Docket No. 76-3517

PAPERTRONICS, DIV. OF HAMMERMILL PAPER COMPANY

OSHRC Docket No. 76-3517

Occupational Safety and Health Review Commission

June 19, 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

Daniel Brocki, Hammermill Paper Company, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

This matter is on review by the Commission n1 to consider respondent's exceptions to Administrative Law Judge Abraham Gold's decision, dated March 28, 1977, finding it in noncompliance with 29 CFR § 1910.212(a)(1). We reverse.

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n1 Section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (1970) ["the Act"].

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As a result of an inspection by a representative of the Occupational Safety and Health Administration of its Oswego, New York facility, respondent was cited, among other things, for noncompliance with § 1910.212(a)(1). n2 The charge alleged that "nip points" on nine slitter-rewinder [*2] machines and one folder machine, as well as "pinch points" on two slitter-rewinders, were not guarded as required by this standard. n3

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n2 § 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.

n3 At the hearing respondent withdrew its contest of numerous other alleged violations which thereby evolved into final Commission orders. Section 10(a) of the Act.

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The slitter-rewinders cut oblong rolls of paper into narrower sizes for such use as calculating machine paper rolls, etc. The uncut roll (feeder roll) is set at the front of the machine. The machine then unwinds, cuts, and rewinds the paper on a spool directly [*3] above the feeder roll in one continuous motion. The movement of the paper through the cutting cycle is accomplished by a powered "rider roll" of approximately the same length as the feeder and rewind spools. At the beginning of each cycle, the rider roll is lowered into contact with the rewind spool. The rider roll turns the rewind spool which pulls the paper through the cutting cycle.

The compliance officer, who conducted the inspection, described the cited nip points on the slitter-rewinders as the area between the feeder and rewind spools. She contended that this presented a hazard inasmuch as a person's hand could be drawn into this area, while the rollers are in motion, causing serious injury. She described the machines' noncomplying pinch point as the area where the powered rider roll descends upon the rewind spool at the beginning of the cycle. At this point the rollers are not in motion. She testified that the hazard created was the possibility of crushed fingers if a person inadvertently placed his hand there during the rider roll's descent.

Respondent raises numerous exceptions to Judge Gold's decision holding it in noncompliance regarding the three separate, alleged [*4] hazards. Inasmuch as we agree with respondent that the Secretary failed to prove the existence of a hazard we do not reach its other exceptions.

In all proceedings commenced by the filing of a notice of contest, the burden of proof rests with the Secretary. Commission Rule 73(a), 29 CFR § 2200.73(a). Moreover, the standard at § 1910.212(a)(1) speaks explicitly in terms of "hazards" that must be guarded. Accordingly, the Commission has held that the Secretary must prove the existence of a hazard to establish a prima facie case of violation of § 1910.212(a)(1). A.E. Burgess Leather Company, Inc., 77 OSAHRC 25/D6, 5 BNA OSHC 1096, 1977-78 CCH OSHD para. 21,573 (No. 12501, 1977), pet. for review docketed, No. 77-1146 (1st Cir., March 28, 1977). n4

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n4 Absent such language in a standard, we have uniformly held that the Secretary need not specifically establish that noncompliance results in a hazardous condition. See e.g., Thermo Tech., Inc., 77 OSAHRC 192/A2, 5 BNA OSHC 2044, 1977-78 CCH OSHD para. 22,281 (No. 15381, 1977), pet. for review docketed, No. 77-3438 (5th Cir., Dec. 13, 1977); Vecco Concrete Construction, Inc., 77 OSAHRC 183/A2, 5 BNA OSHC 1960, 1977-78 CCH OSHD para. 22,247 (No. 15579, 1977).

[*5]

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Regarding the slitter-rewinder, Mr. John Goldsmith, the facility's plant manager testified convincingly for respondent. He testified that he had placed his hand in the cited pinch point the day before the hearing with no ill effect. He further testified that while insertion of a hand in the slitter-rewinder's nip point could possibly cause some slight injury such as paper burns, the injuries contemplated by the compliance officer were extremely remote because the machine was equipped with a micro switch cut off. Should an object even smaller than a hand become inserted in the nip point, the micro switch would activate. He further stated that there had been no pinch or nip point injuries in the fourteen year existence of the facility.

On the other hand, the record reveals that the Secretary was unable to rebut Goldsmith's testimony as to why the pinch points were not hazardous despite its being contrary to the compliance officer's testimony that they could cause severe injury. Inasmuch as Goldsmith's testimony was based upon actual experience, as compared to that of the compliance officer which [*6] was, admittedly, based upon general theoretical knowledge, we credit the former and find that the pinch points were not hazardous.

Similarly, regarding the nip points on the slitter-rewinder, the compliance officer testified to being unaware of the tension between the spools forming the nip point. Also, her testimony does not disclose whether the existence of the micro switch would have affected her determination that a hazard existed. Such questions are essential to determining whether a hazard existed.

The compliance officer's testimony as to the extent of any injury which might be suffered by exposure to the nip points was also inconclusive n5 and we find that the possible abrasions or contusions presented by the unguarded slitter-rewinder nip points do not rise to the level of "hazards" contemplated by the standard. Cf. Hood Sailmakers, Inc., 77 OSAHRC 212/C12, 6 BNA OSHC 1206, 1977-78 CCH OSHD para. 22,422 (No. 13996, 1977).

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n5 It was speculated that the possible injuries from the unguarded nip points were contusions, abrasions, or possible fractures.

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We further hold, consistent with our discussion of the nip points on the slitter-rewinders, that the Secretary failed to establish the existence of a hazard regarding the unguarded nip points on the folding machine. The only evidence of record is that a machine, referred to as a folding machine, had unguarded in-running nip points that exposed employees to a condition similar to that on the slitter-rewinders.

Accordingly, it is ORDERED that the Judge's affirmance of a violation for noncompliance with § 1910.212(a)(1) is reversed.

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

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 my commission on May 1, 1978. A decision was already in preparation when I assumed office. I have concluded that the wisest exercise of [*8] 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 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), [*9] 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 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. [*10] 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.

[*11]

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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 no 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 [*12] 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 [*13] 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 litigatioon in the U.S. Courts of Appeals to decide isshes 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 [*14] 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.