced by the employer but Messrs. Cleary and Barnako do not see fit to cite one word of it in their 10 pages of reasons for finding against this employer. Nor do they refute Judge Worcester's credibility finding that:

"The testimony as to how and when to use scaffolds by two Allis Chalmers officials, Churchill and Upenden Rau, a graduate engineer, and supervisor in the Heavy Fabrication Shop since 1965 far outweighs the testimony of Van Kuiken [complainant's inspector]. All three were credible witnesses, but Van Kuiken's views were not supported by enough knowledge of the subject to be persuasive."

[*16]

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The record fully supports Judge Worcester's finding that the testimony of respondent's witnesses regarding the necessity to use scaffolds during the cited job functions was more credible than that that of the compliance officer. n15 The evidence establishes that less than one (1%) percent of the man-hours worked in the Tank and Plate Shop is spent on top of the units. During other operations work is done from the floor, from elevators, platforms, or scaffolds, when it is decided that this would be the safer approach.

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n15 Compare the following testimony:

Compliance Officer: "It doesn't take a genious [sic] to figure out . . . that the individual is exposed to harm from falling on a round cylindrical surface with no protection . . . the average common layman could be able to figure this out without even or using his common sense." (Hearing transcript p. 192).

Respondent's Unit Manager of 15 years: "With the experience we have in the shop we determine that, [when it is unsafe not to use a scaffold] the shop manager is capable of deciding those things. It is a judgment kind of thing we decide based on a job by job basis." (Hearing transcript p. 282).

[*17]

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It is clear to me -- as it was to the Judge who heard this case -- that complainant has failed to sustain his burden of proving that "persons [were] engaged in work that cannot be done safely" from the ground or solid construction so as to necessitate the use of scaffolds. Secretary v. Daniel Construction Company, 10 OSAHRC 531 (1974), Secretary v. Bethlehem Steel Corporation, 16 OSAHRC 527 (1975)

The facts of this case perfectly illustrate the dangers of applying a standard which affords an employer little warning of what is required by way of compliance. Scaffolds must be furnished when work "cannot be done safely." Such a requirement fails to make clear which conditions necessitate their use. As the court noted in Cape and Vineyard Division of the New Bedford Gas and Edison Light Company v. OSAHRC, 512 F.2d 1148 (1st Cir., 1975).

[a] regulation without ascertainable standards . . . does not provide constitutionally adequate warning to an employer unless read to penalize only conduct unacceptable in light of the common understanding and experience of those working in the industry. [*18]

The court established, as the appropriate test in these circumstances, the standard of a reasonably prudent man familiar with the circumstances of the industry. To find respondent in violation of 1910.28(a)(1), in the light of evidence indicating that the cited practices were the same as that of other companies in the industry, and in spite of the absence of any injuries therefrom, is to apply just such a constitutionally inadequate standard.

The court in Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir., 1974), employing a reasonable man standard, relied on a history of injuries in rejecting respondent's assertions that it did not and could not know what was required by the Act. Respondent Allis-Chalmers did not have the experience of such a history of injuries as a warning that it was violating the Act.

For the reasons set forth above I would affirm Judge Worcester's disposition of this item.

I would also like to add one additional point to this opinion in order to exemplify the error implicit in my colleagues' espousal of liberality in pleadings.

In both criminal and civil practice the only purpose of pleadings is to give notice to the parties to [*19] the litigation: to inform a defendant what he is being charged with or what he is being sued for. Under this Act, however, citations are served in order to effect correction of hazardous working conditions. That is why the statute specifies that the citation must

. . . describe with particularity the nature of the violation . . . 29 U.S.C. 658(a).

I can sympathize with the fact that citations are issued by non-legal personnel but when these people do not specify what's wrong, how is the employer to know what should be done to correct the problem? And when that is the case -- as it is here -- there is no way that the correction of a hazardous condition (in the manner desired by the Secretary of Labor) can be achieved.

As the Judge pointed out: "The Secretary in both the citation and the complaint merely paraphrased the standard without mentioning any facts which would indicate in what manner it was violated."

My colleagues say this doesn't matter because "the Secretary satisfied the 'fair notice' test. They give the Secretary passing marks in legal pleadings and practice. But, in my view, we are not conducting a bar exam. The proper test here is: Has the Secretary implemented [*20] the Occupational Safety and Health Act? Has he made it clear to this respondent what must be done to achieve safer working conditions at the West Allis Manufacturing Operation? I submit that, on this record, only a negative answer to these two questions is plausible.

[SEE ILLUSTRATION IN ORIGINAL]

[The Judge's decision referred to herein follows]

WORCESTER, JUDGE: This proceeding arises pursuant to a timely notice of contest filed by the Respondent, under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq. ) hereinafter called the Act. On October 29, 1973, a citation was issued alleging that the Respondent had violated Section 5(a)(2) of the Act. As amended November 20, 1973, the notice of contest consisted of 118 items alleging nonserious violations of the standards. The notice of contest was limited to Items 13(a), (b) and (e), and 41(b) and (c). All other items have become a final order by operation of law and are not in issue. The case was heard in Milwaukee, Wisconsin on April 17 and 18, 1974.

The following citations are in issue:

Item 13. 29 CFR 1910.28(a)(1)

Employer [*21] failed to provide that scaffolds shall be furnished in accordance with this standard for persons engaged in work that cannot be done safely from the ground or solid construction, except that ladders used for such work shall conform to 1910.25 and 1910.26; i.e.,

(a) employees working, 3 Erecting Floor;

(b) employees working, 2-1/2 Shop;

(e) employees working on top of tank, pumps, column assemblies in Tank and Plate, Erecting Floor, Shop areas.

Item 41. 29 CFR 1910.133(a)(1)

Employer failed to provide that protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment; i.e.,

(b) need side shields for machine tool operators in Mill Shop and Plant;

(c) need side shields for electricians, Bay 2, Column 15.

Allis Chalmers Corporation, is a corporation engaged in commerce within the meaning of the Act and an employer engaged in the production and fabrication of heavy industrial equipment at West Allis, Wisconsin. There are approximately 5000 employees in this plant which covers 158 acres and consists of 115 buildings. The plant is divided into what the company refers to as "profit centers" which [*22] operate independently from separate areas in the plant. The particular profit center involved in the instant case is known as the West Allis Manufacturing Operation generally referred to as WAMO. In this profit center, Allis Chalmers engages in the fabrication and manufacture of power generators, steam turbines, industrial size compressors and pumps, cement and mining equipment, electrical generators and power transformer tanks.

From August 20th to 24th, 27th through 31st, September 4th through 7th and on September 7th and 10th the Secretary's Safety and Health Compliance Officer Phillip Van Kuiken, conducted an inspection of WAMO. He testified that on August 23, 1973 he had observed an employee working on the top of a ball mill at an elevation 12 feet above the floor. There was no scaffold. He also observed a ladder which the same employee had used to gain access to his working position. Van Kuiken said that the ladder was too short. He said that he saw this man climb from the top rung to the top of the kiln. He thought there was a risk of falling when climbing to the top, so he recommended issuance of Item 13(a) of the citation.

On September 5, 1973, he saw an [*23] employee on top of a power transformer tank in the 2-1/2 Shop. He said he could see that this man had ascended by means of a step ladder which was several feet short of reaching the top. Van Kuiken said that he thought that there was a risk of injury to this employee but he didn't specify as to whether it was because the ladder was too short or because there was no scaffold. This was the basis for the alleged violation described in Item 13(b) of the citation.

On August 23, 1973 the witness also observed an employee working at Bay No. 10 in the Tank and Plate area. This man was on top of a rotary kiln which was lying on its side. He was off-loading a manhole cover and some bolts from a crane. There was no scaffold. The alleged violation described in Item 13(e) of the citation was based upon this observation.

The charge of violation of 29 CFR 1910.133(a)(1) is based upon observation of the machine operators in the Mill Shop and Plant working without sideshields on their safety glasses on August 26, 1973. His recollection as to the type of machine they were working on was vague but he thought it was a lathe. On August 20, 1973, he had seen an electrician in the Tank and Plate [*24] Shop at Bay No. 2, Column 15, who was wearing safety glasses without sideshields. The electrician was not using any equipment which would cause flying particles himself but he was in an area where other employees were chipping and grinding welds on a kiln. When asked to estimate the distance the electrician was from the other employees he was unable to state except that "he was in close proximity." On August 30, 1973, in No. 3 Shop, South, Low Bay area, employees were observed using milling machines, turret lathes, and hydro test milling machines while wearing safety glasses that had no sideshields. He said that he saw particles being blown into the air there. All of these observations served as a basis for a recommendation of the alleged violations described in Items 41(b) and (c) of the citation.

Allis Chalmers challenges the validity of both 29 CFR 1910.28(a)(1) and 29 CFR 1910.133(a)(1) on the ground that they are so vague and inspecific as to be unenforceable. A regulation which is in conflict with a statute enacted by the Congress is void. See Utah Power & Light Co. v. United States, 243 U.S. 389, 410 (1970); Maritime Commission v. Anglo Canadian Shipping [*25] Company, 335 F. 2dd 255 (9th Cir. 1964). The Secretary asserts that his interpretation of a standard is entitled to great weight and contends that his interpretation is controlling as long as it is one of several reasonable interpretations. The case of Secretary of Labor v. Southern Contractors Service, 492 F. 2d 498 (5th Cir. 1974) is cited in support of this argument.

The Court in Southern Contractors Service did say, as the Secretary argues, that his interpretation of his own regulations is entitled to great weight but it appears that this court was not aware of the difference between a proceeding before the Occupational Safety and Health Review Commission and the interpretation of a regulatory commission standard. In proceedings before agencies having rule making powers, such as the Interstate Commerce Commission, Congress had delegated its authority to carry out the National Transportation Policy of the United States to the agency, because it is assumed that the agency has expertise in the administration of this policy. Accordingly, when such an agency has before it a large number of shippers, local public officials, public carriers and other persons who have an interest [*26] in such matters as operating rights, tariffs, fares and other purely regulatory issues, the regulations which this agency has promulgated are and should be given great weight. This rule is derived from the conclusion that an agency having regulatory responsibility is presumed to know its own intentions. This theory is not applicable to the adjudication of enforcement procedures initiated by the Secretary of Labor involving citations issued under the Occupational Safety and Health Act of 1970.

The Senate bill (S. 2193) as originally drafted gave the Secretary hearing powers in enforcement cases, but this provision was deleted before enactment. A substitute bill (S. 4404) took all hearing powers away from the Secretary. In a statement filed in support of the substitute bill the following comment was made (Legislative History 298):

The reported bill follows the simplistic approach of placing all functions in the Secretary of Labor. He would set the safety and health standards, conduct the inspections, prosecute violations before Labor Department hearing examiners; and he again, would be the one to issue citations and corrective orders, and to assess the monetary penalties. [*27] The reported bill's regulatory procedures have been compared to having the Chief of Police, in addition to his regular duties of conducting inspections, also write the criminal laws and then act as judge and jury.

Under both bills, the Secretary of Labor would be authorized to conduct inspections and investigations. But under the substitute bill, the Secretary would not hear the case and pass judgment on the offender. Instead, the substitute proposal would create an independent Presidentially appointed Occupational Safety and Health Appeals Commission whose only function would be to conduct hearings on alleged violations discovered by the Secretary; and the Commission would, on the basis of its decision, issue any necessary corrective orders, as well as assess civil penalties.

Senator Javits speaking in support of the substitute bill said (Legislative History 392):

. . . hearing and determination of enforcement cases by an independent panel more closely accords with traditional notions of due process than would hearing and determination by the Secretary. In the latter case the Secretary is essentially acting as prosecutor and judge. Any finding by the Secretary in favor of [*28] a respondent would be essentially a repudiation by the Secretary of his own Department's employees. While this type of enforcement has been used in connection with other statutes, is contemplated by the Administrative Procedures Act, and is not jurisdictionally defective on due process grounds, the awkward mechanics it imposes upon heads of departments who wish to exercise their adjudicatory power personally in order to preserve due process has not generally been appreciated. What happens is that one official of the Department -- such as the Deputy Solicitor -- will take the position of prosecutor and another official -- such as the Solicitor -- will take the position of a neutral in order to advise the Secretary.

The Secretary promulgated the regulations. The Secretary also has the duty to enforce them, but his standards are not made in adversary proceedings. For that reason they are not entitled to the weight which is accorded interpretations by administrative agencies entrusted with the responsibility of making inter partes decisions. See Fishgold v. Sullivan Drydock and Repair Corporation, 66 S. Ct. 1105, 1113 (1946); Skidmore v. Swift and Company, 65 S. [*29] Ct. 161, 163 (1944). Even where an administrative body has the hearing power itself, its interpretations may be considered but they are not conclusive. Schild v. Busch, 293 F. Supp. 1353, (D.C. Tex. 1968).

The Review Commission is more like a court than a regulatory agency. Like a court it is required to give fair consideration to the Secretary's argument asserting the validity of his regulations, but, because the Secretary is also a litigant, the Commission is not bound by the Secretary's conclusions. Moreover, the Commission has a duty to examine the Secretary's regulations very carefully to see whether the employer is being afforded due process of law. Because the Review Commission is an administrative body it cannot declare an Act of Congress unconstitutional, but neither can the Secretary of Labor nullify an act of Congress by promulgating a regulation. If the regulation contravenes a statute it is void. If it is apparent that a standard is vague and confusing it is a violation of due process to permit the prosecution to stand, and the administrative body which has the power to decide is under duty to declare such usurpation of the authority of Congress void and unenforceable. [*30] American Ship Building Co. v. N.L.R.B., 85 S. Ct. 955, 967 (1965).

A policy of Congress cannot be defeated by the policy of an agency, see Colgate Palmolive-Peet Co. v. N.L.R.B., 70 S. Ct. 166 (1949). Neither courts nor executive agencies may proceed contrary to an act of Congress. United States v. State of California, 67 S. Ct. 1658, opinion supplemented, 68 S. Ct. 20, rehearing denied 68 St. 37, petition denied 68 S. Ct. 1517. If the existing remedial powers of an agency having authority to enforce the provisions of a body of law are insufficiently broad to cope with important labor problems, it is the responsibility of Congress, not the agency, to act. H.K. Porter Co. v. N.L.R.B., 90 S. Ct. 821 (1970), Administrative agencies are not free to substitute their own standards for the standards imposed by statute. Kettel v. Johnson and Johnson, 337 F. Supp. 892 (D.C. Ark. 1972).

Administrative interpretations of a statute must fall where clearly unsanctioned by law. United States v. U.S. Alkali Export Association, 86 F. Supp. 59 (D.C.N.Y. 1949). Administrative interpretations cannot alter provisions which are clear and explicit; Standard [*31] Oil Co. v. Fitzgerald, 86 F.2d 799, 802 (6th Cir. 1936), and will not overcome a statute which is plain and unambiguous, United States v. Youngstown Sheet and Tube Co., 171 F.2d 103 (6th Cir. 1948). A statute cannot be altered or amended by administrative interpretation. (Ibid.)

The Secretary's contention that he is entitled to plead in general terms based upon an introductory portion of a standard pertaining to scaffolds and one pertaining to eye protection is totally without merit. This is not fair notice. Moreover, the Occupational Safety and Health Act and the standards must be construed strictly, not loosely. Even though it is not denominated a criminal statute the Occupational Safety and Health Act's purpose and effect is to punish an employer. For that reason the Act and the regulations must be construed like a criminal statute. Schild v. Busch, 293 F. Supp. 1353, 1355 (D.C. Tex. 1968).

However, that issue is not reached because the Secretary has not complied with the requirement of 29 U.S.C. 658(a) that the citation describe the nature of the alleged violation with particularity nor has the Secretary sustained the burden of proof that there was a violation [*32] of the standards as alleged in the complaint. The Secretary in both the citation and the complaint merely paraphrased the standard without mentioning any facts which would indicate in what manner it was violated.

The Secretary's compliance officer, Van Kuiken, was presented as an expert witness without objection by the Respondent. However, the degree of expertise he possesses was not apparent from the record. Van Kuiken testified that he had a degree in industrial management from Roosevelt University in Chicago and that he had attended Milwaukee Area Technical College where he took classes in first aid, industrial ventilation, and some others which he could not recall and that he had some training by the Secretary of Labor. His previous work experience included two years as a management production supervisor with Continental Can Company. He said that 10 to 20 percent of his supervisory responsibility involved safety and welfare. When asked on cross examination on what basis he concluded that a hazard had existed when he recommended the issuance of the various citations the only answer he could give was "past experience and judgment." Apparently his superior officer, [*33] Hanna, did not think much of his past experience and judgment because Hanna approved a citation for failure to erect scaffolds in Items 13(a) and (b) instead of failure to use a proper ladder. n1

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n1 "Q. . . . what was the reason that you cited employees working on three erecting floor?

A. Ladder too short for the job being performed."

"Q. . . . was the citation issued under (b) done for the same reasons the citation was issued in 13(a)?

A. Yes.

Q. That is the ladder?

A. Yes, it was."

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Section 1910.28(a) is entitled "General requirements for all scaffolds." Subparagraph (1) makes it clear that scaffolds should be furnished and erected "in accordance with this standard" when work cannot be done safely from the ground or from solid construction. Subparagraph (1) is followed by 27 other subparagraphs including 2 pages of tables. Subparagraph (a) is followed by other alphabetically designated subparagraphs through the letter "v". These were further subdivided into numerical paragraphs in which variious types [*34] of scaffolds were mentioned such as: wood pole, tube and coupler, tubular welded frame, outrigger, masons adjustible multiple point suspension, two-point suspension, stone setters adjustable multiple-point suspension, single-point adjustable suspension, boatswain's chairs, carpenters bracket, bricklayers' square, horse, needle beam, plasters' decorators and large area, interior hung, window jack, roofing, crawling boards or chicken ladders and float or ship scaffolds. This section establishes safety requirements for the:

construction, operation, maintenance, and use of scaffolds, used in the construction, alteration, demolition and maintenance of buildings and structures. n2

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n2 29 CFR 1910.28(v).

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The Secretary wrestled with the problem of deciding whether to cite Allis-Chalmers from the time the last inspection was made in early September until October 29, 1973, when the citation was finally signed. The testimony of Van Kuiken and Hanna shows that they were awash in a sea of uncertainty as to whether [*35] to charge Allis-Chalmers with failure to provide and require the use of proper ladders when working on the ball mill and the transformer tank or failure to provide a scaffold. At some unspecified time it was decided to charge Allis-Chalmers with failure to provide scaffolds both in those two areas and on the kiln where the empioyee was off loading supplies, but they never were able to decide what kind of a scaffold should be used.

The testimony as to how and when to use scaffolds by two Allis Chalmers officials, Churchill and Upender Rau, a graduate engineer, and supervisor in the Heavy Fabrication Shop since 1965 far outweighs the testimony of Van Kuiken. All three were credible witnesses, but Van Kuiken's views were not supported by enough knowledge of the subject to be persuasive.

Section 1910.28(a)(1) is, as its title makes clear, an introductory statement to notify all employers that they must furnish scaffolds whenever work cannot be done safely from the ground or from a solid surface. This paragraph is followed by a great number of other paragraphs which explain how various scaffolds are to be used. No evidence was adduced showing that scaffolds were necessary on the ball [*36] mill, or on the tank. Moreover, both of the employees on these units were working on a solid surface while sitting down. No evidence was adduced to show that it would be feasible to install a scaffold upon a rotary kiln for off loading materials or, assuming that a scaffold was necessary, what kind of scaffold it should be.

The Secretary, in order to sustain the allegation of a violation of Section 28(a)(1) has the burden of proof that (1) the work cannot be done safely from the ground or solid construction and, (2) that a specific type of scaffold mentioned in Section 28 be used. The Secretary has failed to do this.

The Secretary has not adduced persuasive evidence that there was a violation of 29 CFR 1910.133(a). Van Kuiken again was somewhat vague and uncertain. His recollection was not acute. Contrasted with that was the testimony of John Churchill, a full time safety engineer employed by the Respondent since 1943. He said that a program requiring the wearing of safety glasses was instituted between 1949 and 1951 and that this safety requirement had reduced eye injuries by 81 percent. Churchill testified that since keeping OSHA records beginning in 1971 there [*37] had been nine lost time accidents involving eye injuries, six of those were in cases where the employees were wearing side shields. The other three included a fireman in a power house who got a foreign body in his eyes thought to have happened while he was shoveling coal, an industrial engineer in the fabrication shop and a grinder who was not wearing the eye protection that was required by Company rules.

Even if it were assumed that the Complaint alleges a good cause of action and that the standard is not so vague as to be unenforceable, the evidence offered in support of the Secretary's citation does not show that there was a violation of Section 1910.22(a)(1). Van Kuiken's description of what he observed does not show that there was a reasonable probability that an injury would occur or that side shields would have prevented such an injury. The evidence of the Respondent overwhelmingly rebuts any such inferences. In order to establish a violation of 29 CFR 1910.133(a) it must be shown (1) that there was a reasonable probability of injury or (2) that there is a known existing hazardous environmental condition or (3) that machines or operations present the hazard of flying objects, [*38] glare, liquids, injurious radiation, or a combination of these hazards. See Secretary of Labor v. Schnadig Corporation,

Based upon the record as a whole the following findings and conclusions are made:

FINDINGS OF FACT

1. The Respondent Allis Chalmers Corporation is an employer engaged in commerce with the meaning of the Occupational Safety and Health Act of 1970 and subject to the jurisdiction of this Commission under the Act.

2. The employees observed on top of the ball mill, the transformer tank and the rotary kiln were not exposed to any hazard which would require a protective scaffold.

3. The employee observed working on the ball mill in Number 3 Erecting Floor and the employee observed working on the transformer tank in the 2-1/2 Shop Items 13(a) and 13(b), were on a flat solid surface and in a sitting position and were not exposed to any hazard while performing this work.

4. The Secretary has not adduced proof showing that a scaffold could be used on top of a rotary kiln or that it is necessary as alleged in item 13(e) of the Citation. [*39]

5. The Secretary has not sustained the burden of proof that machine tool operators in the Mill Shop and Plant need side shields.

6. The Secretary has not sustained the burden of proof that an electrician present at Bay 7, Column 15 on the date alleged in the citation needed side shields.

CONCLUSIONS OF LAW

1. The Respondent, Allis-Chalmers Corporation, is and was at all times relevant to this proceeding an employer subject to the provisions of the Occupational Safety and Health Act of 1970.

2. The Occupational Safety and Health Review Commission has jurisdiction of the Respondent and the subject matter of this proceeding.

3. The Secretary has failed to sustain the burden of proof that the Respondent, Allis-Chalmers Corporation, violated 29 U.S.C. 654(a)(2) and Sections 1910.28(a)(1) and 1920.133(a)(1), Title 29, Code of Federal Regulations as alleged in the citation issued October 29, 1973, and the complaint.

ORDER

It is therefore hereby ordered that Items 13(a), (b) and (e) and 41(b) and (c) of the citation be vacated. There being no justiciable issue involving penalties this proceeding is dismissed.