HUGHES BROTHERS, INC.  

OSHRC Docket No. 12523

Occupational Safety and Health Review Commission

July 27, 1978

  [*1]  

Before CLEARY, Chairman; and BARNAKO, Commissioner. *

* Commissioner COTTINE took no part in the consideration or decision of this case for the reasons set forth in his separate opinion.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

David R. Buntain and L. Bruce Wright, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

On March 22, 1976 Administrative Law Judge Paul E. Dixon held that the respondent, Hughes Brothers, Inc., had failed to comply with 29 CFR §   1910.212(a)(3)(ii) and, therefore, had violated section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §   651 et seq. ("the Act").   The Judge accordingly ordered that item 1 of citation number 3 be affirmed.   He also found that the violation was "serious" within the meaning of section 17(k) of the Act, and assessed a penalty of $150.

On March 26, 1976 former commissioner Moran directed that the Judge's decision "be reviewed for error".   In response to the direction, the espondent has filed a brief seeking reversal of the Judge's decision.   We have considered the issues raised by the brief in accordance with our Policy Statement,   [*2]   41 Fed. Reg. 53015 (1976), and we have concluded that reversal of the Judge's decision cannot be founded on any of the objections the respondent urges.   Consequently, we affirm.

I.

Hughes Brothers, Inc. employs about 185 persons at a plant in Seward, Nebraska to manufacture material for electrical and transmission lines.   It uses a Cincinnati press brake to perform five bending operations on flat metal blanks that have already been cut, punched, slotted and trimmed on other machines. The blanks are usually one-quarter inch thick, but are sometimes five-sixteenths of an inch thick.   Their shape is roughly square, with sides ranging from 13 to 21 inches.   Their average weight is about 17 pounds.   All blanks are of the same essential design.

One press brake operator performs five types of bending operations on each blank. n1 Five upper dies are attached along the length of the ram of the brake; five lower dies are attached along the bed of the machine under the corresponding upper dies. Each die station consists of a set of corresponding dies. Three foot pedals are located on the floor next to and along the bed of the machine. To perform an operation, the operator places a blank [*3]   into the three inch space between a set of dies. At all die stations except station 5, the blank is placed onto a work rest in front of the point of operation. At all die stations except station 1, the operator must hold the blank during the operating cycle; at station 1 he need not, but usually does, hold the blank. The operator then steps on the nearest foot pedal, causing the ram to descend with great force and bend the blank between the dies. After two bends of each type are performed at a station, the operator moves to the next station on his left, and with some variations, repeats the process.

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n1 The record contains excellent photographs submitted by the respondent (exhibits R-2 to R-16) of the operations performed at the various stations. Although the stations were immediately given letter designations, witnesses later referred to them by numbers.   The following tables shows our understanding of this somewhat confusing aspect of the record.

	Station shown,	Station shown,
Exhibit	by letter	by number
R-2, R-3, R-4	C	1
R-5, R-6, R-7	D	2
R-8, R-9	B	3
R-10, R-11	A	4
R-12 to R-16	E	5

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The cited standard, 29 CFR §   1910.212(a)(3)(ii), and other pertinent provisions read as follows:

§   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.   [Emphasis added.]

(2) General requirements for machine guards. Guards shall be affixed to the machine where possible and secured elsewhere if for any reason attachment to the machine is not possible.   The guard shall be such that it does not offer an accident hazard in itself.

(3) Point of operation guarding.

(i) Point of operation is the area on a machine where work is actually performed upon the material being processed.

(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding [*5]   device shall . . . be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.

(iii) Special handtools for placing and removing material shall be such as to permit easy handling of material without the operator placing a hand in the danger zone.   Such tools shall not be in lieu of other guarding required by this section, but can only be used to supplement protection provided.

Hughes Brothers argues that the Secretary has failed to satisfy his burden of persuasion in two respects.   First, it claims that the Secretary failed to prove that its machines were not equipped with the guards required by the standards.   Second, it argues that the Secretary must bear the burden of persuading the Commission that point of operation guarding is "feasible".   We reject both arguments. n2

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n2 The respondent does not present to us any objection that the Secretary failed to prove that the points of operation of the press brake expose employees to injury within the meaning of §   1910.212(a)(3)(ii).   Under our Policy Statement noted above we therefore need not decide the point.   Nevertheless, we observe that Judge Dixon specifically found that "[s]hould the operator's hand come in contact with the . . . point of operation, the injury would be amputation or mangling of the employee's hand" and that "[i]n the operation [of the press brake], it was necessary for the operator's hands to be from 3 to 15 inches from the point of operation." In his written opinion, the Judge stated that "the operator's hands are in close proximity to the ram during many of its operations"; the photographic exhibits supports this statement.   In summary, the evidence appears to show that the point of operation exposes an employee to injury and satisfies the Secretary's burden of proving this element of non-compliance. See e.g., Western Steel Manufacturing Co., 76 OSAHRC 112/E2, 4 BNA OSHC 1640, 1642-1643, 1976-77 CCH OSHD para. 21,054 (No. 3528, 1976); Clark Equipment Co., 75 OSAHRC 21/A2, 3 BNA OSHC 1834, 1975-76 CCH OSHD para. 20,238 (No. 7925, 1975); Sheet Metal Specialty Co., 75 OSAHRC 51/Fl, 3 BNA OSHC 1104, 1105, 1974-75 CCH OSHD para. 19,546 (No. 5022, 1975).

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Section 1910.212(a)(3)(ii) requires that points of operation be guarded and that guarding devices meet a specified performance level: They must "be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle." The respondent argues as follows:

Because of the weight of the blanks, the necessity to assure that they are in position against [locator pins on the work rests], and the possibility that the blanks will drop at the conclusion of the stroke at Stations 2 through 5 the . . . operator generally places one or both hands on the edge of the blank, prior to actuating the foot pedal. . . . [Respondent's plant Engineer, who is also its die shop supervisor, and safety director] Mr. Wied testified that the risk of injury to the operator at the point of operation is "very remote" . . . using this system.   As he later explained, "the operator can -- in all these cases -- hold onto the piece and its extremities, and he knows when he hits the foot pedal -- it is a preconceived action.   He knows what is going top happen so he is away from [*7]   it". . . .

The evidence clearly shows that the press brake has work rests at the first four stations. . . .   These work rests serve two guarding functions.   First, they are a physical barrier between the operator and the point of operation. Second, they carry the bulk of the weight of the heavy pieces of metal being formed.   The operator thus merely guides the blank by holding it on its edges as it swings up toward him [as it is bent between the dies]. . . .   In this manner the work rests enable the operator to be positioned so that his hands are away from the point of operation when the press brake is actuated.

Thus, Hughes Brothers relies upon both work rests and upon the operator to keep his hands on the blanks and out of the point of operation. The standard requires, however, that guarding be provided by a "device" and eschews reliance upon the skill or attentiveness of employees. n3 Contrary to the respondent's statement, the work rests do not serve as a physical barrier between the operator and the point of operation. The testimony and photographic exhibits plainly show, and Judge Dixon correctly found, that the five points of operation of the press brake were not guarded [*8]   in any manner.

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n3 Slyter Chair, Inc., 76 OSAHRC 46/A2, 4 BNA OSHC 1110, 1112, 1976-77 CCH OSHD para. 20,589 (No. 1263, 1976); see Irvington-Moore, infra note 4, 3 OSHC at 1019-1020; cf. B. C. Crocket Cedar Products, infra note 6, 4 OSHC at 1777 (applying §   1910.212(a)(1)); Akron Brick & Block Co., infra note 6 (same); Huber, Hunt, Nichols & Blount Bros., 76 OSAHRC 71/A2, 4 BNA OSHC 1406, 1408, 1976-77 CCH OSHD para. 20,837 (No. 6007, 1976) (applying §   1910.213(h)(1)); Concrete Construction Co., 76 OSAHRC 139/A2, 4 BNA OSHC 1828, 1829-1830, 1976-77 CCH OSHD para. 21,269 (Nos. 5692 & 7329, 1976) (applying §   1926.550(a)(9)), pet. for review filed, No. 77-3007 (6th Cir., January 7, 1977); Taylor Building Associates, 77 OSAHRC 27/A10, 5 BNA OSHC 1083, 1086, 1977-78 CCH OSHD para. 21,592 (No. 3735, 1977) (applying §   1926.450(a)(1)); Cornell & Co., 77 OSAHRC 164/F5, 5 BNA OSHC 1736, 1739, 1977-78 CCH OSHD para. 22,095 (No. 8721, 1977).   See 29 CFR §   1910.212(a)(3)(iii) (handtools consigned to secondary, supplementary role).

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In the absence of other considerations, we would therefore not consider Hughes Brothers' argument any further.   The respondent has, however, marshalled language from some Commission machine guarding opinions in support of its view that its press brake had permissible guards. While the arguments lack merit, they do point up some lack of clarity in our opinions and deserve further examination.

In its brief on review, Hughes Brothers acknowledges that §   1910.212(a)(3)(ii) imposes the noted performance requirement, and that under Commission precedent n4 it is applicable to this press brake. The respondent argues, however, that subsection (a)(3)(ii) must be read in pari materia with subsection (a)(1) and that there are guards on the machine which comply with the latter standard. n5 It thus reads our decision in Paccar, Inc., 75 OSAHRC 55/F4, 3 BNA OSHC 1133, 1974-75 CCH OSHD para. 19,595 (No. 1885, 1975) to hold that compliance with subsection (a)(3)(ii) is obtained by providing "recognized" methods of guarding even though those methods accord only "some protection" for the operator.

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n4 Irvington-Moore, Div. of U.S. National Resources, 75 45/A2, 3 BNA OSHC 1018, 1974-75 CCH OSHD para. 19,523 (No. 3116, 1975), aff'd, 556 F.2d 431 (9th Cir. 1977); Diebold, Inc., 76 OSAHRC 3/E5, 3 BNA OSHC 1897, 1975-76 CCH OSHD para. 20,333 (No. 6767 etc., 1976), pet. for review filed, No. 76-1278 (6th Cir., March 8, 1976); Long Manufacturing Co., 76 OSAHRC 50/D6, 4 BNA OSHC 1154, 1975-76 CCH OSHD para. 20,658 (No. 9994, 1976), aff'd, 554 F.2d 903, 908 (8th Cir. 1977).

n5 Respondent also argues that subsection (a)(3)(ii) must be read in conjunction with subsection (a)(2).   Several of our decisions adequately explain why its emphasis on this provision is misplaced.   Buckeye Industries, Inc., 75 OSAHRC 21/B3, 3 BNA OSHC 1837, 1839-1840, 1975-76 CCH OSHD para. 20,239 (No. 8454, 1975), pet. for review filed, No. 76-1467 (5th Cir., February 19, 1976); Weyerhaeuser Co., 77 OSAHRC 9/A2, 4 BNA OSHC 1972, 1977 n.15, 1976-77 CCH OSHD para. 21,465 (Nos. 1231 & 1758, 1977), pet. for review filed, No. 77-1611 (9th Cir., March 11, 1977).

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In Paccar we examined §   1910.212(a)(1) and held that although that subsection requires that a method of point of operation guarding be used, it does not describe any particular performance criterion or method to be met or followed.   Thus, an only partially effective guard on a tank roll machine was held to comport with subsection (a)(1), while the absence of any point of operation guards on eight press brakes was held to be contrary to that standard.   3 OSHC at 1135, citing Brennan v. O.S.H.R.C. and Pearl Steel Erection Co., 488 F.2d 337 (5th Cir. 1973) (construing §   1926.105(a)).   See also, Central Steel & Tank Co., 75 OSAHRC 9/A2, 3 BNA OSHC 1711, 1712 n.4, 1975-76 CCH OSHD para. 20,172 (No. 2346, 1975); and Diebold, Inc., 76 OSAHRC 3/E5, 3 BNA OSHC 1897, 1898 n.2, 1975-76 CCH OSHD para. 20,333 (No. 6767 etc., 1976), pet. for review filed No. 76-1278 (6th Cir., March 8, 1976). n6 Our decisions indicate that subsection (a)(3)(ii), however, prescribes a more specific and stricter performance requirement for point of operation guards than Paccar holds is required by subsection (a)(1).   See e.g., Slyter Chair, Inc.,   [*12]   76 OSAHRC 46/A2, 4 BNA OSHC 1110, 1112, 1975-76 CCH OSHD para. 20,589 (No. 1263, 1976) ("walking foot" on sewing machine only a minor impediment to injury that did not satisfy performance requirement; non-compliance with §   1910.212(a)(3)(ii) found).   Therefore, assuming its continued vitality, Paccar would be limited to the application of the general, introductory provisions of subsection (a)(1), and not the more specific requirements of subsection (a)(3)(ii).   Inasmuch as respondent has been cited solely under subsection (a)(3)(ii), we do not find it necessary to inquire into Hughes Brothers' claim that it has complied with subsection (a)(1).

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n6 In subsequent cases dealing with §   1910.212(a)(1), non-compliance was found when the cited machines lacked any point of operation guards. A. E. Burgess Leather Co., 77 OSAHRC 25/D6, 5 BNA OSHC 1096, 1977-78 CCH OSHD para. 21,573 (No. 12501, 1977), pet. for review filed, No. 77-1146 (1st Cir., March 28, 1977); B. C. Crocker Cedar Products, 76 OSAHRC 132/B6, 4 BNA OSHC 1775, 1976-77 CCH OSHD para. 21,179 (No. 4387, 1976); Signode Corp., 76 OSAHRC 43/A2, 4 BNA OSHC 1078, 1975-76 CCH OSHD para. 20,575 (No. 3527, 1976), pets. for review denied without published opinion, 549 F.2d 804 (7th Cir. 1977); Akron Brick & Block Co., 76 OSAHRC 2/E2, 3 BNA OSHC 1876, 1975-76 CCH OSHD para. 20,302 (No. 4859, 1976) (standard requires physical guards, not work rules).

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The question remains, however, whether the reasoning and holding of Paccar relied upon by respondent should now be applied to subsection (a)(3)(ii).   We think not.   In our opinion, the reasoning of Paccar is infirm.   Subsection (a)(1) clearly requires an employer to provide guarding devices that "protect" his employees against machine hazards. Nothing in the standard suggests that employees may be left with only partial protection from machine hazards. Moreover, even if we were to entertain the notion that the standard is somehow ambiguous, pertinent rules of construction of standards point away from Paccar. First, in the absence of persuasive contrary evidence of the drafter's intent, the standard should be construed to effectuate and not hinder the statutory purpose of employee protection.   See Salah & Pecci Construction Co.,    OSAHRC   , 6 BNA OSHC 1688, 1978 CCH OSHD para.      (No. 15769, 1978); Marshall v. Western Electric, Inc., 565 F.2d 240 (2d Cir. 1977); GAF Corp. v. O.S.H.R.C., 561 F.2d 913, 915 (D.C. Cir. 1977). Second, inasmuch as subsection (a)(1) both introduces [*14]   and summarizes the import of the entire section 1910.212, it should be construed in light of, and consistently with, the balance of the section.   In this way, the section is read as a whole and its provisions are construed in pari materia. Cf. 2A Sutherland, Statutory Construction, §   46.05 (1973).   Inasmuch as we believe that our view of subsection (a)(3)(ii) is correct, it follows that we should no longer interpret subsection (a)(1) in a manner at odds with our view of subsection (a)(3)(ii).   Paccar is, therefore, overruled.

The respondent also claims that it has provided the requisite guards by providing "work rests" and "guarding by position." Hughes Brothers relies heavily on our decisions in Sheet Metal Specialty Co., 75 OSHARC 51/F1, 3 BNA OSHC 1104, 1974-75 CCH OSHD para. 19,546 (No. 5022, 1975) and Garrison & Associates, Inc., 75 OSAHRC 51 D5, 3 BNA OSHC 1110, 1974-75 CCH OSHD para. 19,550 (No. 4235, 1975).   We do not reach the question of whether those decisions support the respondent's position, for we conclude, in view of the Commission's more recent analyses of subsection (a)(3)(ii), and for the reasons that follow, that the passages in Sheet   [*15]    Metal Specialty and Garrison relied upon by the respondent can not be regarded as authoritative expressions of our views.

In Sheet Metal Specialty, the Commission examined an employer's claim that guarding a press brake in compliance with §   1910.212(a)(3)(ii) was impossible.   In our discussion rejecting the defense, we noted testimony that various kinds of guarding devices, including barrier guards, two handed tripping devices, and a magnetic system could be used.   The Commission then briefly observed that "[o]ther cross examination developed the fact that work rests were also feasible. . . ." Hughes Brothers argues that this observation constituted a holding that work rests are a permissible method of guarding under §   1910.212(a)(3)(ii).   Whether this is so or not, the statement was neither central to our reasoning in that case nor accompanied by a discussion stating whether and why work rests would satisfy the performance requirement of §   1910.212(a)(3)(ii). n7 Work rests are platforms on which the material to be processed rests during machine operations.   It cannot be assumed that work rests as a class are devices which meet the requirements of subsection (a)(3)(ii)   [*16]   because as this case illustrates, they usually are not designed and constructed to physically prevent entry of the operators hands into the point of operation during the operating cycle.   Indeed, the work rests here are not so large and so located as to prevent the operator's hand from coming into the point of operation or prevent exposure to injury.   We therefore disavow any generalized approval of work rests that may be implicit in Sheet Metal Specialty.

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n7 It is possible that the reference in Sheet Metal Specialty to work rests may have been premised upon a showing in that case that the work rests met the criterion of the standard.   Indeed, in Diebold, Inc., supra note 4, we viewed our previous decision to have been founded on a finding that the work rest was so large that it kept the operator's hands a safe distance from the point of operation. If so, Sheet Metal Specialty is not inconsistent with our views here.   Nevertheless, because the opinion is not clear on the matter, we must consider all possibilities here.

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We now turn to Hughes Brothers' argument that it has provided "guarding by position", which it asserts was permitted as a guarding technique in Garrison. In Garrison, handtools were used to hold small pieces of metal to be formed on a press brake. In rejecting a claim of impossibility, the Commission briefly stated that "[w]hen used, such tools provide for guarding by position", 3 OSHC at 1110, thereby indicating, according to respondent, that both "guarding by position" and hand tools are permissible guarding methods under subsection (a)(3)(ii).

We note that "guarding by position" is an imprecise term that provides no more helpful a guide to the standard's intended application than the standard's own term. n8 This is borne out by the first, unexplained and confusing use of the term in Garrison, which appeared to hold but did not explain why the use of handtools would satisfy the requirements of subsection (a)(3)(ii).   Subsection (a)(3)(iii), which states that handtools "shall not be used in lieu of other guarding required by this section [1910.212], but can only be used to supplement the protection provided", was overlooked.   Moreover, handtools [*18]   are not devices which by themselves "prevent the operator from having any part of his body" in the point of operation. Their effectiveness depends on whether employees properly use them and, as we have held several times, subsection (a)(3)(ii) requires devices not primarily dependent upon correct employee behavior.   See note 3 supra. n9 If "guarding by position" has any significance under the standard, it must mean that a particular device is so located or operated that employees cannot accidently come in contact with the point of hazard during the machine's operation.   In such a situation, there would be no hazard cognizable under the standard.   Here, however, because the machine was operated with the employee's hand near the point of operation, we cannot conclude either that there was no hazard or that the machine as used was adequately guarded. Accordingly, respondent's argument that its press brake was "guarded by position" is rejected.

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n8 We note that in its enforcement program directives, the Labor Department has eliminated from a statement of its citation policy regarding §   1910.212(a)(3)(ii), a previous reference to "location guarding", and has substituted more explicit criteria.   Compare paragraph 4.c. of OSHA Program Directive No. 100-44, 1975-76 CCH E.S.H.G. Developments para. 10,204 (January 21, 1976), with paragraph 4.c. of Program Directive No. 100-14 (Revision No. 1), 1977 CCH E.S.H.G. Developments para. 10,680 (October 26, 1976).

n9 This is not to say that handtools may never be used.   In Diebold, Inc., supra note 4, we indicated that under OSHA Field Information Memorandum No. 75-46, 1975-76 CCH E.S.H.G. Developments para. 9915 (July 17, 1975), cancelled and superseded by Program Directive No. 100-44, supra note 8, superseded by Program Directive No. 100-44 (Revision No. 1), supra note 8, handtools may be used to maintain a safe distance from the point of operation if literal compliance with §   1910.212(a)(3)(ii) is not possible.   See also Irvington-Moore, Div. of U.S. Natural Resources v. O.S.H.R.C., 556 F.2d 431, 433 n.4 (9th Cir. 1977).

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III.

Hughes Brothers' contends that the the citation must be vacated because the Secretary failed to show the feasibility of guarding. Respondent states:

Even if [the Commission] should uphold the press brake citation and direct Hughes Brothers to provide additional guarding, the company will be little better off than when the original citation was issued.   At no time, either before or after the hearing, have the OSHA compliance officers proposed any feasible method which would demonstrably reduce the risk of operator injury at the point of operation.

We reject this approach.   With narrow exceptions not applicable here, the proper inquiry is one of "impossibility" rather than "feasibility" or "infeasibility", C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977-78 CCH OSHD para. 22,481 (No. 14249, 1978), and cases cited; see also, Dorey Electric Co. v. O.S.H.R.C., 553 F.2d 357 (4th Cir. 1977), n10 and the burden of proving impossibility of compliance must be borne by the employer as an affirmative defense.   It is the duty of the employer, and not of the Secretary, to either [*20]   devise means of compliance, prove the defense of impossibility, apply for a variance under sections 6(b)(6)(A) or 6(d) of the Act, or petition under section 10(c) for a modification of the abatement period.   We thus adhere to our ultimate holding to this same effect in Buckeye Industries, Inc., 75 OSAHRC 21/B3, 3 BNA OSHC 1837, 1975-76 CCH OSHD para. 20,239 (No. 8454, 1975), pet. for review filed, No. 76-1467 (5th Cir., February 19, 1976).

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n10 The opinion of the Fifth Circuit in Ace Sheeting & Repair Co. v. O.S.H.R.C., 555 F.2d 439, 440-441 (5th Cir. 1977) approves the Commission's test of "impossibility" but speaks also of "infeasibility".   In view of the impossibility analysis used by the Commission and approved by the court, the variation in the court's language cannot be found significant.   Commissioner Barnako would note that whether or not compliance is possible may involve consideration of the same questions involved in a defense based on infeasibility.   Hence, for example, the discussion with respect to the availability of the recommended guards on page 22, infra, would also be a consideration of whether the guards are feasible.   See Castle & Cooke Foods, 77 OSAHRC 97/A2, 5 BNA OSHC 1435, 1977-78 CCH OSHD para. 21,854 (No. 10925, 1977), appeal filed, No. 77-2565 (9th Cir., July 14, 1977).

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The decision of a divided Commission in Frank Briscoe Company, 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHD para. 21,162 (No. 7792, 1976) does not require a contrary holding.   That narrow decision concerned only 29 CFR §   1926.28(a), a standard which requires unspecified personal protective equipment against unspecified hazards. In Briscoe, the Commission majority noted that §   1926.28(a) was therefore as general as, and analogous to, section 5(a)(1).   It accordingly held that the standard should be construed as requiring the Secretary to make a showing similar to that necessary to support a citation under section 5(a)(1).   Section 1910.212(a)(3)(ii), however, states the hazard to be protected against and the performance criterion by which the adequacy of the employer's abatement must be judged. n11 In addition, §   1910.212(a)(3)(ii) is not subject to the vagueness concerns of Briscoe, for as we stated in K & T Steel Corp., 76 OSAHRC 31/A2, 3 BNA OSHC 2026, 2027, 1975-76 CCH OSHD para. 20,445 (No. 5769, 1976), "[t]he performance required by the standard is clear enough." Cf.   [*22]   Irvington-Moore, Div. of U.S. Natural Resources v. O.S.H.R.C., 556 F.2d 431, 436 (9th Cir. 1977). Section 1910.212(a)(3)(ii) therefore may be enforced without proof by the Secretary of the feasibility and likely utility of abatement measures.   Cf. C. Kaufman, Inc., 6 OSHC at 1297 n.2.

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n11 It is true that Briscoe lays some emphasis on the view that §   1926.28(a) is a performance standard, which was there defined as a standard that is "not limited to particular hazards or to protection by particular methods." (Emphasis added).   We need not consider here whether the italicized portion of the statement accurately defines a performance standard, for we do not consider the discussion to have been central to the opinion.   The thrust of the Briscoe opinion was the perceived lack of informativeness in the standard, and not its classification.

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IV.

We now consider whether the respondent has established any affirmative defense.   We first observe that Hughes Brothers appears to argue both that compliance [*23]   is impossible and that compliance would create additional risks.   These arguments raise two analytically separate defenses, the "greater hazard" and "impossibility" defenses.   We find neither to have been established.

The elements of the greater hazard defense are well-settled.   It is not enough that compliance would create new hazards. The record must show that the hazards of compliance are greater than those of noncompliance, that alternative protective means have been used or are unavailable, and that an application for a variance would have been inappropriate.   C. Kaufman, Inc., supra; General Steel Fabricators, Inc., 77 OSAHRC 166/E14, 5 BNA OSHC 1768, 1977-78 CCH OSHD para. 22,104 (No. 13646, 1977).   See also General Electric Co. v. Secretary of Labor, No. 77-1616 (3d Cir., February 21, 1978).   The preponderant evidence of record does not establish any of the three necessary elements.   While the respondent claims that compliance would create new hazards, we are not persuaded that the credible evidence demonstrates that those hazards would of necessity be greater than the hazards of noncompliance -- amputation or mangling of the operator's limbs. n12 [*24]   In addition, the evidence does not show that alternaive measures short of full compliance could not have been used, and it does not appear that a variance application would not have been appropriate.

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n12 Inasmuch as the Secretary has not cited Hughes Brothers for non-compliance with the second sentence of §   1910.212(a)(2), which prohibits the use of guards that offer accident hazards in themselves, or §   1910.212(a)(1), which require the guarding of pinch points, we have no occasion in this case to consider the defense of impossibility with respect to compliance with those requirements.   See Buckeye Industries, Inc., supra note 5.

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The elements of the impossibility defense are, according to our precedent, two-fold: that compliance is impossible; and that available, alternative protective means are used.   Taylor Building Associates, Inc., 77 OSAHRC 27/A10, 5 BNA OSHC 1083, 1977-78 CCH OSHD para. 21,592 (No. 3735, 1977). n13 Thus, it is not enough for an employer to show that compliance is difficult, expensive,   [*25]   would require changes in modes of production, or that one method of compliance has been unsuccessfully attempted.   Id.; General Steel Fabricators, supra; Diebold, Inc., supra; Huber, Hunt, Nichols & Blount Bros., 76 OSAHRC 71/A2, 4 BNA OSHC 1406, 1408, 1976-77 CCH OSHD para. 20,837 (No. 6007, 1976).

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n13 It is my own view that before the Commission considers an impossibility defense, the employer must either exhaust the variance procedures provided by Congress, or demonstrate that resort to such procedures would not be appropriate.   Warnel Corp., 76 OSAHRC 41/C5, 4 BNA OSHC 1034, 1038, 1975-76 CCH OSHD para. 20,576 (No. 4537, 1976) (concurring opinion); see Taylor Building Associates, Inc., 77 OSAHRC 27/A10, 5 BNA OSHC 1083, 1084-1085, 1977-78 CCH OSHD para. 21,592 (No. 3735, 1977).   Cf. General Electric Co. v. Secretary of Labor, No. 77-1616 (3d Cir., February 21, 1978).   My view, however, has not yet been adopted by a majority of the Commission and therefore does not yet represent Commission precedent.   Until the issue is re-examined by the Commission, I shall, in the interest of reasonable expectancy in the application of the law, generally refrain from applying my own views and I shall follow Commission precedent.   Wheeling-Pittsburgh Steel Corp., 77 OSAHRC 81/C10, 5 BNA OSHC 1495 (No. 10611, 1977) (concurring opinion), pet. for review filed, No. 77-1810 (3d Cir., June 20, 1977); Collator Corporation, 76 OSAHRC 32/A2, 3 BNA OSHC 2041, 2042 n.5, 1975-76 CCH OSHD para. 20,446 (No. 2204, 1976) (concurring opinion).

  [*26]  

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We find that Hughes Brothers has failed to prove that compliance with the standard is not possible.   First, the testimony favorable to the respondent, that of Mr. Wied, who is respondent's plant engineer, die shop supervisor, and safety director, does not establish that point of operation guarding cannot be provided to meet the requirements of §   1910.212(a)(3)(ii).   Second, Mr. Wied's testimony was on many crucial points contradicted by that of other witnesses, primarily that of compliance officer Bruno.   Despite Mr. Wied's impressive credentials, Judge Dixon found that his credibility was somewhat diminished, and credited testimony contrary to Mr. Wied's.   Third, we find no evidence that, even if compliance was impossible, that alternative protective means were not available or, if available, were used.

At the hearing, the implementation of several guarding techniques was discussed.   Mr. Wied provided testimony on behalf of Hughes Brothers, while compliance officers Gray and Bruno did so for the complainant.

One of the techniques which respondent claims is impossible to implement is a two-hand control [*27]   device.   Such devices prevent operation of the machine unless the operator's hands are concurrently placed on switches during the operation of the machine. n14 While Mr. Wied raised several objections to the use of such devices, none of them establishes the impossibility of their use.   For example, Mr. Wied testified that to implement dual controls would require that a supervisor be present to turn certain keys at a supervisor station. First, we find insufficient support in the record for finding that a supervisor is necessary.   Mr. Wied's testimony does not clearly explain the necessity for a supervisor, but from the frequent references in his testimony to 29 CFR §   1910.217, we are inclined to the view that he was referring to the provisions of §   1910.217(b)(7)(vii). n15 That standard, while it generally governs mechanical power presses, does not apply to press brakes. §   1910.217(a)(5).   Second, even if we were to infer, as did Mr. Wied, that to follow the requirement of §   1910.217(b)(7)(vii) would, in light of the similarities between the types of machines, be good practice, the requirement in §   1910.217(b)(7)(vii), that the means of activation of the dual controls be capable   [*28]   of supervision, is evidence that compliance is not impossible on similar machines.

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n14 The use of dual controls on such machines has been the subject of previous Commission and judicial examination.   Long Manufacturing Co., supra note 4.

n15 That standards reads, in pertinent part, as follows:

§   1910.217 Mechanical power presses.

* * *

(b) Mechanical power press guarding and construction, general --

* * *

(7) Machines using part revolution clutches.

* * *

(vii) Controls for more than one operating station shall be designed to be activated and deactivated in complete sets of two operator's hand controls per operating station by means capable of being supervised by the employer.   * * *

Respondent's machine is a press brake and has a two-part revolution clutch.

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Mr. Wied's next objection to the use of dual controls was that, because the press brake has five stations, five sets of dual controls would be needed, and manufacturers of dual controls "don't make that many [for one machine]." This testimony,   [*29]   however, establishes only that five sets of controls are not now commercially available -- not that they cannot be devised.   This evidence therefore, is also insufficient.   See Huber, Hunt, Nichols & Blount Bros., supra, 4 OSHC at 1408. Mr. Wied then objected that if five sets of dual controls were used, and the palm buttons of each set were two feet apart (to prevent an operator from pushing both buttons with the hand and elbow of one arm), it would be "pretty difficult" to install them on the ten foot long press brake and leave space between the sets of controls.   He did not testify, however, why it is necessary to leave space between each set of controls.   And we again note that difficulty of compliance does not establish impossibility.

Mr. Wied also testified that if one movable set of dual controls was provided, an operator could neglect to move the set into position directly above or below the station, and would, while he reached across to push the palm buttons, expose himself to injury as the ends of the blank rise during bending. n16 Nevertheless, we point out that the record does not explain why the controls cannot be positioned at index stops or be so arranged [*30]   as to make the palm buttons electrically dead until they are moved into a safe position.   Mr. Wied could testify only that "[engineers] have nothing figured out to guide these controls.   It is vague." n17

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n16 This contention is relevant to the greater hazard defense, and not the impossibility defense.

n17 We note that on cross-examination, Mr. Wied addressed the question of whether, if dual controls were used, a guard could be placed between the operator and the point of operation far enough from the point of operation to prevent contact between the rising end of the blank and the operator.   Mr. Wied testified that the blank would contact the guard. But the record does not establish why the guard could not be placed further back from the point of operation. And the testimony of Mr. Wied does not establish that dual controls could not be extended out from the machine. Indeed, Mr. Bruno testified that the dual controls could be located away from the press brake at an operator's station a safe distance from the point of operation, and that magnetic devices could hold the blanks, except at station 1 where an air gate, a barrier device that would descend and activate the machine, could be used.   (This device is more clearly described in National Safety Council, Accident Prevention Manual for Industrial Operations 707-708 (6th ed. 1973)).

  [*31]  

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Mr. Wied also stated that if dual controls were used, the operator would not be able to hold the blanks, and that after bending they would fall off the work rests and onto the operator's feet.   But this hazard is not greater than the hazards of non-compliance, and so the greater hazard defense cannot be supported on this ground.   Moreover, Mr. Bruno testified that magnetic holding devices could be used to hold the blanks until just before and just after each operation and that baskets could catch blanks falling out after bending. Mr. Wied, however, testified that the magnet would not release the blank during bending. While Hughes Brothers argues that Mr. Wied's testimony is more worthy of belief, Judge Dixon evaluated the relative credibility of the witnesses differently.   He found that "[d]espite [Mr. Wied's] impressive credentials, his credibility was somewhat diminished by strenuous arguments against any and all methods suggested to guard the press brake", (J.D. at 13) and cited Mr. Bruno's testimony with apparent approval, finding that it related a means for "effective protection".   J.D. at 14.   [*32]   Under the Commission policy discussed in C. Kaufman, Inc., supra, 6 OSHC at 1297-1298, the Judge's credibility determination, deserves our deference.   We think that the Judge could properly consider, in evaluating Mr. Wied's credibility whether the witness exhibited a biased, hostile, or inflexible bent of mind.

Mr. Wied next discussed the use of barrier guards. He thought that because the end of the blank rises during bending, a pinch point would be created if the end of the blank contacted the barrier guard. This would inevitably occur, he testified, because Table O-10 requires that the guard be placed 2.5 inches from the point of operation. That table, however, is part of §   1910.217, which is not applicable to press brakes.   Moreover, it specifies only minimum distances from maximum permissible openings in a barrier guard. And most importantly, there is no evidence that any pinch point hazard would be greater than that of non-compliance.

V.

For the reasons above, we find that respondent failed to comply with §   1910.212(a)(3)(ii) and has not established by a preponderance of the credible evidence any affirmative defenses.   We also find that the violation was   [*33]   serious, because respondent knew of the physical conditions cited, n18 and it is clear that in the event of an accident, serious physical harm would be likely to result.   Finally, inasmuch as the respondent concedes that the penalty of $150 assessed by the Judge is appropriate, we do not review it.

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n18 Southwestern Acoustics & Specialty, Inc., 77 OSAHRC 25/E7, 5 BNA OSHC 1091, 1092, 1977-78 CCH OSHD para. 21,582 (No. 12174, 1977).

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Accordingly, the Judge's decision is AFFIRMED.

Commissioner COTTINE filing a separate opinion:

As a new member of the Commission, I must resolve the issue of my participation in pending cases.   It is also necessary for me to set out the principles guiding my decision on this important issue.

In this case, Chairman Cleary and Commissioner Barnako reached a unanimous decision on the merits before I received by commission on May 1, 1978.   A decision was already in preparation when I assumed office.   I have concluded that the wisest exercise of discretion is to decline to participate in [*34]   this case even though a new Commission member has authority to participate in pending cases.   It should be emphasized that by declining to participate I express no opinion on the procedural or substantive issues in this case or on the appropriateness of the accompanying order.

Discretion of Commission Members

As a matter of law, it is not necessary for all Commission members to participate for an agency to take official action.   In Drath v. FTC, 239 F.2d 452 (D.C. Cir. 1956), cert. denied, 353 U.S. 917 (1957), the Federal Trade Commission issued a cease-and-desist order with only three of its five members participating.   The Court of Appeals rejected petitioner's contention that the FTC can act in its adjudicatory capacity only when all members participate, except when there is a vacancy.   The court ruled that official action can be taken by the majority of the requisite quorum. Also Frischer & Co. v. Bakelite Corp., 39 F.2d 247 (C.C.P.A. 1930), cited approvingly in FTC v. Flotill Prod. Inc., 389 U.S. 179, 182-183 (1967). Similarly, section 12(f) of the Occupational Safety and Health Act, 29 U.S.C. §   661(e), provides:

For the purposes of carrying out [*35]   its functions under this chapter, two members of the Commission shall constitute a quorum and official action can be taken only on the affirmative vote of at least two members.

Thus, the unanimous decision already reached in this case satisfies the quorum and official action requirements of the Act and my participation is not necessary for the Commission to carry out its adjudicatory functions in this particular case.

However, it is also settled that a new member of an administrative agency may participate in pending cases.   For example, a new member of the Civil Aeronautics Board who had not participated in previous proceedings was entitled to vote and break an existing tie where he had familiarized himself with the record.   Western Air Lines v. CAB, 351 F.2d 778 (D.C. Cir. 1965), citing United Air Lines v. CAB, 281 F.2d 53 (D.C. Cir. 1960). n1 In United the court indicated that, where a member voting with the majority without hearing oral argument "had the record before him and the benefit of briefs", there was no abuse of discretion in his participation.   281 F.2d at 56. There are numerous other cases supporting this holding.   The clearest statement of law is set [*36]   forth in Gearhart & Otis, Inc. v. SEC, 348 F.2d 798 (D.C. Cir. 1965):

The decisions of numerous courts and administrative agencies establish that, even without agreement of the parties, a member of an administrative agency who did not hear oral argument may nevertheless participate in the decision where he has the benefit of the record before him. [footnotes omitted]

348 F.2d at 802. n2 See Au Yi Lau v. U.S. Immigration and Naturalization Service, 555 F.2d 1036, 1042 (D.C. Cir. 1977); Arthur Lipper Corp. v. SEC, 547 F.2d 171, 182 & n.8 (2d Cir. 1976). Thus, a new member possesses the necessary authority to participate in all cases pending before the Commission on assuming office.

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n1 A Commissioner may vote simply to avoid an impasse.   Public Service Commission of State of N.Y. v. FPC, 543 F.2d 757, 777 (D.C. Cir. 1974). See generally Screws v. United States, 325 U.S. 91, 134 (1945) (Rutledge, J., concurring in result).

n2 The Court distinguished WIBC, Inc. v. FCC, 259 F.2d 941 (D.C. Cir.), cert. denied, sub nom. Crosley Broadcasting Corp. v. WIBC, Inc., 358 U.S. 920 (1958), because oral argument was statutorily required if a party requested it.   348 F.2d 798, 802 n. 14.

  [*37]  

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Though a new member may participate in all pending cases, particularly those involving an impasse, the decision remains a matter of discretion since adjudicatory decisions may be upheld on a majority of a quorum. In FTC v. Flotill Prod., 389 U.S. 179 (1967), rev'g 358 F.2d 224 (9th Cir. 1966), an FTC member appointed to fill one of two vacancies declined to participate because he had not heard the oral argument. Thus, three of the possible four Commissioners actually participated in the decision.   As a result, the FTC issued a cease-and-desist order based on the affirmative vote of only two members.   Despite its obvious impact on the number of members constituting a majority, the Court did not review the exercise of discretion by the new member. Instead, the Court accepted the abstention at face value and upheld the action of the two members of the FTC.   See also LaPeyre v. FTC, 366 F.2d 117 (5th Cir. 1966); Atlantic Refining Co. v. FTC, 344 F.2d 599 (6th Cir. 1965). In addition, administrative decisions involving two or more abstentions have been upheld by reviewing courts without [*38]   question or comment on the grounds for these abstentions.   All that was necessary to sustain the agency decision was a majority of the required quorum. E.g., Greater Boston Television Corp. v. FCC, 444 F.2d 841, 848, 861 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971).

Decision Not to Participate

I decline to participate in this case because a majority of the Commission has reached agreement on the merits and my vote would have no effect on the outcome.   Moreover, in cases where Chairman Cleary and Commissioner Barnako have reached a unanimous decision, my participation would delay the issuance of decisions and conflict with the goal of a prompt and efficient decision-making process.   See generally Atlas Roofing Co., Inc. v. OSHRC, 430 U.S. 442, 97 S.Ct. 1261, 1272 (1977); Keystone Roofing Co., Inc. v. OSHRC, 539 F.2d 960, 964 (3d Cir. 1976); Nader v. FCC, 520 F.2d 182, 205-207 (D.C. Cir. 1975), citing 5 U.S.C. §   555(b).   Since abatement is stayed until the Commission enters a final order, 29 U.S.C. §   659(b), additional deliberations would delay the control of hazardous working conditions in any case where the Commission has determined that a [*39]   violation of the Act exists.   That result would be inconsistent with the statutory purpose to assure so far as possible safe and healthful working conditions for every working man and woman.   29 U.S.C. §   651(b).

I will, however, participate fully in all cases in which previous Commission deliberations have resulted in a one-to-one deadlock.   Decisions by an equally divided Commission are without precedential value, e.g., Life Sciences Products Co., 77 OSAHRC 200/A2 (microfiche), 6 BNA OSHC 1053, 1977-78 CCH OSHD P22,313 (No. 14910, Nov. 11, 1977), appeal filed, No. 77-1014 (4th Cir. Jan. 6, 1978), and, therefore, do not serve as guidance to the Commission's administrative law judges.   Moreover, these decisions also promote needless litigation in the U.S. Courts of Appeals to decide issues which should initially be determined by the Commission because its members have specialized training, education, and experience in occupational safety and health.   29 U.S.C. §   661(a).   See generally Atlas Roofing Co. v. OSHRC, supra at 1264, 1272; Keystone Roofing Co., Inc. v. OSHRC, supra at 963-964. Administrative resolution of pending issues also promotes [*40]   a more uniform application and development of occupational safety and health law.   After reading the record, I will participate in the consideration and decision of these cases.

Conclusion

My decision not to participate in pending cases which have reached a unanimous decision by my colleagues, but to participate in those cases with unresolved issues, promotes the prompt adjudication of cases.   The full benefit of Commission review is also assured the parties and the public.   Both of these results are essential to protecting the lives, health and safety of American workers and the operation of American business while providing for the effective adjudication of cases by the administrative law judges.