Authorized Employee Representative.



Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.


This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

The case involves the Secretary of Labor's ("Secretary") allegation that Hamilton Die Cast ("HDC") committed a repeated violation of the standard at 29 C.F.R. 1910.212(a)(1).[[1]]  The Secretary contends on review that HDC violated the standard by failing to use a shield as a barrier on an operating die casting machine.  The shield was allegedly needed to protect the machine's operator and other employees from the hazards created by hot metal that was occasionally ejected from the dies of the machine.  The administrative law judge found that the standard was violated, characterized the violation as a repeated violation, and assessed a $150 penalty.  We reverse the judge's decision.

HDC is a corporation engaged in the production and sale of aluminum die castings from its plant in Hamilton, Ohio.  The company manufactures a variety of different castings from fifteen cold chamber die casting machines.  A machine operator obtains molten aluminum from a furnace close to his machine and pours the aluminum into a small hole in the machine called a "shot hole."  The operator next activates the dies of his machine by pushing two palm buttons located about two or three feet from the dies.  When the dies come together the aluminum is forced into the die cavities and a product is formed.  The dies are then opened and the product is removed.

Occasionally, when the dies are brought together, the pressure which forces the molten aluminum into the cavities of the dies causes some of the molten aluminum to be expelled from the line where the dies meet (the "parting line").  The aluminum, which has been heated to 1140 F., is expelled as a fine mist ("spit") that may travel an indefinite distance in all directions and possibly burn employees within its range.

On January 25 and 26, 1979, the Secretary inspected HDC's plant and subsequently issued a citation for repeated violations of the Act.  Item 2 of this citation alleged as follows:

29 CFR 1910.212(a)(1):  Machine guarding was not provided to protect operator(s) and other employees from hazard(s) created by flying hot metal:

(b) The shield at the operator's side of the #2 die casting machine was not being used while it was in operation.

This item also included another subpart that the judge vacated and is not before us for review.

The Secretary had previously inspected HDC's die casting machines in 1977 and had issued a citation also alleging HDC's violation of section 1910.212(a) (1) for failure to have shields in place to protect employees from the ejection of hot metal.   Subsequent to the receipt of the 1977 citation, HDC's president, Woltering, met with four OSHA officials:  Connors, the acting area director; and Paull, Collins, and Ellwood, the compliance officers who had conducted the inspection.  Woltering discussed with them the problems of installing operator-side shields on HDC's die cast machines and agreed to install interlocking side shields on all the machines, not just those specified in the citation, if OSHA agreed to allow him sufficient installation time.  He also explained, however, that during core pulls, where a piece of metal is suspended within the cavities of a die to make a portion of the casting come out hollow, the core pull mechanism extends as much as five or six feet out from the side surface of a die and therefore extends beyond the point where a spit guard door shield would be.   Woltering stated:

In the meeting that we had I pointed out to those people present in the meeting that there would be dies that would have core pull mechanisms on them that would extend beyond the reasonable travel area or extension area of a spit guard door.  And I asked them if, in fact, they wanted us to refuse any additional business of that type and surrender the business of that type we had.  They said, no, on those occasions, of course, reason would dictate that you simply disconnect the mechanism of the door, the interlocking mechanism while that die is being run.

As many as eighty percent of HDC's castings involve core pulls.  Core pulls are performed on all HDC die cast machines.

After the meeting, the 1977 citation was amended to include additional machines.  HDC did not contest the amended citation and subsequently installed side shields on its die cast machines which extended about two feet beyond the parting lines of the dies on the machines.  The side shield on its number two machine, however, was not being used when the 1979 OSHA inspection was
conducted because the machine was performing a core pull.  HDC president Woltering testified that the door shield for machine number two was open during the core pull because OSHA had agreed that HDC could leave its door shields open during core pulls at the meeting concerning HDC's 1977 OSHA citation.

HDC contested the Secretary's 1979 citation and a hearing was held before an administrative law judge of the Commission.  The judge found that HDC violated 1910.212(a)(1) by failing to guard the operator's side of machine number two.  He classified the violation as repeated based on the 1977 citation.  The judge did not make any factual findings as to whether OSHA officials had agreed that HDC could dispense with the need to use side shields during core pulls.

HDC petitioned for review of the judge's decision and review was directed on, inter alia, whether the application of section 1910.212(a)(1) to the cited conditions violated constitutional due process notice requirements.  For the reasons that follow, we conclude that due process requires that the citation for violation of section 1910.212(a)(1) be vacated.  We, therefore, do not reach the other issues directed for review.

A fundamental principle of due process is that one charged with violating a statute or regulation is entitled to adequate notice of what is required by that statute or regulation.  HDC contends it did not have such notice because the generality of the language in the standard, "combined with the assertions made by OSHA agents to the president of the company that the use of the operator's safety door was not required when a die with an extending core pull was being run," led HDC to believe that it was unnecessary to use spit shields during core pulls.  The Secretary contends that HDC was on notice from the prior citation itself of a need to provide guards to protect against hot metal.  The Secretary further disputes that his agents made the representation described by Woltering. The Secretary points out that the judge did not address Woltering's testimony and asks that we construe the judge's silence as an implicit credibility determination which should not be disturbed.

As HDC contends, section 1910.212(a)(1) is a broad standard generally applicable to the hazards presented by the moving parts of all types of industrial machinery unless a more specific machine guarding standard applies.  Ladish Co., 10 BNA OSHC 1235, 1982 CCH OSHD 25,820 (No. 78-1384, 1981).  See Diebold, Inc. v. Marshall, 585 F.2d 1327, 1333 (6th Cir. 1978).  It has been recognized by the Commission as a performance standard, and as such the standard requires that the employer exercise a certain degree of judgment in evaluating whether its machinery is in compliance with the standard and what types of guarding methods would be appropriate to achieve compliance.  Stacey Manufacturing Co., 82 OSAHRC 14/B1, 10 BNA OSHC 1534, 1982 CCH OSHD 25,965 (No. 76-1656, 1982); George C. Christopher & Son, Inc., 82 OSAHRC 9/A2, 10 BNA OSHC 1436, 1982 CCH OSHD 25,956 (No. 76-647, 1982).

In this case, in an attempt to obtain guidance from the Secretary in ascertaining its obligations under the standard, HDC inquired of the Secretary's representatives whether guarding was required during the performance of one specific work operation, the core pull. In response HDC was informed that side shields would not have to be in place at these times.[[2]]  Despite this representation, the Secretary subsequently issued the citation now before us, alleging a violation of the standard for failure to use a shield during a core pull operation.

We conclude that to affirm this citation and find HDC in violation as alleged by the Secretary would be contrary to the fundamental principle of due process that statutes and regulations which purport to govern conduct must give an adequate warning of what they command or proscribe.  Diebold, supra, 585 F.2d at 1335.    In considering a similar situation in which compliance officers made representations to an employer regarding the measures necessary to achieve compliance with a standard, the D.C. Circuit noted that such representations or interpretations of a standard by compliance officers are relevant in a particular case to whether an employer has adequate notice of what is required under the Act.  L. R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664, 676 (D.C. Cir. 1982).  In view of the general nature of the cited standard and the lack of any express language specifically addressing die casting machines, HDC cannot reasonably be said to have been on notice of a requirement to guard during core pull operations once the Secretary had informed HDC that guarding was not needed at such times.  See Auto Sun Products, 81 OSAHRC 71/E14, 9 BNA OSHC 2008, 1981 CCH OSHD 25,808 (No. 77-2616, 1981), petition for review dismissed, No. 81-3503 (6th Cir. Jan. 6, 1982); cf. Kent Nowlin Construction Co. v. OSHRC, 593 F.2d 368, 371 (10th Cir. 1979) (employer "should not be penalized for deviation from a standard the interpretation of which . . . cannot be agreed upon by those who are responsible for compelling compliance with it").

Accordingly, we find that HDC has not violated 29 C.F.R. 1910.212(a)(1), and we vacate the citation item in issue.



DATED:  JUL 20 1984

CLEARY, Commissioner, dissenting:

I dissent from the majority's decision to vacate the citation in this case.  Essentially, the majority has made a factual determination, based on the testimony of a single witness, that has determined the outcome of the case.  The majority finds HDC has not violated cited section 1910.212(a)(1) after determining that HDC president Woltering, according to his testimony, was told by an OSHA official that the interlocking mechanism on the spit shield doors of HDC's die cast machines could be disconnected during core pulls.  The administrative law judge who heard this case and who observed Woltering while the latter was testifying had the opportunity to make the same factual determination as the majority does, but did not do so.

My reading of the record does not allow me to conclude that OSHA granted HDC an exemption from the standard's requirement. Only one very brief reference to the OSHA statement authorizing the disconnecting of interlocks is found in the record, and that in Woltering's testimony.  Woltering testified that the authorizing statement had been made at a meeting he had attended with OSHA officials in 1977 following issuance of a citation against HDC for violation of the same standard as is involved in this case. However, Paull, an OSHA industrial hygienist who had been present at that meeting, testified at the hearing in this case and failed to confirm Woltering's testimony on the point.  Woltering himself failed to specify in his testimony which particular OSHA official made the authorizing statement.  Further, Paull, who also was involved in the inspection in this case, is unlikely to have recommended that HDC be cited for not using side shields during core pulls if HDC had been authorized at the 1977 meeting to dispense with the use of side shields during core pulls.

I also believe it unlikely that OSHA would have granted the dispensation it is said to have granted and yet not put it in writing.  As the Sixth Circuit court of appeals held in Empire-Detroit Steel Div., Detroit Steel Corp. v. OSHRC, 579 F.2d 378, 383 (6th Cir. 1978):

"[M]en must turn square corners when they deal with the Government."  We are cited to no statute, regulation or other authority that would authorize an attorney for the Secretary of Labor to enter into a binding compromise by means of a telephone conversation, without formalizing the compromise by a written agreement.

Up to eighty percent of HDC's castings involved core pulls.  I cannot conclude from this record that OSHA waived the protection afforded employees by side spit shields for such a substantial portion of HDC's workload without recording the waiver.

Moreover, in the two year period between the time when HDC was last cited for a violation of the standard and the inspection in this case, HDC had abundant opportunities to observe its employees' exposure to parting line spit while side shields were open during core pulls.  HDC's expert, Harvill, testified that spitting is "very common" in the die cast industry and that there is a "strong need to protect" die cast machine operators from spit.  Compliance officer Zucchero testified that a machine operator could be protected during core pulls simply by "extending the side shield a little further away from the machine."   Zucchero's testimony on the matter was not disputed by HDC and HDC's Exhibit D indicates that HDC had been able to design guards to accommodate core pulls.  Therefore, I am concerned that there was a continuing hazard here of which HDC was aware, and which HDC could have abated.

Consequently, I would find that HDC violated the cited standard.

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[[1]] Section 1910.212(a)(1) provides:

1910.212 General requirements for all machines.

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

[[2]] We agree with HDC that Woltering's testimony establishes that the OSHA officials represented to Woltering that the interlocks on HDC's sliding spit shields could be disconnected during certain core pulls.  Although the administrative law judge failed to specifically resolve this point, we see no basis for taking his silence on the matter as an implicit credibility finding against HDC. Instead, we note that Woltering's account of the discussion at the informal meeting between himself and OSHA officials Connors, Paull, Collins, and Ellwood was not refuted by the testimony of any of the other participants at the meeting, even though Paull gave rebuttal testimony in this case and Connors was available to testify in the case but did not.