Docket No. 1060

STEVENS EQUIPMENT CO.

OSHRC Docket No. 1060

Occupational Safety and Health Review Commission

April 27, 1973

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: On December 4, 1972, Review Commission Judge Erwin L. Stuller issued his decision in this case finding respondent in violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., 84 Stat. 1590, hereinafter referred to as the Act) for failure to comply with the occupational safety and health standard published as 29 C.F.R. 1910.217(c)(1)(i). He assessed a penalty of $250 for the violation. n1 Thereafter, pursuant to section 12(j) of the Act, I directed that the decision be reviewed by the Commission.

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n1 A number of other violations which had been alleged were admitted by respondent prior to hearing. The judge's decision with respect thereto is hereby affirmed.

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The Commission has reviewed the record in this case, including the brief filed by complainant. Respondent submitted no brief. On the basis of such review, the Commission find that the Judge erred in finding that the respondent's failure to comply with 29 C.F.R. 1910.217(c)(1)(i) constituted a violation of section 5(a)(2) as charged.

The cited standard provides as follows:

It shall be the responsibility of the employer to provide and insure the usage of 'point of operation guards' or properly applied and adjusted point of operation devices on every operation performed on a mechanical power press.

The record establishes by substantial evidence that respondent did not provide such "point of operation guards" on a mechanical power press located at his place of employment at the time alleged in the citation: May 17, 1972. It was error, however, to rule that this failure constituted a violation of section 5(a)(2) because the cited requirement was inapplicable, as a matter of law, to respondent's machine at such time.

Time limitations on the coverage of the occupational safety and health standard allegedly violated by respondent are specified in 29 C.F.R. 1910.217(a) as follows:

(1) New Installations. The requirements of this section pertaining to construction shall apply to all mechanical power presses installed on or after August 31, 1971.

(2) Former Installations. All mechanical power presses installed prior to August 31, 1971, shall be brought into conformity with the requirements of this section not later than August 31, 1974.

(3) All Installations. The requirements of this section pertaining to the care and use of mechanical power presses shall apply to all mechanical power press operations as of February 15, 1972 [emphasis added]. n2

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n2 The term "this section" used throughout the quoted portion of the regulation means 29 C.F.R. 1910.1217 and all the subsections thereof.

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The record reveals that the unguarded machine, which was the subject matter of the contested citation in this case, had been in use in respondent's plant for approximately 20 years. It was, therefore, a "former installation" coming within the provisions of 29 C.F.R. 1910.217(a)(2). As such, it was not required to conform to any requirement of 29 C.F.R. 1910.217 or any of its subsections.

It might be argued that compliance was required by February 15, 1972, because the installation of point of operation guards or point of operation devices comes within the phrase "care and use of mechanical power presses" and that it is, therefore, covered by subsection (3) of the above-quoted portion of the regulation relating to "All Installations."

This aregument is without merit for two reasons. First, it is a fundamental rule of statutory construction that more specific statutory provisions control over general provisions. "Former Installations" is a narrower and more specific category than "All Installations." Second, the language of subsection (2), quoted above, governing former installations clearly contemplates physical modification of installations in that it requires that installations be "brought into conformity." Subsection (3), on the other hand, does not contemplate physical modifications. It relates only to "care and use." To install guards or point of operation devices in accordance with subsection 217(c)(1) constitutes a physical modification falling more properly within the area of "bringing into conformity" than the area of "care and use."

Subsection (a)(2), therefore, is more applicable to the mechanical power press at issue in this case than is subsection (a)(3). Its effective date of August 31, 1974, is controlling.

The complainant filed a brief with the Commission in which it chose not to discuss the above issue, even though submissions had been requested thereon in the direction for review filed under section 12(j) of the Act. Instead, complainant asserted and argued the proposition that the Commission is without authority to consider any issue which was not in contention at the hearing. Complainant argues that when the parties did not raise, nor Judge's decision specifically discuss, an issue upon which submissions were requested, the Commission is without authority to decide the case on the basis of those issues. Complainant relies on section 12(j) of the Act, the Administrative Procedure Act n3, and on Commission Rule 32(b)(2) (published as 29 C.F.R. 2200.32(b)(2)) to support its contention. Such reliance is not well founded.

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n3 5 U.S.C., § 551, et seq. (1967) (hereinafter referred to as "the APA").

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Complainant argues that section 12(j) limits the Commission's scope of review to consideration only of those issues "discussed in the administrative judge's decision." Nothing contained in section 12(j) supports that assertion. Section 12(j) states only that the Judge's decision will become a final order of the Commission unless his decision is directed for review by the Commission within 30 days. It sets forth no express limitations on the scope of the Commission's review. It merely establishes that the Commission has reviewing authority. The scope of that authority must be determined by reference to the appropriate sections of the APA which, in accordance with the provisions of section 10(c) of the Act, governs all proceedings before the Commission.

Complainant relies on section 554(c)(2) of title 5, U.S. Code, which governs the conduct of hearings. It requires the Commission to afford parties an opportunity for a hearing and decision in accordance with sections 556 and 557 "to the extent that the parties are unable so to determine a controversy by consent." This language does not limit the scope of review. It merely prescribes the minimum that is required to be provided in the way of a hearing.

Section 557(b) of title 5 is more applicable than section 554, because section 557(b) deals specifically with the scope of review. Section 557(b) states that:

When the agency did not preside at the reception of the evidence, the presiding employee . . . shall initially decide the case unless the agency requires, either in specific cases or by general rule, the entire record to be certified to it for decision. When the presiding employee makes an initial decision, that decision then becomes the decision of the agency without further proceedings, unless there is an appeal to, or review on motion of, the agency within time provided by rule. On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule.

Subsection 557(c)(3) states that:

All decisions, including initial, recommended, and tentative decisions, are a part of the record. . . .

The scope of review established by the above-quoted provisions of the APA permits the Commission to decide any issues squarely presented by the record as a whole. By the terms of section 557(c)(3), the proposed decision of the Administrative Law Judge is considered a part of that record.

When the record as a whole, which includes the Judge's decision, reveals an erroneous application of the law, the Commission has the authority to correct that erroneous application in order to assure that the Commission decision is in all respects correct and proper under all the circumstances of the case. This is no more nor less than the Judge would have authority to do in order to fulfill his obligation under the APA to provide and conduct the hearing in an impartial manner. n4 It cannot be seriously contended that at any point before his decision becomes final, the Judge lacks authority to correct his own erroneous conclusions of law in the record. As the Sixth Circuit Court explained in Hamlin Testing Lab., Inc. v. United States Atomic Energy Commission, 357 F.2d. 632, 637 (6th Cir. 1966):

Commissions are not 'relegated to the role of reviewing courts who sustain fact findings of courts of first instance unless clearly erroneous. FCC v. Allentown Broadcasting Corp., 349 U.S. 358, 364 (1955). The responsibility for decision is placed in the Commissioners . . . to discharge the function of administering the statutes under the agency's cognizance.' Lorain Journal Company v. F.C.C., 351 F. 2d 824, 828 (D.C. Cir. 1965). (emphasis supplied)

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n4 See section 556(b)(3) of title 5, U.S. Code.

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Because the Commission's reviewing authority includes the authority to decide all issues it could decide as the initial decision-maker, it may correct any errors of law not excluded by rule or by its direction for review.

The issue upon which submissions were requested in this case, is whether the occupational safety and health standard with which the respondent allegedly failed to comply was, as a matter of law, applicable to respondent under the circumstances of the case at the time specified in the citation. The Judge's determination that respondent was in violation of section 5(a)(2) for failing to comply with such standard constitutes a determination by the Judge that the standard did, as a matter of law, apply to the facts of this case. The applicability of the standard in question to respondent's mechanical power press was thus an issue raised in the record and decided by the Judge. It is clearly within the purview of the Commission's review authority.

It is axiomatic that when a Judge finds a person in violation of any statute, he has concluded that the statute applies to that person under the facts of the case. This is a question of subject matter jurisdiction, which can be raised at any time before or after a matter has been adjudicated. It is always a question considered to be properly before any adjudicative body.

By treating this issue, the Commission chose to examine the Judge's implicit determination that there was subject matter jurisdiction. This is a proper function of any Judge and, pursuant to section 557(b) of title 5, is a proper function of any adjudicatory body deciding a case on the basis of a record made pursuant to sections 556 and 557 of title 5. The issue was presented by the Judge's decision and the record as a whole, and is well within the Commission's reviewing authority.

For the reasons stated above, the Judge's decision affirming the "Citation for Serious Violation Number 1," and the assessment of a penalty for the violation in the amount of $250 are hereby vacated. The remainder of the decision is affirmed to the extent consistent herewith.

CONCURBY: BURCH

CONCUR:

BURCH, COMMISSIONER, concurring: I concur.

I am most pleased that Chairman Moran has finally been persuaded by the arguments set forth in my dissenting opinion in Secretary of Labor v. Wetmore and Parman

DISSENTBY: VAN NAMEE

DISSENT:

VAN NAMEE, COMMISSIONER, dissenting: It is the opinion of the majority that Respondent did not fail to comply with 29 C.F.R. 1910.217(c)(1)(i) as charged. This conclusion is reached on the basis that the above standard was inapplicable, as a matter of law, to the Respondent's mechancial power press at the time of the subject inspection. For the reasons given hereafter, I dissent.

The relevant facts are as follows:

On May 17, 1972, the Secretary conducted an inspection pursuant to the Act at Respondent's workplace. The inspection revealed, inter alia, that Respondent had not provided point of operation guards or point of operation devices on a mechanical power press. The press had been in use at Respondent's place of business for approximately twenty years.

Subsequent to the inspection Respondent was issued a citation for a serious violation of 29 C.F.R. 1910.217(c)(1)(i). This standard provides as follows:

The standard applies according to the following provisions of 29 C.F.R. 1910.217(a)(1)-(3):

29 C.F.R. 1910.217(a)(1). New Installations. The requirements of this section pertaining to construction shall apply to all mechanical power presses installed on or after August 31, 1971.

(a)(2) Former Installations. All mechanical power presses installed prior to August 31, 1971, shall be brought into conformity with the requirements of this section not later than August 31, 1974.

(a)(3) All Installations. The requirements of this section pertaining to the care and use of mechanical power presses shall apply to all mechanical power press operations as of February 15, 1972.

It is apparent from reviewing the cited regulations that the Secretary in promulgating 29 C.F.R. 1910.217(a)(1)-(3) balanced the remedial objectives of the Act with the technological and practical difficulties involved in achieving rapid compliance. He carefully promulgated a timetable which took into consideration these different interests.

The Secretary's intent is clear. His timetable for compliance, set forth in 29 C.F.R. 1910.217(a)(1)-(3), predicates the final date for compliance on the type of installation (such as "new" versus "former") as well as the nature of the requirements ("construction" versus "care and use") involved.

Consequently 29 C.F.R. 1910.217(a)(1) provides that all "new installations" (those installed on or after August 31, 1971) shall comply with all construction requirements after such date. This subsection recognizes that "new installations" do not require additional time to comply with the various construction requirements which have been promulgated since no modification or replacement of existing machines is necessary.

On the other hand, 29 C.F.R. 1910.217(a)(2) provides that all former installations (those installed prior to August 31, 1971) have until August 31, 1974, to be brought into conformity with 29 C.F.R. 1910.217. This subsection indicates that the Secretary was well aware of the fact that many of the construction requirements contained in 29 C.F.R. 1910.217 would require major modifications to existing machinery or necessitate replacement of some machinery. He thus allowed an additional three years from the date imposed on new installations for compliance with the various construction requirements of 29 C.F.R. 1910.217. This effort was a reasonable and fair attempt to strike a balance between the previously mentioned differing interests regarding the construction requirements for power presses.

29 C.F.R. 1910.217(a)(3) on the other hand is specifically applicable to all installations regardless of whether they are new or former installations. This subparagraph, unlike subparagraphs (a)(1) and (a)(2) is addressed to the "care and use" requirements for mechanical power presses, regardless of the date of installation. The effective date of the "care and use" requirements was February 15, 1972.

The majority opinion in interpreting and applying these time limitations and/or exemptions has held that 29 C.F.R. 1910.217(a)(2) is applicable to Respondent's mechanical power press. Since this subsection exempts mechanical power presses within its provisions until August 31, 1974, the majority vacates the subject citation. By their holding in this case, the majority has declared that mechanical power press operators need not be protected by guards or other devices against entry of hands or fingers into the point of operation until August 31, 1974, unless a particular mechanical power press has been installed on or after August 31, 1971.

I find that the majority by their interpretation of 29 C.F.R. 1910.217(a)(2) have completely disregarded the plain intent of the Secretary to promulgate limited exemptions from the general requirements of the mechanical power press standard. As noted above, the exemption contained in 29 C.F.R. 1910.217(a)(2) was intended to apply to construction requirements. The majority has now included the installation of point of operation guards or devices within these construction requirements. This enlargement of a narrowly defined exemption was accomplished without word or comment as to the fact that safeguarding the point of operation has traditionally been considered a "use" requirement with regard to mechanical power presses.

One need only look to 29 C.F.R. 1910.217(d)(1) to glean what type of requirement the Secretary intended to fall within the exemption of 29 C.F.R. 1910.217(a)(2). This standard provides, inter alia, that the employer must "institute die procurement, construction, and modification policies and procedures that will eliminate by August 31, 1974, the need for the operator to place his hands or fingers within the point of operation" (Emphasis mine).

It is enough to consider the vast technological and practical differences between safeguarding the point of operation and constructing new dies or modifying existing dies to conclude that the majority erred in equating the "care and use" requirements of safeguarding with the truly construction requirements commonly associated with dies.

I also note that the majority's interpretation of the subject exemptions is based in substantial part on the "fundamental rule of statutory construction that more specific statutory provisions control over general provision." Thus they conclude that the term "former installations" defines a narrower and more specific category than the term "all installations." Consequently they apply the more narrow category to this Respondent.

It appears to me that resort to a general canon of statutory construction without citation or authority is misplaced in interpreting this particular exemption. I am more persuaded by another well established rule of statutory construction which is more germane to the issues at hand. This principle teaches that exemptions from remedial legislation are to be narrowly construed. Indeed in Wirtz v. Ti Ti Peat Humus Co., 373 F.2d 209, 212 (4th Cir. 1967) the court stated:

Remedial social legislation is to be construed liberally in favor of the workers whom it was designed to portect, and any exemption from its terms must be narrowly construed.

It is apparent the majority has chosen not to follow this principle in the instant matter.

Upon consideration of the facts of this case, and for the reasons previously stated, I must conclude that the installation of point of operation guards or devices is covered by the "care and use" requirements of 29 C.F.R. 1910.217(a)(3) which relates to "all installations." Therefore, compliance was required by February 15, 1972, approximately three months prior to the subject inspection. Consequently, I would affirm Judge Stuller's decision and order.

[The Judge's decision referred to herein follows]

STULLER, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651, et seq., hereafter called the Act) contesting citations issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. Each citation alleges that as the result of a May 17, 1972 inspection of a workplace under the operation or control of the Respondent, located in Salem, Oregon, it was determined that the Respondent violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citations, which were issued on June 12, 1972 allege that the violations result from a failure to comply with the following standards promulgated by the Sectetary:

a. Citation For Serious Violation Number 1
		Proposed
Standard	Description	Penalty
29 CFR 1910.217	In the South Bay of the "Old Build-	$550
(c)(1)(i)	ing" one Buffalo punch press was in
	use. The employer failed to provide
	a "point of operation guard or a
	point of operation device."

b. Citation For Serious Violation Number 2
		Proposed
Standard	Description	Penalty
29 CFR 1910.219	The "Straddle Buggy" was in use in	$550
(f)(3)	the "Old Building." This equipment
	is driven by a chain and sprocket ar-
	rangement. None of the (4) four drive
	chains and sprockets were guarded.

c. Citation For other than serious violations
		Proposed
Standard	Description	Penalty
1 29 CFR 1910.179	In the "New Building" a P & H re-	$40
(m)(1)(ii)	mote operated, three ton capacity
	crane was in use. The lifting wire on
	this crane had many broken wires in a
	concentrated area, too many to deter-
	mine accurately the specific number.
	The employer failed to insure that an
	inspection of the wire was made before
	the equipment was used.

2 29 CFR 1910.37	In the Shop areas four personnel exit	$ 0
(q)(1)	doors were not marked as "EXITS."

3 29 CFR 1910.22	In the "New Shop" near the bolt	$ 0
(a)(1)	threading machine oily rags and ma-
	terials were scattered in that area and
	created a housekeeping problem. In
	the "Boiler Room" of the "Old Build-
	ing" opened cans of crude oil, rags
	and papers were scattered about, the
	area needed a good general house-
	keeping. Outside the buildings near
	the loading area and outside gas pump
	the employer allowed an accumulation
	of scrap wood to be placed up against
	the building.

4 29 CFR 1910.157	In the "New Building" a Carbon Di-	$ 0
(a)(3)	oxide Extinguisher was concealed from
	view by a load of steel "H" beams.

5 29 CFR 1910.179	The "New Crane" in the South Bay of	$ 0
(b)(5)	the "Old Building" is not marked as
	to the cranes lifting capability.

6 29 CFR 1910.215	In the Machine Area of the "Old	$ 0
(a)(4)	Building" a bench grinder had a 1/4"
	space between the tool rest and the
	grinding wheel. The employer failed
	to insure that a maximum 1/8" clear-
	ance existed.

7 29 CFR 1910.309(a)	I. In the "New Shop" the power panel	$ 0
	and switches are located 7" from the
	side of the infeed rollers to the Roto-
	blaster. The overcurrent device is not
	readily accessible as specified in Article
	240-16, National Electrical Code,
	NFPA 79-1971; ANSI CI-1971.
	II. The electrically operated "Truck
	Burner" located in the "Old Shop"
	had the ground plug cut off and the
	equipment was not grounded as speci-
	fied in Article 250-45, National Elec-
	trical Code NFPA 70-1971; ANSI CI-
	1971.

8 29 CFR 1910.252	The cable to the electrode holder on	$25
(b)(4)(ix)(c)	the electric are welding machine in the
	"New Shop" had been damaged and
	the copper conductors were exposed.

The Respondent was notified by letter dated June 12, 1972 that the Complainant proposed to assess penalties for the violations alleged in the amounts indicated above which total $1,165.

After Respondent contested this enforcement action, and a Complaint and an Answer had been filed by the parties, the case came on for hearing at Salem, Oregon on September 7, 1972.

At the hearing, Respondent conceded the issues concerning the eight violations alleged in the Citation for other than serious violations shown at paragraph c. of this decision. Respondent further conceded the violation alleged in the Citation For Serious Violation Number 2 and shown in paragraph b. above, leaving in issue only the violation shown at paragraph a. and the $550.00 proposed penalties for each of the alleged Serious Violations.

FINDINGS OF FACT

The Respondent corporation employs 50 men in the fabrication and sale of metal products with gross revenues of over $2,000,000. In response to a complaint filed by one of the Respondent's employees, a Compliance Officer inspected the Respondent's workplace on May 17, 1972 and during the inspection and in the presence of the Respondent's representative, he took a photograph of the straddle buggy as it was being operated. He also photographed a mechanical power press the Complainant referred to as the Buffalo "punch press." He observed both machines as they were being operated. The straddle buggy did not have guards on any of its four drive chains or its sprockets. There were several men working near the machine as it was being operated. The "punch press" did not have a point of operation guard. There was a one and one-half inch gap between the table and the punch in which the operator could have placed a finger.

The Respondent's president and owner testified that machine referred to by the Compliance Officer as a "punch press" was a Buffalo iron worker and that the major distinction between the Buffalo iron worker and a "punch press" was that a "punch press" makes repeated punches while the iron worker requires, after putting "material into the punch, you have to pull a lever down to push the punch center pull; and then you either have to push the foot control or pull a hand control to activate the clutch and that will make one revolution and then stop."

DISCUSSION

The only alleged violation in issue concerns the device referred to in the Citation as the "Buffalo punch press" and the reply brief as a "Buffalo Iron Worker." The Standard allegedly violated is 29 CFR 1910.217(c)(1)(i) which reads as follows:

1910.217 Mechanical power presses.

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

The machine in question falls within the group of mechanisms described in the Standard as "mechanical power presses." Therefore, determining the correct trade name and generic name of the machine is of little importance. It is found that the Standard applies to the machine being cited. It is further found that the Respondent had adequate notice of the specific machine being cited and the specific violation claimed.

The evidence establishes that the mechanical power press cited did not have a point of operation guard, consequently, the Respondent was in violation of the standard.

The remaining issues concern the proposed $550 penalties. The statute requires that due consideration must be given to good faith of the employer, history of previous violations, size of business, and gravity in determining the appropriateness of the penalties (Section 17(j) of the Act). As the Complainant concedes the first two elements, the Respondent is found to have had no history of previous violations and to have consistently shown good faith. The size of the Respondent's business is indicated by the number of his employees and by his gross revenues.

In determining the proposed penalty, the Complainant gave no consideration to gravity in reducing the proposed penalties from the maximum of $1,000. Little evidence was presented as to these issues, however, it is found that the Respondent took few precautions against injury from the specific hazards concerned and had a relatively small number of employees exposed to the hazards. The exact duration of exposure is unknown but weight is given to the fact that both machines concerned here were being operated in an unsafe manner at the time of the inspection.

It is further found that the operation of the straddle buggy created a higher probability of occurrence and higher degree of severity of possible injury than the operation of the "punch press."

ORDER

Accordingly, it is ORDERED that the citations concerned herein are affirmed and that the following penalties are assessed:

Citation	Penalties
Citation For Serious Violation Number 1	$250
Citation For Serious Violation Number 2	$400
Citation For Other Than Serious Violation
Item 1	$ 40
Item 2	$ 25