BUCKEYE INDUSTRIES, INC.

OSHRC Docket No. 8454

Occupational Safety and Health Review Commission

December 22, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Beverley R. Worrell, Regional Solicitor, U.S. Department of Labor

Allan P. Clark and John Paul Jones for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On April 10, 1975, Judge John S. Patton rendered his decision in this case, vacating three items of a citation alleging a non-serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter "the Act") for failure to comply with 29 CFR 1910.212(a)(3)(ii). On April 21, 1975, pursuant to section 12(j) of the Act, the Secretary of Labor's petition for discretionary review was granted. The primary issue raised by the petition was whether the Judge erred in finding that the Secretary failed to establish a violation of the Act.

The respondent employer is engaged in the manufacture of men's slacks in a plant located in Wrightsville, Georgia. On May 17, 20, and 21, 1974, Compliance Officer Margie L. Preston conducted an inspection of respondent's premises. n1 On May 24, 1974, the Area Director determined that a citation should issue. Two working days later, on May 28, 1974, five working days after [*2] the inspection ended, a citation was issued to respondent. It alleged that in contravention of 29 CFR 1910.212(a)(3)(ii), respondent had failed to guard the points of operation of about 101 sewing machines (thereby exposing employees to eye and finger injuries), four electric knives (thereby exposing employees to hand and finger injuries), and eleven steam pressers (thereby exposing employees to hand injury). Penalties of $30 were proposed for each of the three sets of machines, and therefore totalled $90.

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n1 The inspection followed litigation culminating in a District Court order directing Buckeye to open its plant for this safety inspection. Brennan v. Buckeye Industries, Inc., 374 F. Supp. 1350 (S.D. Ga. 1974), motion for stay pending appeal denied, No. CV 374-5 (E.D. Ga., April 29, 1974), motion for stay pending appeal and supersedeas denied, No. 74-2165 (5th Cir., May 8, 1974), application for stay pending appeal denied, No. A-1082 (U.S., May 10, 1974) (per Powell, J.), re-application denied, No. A-1082 (U.S., May 10, 1974) (per White, J.), re-application denied, No. 1082 (U.S., May 14, 1974) (per Douglas, J.), appeal dismissed per stipulation, No. CV 374-5 (S.D. Ga., May 21, 1974).

[*3]

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In its reply to the Secretary's request for admissions, respondent admitted that these machines were not guarded, and admitted that the following injuries occurred from January 1, 1972 to March 30, 1974: sewed finger or thumb with sewing machine (four employees); caught hand under hook and eye machine (one); cut finger on knife on sewing machine (two); mashed thumb in needle positioner on sewing machine (one); finger pierced by tacker needle (one); steam presser came down on one or both of employee's hands (two); piece of broken needle of tacking machine flew into eye (one); cut finger or hand with cutting machine or electric knife (three); sewing machine needle pierced, and broke off in, thumb or finger (two). Since March 30, 1974, another employee has sustained a similar point of operation injury. Indeed, one of the employees who sustained these injuries was photographed operating an unguarded hook and eye machine, Exhibit C2(a). Other employees were similarly photographed operating sewing machines, an electric knife and a presser, with their hands close to the points of operation.

We find that [*4] the points of operation of the cited machines exposed respondent's employees to injury, and were not guarded. The Secretary contends that this finding is sufficient to prove a violation of section 5(a)(2) of the Act for failure to comply with 29 CFR 1910.212(a)(3)(ii). We agree.

The Judge vacated the citation on the ground that the Secretary had failed to prove that it was "mechanically possible" for guards to be placed upon the machines and that if guards were installed they would not themselves create hazards to employees. That compliance with a standard is impossible is, at most, an affirmative defense to a finding of noncompliance with a standard (Brennan v. O.S.H.R.C. & Underhill Constr. Corp., 513 F.2d 1032, 1036 (2d Cir. 1975)) and particularly 29 CFR 1910.212(a)(3)(ii) (see Garrison & Associates, Inc., No. 4235 (April 22, 1975) (lead and concurring opinions)). Placing the burden of proof of this defense upon the Secretary was error.

The Judge's reliance on the provisions of 29 CFR 1910.212(a)(2) and 1910.212(a)(3)(ii) was misplaced. These provisions read as follows:

1910.212 General requirements for all machines.

(a) Machine guarding [*5] -- (1) Types of guarding.

* * *

(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.

* * *

(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 (emphasis added).

Section 1910.212(a)(2) instructs the employer to attach guards to the machine, but if it is not possible to put them on the machine, then they must be secured elsewhere. The rule speaks of impossibility only in terms of location while section 1910.212(a)(3)(ii) requires an employer to guard whenever the point of operation exposes an employee to injury. Section 1910.212(a)(2) would be material only if an employer had determined that affixing [*6] a guard to the machine itself was impossible, and so had secured a guard elsewhere. But that is not this case. Here, no guards were used.

We hold that the Secretary need not show that it is possible for guards to be placed upon machines; the burden of showing impossibility is properly placed on the employer; and the first sentence of section 1910.212(a)(2) is not material when no guards are used. In the present case, there is no evidence of impossibility. Hence the defense must fail.

We also agree with the Secretary's contention that he need not show that guards would not themselves create a hazard to employees. The requirement of 29 CFR 1910.212(a)(2) that the "guard shall be such that it does not offer an accident hazard in itself" does not provide an employer with a defense. Instead, it imposes an affirmative duty on the employer to guard the machine in a manner that does not create a separate hazard to employees. A guard must be both efficacious and safe.

Thus, we do not agree with Judge Patton's analysis. The last sentence of section 1910.212(a)(2) does not prescribe a condition precedent that the Secretary must satisfy before the employer's duty to provide guarding [*7] arises. Rather, it establishes a separate duty of the employer. If a guard presents a separate hazard there would be a breach of the duty cognizable under section 5(a)(2).

The respondent also asserts that the Secretary must show how its machines must be guarded. n2 We do not agree.

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n2 The issue is presented because no evidence on methods of guarding was adduced.

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We do not consider it incumbent upon the Secretary to demonstrate what the employer should have done to comply with section 1910.212(a)(3)(ii). The standard itself prescribes the performance required by guarding. It also suggests several guarding methods such as barrier guards, two hand-tripping devices and electronic safety devices. See 29 CFR 1910.212(a)(1). An employer's own abilities and that of industry may be relied upon to devise suitable ways to conform to the requirements of a standard. n3 Society of the Plastics Industry, Inc. v. O.S.H.A., 509 F.2d 1301, 1309 (2d Cir. 1975, cert. denied 95 S. Ct. 1998 (1975)).

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n3 In this respect, the case is readily distinguishable from National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973) holding that under the Act's "general duty" clause in section 5(a)(1) the Secretary of Labor must show how a cited hazard is to be abated. Here, the standard itself provides adequate notice of what is expected in the way of guarding.

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This does not mean, however, that respondent has no remedy if it has an abatement problem. Under section 10(c), it may petition for a modification of the abatement date. See H.K., Porter, Inc., No. 1210-P (March 23, 1974). It may also seek a variance from the standard under procedures set forth at sections 6(b)(6)(A) and 6(d) of the Act. Cf. Joseph Bucheit & Sons, Co., No. 295 (July 21, 1972) (Administrative Law Judge); 29 CFR Part 1905. See also, GTE Automatic Electric, Inc., No. 3113 (June 17, 1975) (separate opinion of Commissioner Cleary). n4

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n4 The record shows that after the inspection, respondent did provide safety devices for its electric knives. To this extent, respondent's complaints of impossibility and lack of knowledge as to abatement techniques are misdirected.

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For the reasons assigned by the Judge, we also reject the argument that the standard is unconstitutionally vague. n5

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n5 For my own part, I add that the Commission has no power to declare a standard void on grounds of vagueness. Senta Fe Trail Transport. Co., No 331 (December 18, 1973) (dissenting opinion), rev'd 505 F.2d 869 (10th Cir. 1974). See also Coughlan Constr. Co., Inc., Nos. 5303 & 5304 (October 28, 1975) (concurring opinion); United States Steel Corp., Nos. 2975 & 4349 (November 14, 1974) (Cleary, Commissioner, concurring).

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Respondent also objects to the inspection provisions of the Act. We note that the inspection in this case complied with those provisions. [*10] Any Fourth Amendment claim would then, if successful, require us to hold section 8(a) of the Act unconstitutional. We have no power to declare any portion of our enabling legislation unconstitutional. Montana Chapter of Assn. of Civilian Technicians, Inc. v. Young, 514 F.2d 1165, 1167 (9th Cir. 1975). Because respondent must raise its Constitutional claim during our proceedings to preserve it for judicial consideration, (section 11(a) of the Act; cf. Felton Constr. Co. v. O.S.H.R.C., 518 F.2d 49 (9th Cir. 1975)) we shall simply note that the matter was raised before us. n6

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n6 We must also of course refuse to rule on respondent's other challenges to the Act's constitutionality. As to respondent's attack on section 8(f)(1) of the Act, the Commission decision in Stephenson Enterprises, Inc., No. 5873 (July 16, 1974) is relevant to respondent's claim that it was never given the names and complaints of its accusers, in contravention to the Sixth Amendment. Respondent did not make the showing required by that decision.

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As to the "reasonable promptness" argument, we affirm the Judge's disposition of this matter. The citation issued within three working days after the Area Director determined that it should issue. This action was reasonably prompt under any interpretation of section 9(a). See generally, Brennan v. Chicago Bridge & Iron Co., 514 F.2d 1082 (7th Cir. 1975). Moreover, respondent alleged no prejudice from the slight delay. Coughlan Constr. Co., Nos. 5303 & 5304 (October 28, 1975).

Finally, we now consider what penalties should be assessed under section 17(j) of the Act. We note the following facts: respondent employed approximately 183 persons at the time of the inspection and therefore is a relatively large employer; its good faith was conceded by the Area Director; it has no history of previous violations. The gravity of the violation is very high, considering the numbers of employees exposed (over 127 machines are involved here), the duration of exposure, the precautions taken against injury (except for one meshed glove, apparently none), and the degree of probability of injury (which we consider high). See generally, National [*12] Realty & Constr. Co., No. 85 (September 6, 1972), rev'd on other grounds, 489 F.2d 1257 (D.C. Cir. 1973).

After a consideration of these factors, we shall assess the $30 penalty proposed by the Secretary for each item of the citation (items 2, 3, 4) dealing with machine guarding. The Judge's assessment of a $50 penalty for non-compliance with 29 CFR 1910.1904.7 is affirmed.

Accordingly, all items of the citation are affirmed; a total penalty of $140 is hereby assessed. So ordered.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

I agree with Judge Patton's vacation of the 29 C.F.R. 1910.212(a)(3)(ii) charges on the basis of the rationale stated in his well-reasoned decision which is attached hereto as Appendix A.

APPENDIX A

DECISION

Patton, Judge: This is a proceeding pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereinafter called the Act), in which the respondent is contesting allegations [*13] by the complainant of violation of section 5(a)(2) of the Act and standard 29 CFR 1910.212(a)(3)(ii) and standard 29 CFR 1904.7. Hearing was held before the undersigned Judge at Wrightsville, Georgia, on January 6, 1975. Mr. Anthony B. Cuviello appeared as counsel for the complainant and Mr. John Paul Jones of the law firm of Coffman and Jones appeared as counsel for the respondent. There was no motion to intervene.

LAW AND ISSUES OF THE CASE

It is alleged that the respondent committed the following violations: It was alleged that respondent failed to make available for inspection and copying by compliance officers of the Occupational Safety and Health Administration the annual summary of occupational injuries and illnesses for its establishment for the year 1971 on form OSHA number 102 as required by standard 29 CFR 1904.7.

That respondent failed to guard the point of operation of any of its approximately 101 sewing machines, the operation of which exposes employees to eye and finger injuries in violation of standard 29 CFR 1910.212(a)(3)(ii).

That respondent failed to guard the point of operation of any of its four electric knives in the spreading and cutting area, the [*14] operation of which exposes employees to hand and finger injuries, in violation of standard 29 CFR 1910.212(a)(3)(ii).

That respondent failed to guard the point of operation of any of its 11 steam presses in the processing area, the operation of which exposes employees to hand injuries in violation of standard 29 CFR 1910.212(a)(3)(ii).

It is the position of the respondent that the records in question were in existence but had been misplaced at the time of inspection. The respondent admitted in replying to request for admissions that said machines were not guarded and gave a list of injuries which have resulted to employee who work said machines. It is the position of the respondent, however, that the burden is upon the complainant to show that practical means of guarding are in existence and can be used and that the respondent failed to introduce such proof. The respondent further defends on the ground that the Act itself is unconstitutional and also that the complainant had no right to inspect the respondent's premises without first obtaining a warrant. Respondent also seeks dismissal on the ground that the citation was not timely filed. Respondent alleges that the standard [*15] is void because of lack of specificity.

EVIDENCE IN THE CASE

The respondent admitted that it is engaged in a business affecting interstate commerce. The complainant admitted that inspection was made without obtaining a warrant. Respondent admitted in answer to request for admissions that respondent is engaged in the manufacture of men's slacks in a plant located at Wrightville, Georgia, and has been so engaged and located since at least May 17, 1974. It was admitted that the compliance officer of complainant on May 17, 1974, requested that respondent make available for inspection respondent's occupational injury and illness record, particularly OSHA form numbers 100, 101, 102 for the years 1971 through 1974, and it was admitted that said summary was not made available to said compliance officer pursuant to said request. It was further admitted that said forms were not subsequently made available but the respondent stated in said admission that no subsequent request had been made. It was the contention of the respondent that said form had been properly prepared but had been misplaced. It was admitted that the respondent during said period of time operated at least 101 sewing [*16] machines which were not equipped with operational and operating point of operation guards. It was further admitted that the respondent had no sewing machines which were equipped with such guards. It was further admitted that the respondent's employees operated one or more hook machines and one or more eye machines that were not equipped with operation and operating point of operation guards. It was admitted that respondent had at least two operational hook and two operational eye machines in its plant and that the respondent had no hook or eye machines which were so equipped. Respondent admitted that respondent had at least four operational electric knives in its plant and that they were not equipped with operational and operating point of operation guards. The respondent alleged, however, that respondent had a mesh glove for use by the operator of the electric knife and that respondent had two more such items on order. Respondent admitted that respondent had at least 11 operational steam presses in its plant, none of which were equipped with operation guards.

Respondent admitted that injuries had occurred as follows:

EMPLOYEE

DATE OF

NATURE OF INJURY

INJURY

Edna Mae Walker

3-3-72

Sewed finger with sewing

machine.

Nell Tanner

3-10

Caught hand under hook or

eye machine.

Viola Hines

4-21

Cut finger on knife on sew-

ing machine.

Daisy Bolden

6-12

Mashed thumb in needle posi-

tioner on sewing machine.

Edna Mae Walker

6-30

Cut finger on knife on sew-

ing machine.

Lena Pearl Mitchell

8-17

Finger pierced by tacker

needle.

Ronnie Turner

1-17-73

Steam presser came down on

both hands.

Judy Burns

8-13

Piece of broken needle to tack-

ing machine flew into eye.

Russell Dixon

8-17

Cut finger with cutting machine.

Eva Mae Walden

9-25

Sewing machine needle pierced

and broke off in thumb.

Earnest Darrisaw

10-22

Steam presser came down on hand.

Daisy Bolden

11-23

Sewing machine needle pierced

and broke off in finger.

Mary Clover

11-26

Sewed thumb with sewing machine.

Joyce Watson

11-30

Sewed thumb with sewing machine.

Mary Lizzie Daniel

1-2-74

Cut finger with electric knife.

Albert Taylor

3-26

Cut hand with electric knife.

Bernice Tanner

3-30

Sewed thumb with sewing machine.

[*17]

The respondent stated that one similar point of operation injury had occurred since March 30, 1974.

Respondent admitted that on May 17, 20, and 21, 1974, respondent employed approximately 183 employees in its plant.

The complainant filed a Motion for Limited Summary Judgment based upon said admissions which motion was denied.

At the hearing Miss Margie L. Preston, compliance officer for complainant, testified that the premises were inspected by her on May 17, 20, and 21, 1974 (TR 24, 25). Mr. Ledford, executive of the respondent, read a statement saying that the inspection should not be made for constitutional reasons (TR 25). The witness looked at records and made notes of accidents in the past four years since the Act became effective and then made the inspection (TR 25). She stated that she looked at the operator operating the sewing, pressing hook and eye machines as they were operated without any guard (TR 25). Photographs of the operations were introduced (TR 26).

Mr. A. B. King, area director for the complainant, testified as to how complainant arrived at the amount of proposed penalty. He testified that after allowing for good faith, anticipated abatement credit, [*18] and other factors, $30 was the net amount of proposed penalty. He stated that because of the size of the company no credit was given for size (TR 48, 49, 50, 51, 52, 53). He signed the proposed penalty worksheet on May 24, 1974 (TR 56, Complainant's Ex. 3). The final decision to issue citation was made that day (TR 56, 57).

EVALUATION OF THE EVIDENCE

Respondent seeks dismissal of the citation and complaint on constitutional grounds. The respondent maintains that the Act provides for unreasonable searches of the respondent's premises in violation of the Fourth Amendment to the United States Constitution. It is maintained that the standard of conduct prohibited by section 5 of the Act is so vague and ambiguous that no adequate notice of the conduct is contained in the Act in violation of the due process clause of the Fifth Amendment to the United States Constitution. The respondent defends on the ground that the regulations and standards published by the Secretary of Labor pursuant to section 6 of the Act are so vague and ambiguous that they contain no adequate notice of the conduct prohibited in violation of the due process clause of the Fifth Amendment to the United States [*19] Constitution. It is alleged that the Act assesses penalties which become final and conclusive on a respondent unless the respondent contests the citation within 15 days, that the area director is clothed with unbridled discretion to determine the amount of any proposed penalty, that the Secretary is authorized to set mandatory standards without adequate guidelines, that the Secretary of Labor is thereby given power not only to legislate but also to judicially find violations and to deter and punish prohibited conduct by assessment of arbitrary penalties in violation of Articles One and Three of the Constitution of the United States and the Fifth Amendment to the United States Constitution. It is contended that the Act poses a real and substantial chilling effect on the right of the respondent to seek appellate review because the Act does not provide for a stay of the abatement period, for a stay of the assessment of non-abated penalties during the period in which the respondent would attempt to exercise his constitutionally guaranteed right to judicial review, that the Act provides no effective means of challenging and staying the retroactivity of assessments of non-abated penalties [*20] in the event a respondent has filed a request for review of an examiner's decision or if the Occupational Safety and Health Administration makes an arbitrary determination and that respondent did not initiate the review proceedings in good faith, all in violation of the due process clause of the Fifth Amendment to the United States Constitution. It is alleged that the respondent has no right to confront his accusers in violation of the Sixth Amendment to the United States Constitution. It is alleged that the hearings provided for under section 10 of the Act and the regulations issued pursuant thereto are held before an administrative hearing officer of the Executive Branch of Government whose decision will become the final order if no further action is taken by the Review Commission, an Administrative Agency, making the administrative agency be clothed with judicial powers in violation of Articles One and Three of the United States Constitution. It is alleged that the respondent is denied the right to trial by jury as guaranteed in the Fifth and Seventh Amendment to the United States Constitution and by Articles One and Three of said Constitution. It is alleged that the respondent [*21] was not afforded a hearing by any court. It was alleged that the Secretary of Labor is not required to prove the guilt of the respondent beyond a reasonable doubt in violation of the Fifth Amendment to the United States Constitution. It is alleged that respondent was denied due process under the Act and regulations promulgating pursuant thereto in violation of the Fifth Amendment to the United States Constitution. It is alleged that the compliance officer of complainant is granted unbridled discretion to investigate, judicially find violations of the Act and regulations, and to judicially assess penalties for alleged violations all in violation of Article Three of the United States Constitution under the due process clause of the Fifth Amendment of the United States Constitution. It is alleged that the inspection procedure under section 8 of the Act was illegal and constitutionally void because respondent was denied the right to designate his attorney as the authorized employer representative for such inspection in violation of the Fifth and Sixth Amendments of the United States Constitution.

An administrative agency does not have the authority to pass upon the constitutionality [*22] of the Act which it is required to interpret. This Judge, therefore, does not have jurisdiction to rule upon the constitutionality of the Act and, insofar as the respondent's defense depends upon the contention that said Act violates the Constitution of the United States, said defenses must be denied. The Act does not require that a warrant be secured; and complainant appears to have confined the inspection to the purpose of the Act. It will be noted that one of the above described defenses alleges that the standard in question is vague and does not apprise the respondent of exactly what constitutes a violation and that said standard, therefore, violates the constitutional rights of the respondent. While this Judge does not have the authority to pass upon the constitutionality of the Act, this Judge does have the authority to pass upon the constitutionality of a standard issued by the Secretary of Labor pursuant to the Act. If the standard is too vague to meet constitutional requirements said standard may be held by this Judge to be unenforceable. The first issue for determination, therefore, is whether standard 29 CFR 1910.212(a)(3)(ii) is void for lack of specificity.

Said [*23] standard reads as follows:

"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."

In the case of Secretary of Labor v. Production Control Units, Inc., Docket No. 6976    OSAHRC   , the contention was made that standard 29 CFR 1910.212(a)(1) was too vague to be sustained as an enforceable standard. Said standard reads as follows:

"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."

Judge James Burroughs held:

"Respondent's argument is premised on its belief that a standard must 'apprise the employer of what he must do and how he is to accomplish [*24] the guarding of the press brake under this standard.'

"The standard, among other things, informs the employer that it must use one or more methods of machine guarding to protect employees from hazards created by "point of operation. Several examples of guarding methods are listed. The clear import of the standard is that a point of operation is to be guarded. The employer is left to his own discretion as to the method to accomplish this objective. This does not render the standard vague and unenforceable. 'A permissible leeway is allowed in the field of regulatory statutes governing business activities in other categories'. Secretary v. Occupational Safety and Health Review Commission and Santa Fe Trail Transport Co.,    F.2d    (74-1049 10th Cir., Oct. 22, 1974)."

In the case of Ryder Trucklines, Inc. v. Brennan 497 F.2d 230 (5th Cir. 1974) the Court on the issue of specificity of standards states:

"In considering the claimed vagueness of regulation we are mindful of two critical factors: (1) this regulation involves remedial civil legislation in contradistinction to criminal legislation; (2) the rights guaranteed by the first amendment are not remotely related [*25] to this case. Hence, we must consider the statute not only in terms of the statute 'on its face' but also in light of the conduct to which it is applied. United States v. National Dairy Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 600, 9 L.Ed.2d 561 (1963). The regulation appears to have been drafted with as much exactitude as possible. . . . So long as the mandate affords a reasonable warning of the proscribed conduct in light of common understanding and practices, it will pass constitutional muster. United States v. Petrillo, 332, U.S. 1, 4, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947)."

In the opinion of this Judge, it is possible for the respondent to determine from said standard whether the machines in question expose employees to injury. The requirement is equally clear that a guard must be adopted to prevent the operator from having any part of his body in the danger zone. These are the requirements set forth in said standard. In the light of the above quoted cases, the standard involved in this case appears to be sufficiently specific to meet legal and constitutional requirements. Therefore, the defense that the complainant's citation should be dismissed because [*26] of lack of specificity of the standard must be overruled.

The respondent further defends on the ground that the citation was not issued with sufficient promptness. The evidence establishes that the area director concluded on May 24, 1974, that citation should issue. Citation did issue on May 28, 1974. It is the position of the respondent that more than 72 hours having intervened between the date the area director concluded the citation should issue and the actual issuance of the citation, the citation was not timely issued and should be dismissed. Respondent further contends that the 72 hours should run from the date of inspection.

The first issue for determinaton is whether the respondent has raised said issue of lack of timeliness of the citation at the proper stage of the proceeding. The respondent did not raise the said issue in respondent's answer and, therefore, did not raise said issue during the issue formulation stages of the proceeding. In the case of Secretary v. Transcon Lines. Inc., 8 OSAHRC 247, the Review Commission stated:

"We have reviewed the record and have considered the issue raised in the direction for review. The issue of reasonable promptness [*27] was not raised during the issue formulation stages of this proceeding. Accordingly, we cannot consider it."

In view of the above decision, and the failure of respondent to raise said issue during the issue formulation stages of the proceeding, the attack upon the citation as untimely must fall. It is unnecessary to consider other issues relating to timeliness of the citation. It will be noted, however, that in the case of Secretary v. Chicago Bridge and Iron Co., 6 OSAHRC 244, the Review Commission held that the reference to 72 hours or three days relates to three "working" days. May 24, 1974, was a Friday, and the citation issued on the following Tuesday. Saturday and Sunday having intervened and not being working days, the citation did issue within three working days of the date on which the area director determined the citation should issue. For this additional reason, the respondent's contention that the citation should be dismissed as untimely is without merit.

The respondent's defense as to the merits of the case is based upon the issue of which party has the burden of proof as to whether or not there are practical means for guarding the machines. The respondent [*28] admits that respondent did operate the machines alleged in the complaint. Respondent further admits that no guards were placed upon said machine and a list of instances in which employees were injured as the result of operation of said machines is set forth in the respondent's Answer to Request for Admissions. Under these facts, this Judge must find that a hazard was presented to employees in the operation of said machines and, if it was possible for the machines to be guarded at the point of operation, the respondent has failed to comply with the standard.

The respondent takes the position, however, that there is no evidence in the record indicating the type of guarding that should be applied or that such guards are practical and, therefore, the citation and complaint should be dismissed. Neither party introduced evidence specifying the nature of the guards to be used or whether it was possible to operate said machines with guards. The record being naked of evidence in this regard, the determinative issue is which party had the responsibility to introduce evidence on this subject. It is the contention of the respondent that the complainant having the overall burden of proof [*29] had the burden to establish that proper guards could be applied. It is the position of the complainant that since the standard requires guards and the respondent admitted that guards were not used, and that employees were injured in working on said machines a prima facie case has been established. Complainant therefore contends that if respondent takes the position that it was impossible from an engineering standpoint to conform to the standard, said contention is an affirmative defense which must be established by the respondent. In the opinion of this Judge, this presents a somewhat close question which is not easy to decide. It will be observed that the preceding subsection of section 29 CFR 1910.212(a), subsection (2), reads as follows:

"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." (Emphasis supplied)

Subdivision (3) would appear to relate to subdivision (2). Subdivision (2) sets the requirements relating to all machine guarding and the guarding set forth [*30] in subdivision (3)(ii) sets forth a further requirement with reference to guarding of machines. It would appear that the requirement as to point of operation on machines would apply only if it is shown that the guards meet the test set forth in subdivision (2).

There are two requirements in subdivisions (2). One is that the guard shall be affixed to the machine "where possible." The other is that they shall be applied only if the guards do not offer an accident hazard in themselves. If these requirements are not met, guards are not required. The case of Secretary v. Reynolds Metal Co., 10 OSAHRC 782 is somewhat analogous. Said case involves the standard which reads as follows: 29 CFR 1910.95(b)(1).

"When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce sound levels within the level of Table G-16, personal protective equipment shall be provided and used to produce sound levels within the level of the table."

In said case Judge Oringer held:

"Assuming that the complainant had proven its case insofar as excessive noise levels are concerned, it did [*31] not adduce sufficient proof in the record insofar as feasible engineering controls are concerned.

"The compliance officer testified that the only way one can determine feasible engineering controls was to first determine the source of the noise. He wholly failed to determine the source of the noise and therefore "could not state affirmatively whether or not there are feasible engineering controls extant that would be able to control whatever noise existed in this plant."

It will be noted that said standard provides "feasible administrative or engineering controls shall be utilized." In standard 29 CFR 1910.212(2)(ii) it is required that guards be affixed to the machine only "where possible." It is the contention of the complainant that guards should exist affixed to the various types of machines in the respondent's plant. Guards only being required "where possible" it could well be argue that it is incumbent upon the complainant to establish that they were possible to the same extent that it is incumbent upon the complainant to establish that the controls referred to in standard 29 CFR 1910.95(b)(1) are "feasible." Iit is not the contention of the complainant that guards should [*32] have been "secured elsewhere" but it is the position of the complainant that the guards should have been provided on the machine.

It will further be noted that guards are required by said standard only if the guards do not offer an accident hazard in themselves. This express requirement does not appear in most standards. The incorporation of said requirement insofar as affixing guards to machines is concerned is a clear indication that the standard does not apply if it offers an accident hazard in itself. This being an express condition set forth in the standard, this Judge is of the opinion that the complainant is required to establish that an accident hazard is not offered by the use of a guard. It is not the responsibility of the respondent to negate the express requirements of the standard until the complainant has established a prima facie case. The Judge so held in the case of Secretary v. Polycel Corp., Docket No. 5241    OSAHRC    in which case the Judge stated that one of the reasons the Secretary had failed to carry his burden was that the Secretary failed to show the practicality of guarding the point of operation. The complainant has established in this [*33] case that no guards existed and has established that a hazard existed. The complainant has not established two other requirements of the standard; that is, that the guards were possible and that the guards, if utilized, would not themselves create a hazard. This burden not having been borne by the complainant the allegations of violation of said standard have not been established.

As above noted, it is also alleged that the respondent violated standard 29 CFR 1904.7 in that respondent failed to have available for inspection records of occupational injuries and illnesses. The respondent defends on the ground that said record was compiled and was posted as required by standard 29 CFR 1904.5. The allegation of violation, however, is not that respondent failed to post but that respondent failed to have available for examination by the complainant. The respondent in answer to request for admissions stated that same had been compiled and posted but had been misplaced and were not available for inspection. Posting is only one of the requirements of the standard and, admittedly, the respondent did not comply with section 29 CFR 1904.7 because the respondent did not have records available [*34] for inspection. In the opinion of this Judge, the respondent therefore is in violation of standard 29 CFR 1904.7. In view of the fact that said records were compiled but were lost, a penalty in the amount of $50 rather than $100 would appear to be appropriate.

FINDINGS OF FACT

1. Respondent is a corporation having a place of business and doing business in Wrightsville, Georgia, where it is engaged in the manufacture of men's slacks.

2. Respondent is and at all times relevant to this cause has been an employer engaged in a business affecting commerce within the meaning of the Act.

3. An inspection of the respondent's premises was made on or about May 17, 20, and 21, 1974, and no warrant was secured prior to said inspection.

4. The decision to issue a citation was made by the area director on May 24, 1974, and the citation issued on May 28, 1974, a weekend containing two non-work days having intervened.

5. Respondent on the dates of inspection had 101 operational sewing machines in its plant, none of said machines having guards upon them.

6. On the dates of inspection respondent had at least two operational hook and two operational eye machines in its plant. There [*35] were no guards on any of said machines.

7. On the dates of inspection respondent had at least four operational electric knives in its plant. No guards were provided on any of said operational electric knives.

8. On dates of inspection respondent had at least 11 operational steam presses in its plant. There were no guards on any of said steam presses.

9. From March 3, 1972, through March 30, 1974, injuries were sustained by respondent's employees on respondent's sewing machines, hook machines, eye machines, electric knives, and steam presses, said injuries occurring to said employees' fingers, hands, and eyes.

10. There is no evidence in the record as to whether it was mechanically possible to place guards on said machines.

11. There is no evidence in the record as to whether guards would themselves cause a hazard to employees if placed on said machines.

12. The respondent had compiled records of employee injuries and illnesses as required by standard 29 CFR 1904.5 and 29 CFR 1904.7 but had lost said records at the time of inspection.

CONCLUSIONS OF LAW

1. Respondent is engaged in a business affecting interstate commerce and therefore is within the jurisdiction [*36] of the Occupational Safety and Health Act.

2. This Judge has no authority to pass upon the constitutionality of the Act.

3. The complainant was not required by law to secure a search warrant before inspecting the respondent's premises.

4. A citation must be filed within three working days of the date that the area director determines that said citation should be filed.

5. The citation in this case is not void because of late filing.

6. Standard 29 CFR 1910.212(a)(3)(ii) is not invalid because of lack of specificity.

7. The burden of proof is upon the complainant to establish that it is possible for guards to be placed upon the machines and to establish that the guards would not themselves create a hazard to employees.

8. The complainant has not established that the respondent is in violation of standard 29 CFR 1910.212(a)(3)(ii).

9. The respondent was on May 17, 20, and 21, 1974, in violation of section 5(a)(2) of the Act and standard 29 CFR 1904.7 by failing to furnish OSHA forms number 100, 101, and 102, reflecting records of accidents and illnesses of employees, to the complainant for complainant's inspection.

ORDER

It is therefore Ordered that:

(1) Upon [*37] or about May 17, 20, and 21, 1974, respondent was not in violation of standard 1910.212(a)(3)(ii) and the allegations of the citation and complaint alleging said violation are dismissed.

(2) On or about May 17, 20, and 21, 1974, the respondent was in violation of section 5(a)(2) of the Act and standard 29 CFR 1904.7. A penalty in the amount of $50 is assessed for said violation. The abatement date alleged in the citation is approved.

Dated this 10th day of April, 1975.

JOHN S. PATTON, Judge, OSAHRC