KROEHLER MANUFACTURING CO.
OSHRC Docket No. 76-2120
Occupational Safety and Health Review Commission
October 26, 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
Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor
John M. Reagan, Industrial Relations Manager, Kroehler Mfg. Co., for the employer
OPINIONBY: CLEARY
OPINION:
CLEARY, Chairman:
On September 7, 1976, Administrative Law Judge Abraham Gold affirmed a citation which alleged that respondent, Kroehler Manufacturing Company, had failed to comply with 29 CFR § 1910.212(a)(3)(ii) and had therefore violated section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. ("the Act"). On September 16, 1976, former Commissioner Moran directed that the Judge's decision be reviewed "for error". Respondent filed a brief taking exception to the Judge's decision. On October 31, 1977, the Commission, acting under paragraph 2 of its Policy Statement of December 1, 1976 (41 F.R. 53015), identified some issues in the case and notified the parties of an opportunity to file a brief on those issues. The Secretary thereupon filed a brief. [*2] We have carefully examined the evidence, the arguments of both parties, and the Judge's decision. We adopt the Judge's conclusion that there was a violation but reduce the assessed penalty to $250.
Respondent manufactures furniture at a plant in Binghamton, New York. In its cardboard cutting department, it uses a Challenge guillotine cutter equipped with a two-hand tripping device. To begin the blade operating cycle of the machine, two levers must be manually engaged. The left-hand lever must be kept engaged during the descent or the blade will stop. Once both levers are "tripped" and the blade begins to descend, however, the right-hand lever need not be kept engaged. The operator may remove his hand from the right-hand lever to steady or hold down the cardboard to be cut. The point of operation is close enough and the blade descends slowly enough that the operator's right-hand or fingers may come into the point of operation during the operating cycle n1 and be amputated.
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n1 During the inspection, an incident illustrating this feature of the machine occurred. The compliance officer observed an employee cutting a stack of cardboard five or six inches high. Before the blade had completed its descent, the operator placed his right hand within three to four inches of the point of operation to hold down the cut cardboard.
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The standard cited, § 1910.212(a)(3)(ii), provides as follows:
§ 1910.212 General requirements for all machines.
(a) Machine guarding --
* * *
(3) Point of operation guarding.
* * *
(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, 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.
Judge Gold found that the two-hand tripping device was not 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 Judge did not make an explicit finding that the point of operation of the guillotine cutter exposed an employee to injury, however. n2
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n2 The Judge did find that there was a substantial probability that serious physical harm (amputation of fingers) could result from the condition of the guillotine cutter. This finding was made in connection with the different question of whether the alleged violation of section 5(a)(2) was "rious" within the meaning of section 17(k) of the Act. Kroehler has not objected to the Judge's finding of "seriousness", and we therefore do not review it. Paragraph 1 of Commission Policy Statement of December 1, 1976 (41 F.R. 53015).
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Respondent claims that "it was unfair that the Judge concluded that this guillotine cutter was unsafe to operate." It relies heavily upon approval by New York State authorities of the safety equipment on the machine, and the lack of any recorded injuries in 30 years of operation. It also argues that it has provided a guarding device in conformity with § 1910.261(1)(6).
The Secretary argues that § 1910.261(1)(6) is not applicable. He reasons that § 1910.261, according to its scope provision, § 1910.261(a), "applies to establishments where pulp, paper, and paperboard are manufactured and converted." The Secretary points out that respondent's furniture plant is not such an establishment. Also, the Secretary suggests that § 1910.261(1)(6) is not applicable because § 1910.261(1) is captioned "Finishing room", and respondent's cardboard cutting department is not such a room. It is his view that only "applicable specific standards" can be "appropriate standards" as those terms are used in § 1910.212(a)(3)(ii). Finally, he argues that respondent did not comply with § 1910.212(a)(3)(ii).
The Secretary's [*5] interpretation of § 1910.212(a)(3)(ii) is essentially correct. The terms "appropriate standards" and "absence of applicable specific standards" are complementary. Despite the inartfulness of the wording of § 1910.212(a)(3)(ii), it is clear that the terms provide a rule of applicability for the standard. Thus, § 1910.212(a)(3)(ii) applies and fills gaps in coverage whenever the scope provision of another machine guarding standard prevents the application of that standard to a particular machine. If these two terms were construed to be noncomplementary, so that an "appropriate standard" was not necessarily an "applicable standard", the scope provisions of the other standard would be rendered ineffective and superfluous. In this case, for example, respondent would have us hold that § 1910.261(1)(6) is an "appropriate" standard and would have us apply it to its cutter, even though the scope provision, § 1910.261(a), makes all of § 1910.261 inapplicable to respondent's business. We have many times held, however, that provisions of standards should not be so construed as to render them superfluous or ineffective. See e.g., Turner Co., 76 OSAHRC 108/A2, 4 BNA OSHC 1554, [*6] 1556, 1976-77 CCH OSHD para. 21,023 (No. 3635, 1976), rev'd and remanded on other grounds, 561 F.2d 82 (7th Cir. 1977); The Budd Co., 74 OSAHRC 12/A2, 1 BNA OSHC 1548, 1973-74 CCH OSHD para. 17,387 (Nos. 199 & 215, 1974), aff'd, 513 F.2d 201 (3d Cir. 1975).
Our view of the matter also comports with the history of § 1910.212(a)(3)(ii). The source for § 1910.212(a)(3)(ii) is 41 CFR § 50-204.5(c)(2), a regulation adopted under the Walsh-Healey Public Contracts Act, 41 U.S.C. § 35 et seq. n3 The portion of that regulation from which the pertinent language of § 1910.212(a)(3)(ii) is derived reads as follows:
Where existing standards prepared by [certain listed] organizations . . . provide for point of operation guarding such standards shall prevail. Other types of machines for which there are no specific standards, and the operation exposes an employee to injury, the point of operation shall be guarded. . . .
The first and second sentences of § 50-204(c)(2) were complementary and permitted no gaps or overlaps in coverage. It is accordingly appropriate to construe § 1910.212(a)(3)(ii) in a similar fashion. We therefore hold that an "appropriate standard" under [*7] § 1910.212(a)(3)(ii) must be "applicable specific standard". We consequently need not examine respondent's claim that it has complied with § 1910.261(1)(6). n4
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n3 The history of the standard is set forth at greater length in MRS Printing, Inc., 78 OSHARC , 6 BNA OSHC , 1978 CCH OSHD para. (No. 76-3113, 1978); and Diebold, Inc., 76 OSAHRC 3/E5, 3 BNA OSHC 1897, 1975-76 CCH OSHD para. 20,333 (Nos. 6767 etc., 1976), pet. for review filed, No. 76-1278 (6th Cir., March 8, 1976).
n4 We recognize that respondent may consider it odd that different standards may apply to guillotine cutters simply because of the differing nature of the plant or room in which they are located. Respondent does not, however, challenge the legality of the distinction, and we cannot in any event pass upon the wisdom of the matter. We note, as we did in Diebold, Inc., supra note 3, that any inconsistency in the standards may derive from their different sources -- § 1910.212 is derived from a regulation in effect under another federal statute, and § 1910.261 is derived from ANSI P1.1-1969, Safety Standard for Pulp, Paper, and Paperboard Mills.
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With respect to the question of noncompliance with § 1910.212(a)(3)(ii), we adopt Judge Gold's finding that the performance criterion of the standard was not met, and we enter our finding that the point of operation exposed the operator to injury. As in Western Steel Mfg. Co., 76 OSAHRC 112/E2, 4 BNA OSHC 1640, 1642-1643, 1976-77 CCH OSHD para. 21,054 (No. 3528, 1976) and Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1831 n.2, 1978 CCH OSHD para. 22,909 (No. 12523, 1978), we observe that the operator would have been injured if his hands or fingers had come within the point of operation and that his right hand held the paper and was in close proximity to the blade as it descended. The lack of recorded injuries in many years, while having some probative value, does not in our view rebut the objective evidence of exposure to a hazard. A.E. Burgess Leather Co., 77 OSAHRC 25/D6, 5 BNA OSHC 1096, 1977-78 CCH OSHD para. 21,573 (No. 12501, 1977), aff'd, 576 F.2d 948 (1st Cir. 1978).
We also hold that respondent's reliance upon approval of the two-hand tripping device by the New [*9] York State Department of Labor, Division of Safety and Health, is misplaced. First, as the New York State authorities informed respondent, their views are not binding upon OSHA officials, and, we would add, are not binding upon this Commission. Holman Erection Co., 77 OSAHRC 196/A2, 5 BNA OSHC 2078, 1977-78 CCH OSHD para. 22,318 (No. 13529, 1977). Second, a New York State official told respondent only that its two-hand tripping device was in conformity with the state's Industrial Code Rule 19. He did not state that respondent's machine complied with OSHA's standard. Indeed, the state official informed respondent that its machine was not in compliance with the OSHA standard because respondent had failed to properly guard the point of operation. n5
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n5 The state official's letter to Kroehler indicates that at one time it was Kroehler's view that the New York State standard was an "appropriate standard" within the meaning of § 1910.212(a)(3)(ii). We have rejected just such a contention in MRS Printing, Inc., supra note 3.
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We wish to make clear, however, that our decision in this case does not hold that all two-hand tripping devices are impermissible under § 1910.212(a)(3)(ii). Section 1910.212(a)(1) expressly mentions such devices as an example of a guarding method. We hold only that a two-hand tripping device must meet the performance criterion for point of operation guarding devices in § 1910.212(a)(3)(ii). We observe, however, that an analogous machine guarding standard which applies to mechanical power presses requires that protective two-hand tripping devices on such presses be located at such a distance from the point of operation that the slide of the mechanical power press completes its downward travel before the operator can reach into the point of operation. § § 1910.217(c)(3)(i)(e) and (c)(3)(viii).
Finally, we note that Judge Gold assessed a penalty of $500. In view of respondent's evident good faith, however, we think that $250 is a more appropriate penalty.
Accordingly, the Judge's decision is modified to assess a penalty of $250, and, as modified, is AFFIRMED.
Commissioner COTTINE filing a separate opinion:
As a new member of the Commission, I must resolve [*11] 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 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 is adjudicatory capacity only [*12] 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 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 [*13] 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 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.
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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 [*15] 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 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 [*16] 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 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, [*17] 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 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 [*18] providing for the effective adjudication of cases by the administrative law judges.