WESTERN STEEL MANUFACTURING COMPANY

OSHRC Docket No. 3528

Occupational Safety and Health Review Commission

August 31, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Robert A. Friel, Assoc. Regional Solicitor

Galen R. Norquist, Western Steel Manufacturing Co., for the employer

OPINION:

DECISION

BY THE COMMISSION:

On April 5, 1976, we issued our previous order in this case, finding that Western Steel Manufacturing Company had failed to guard its press brake in accordance with 29 CFR 1910.212(a)(3)(ii), and affirming item two of a citation for a violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter "the Act"). n1 Consideration of item one of that citation was, however, withheld until the parties had been afforded a further opportunity to express their views on the question of whether 29 CFR 1910.212 or 1910.217 applies to respondent's Niagara shear. Western Steel Mfg. Co., BNA 4 OSHC 1107, CCH 1975-76 OSHD para. 20,584 (No. 3528, April 5, 1976), pet. for review filed, No. 76-2224 (9th Cir., June 4, 1976).

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n1 The violation was also characterized as "serious" within the meaning of section 17(k) of the Act.

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In his supplemental brief, the Secretary urges that respondent's shear is not a mechanical power press, and is therefore governed by the provisions of section 1910.212 rather than section 1910.217. n2 Respondent has not filed a supplemental brief.

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n2 The Secretary states that his original representation to the Administrative Law Judge, that the machine is a mechanical power press, was in error. On the import of the characterization, see footnote 7 of our first opinion in this case.

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The facts are not in dispute. Respondent's Niagara shear is a squaring shear. A multi-toothed device holds the metal to be sheared against a table. Behind this hold-down device the upper shearing blade moves down and cuts the metal against a fixed lower blade. The upper blade moves not like a guillotine but somewhat like a scissor with an immobile lower blade. The cutting blades are not shear devices or cutting dies attached to a slide.

Generally, section 1910.212 applies [*3] to all machines unless a more specific standard applies. Irvington-Moore, Div. of U.S. Natural Resources, Inc., 16 OSAHRC 608, BNA 3 OSHC 1018, CCH 1974-75 OSHD para. 19,523 (No. 3116, April 7, 1975), pet. for review filed, No. 75-2159 (9th Cir., May 27, 1975). Section 1910.217 applies to mechanical power presses, except those excluded by section 1910.217(a)(5). See Diebold, Inc., BNA 3 OSHC 1897, CCH 1975-76 OSHD para. 20,333 (Nos. 6767 etc., January 22, 1976), pet. for review filed, No. 76-1278 (6th Cir., March 8, 1976). Because this shear does not fall within the exclusion provided by section 1910.217(a)(5), the question here is whether this shear is a mechanical power press within the contemplation of section 1910.217. Section 1910.211 is the general definitional section for Subpart 0, which contains the machinery and machine guarding standards for industrial operations generally. The controlling definitions read as follows:

1910.211 Definitions.

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(d) As used in 1910.217, unless the context clearly requires otherwise, the following power press terms shall have the meaning prescribed in this paragraph.

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(46) "Press" [*4] means a mechanically powered machine that shears, punches, forms or assembless metal or other material by means of cutting, shaping, or combination dies attached to slides. A press consists of a stationary bed or anvil, and a slide (or slides) having a controlled reciprocating motion toward and way from the bed surface, the slide being guided in a definite fixed path by the frame of the press.

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(51) "Slide" means the main reciprocating press member. A slide is also called a ram, plunger, or platen.

Although the two definitions read together are somewhat circular, n3 it would seem that they contemplate that a press must have a slide to which cutting, shaping or combination dies are attached. Although section 1910.211(d)(46) speaks of a press as a machine that "shears," the sweep of the definition would seem limited to shearing operations in which a cutting n4 die or similar die is attached to the slide of a press. It would not seem that machines which shear but lack slides are included within the definition.

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n3 The circularity is created by the reference in 1910.211(d)(46) to the word "slide" in order to define "press" and the use of the word "press" in 1910.211(d)(51) to define "slide."

n4 Like the word "combination," the words "cutting" and "shaping" are used in 1910.211(46) to modify "dies."

[*5]

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The Secretary of Labor has arrived at the same conclusion by a parallel chain of reasoning. He notes that section 1910.211(d)(46) speaks of "dies attached to slides." Respondent's shear, however, does not use "dies," as that term is defined in section 1910.211(d)(18), but uses shearing blades instead. n5

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n5 We also note that 1910.212(a)(3)(iv)(b) and (d) specifically refer to "shears" and "power presses" separately. This, of course, indicates that shares and power presses may be treated as distinct machine types.

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The usage of industrial safety experts is also consistent with this reading. Thus, in the National Safety Council, Accident Prevention Manual for Industrial Operations 693 (6th ed., 1969), an authoritative work to which we may refer for this limited purpose (see Paccar, Inc., 17 OSAHRC 595, 598 n.4, BNA 3 OSHC 1133, 1135 n.4, CCH 1974-75 OSHD para. 19,595 (No. 1885, May 1, 1975)), a definition of a "power [*6] press" is given which is functionally equivalent to that in section 1910.211 (d)(46):

Definitions

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POWER PRESS (also commonly called punch press). A powered machine having a stationary bed and a slide (ram or plunger) which is guided in the frame of the machine to give reciprocating motion toward and away from the bed surface and at right angles to it.

The power press is used to shear, punch, form, or assemble metal or other materials by means of tools or dies attached to both the slide and the bolster plate in a vertical or inclined plane. [Emphasis added.]

The definition, however, goes on to state:

The term "power press" is used loosely to designate any mechanical press as distinct from a hydraulic press.

Power presses as defined here do not include bulldozers, hot metal presses, or forging hammers, all of which are discussed in Chapter 29, "Hot Working of Metals." Neither do power presses include squaring shears. These are discussed later in this present chapter. [Emphasis added.]

In view of the above, we conclude, as did former Commissioner Van Namee in his dissenting opinion in Losli, Inc., 8 OSAHRC 1, BNA 1 OSHC 1734, CCH 1973-74 OSHD para. 17,766 [*7] (No. 1067, May 1, 1974) that:

[I]n order to quality as a mechanical power press within the meaning of the standard the machine must be equipped with a slide (ram or plunger) to which tools [or dies] may be attached. Obviously, a press can be used as a shear by attaching a cutting tool to its slide. But that does not mean a machine whose moving element is a cutting blade is also a press. It is not if it does not have a slide to which tools may be attached. That is this case. [T]he only moving element employed by Respondent's machine is a blade. Section 217 does not apply because Respondent's shear is not a mechanical power press. Section 212 would apply but then the question would be whether Respondent's guard protected his employees from the point of operation hazard.

We therefore hold that section 1910.212 is the standard applicable to respondent's shear, and we proceed to determine whether respondent complied with section 1910.212(a)(3)(ii), the subsection cited by the Secretary.

Respondent's shear has two points of operation: (1) where the hold-down device contacts the metal to be worked; and (2) where the shear blades cut the metal. An employee could have inserted his [*8] fingers or hand into them. If struck, severe crushing of the fingers or amputation would have resulted. The compliance officer testified that he witnessed an employee actually use the shear several times. The operator's hands were about four to six inches from the shear blades, and "probably not more than an inch or two" from the hold-down mechanism. This evidence is sufficient to show that both the points expose employees to injury. Irvington-Moore, supra; Buckeye Industries, Inc., BNA 3 OSHC 1837, CCH 1975-76 OSHD para. 20,239 (No. 8454, December 22, 1975); Slyter Chair, Inc., BNA 4 OSHC 1110, CCH 1975-76 OSHD para. 20,589 (No. 1263, April 8, 1976); Western Steel Mfg. Co., supra. And because the points were not guarded, the Secretary's burden of proof has been met. Buckeye Industries, Inc., supra, Slyter Chair, Inc., supra.

The other facts of record do not support any affirmative defenses. The respondent's reliance on the last sentence of 29 CFR 1910.212(a)(2) is misplaced. We have held that that provision imposes an affirmative duty on respondent, and does not provide a defense to avoid compliance. See generally, Buckeye [*9] Industries, Inc., supra; House Wood Products Company, BNA 3 OSHC 1993, CCH 1975-76 OSHD para. 20,386 (No. 11167, February 3, 1976); Acme Glass Company, BNA 3 OSHC 2087, CCH 1975-76 OSHD para. 20,488 (No. 3282, March 3, 1976). The employer is obligated to install a guard on the shear that does not present a hazard. Id.

Certainly no defense under the narrow holding of Industrial Steel Erectors, Inc., 6 OSAHRC 154, BNA 1 OSHC 1497, CCH 1973-74 OSHD para. 17,136 (No. 703, January 10, 1974) has been established. Respondent presented evidence that two employees were pinched by the guard it subsequently installed. n6 But it was not shown that the hazard engendered by compliance is greater than that of noncompliance, nor has respondent applied for a variance from the standard. See generally, Lee Way Motor Freight, Inc., BNA 3 OSHC 1843, CCH 1975-76 OSHD para. 20,250 (No. 7674, November 22, 1975), and cases cited therein. We are aware, however, that respondent made a good faith attempt, after the inspection, to comply with the standard. But this does not affect the validity of the citation, although it is an important consideration in penalty assessment. [*10] Cf. Belt Railway Co. of Chicago et al., BNA 3 OSHC 1612, 1614 n.5, CCH 1975-76 OSHD para. 20,069 at 23,877-3 n.5 (No. 4616 etc., October 17, 1975). We also note that even if the device installed by respondent conforms with that allegedly suggested by the compliance officer an abatement order must still issue from this Commission. Compliance officers are not empowered to issue abatement suggestions binding upon the Secretary, nor may the Secretary or the Commission be accordingly estopped. United States Steel Corp., BNA 2 OSHC 1343, CCH 1974-75 OSHD para. 19,047 (Nos. 2975 & 4349, November 14, 1974) (lead and concurring opinions and note 9). See also Udall v. Oelschlaeger, 389 F.2d 974, 977 (D.C. Cir.), cert. denied 392 U.S. 909 (1968); Atlantic Richfield Co. v. Hickel, 432 F.2d 587, 591-592 (10th Cir. 1970). We nevertheless do not find that the compliance officer's statements actually misled respondent. Tr. 97-98, 101-102. Respondent's obligation to abate within the terms of the standard accordingly remains.

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n6 The Judge stated that a guard was attached to the press brake; this was apparently an inadvertent mistake.

[*11]

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We accordingly find that with regard to the shear respondent violated section 5(a)(2) of the Act. For the reasons cited in our previous decision, with respect to the press brake, we find that the violation was "serious."

With regard to the assessment of a penalty, we note the respondent's small size, the moderately high gravity of the violation, and the lack of a history of previous violations. We are persuaded, however, that in view of respondent's abatement efforts, more weight should be accorded to respondent's good faith. We find a penalty of $125 to be appropriate.

Accordingly, it is ORDERED that item one of the citation be affirmed, and a penalty of $125 be assessed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

I disagree with the disposition presently reached in this case just as I previously disagreed with the Commission's order which issued on April 5, 1976. I submit that the method employed by my colleagues in reaching this result has a corrosive effect on the judicial process. I had that in mind when I stated in the earlier decision that:

"To avert the obvious result of complainant's actions, [*12] my colleagues abandon their judicial role by providing complainant with a new argument and giving him a chance to use it by requesting briefs."

Although I will not again restate in full the actions of complainant which prompted this statement, it is appropriate to reemphasize that in his earlier brief to the Commission in response to the direction for review, complainant admitted that according to the "definitional scheme" of 29 C.F.R. 1910.211 respondent's shears are "within the purview of 29 C.F.R. 1910.217." Now, after having been prompted by my colleagues, the complainant asserts in his supplemental brief that his statement in his original brief to the Commission "that shears are presses was . . . erroneous." n7

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n7 Still, however, his reasons for this conclusion, which the majority describes as "a parallel chain of reasoning" do not fully comport with the response expected by my colleagues in requesting supplemental briefs.

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In numerous cases, Messrs. Barnako and Cleary have refused to address issues specified [*13] in a direction for review because of the negative action of the parties in not petitioning for review and not briefing the specified issues. In the instant case, however, they have created an issue where the two parties had affirmatively agreed that there was none. Such action is illustrative of the prosecutorial direction in which the Commission has been moving in the past year contrary to the impartial adjudicatory role assigned to it by Congress. Secretary v. Wetmore & Parman, Inc., 2 OSAHRC 288 (1973); 29 U.S.C. 651(b)(3).

A respondent in an administrative proceeding is entitled to a fair hearing by an unbiased and nonpartisan tribunal. NLRB v. National Paper Co., 216 F.2d 859 (5th Cir. 1954). When, as here, the adjudicatory body assumes a prosecutorial role, the respondent is denied this fundamental right of due process. See Wasson v. Trowbridge, 382 F.2d 807 (2d Cir. 1967); Amos Treat & Co., Inc. v. SEC, 306 F.2d 260 (D.C. Cir. 1962); NLRB v. Phelps, 136 F.2d 562 (5th Cir. 1943). Accordingly, the Commission's intrusion into the prosecution of [*14] the instant case is not only improper but it tends to diminish confidence in the institutions of government.

Moreover, in view of the complainant's equivocation as to which standard applies to Niagara shears, how can employers be expected to know? If the Secretary of Labor is so unsure as to whether his regulation pertains to a particular piece of equipment, the Commission is most certainly not in a position to resolve that dilemma for him. Cf. Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974). Under these circumstances vacation of the citation is required because of vagueness of the cited standard. n8 See Cape and Vineyard Division of the New Bedford Gas and Edison Light Company v. OSAHRC, 512 F.2d 1148 (1st Cir. 1975).

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n8 Even my colleagues agree that it is necessary to utilize two "somewhat circular" definitions to conclude that 29 C.F.R. 1910.212 applies to Niagara shears. The word "convoluted" better describes the situation.

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As Chief Judge Brown stated in Diamond Roofing [*15] Co. Inc. v. OSAHRC, 528 F.2d 645 (5th Cir., 1976):

"An employer . . . is entitled to fair notice in dealing with his government. Like other statutes and regulations which allow monetary penalties against those who violate them, an occupational safety and health standard must give an employer fair warning of the conduct it prohibits or requires, and it must provide a reasonably clear standard of culpability to circumscribe the discretion of the enforcing authority and its agents."