TURNER COMPANY
A. SCHONBEK & CO., INC.
NORANDA ALUMINUM, INC.
GENERAL MOTORS CORP., GM ASSEMBLY DIV.
ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.
CLEMENT FOOD COMPANY
MILLCON CORPORATION
FWA DRILLING COMPANY, INC.
CCI, INC.
GENERAL ELECTRIC COMPANY
CONSOLIDATED ALUMINUM CORPORATION
THE BRONZE CRAFT CORPORATION
CARGILL, INC.
CHAPMAN CONSTRUCTION CO., INC.
GALLO MECHANICAL CONTRACTORS, INC.
SPECIAL METALS CORPORATION
WILLAMETTE IRON AND STEEL COMPANY
NASHUA CORPORATION
WESTINGHOUSE ELECTRIC CORPORATION
RESEARCH-COTTRELL, INC.
ROCKWELL INTERNATIONAL CORPORATION
NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.
NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.
BUNKOFF CONSTRUCTION CO., INC.
GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION
HARRIS BROTHERS ROOFING CO.
GENERAL DIVERS COMPANY
ORMET CORPORATION
R. ZOPPO CO., INC.
COEUR D'ALENE TRIBAL FARM
L. A. DREYFUS COMPANY
CMH COMPANY, INC.
BENTON FOUNDRY, INC.
MICHAEL CONSTRUCTION CO., INC.
WHIRLPOOL CORPORATION
BROWN & ROOT, POWER PLANT DIVISION
MARION POWER SHOVEL CO., INC.
ERSKINE-FRASER CO.
MORRISON-KNUDSEN AND ASSOCIATES
THE BOAM COMPANY
DIC-UNDERHILL, a Joint Venture
C. R. BURNETT AND SONS, INC.; HARLLEE FARMS
STRIPE-A-ZONE, INC.
FORTE BROTHERS, INC.
RAYBESTOS FRICTION MATERIALS COMPANY
TEXLAND DRILLING CORPORATION
THE ANACONDA COMPANY, WIRE AND CABLE DIVISION
SAM HALL & SONS, INC.
VAMPCO METAL PRODUCTS, INC.
LEONE INDUSTRIES, INC.
ASARCO, INC.
DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY
PLUM CREEK LUMBER COMPANY
PLUM CREEK LUMBER COMPANY
STEARNS-ROGER, INC.
FERRO CORPORATION, (ELECTRO DIVISION)
AMERICAN PACKAGE COMPANY, INC.
BROWN & ROOT, INC., POWER PLANT DIVISION
FLEETWOOD HOMES OF TEXAS, INC.
DONALD HARRIS, INC.
A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.
ELECTRICAL CONSTRUCTORS OF AMERICA, INC.
DAYTON TIRE & RUBBER COMPANY (Division of the Firestone Tire & Rubber Company)
ASARCO, INC., EL PASO DIVISION; HUGHES TOOL COMPANY
NAVAJO FOREST PRODUCTS INDUSTRIES
METROPAK CONTAINERS CORPORATION
AUSTIN BUILDING COMPANY
BABCOCK AND WILCOX COMPANY
DARRAGH COMPANY
BABCOCK & WILCOX COMPANY
OTIS ELEVATOR COMPANY
R. ZOPPO COMPANY, INC.
LUTZ, DAILY & BRAIN - CONSULTING ENGINEERS
PENNSYLVANIA POWER & LIGHT CO.
HARSCO CORPORATION, d/b/a PLANT CITY STEEL COMPANY
NORTHWEST AIRLINES, INC.
INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.
GENERAL MOTORS CORPORATION, INLAND DIVISION
WELDSHIP CORPORATION
S & S DIVING COMPANY
SNIDER INDUSTRIES, INC.
NATIONAL STEEL AND SHIPBUILDING COMPANY
MAXWELL WIREBOUND BOX CO., INC.
CONTINENTAL GRAIN COMPANY
MISSOURI FARMER'S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE; MFA, INC., d/b/a MFA GRAIN DIVISION; DESERT GOLD FEED COMPANY
CAPITAL CITY EXCAVATING CO., INC.
GAF CORPORATION
PPG INDUSTRIES (CARIBE) a Corporation
DRUTH PACKAGING CORPORATION
SOUTHWESTERN ELECTRIC POWER COMPANY
TUNNEL ELECTRIC CONSTRUCTION CO.
WEATHERBY ENGINEERING COMPANY
JOHNSON STEEL & WIRE CO., INC.
AUSTIN ROAD CO.
MAYHEW STEEL PRODUCTS, INC.
LADISH CO., TRI-CLOVER DIVISION, a Corporation
PULLMAN POWER PRODUCTS, INC.
NATIONAL ROOFING CORPORATION
OSCO INDUSTRIES, INC.
HIGHWAY MOTOR COMPANY, d/b/a PARK PRICE MOTOR COMPANY
S.J. GROVES AND SONS COMPANY
CAR AND TRUCK DOCTOR, INC.
PRESTRESSED SYSTEMS, INC.
TEXACO, INC.
GEORGIA HIGHWAY EXPRESS, INC.
RED LOBSTER INNS OF AMERICA, INC.
SUNRISE PLASTERING CORP.
STONE & WEBSTER ENGINEERING CORPORATION
H.B. ZACHRY COMPANY (INTERNATIONAL)
NATIONAL INDUSTRIAL CONSTRUCTORS, INC.
BUSHWICK COMMISSION COMPANY, INC.
CIRCLE T DRILLING CO., INC.
J.L. FOTI CONSTRUCTION COMPANY, INC.
TEXACO, INC.
KENNETH P. THOMPSON CO., INC.
HENRY C. BECK COMPANY
HEATH & STICH, INC.
FARMERS EXPORT COMPANY
FOSTER AND KLEISER
TURNER WELDING & ERECTION CO., INC.
TRI-CITY CONSTRUCTION CO.
THE DURIRON COMPANY, INC.
SAMSON PAPER BAG CO., INC.
MEL JARVIS CONSTRUCTION COMPANY, Inc.
MIDWEST STEEL ERECTION, INC.
GEISLER GANZ CORPORATION
OSHRC Docket No. 77-3543
Occupational Safety and Health Review Commission
June 6, 1980
[*1]
Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor
Daniel M. Ganz, President, Geisler Ganz Corporation, for the employer
OPINION:
DECISION
BY THE COMMISSION:
A decision of Administrative Law Judge Jerome C. Ditore is before the Commission for review pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). In his decision, Judge Ditore vacated a citation alleging a serious violation of the Act in that the Respondent, Geisler Ganz Corporation, failed to comply with the standard at 29 C.F.R. § 1910.217(c)(1)(i), which requires employers to provide and insure the use of point of operation guards or point of operation devices on mechanical power presses. The judge concluded that the Secretary of Labor ("the Secretary") has the burden of proving the feasibility and utility of a particular method of guarding as a part of his prima facie showing that an employer has failed to comply with the cited standard. The judge further concluded that in the case before us the Secretary failed to meet [*2] this burden. Accordingly, Judge Ditore vacated the citation on the grounds stated.
The Secretary thereafter petitioned the Commission for review of Judge Ditore's decision and that petition was granted by Chairman Cleary. In particular, the Chairman directed review on the following issue:
Whether the Administrative Law Judge erred in placing upon the Secretary the burden of proving the existence of a feasible means of guarding a point of operation on a power press to support a citation that alleges noncompliance with the standard at 29 C.F.R. § 1910.217(c)(1)(i).
Subsequent to the issuance of this direction for review and the filing of the parties' responses to the direction for review, the Commission issued its decision in F.H. Lawson Co., 80 OSAHRC , 8 BNA OSHC 1063, 1980 CCH OSHD P24,277 (No. 12883, 1980). In that decision, both the Commission majority and the dissenting member (Commissioner Barnako) affirmed the administrative law judge's conclusion "that the Secretary makes out a prima facie case of noncompliance with respect to 29 C.F.R. § 1910.217(c)(1)(i) by showing that the point of operation on a press is not guarded." 8 BNA OSHC at 1066, 1980 CCH OSHD at p. [*3] 29,574. See also, 8 BNA OSHC at 1069, 1980 CCH OSHD at p. 29,575-5. The Commission also clearly indicated that, once the Secretary has established his prima facie case, the burden is on the cited employer to establish an affirmative defense such as impossibility of compliance or performance.
The Commission's decision in F.H. Lawson Co. is dispositive of the principal issue on review in the case now before us. It requires us to reverse Judge Ditore's decision and to remand the case for reconsideration in light of the Commission's precedent on the respective burdens of proof of the parties.
Accordingly, the case is remanded to Judge Ditore. The judge should issue a decision and order disposing of the citation alleging noncompliance with 29 C.F.R. § 1910.217(c)(1)(i), including any affirmative defenses raised directly or indirectly by the Respondent's assertions concerning the "feasibility" of guarding its mechanical power presses. SO ORDERED.