UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 2314
JUHR & SONS
Respondent.

FINAL ORDER DATE: May 16, 1974

DECISION AND ORDER

Appearances:

Jane Ann McKenzie Attorney United States Department of Labor Seattle, Washington For the Secretary

Robert E. Babcock Attorney at Law Kenneth James Juhr, partner Lay representative Portland, Oregon For Respondent

At Consolidated Supplemental Hearing:

Robert A. Friel Associate Regional Solicitor Jane Ann McKenzie United States Department of Labor Seattle, Washington For the Secretary

Douglas B. M. Ehlke Tacoma, Washington For Respondent Weyerhaeuser Company in Dockets 1231 and 1758

George J. Tichy Spokane, Washington For Respondent Konkolville, Lumber Company in Docket 2437

GARL WATKINS, Judge:

In this enforcement action under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C.A. 651, et seq., the only question for decision is whether on January 19, 1973, Respondent was in violation of Section 5(a)(2) of the Act because its employees used a radial arm saw without a guard for the lower portion of the blade as required by 29 CFR 1910.213(h)(1); and if so, whether the violation was serious, and the amount of the penalty. Resolution of the question will depend upon the decision on the underlying question as to the validity of 29 CFR 1910.213(h)(1) and the legality of the acts of the Secretary of Labor in adopting them.

Respondent is a general partnership in Portland, Oregon engaged in business as a general contractor. The worksite is the campus of the University of Oregon at Eugene where Respondent had one of several prime contracts in the construction of an Administration Services Building. On the day of inspection, the Respondent had about 25 employees on the job. It has a total of about 30 employees.

On January 19, 1973, a Compliance Officer of the Occupational Safety and Health Administration, United States Department of Labor, visited and inspected the worksite. Two citations were issued February 16, 1973. One containing five items alleging violations not deemed to be serious was not contested. The other alleged a serious violation in operating the radial arm saw without a guard for the lower blade in violation of 29 CFR 1910.213(h)(1) and a $550.00 penalty was proposed for it. It was contested by letter of February 23, 1973.

After the Secretary’s Complaint was filed, Respondent, not represented by counsel, responded by letter of March 26, 1973. The letter was accepted by the trial judge as an answer to the Complaint. In the letter, Respondent stated, ‘In response to the above Complaint, we wish to advise you that we do not deny any portion of it.’ The Secretary moved for summary judgment. The motion was denied because of the balance of the letter and Respondent’s further statement, ‘However, as first requested in our letter of February 23, 1973, and requested here again, we do ask that we be given relief from the proposed penalty of $550.00 for the serious violation.’ The letter continued at length, including information on steps taken to abate the violation. It also contained statements which could reasonably be construed as a denial of the violation. They were so construed.

The first hearing was in Eugene, Oregon on May 30, 1973. The record indicates compliance with the statute and rules of procedure regarding service and posting of notices, and no one appeared and asked to assert a party status in the action.

Respondent was represented by Kenneth James Juhr, one of its partners. After that hearing, Mr. Babcock appeared for Respondent.

The trial judge held that the issues were the fact of violation of the alleged serious violation citation as well as the penalty. The answer was deemed to be a denial, but Respondent admitted the facts alleged constituting the violation. This admission necessarily included admitting alleged facts showing jurisdiction in the Review Commission. Without considering the standard, there remained for proof the questions as to whether the violation was serious, and the amount of the penalty.

As the trial judge, I pointed out the questions which had arisen regarding the validity of 29 CFR 1910.213, and stated I would not accept an admission by an unrepresented Respondent that the standard was valid. I invited a specific denial of the standard’s validity, or a more specific statement about it. This was forthcoming from counsel in Mr. Babcock’s letter of August 15, 1973.

Although my ruling granting Respondent’s motion to amend the answer to deny the validity of the standard was announced, and known to counsel in all related cases; no formal order previous to this was entered.

The pertinent language of the citation, the Complaint, and the standard are as follows:

‘CITATION FOR SERIOUS VIOLATION

Citation Number 1 of 1

Date Issued February 16, 1973

EMPLOYER Juhr & Sons

ADDRESS

(Street 1339 SE Sideon

(City Portland

State Oregon

Zip 97242

An inspection of a workplace under your ownership, operation, or control located at 1555 East 13th at Eugene, Oregon 97402 and described as follows Construction of administration bldg. has been conducted. On the basis of the inspection it is alleged that you have violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, in the following respects:

Standard or regulation allegedly violated 29 CFR 1910

Description of alleged violation January 19, 1973

Date on which alleged violation must be corrected

29 CFR 1910.213(h)(1)

DeWalt’ Radial arm saw in the saw shack, North of the construction site, had no guard covering the lower half of the saw blade.’

March 8, 1973

COMPLAINT

‘III

The Secretary of Labor, pursuant to the authority vested in him by section 6 of the Act duly issued and promulgated the Occupational Safety and Health Standards (29 C.F.R. Part 1910), hereinafter referred to as the safety and health regulations.

On January 19, 1973, at the aforesaid worksite and place of employment described in paragraph II, the respondent violated the safety and health regulations and the construction work regulations, in the six respects enumerated in Exhibits A and B attached hereto and incorporated herein as if fully rewritten. Exhibit A is a Citation for Serious Violation duly issued to the respondent on February 16, 1973 containing one serious violation of 29 C.F.R. 1910.213(h)(1) involving a radial saw, which is hereinafter referred to as Citation for Serious Violation, or Exhibit A. Exhibit B is a Citation for Violations duly issued on February 16, 1973 containing five overall violations of 29 C.F.R. Part 1910 and 29 C.F.R. Part 1926, all as enumerated therein, and all of a non serious nature, which collectively is hereinafter referred to as Citation, or Exhibit B.’

STANDARD

29 C.F.R. 1910.213(h) Radial saws.

‘(1) The upper hood shall completely enclose the upper portion of the blade down to a point that will include the end of the saw arbor. The upper hood shall be constructed in such a manner and of such material that it will protect the operator from flying splinters, broken saw teeth, etc., and will deflect sawdust away from the operator. The sides of the lower exposed portion of the blade shall be guarded to the full diameter of the blade by a device that will automatically adjust itself to the thickness of the stock and remain in contact with stock being cut to give maximum protection possible for the operation being performed.’

The facts of the case are rather simple. The saw is shown by Secretary’s Exhibit 1. The amount of use is not clear nor does the record show the exact number of Respondent’s employees who used it. There were apparently several and all were experienced in operation of saws of that type.

If Respondent was charged under a valid standard, there was a violation. It was non-serious in character and in view of the continued sincere efforts of Respondent to comply with the Act, the penalty would be nominal.

Our inquiry will now be into the woodworking machinery guarding standards and the charge laid under it, specifically into the question of the validity of the standards themselves.

This question was the subject of a supplemental hearing in Seattle on August 29, 30 and 31, 1973, and completed at a continued hearing on September 17. Ten cases were consolidated in that part of the hearings for the purpose of receiving evidence on the validity of the standards set out in 29 CFR 1910.213 and the legality of the actions of the Secretary in adopting them. This is one of the ten cases. At the conclusion of the session on September 17, an order of severance of the cases was entered. Three more cases containing the identical question have since been assigned to me. One has been heard.[2]

Perhaps a few words about the background of the inquiry and the reasons for the scrutiny of the standards having to do with machine guarding requirements for woodworking machinery would be in order.

After hearing the two consolidated Weyerhaeuser cases (Dockets 1231 and 1758) in Klamath Falls, Oregon on January 16 through 19, 1973, I was in the process of preparing decisions in two other cases involving lineal pine moulding plants in Prineville, Oregon for woodworking machinery would and Prineville Mouldings, #1045). The only violation charged in one of those cases and the only serious violation alleged in the other was a deficiency in the guard of hand fed crosscut table saws under 29 CFR 1910.213(d)(1). The facts of both cases were almost identical.

The guards went completely around the circular saws except for about six inches at the top of each where the moulding was lowered onto the saws to be trimmed. They are called ‘trim saws’ in the industry.

The superintendents of the two Respondents and of one other similar plant with 30, 30 and 20 years respective experience, and broad knowledge of practices in the industry, testified the use of such saws was uniform in the kind of plants they managed. They had never heard of such saws being guarded as required by the cited standard.

I became curious about how the guarding requirements could be ‘national consensus standards.’ This line of inquiry led me to the Seattle Public Library where I found only the 1971 standard 01.1—Revised, of the American National Standards Institute (hereinafter ‘ANSI’, whether reference is to the organization with its present name, or previous names of American Standards Association or United States Standards Association). A telephone call to the New York office of ANSI brought me the source standard—ANSI 01.1 1954, reaffirmed 1961. (29 CFR 1910.221 lists the source as ‘AMCI.’ All parties stipulated this was a misprint. ‘ANSI’ 01.1 1954 R (‘reaffirmed’) 1961 is correct.)

My curiosity was further aroused by the headnote on Section 4.1 of that standard. This Section includes all substantive material adopted in the OSHA standards in the cases before me. The headnote is:

‘NOTE: It is recognized that the standards for saw guards in 4.1 are not perfectly applicable to all operations for which saws are used. The standards given are those which woodworkers have agreed are most generally useful. Since there are a considerable number of cases not satisfactorily met by these standards, the enforcing authority should exercise rather wide latitude in allowing the use of other devices which give promise of affording adequate protection. It may be expected that by so doing further progress in saw guarding will be encouraged.’

Further inquiries within the ANSI organization, with a few members of the ANSI ‘01’ committee which adopted the standard in 1954 and reaffirmed it in 1961, as well as with Mr. Patrick F. Cestrone, who was Director of the Office of Safety and Health Standards, United States Department of Labor, when 29 CFR 1910.213 was adopted as a national consensus standard; convinced me it would be advisable to obtain additional evidence in some areas having to do with the question of the validity of the woodworking machine guarding sections of the Occupational Safety and Health standards.

Three rather obvious questions having to do with the validity of the standards seemed not to be answered adequately by the record. They were:

(1) The effect of the headnote; which was not adopted by the Secretary and which, in itself, constituted an integral part of the standard,

(2) Whether the ANSI 01 standard is in fact a national consensus standard as defined in the Act. Stated more precisely and in the reverse, the real question here is whether Congress adopted a definition of a national consensus standard which could be met by the ANSI promulgation as one adopted ‘under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption,........’, (Sec. (Sec. 3(9)(1) of the Act)

(3) Whether the standards were ‘formulated in a manner which afforded an opportunity for diverse views to be considered........’ (Sec. 3(9)(2) of the Act)

Respondent Weyerhaeuser, and later Konkolville (Docket 2347), squarely raised the question of legality and validity of the standard from every point of approach necessary to test it.

In the meantime, eight more cases (including Konkolville) were assigned to me, all alleging violations of subsections of 29 CFR 1910.213. In some the question of the validity of the standard was raised. In some it was not. Two of the Respondents were not represented by counsel.

Under the circumstances it seemed unconscionable to me to make an extensive inquiry tending to show whether or not the woodworking machine guarding standards were valid in a few cases, and reach whatever decision might be forthcoming; without going into the same question in all the cases. The two Respondents not represented by counsel had no way of knowing how to raise the defense of invalidity of the standard. Counsel in the others had at best a difficult task in finding out that their clients might be charged under unenforceable regulations.

Consequently, the question was raised at the hearings on the merits in all cases thus far heard. In the case of pro se Respondents, I interpreted their answers to include a defense of illegality and invalidity of the standards. Other counsel were given an opportunity to amend their pleadings. The posture of all cases on which hearings have been held in now such that the question is properly raised in all.

Before proceeding to the three main questions raised, disposition must first be made of certain preliminary matters.

While not arguing the point at length in his briefs, the Secretary has consistently taken the position that neither the Review Commission as an independent or administrative adjudicatory agency, nor I as a judge conducting its hearings, had the right to reopen the cases, call witnesses and consider evidence not produced by counsel for the parties. (Konkolville was not reopened. The record was left open for the supplemental hearing.) I have been told repeatedly that I am not (and of course the Review Commission is not) a ‘court.’ Apparently the feeling is that a ‘judicial’ adjudicatory body can do what an independent or ‘administrative’ adjudicatory body cannot do.

The question is interesting, and it must be resolved contrary to the Secretary’s position. While most authorities refer to the ‘inherent power’ of courts to call witnesses in order to develop the truth in a judicial inquiry; the fact is, it is an ‘inherent duty.’ However far able and competent advocacy may cause us to digress from some fundamental principles involved in adjudicatory proceedings under our system, the fact remains that the primary responsibility for developing the record lies with the presiding officer of the tribunal.

Briefly expressed, ‘courts have inherent power to do all things that are reasonably necessary for the administration of justice within the scope of their jurisdiction.’ (20 Am Jur 2d, Courts § 79)

Federal Rule of Evidence 614(a) provides

‘CALLING AND INTERROGATION OF WITNESSES BY JUDGE

(a) Calling by judge. The judge may, on his own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.

(b) Interrogation by judge. The judge may interrogate witnesses, whether called by himself or by a party.

(c) Objections. Objections to the calling of witnesses by the the judge or to interrogation by him may be made at the time or at the next available opportunity when the jury is not present.’

McCormick has been rather widely quoted. § 8, pages 12–13 provides:

‘8. THE JUDGE MAY EXAMINE AND CALL WITNESSES........... Not only may the judge examine witnesses called by the parties, but in his discretion he may also, for the purpose of bringing out needed facts, call witnesses whom the parties might not have chosen to call.’

While the Administrative Procedures Act does not specifically provide for the calling of witnesses by a hearing examiner or administrative law judge, numerous cases have upheld this right even over the objections of the parties; usually basing it on 5 USCA 556(c)(9).

Professor Davis in his Administrative Law Treatise takes the position that such power and authority are present under the quoted section of the Administrative Procedures Act; and cites authorities encouraging such action in agencies having rules similar to our Rule of Procedure 66, as well as those not having such rules. A clear inference from Davis is that there is a greater need for independent action of this kind on the part of an administrative law judge or hearing examiner than in the case of a judge in the judicial branch of the government. He cites Congressional history in the adoption of the APA:

(§ 10.02) ‘........ that presiding officers have ‘the authority and duty—as a court does—to make sure that all necessary evidence is adduced and to keep the hearing orderly and efficient..... The trial examiner shall have authority..... (j) To call, examine and cross-examine witnesses, and to introduce into the record documentary or other evidence.’ The courts have often upheld the active role of examiners: ‘It is the function of an examiner, just as it is the recognized function of a trial judge, to see that facts are clearly and fully developed. He is not required to sit idly by and permit a confused or meaningless record to be made.’’

Rule of Procedure 66 of the Review Commission provides:

‘Rule 66 DUTIES AND POWERS OF JUDGES.

It shall be the duty of the Judge to conduct a fair and impartial hearing, to assure that the facts are fully elicited, to adjudicate all issues and avoid delay. The Judge shall have authority........, to:

(h)..... order hearings reopened.....

(j) Call and examine witnesses and to introduce into the record documentary or other evidence;’

The only United States Court of Appeals case under our Rule 66 which has come to our attention is: Brennan, Secretary of Labor v. OSAHRC and John J. Gordon Company 2nd Circuit, Feb. 25, 1974—Docket 73–1729.

The second preliminary question requiring decision is whether Section 6(f) of the Act provides an exclusive method—the only method which may be used at any time—to challenge the validity of any standard issued by Secretary.

The section provides:

SEC. 6. (f) ‘Any person who may be adversely affected by a standard issued under this section may at any time prior to the sixtieth day after such standard is promulgated file a petition challenging the validity of such standard with the United States court of appeals for the circuit wherein such person resides or has his principal place of business, for a judicial review of such standard. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary. The filing of such petition shall not, unless otherwise ordered by the court, operate as a stay of the standard. The determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole.’ (Emphasis supplied)

The Solicitor contends that since a specific section of the Act provides a procedure to challenge the validity of a standard if the action is started within sixty days after its effective date, this method is exclusive; even though the Act doesn’t say so.

Respondents, on the other hand, take the position that this is a pre-enforcement remedy only, and that the validity of any standard may be challenged in an enforcement proceeding.

Respondents’ position seems fundamentally correct. The words underlined above indicate the action is optional, not mandatory. There is no express language indicating this is an exclusive method for attacking a standard. Additionally it would seem that investing ‘any person who may be adversely affected’ with a right to test the validity of a standard, but limiting that right to 60 days from the effective date indicates an intent on the part of Congress to provide this as a preliminary pre-enforcement procedure, rather than as the sole procedure by which a standard can be challenged.

Respondent Weyerhaeuser quotes from Divesco Roofing & Insulation Company, Docket 345, 1 OSHC 1079:

‘........ the legal validity of the standards under the Constitution and Statutes of the United States is necessarily involved in the adjudication of enforcement proceedings, and this function has been reserved for the Commission subject to judicial review.’

Admittedly the language of the entire statute could provide a clearer guide to the answer we seek here. Perhaps it is ambiguous or unclear and subject to construction. If so, then it is proper to examine the Legislative History for assistance.

Two such references would seem sufficient. In the final Senate report, No. 91–1282, page 8, as reprinted in the Legislative History, page 148, we find the following:

‘Judicial Review of Standards.—Section 6(f) provides that any person who may be adversely affected by a standard may, within 60 days of its issuance, seek judicial review in an appropriate United States court of appeals. While this would be the exclusive method for obtaining pre-enforcement judicial review of a standard, the provision does not foreclose an employer from challenging the validity of a standard during an enforcement proceeding. Unless otherwise ordered by the court, the filing of the petition would not operate as a stay or the standard.’ (Emphasis supplied)

In explaining the real need for a twofold system of standards review, Senator Williams stated in a speech on the Senate floor—and in support of the provision as it was enacted—

‘The bill as reported by the committed provides an opportunity for a person affected by the promulgation of a standard to seek judicial review within 60 days of the promulgation of such standard or the standard may also be challenged during an enforcement proceeding. This is a very broad-scaled judicial review protection that completely meets any industry concerns regarding the ability to contest the standards in court.’ (Underlining added)

Legislative History, p. 431.

Other references in the Legislative History of the Act are to the same effect, but their inclusion would only lengthen this decision unnecessarily.

Neither the Review Commission nor its judges have hesitated to invalidate a standard for a variety of reasons—but all on the basic ground that the action of the Secretary in adopting the particular standard was in excess of the power granted him by the Act. A few cases discussing the principle—most holding the standard invalid—follow:

Joseph Bucheit and Sons Company, Docket 295, 1 OSHC 3106. (‘validity’ distinguished from ‘wisdom’)

Oberhelman-Ritter Foundry, Inc., Docket 572, 1 OSHC 3087, (‘should’ changed to ‘shall’. Standard invalidated.)

Divesco Roofing & Insulation Company, supra.

Tilo Company, Inc., Docket 211, 1 OSHC 1206 (Standard invalid—unenforceably vague)

Santa Fe Trail Transport Company, Docket 331, 1 OSHC 1457 (whether hospital, infirmary, or clinic; in ‘near proximity to work place.’ Invalid as unenforeably vague.)

More standards have been held invalid by the Commission—and judges—on this ground than on any other.

The third preliminary question for decision before we may reach the heart of the case, is whether the Review Commission has the right to pass on the legality or validity of a standard at all. Whether this be called a ‘right’, ‘power’, ‘authority’ or ‘jurisdiction’ makes no difference. The specific question is whether the validity and legality of those portions of 29 CFR 1910.213 under review, as derived from ANSI 01.1 1954, reaffirmed 1961, may be adjudicated by the Review Commission, an independent of ‘administrative’ adjudicatory tribunal; or whether they must be left untouched until they come before a ‘judicial’ adjudicatory tribunal.

It is worthy of note in passing that insofar as the precise issues involved in this case are concerned, the trial judge’s duty, authority and power at the hearing stage of the proceeding, are no different from the Review Commission’s duty, authority and power at its review stage of the proceeding. No contention has been made on the part of any party that there in a difference, and no authority in support of any such position has been cited.

It should likewise be noted that the questions involved here are sufficiently closely related to those last discussed, that some authorities cited are persuasive to the issues in both. There are more differences than similarities, however, and thus the subjects lend themselves more readily to separate discussion.

We may start on the assumption that unless the Secretary acts in some manner authorized by statute to withdraw his regulation (we call it a ‘standard’) or otherwise invalidate it, and if litigation then develops questioning its legality or validity, the answers can only be determined by ‘adjudication.’ The question is—in what forum; considering the precise questions raised and all parts of the particular statute?

The Secretary would have us believe the tribunal must be so marked as to indicate it is a ‘court’ or part of the judicial branch of the government.

I have read and considered the briefs filed, and the cases cited therein; and have conducted some independent research. On the basis of this Act, I find no authority, even persuasive, in support of the Secretary’s position.

For example, the Secretary’s greatest emphasis as authority for his position—as determined by its prominent position and repeated citation in the Solicitor’s briefs—is on the case of Stark v. Wickard (1944), 321 U.S. 559, 88 L.Ed. 733, 64 S.Ct. 559, 571. In that case, the court, speaking through Mr. Justice Reed said:

‘The responsibility of determining the limits of statutory grants of authority in such instances is a judicial function entrusted to the courts by Congress by the statutes establishing courts and marking their jurisdiction.’

As quoted out of context, this is persuasive language in favor of the position of the Secretary here.

The court neither says nor implies, however, that Congress cannot adopt a law wherein the initial adjudication ‘to protect justiciable individual rights against administrative action’ is by an independent or ‘administrative court’, subject to judicial review by the United States Court of Appeals. The real question involved in our case is whether Congress did adopt such a law.

Not could the court have so stated or implied, because the holding of the case was simply that the plaintiffs had standing to sue in Federal District Court to question the validity of a milk marketing regulation of the Secretary of Agriculture.

The authority cited by Mr. Justice Reed in support of the quoted statement above is U.S. v. Morgan (1939) 307 U.S. 183, 83 L.Ed. 1211, 59 S.Ct. 795–799, 800. In the opinion by Mr. Justice Stone may be found language even more favorable in this instance to the position of the Respondent in our case; if we consider it out of context also, and assume the ‘agency’ to be the Review Commission, and its ‘action’ adjudicatory.

‘........ In construing a statute setting up an administrative agency and providing for judicial review of its action, court and agency are not to be regarded as wholly independent and unrelated instrumentalities of justice, each acting in the performance of its prescribed statutory duty without regard to the appropriate function of the other in securing the plainly indicated objects of the statute. Court and agency are the means adopted to attain the prescribed end, and so far as their duties are defined by the words of the statute, those words should be construed so as to attain that end through coordinated action. Neither body should repeat in this day the mistake made by the courts of law when equity was struggling for recognition as an ameliorating system of justice; neither can rightly be regarded by the other as an alien intruder, to be tolerated if must be, but never to be encouraged or aided by the other in the attainment of the common aim........’ (Emphasis added)

If this language could be used literally, it would be decisive of the issue of this case. It cannot, however, because the administrative action to which reference was made was not adjudication. It was the adoption of an order by the Secretary of Agriculture fixing maximum rates to be charged at the Kansas City stock yards; and the question in the case was the validity of the order.

Neither case can be considered as precedent in the one before us.

Judge Burchmore’s statement in Divesco, supra, warrants repeating:

The problem is to find the intent of Congress—either from the plain language of the Act or from inferences to be drawn from it. If a point is reached where it may be concluded that the language is not clear and unambiguous, that it may be subject to construction, then—and only then—may we consult the Legislative History for aid in finding an answer to our inquiry.

There is no specific provision in the Act spelling out in exact words the power of the Review Commission to adjudicate the validity of the standards adopted by the Secretary and the legality of his actions in so adopting them. Our considered conclusion is that this power and authority are so clearly granted by inferences to be drawn from the Act, there is no reasonable ground for disagreement about it. Our further conclusion is that the Review Commission is not only a proper forum for such adjudication, but it is the only one where the question may be raised past the pre-enforcement status of the standard.

Suppose we enumerate and explain briefly the reasons for these statements.

(1) The Review Commission’s function is adjudicatory; nothing more, nothing less. The basic grant of this power is in Section 2(b) of the Act:

‘CONGRESSIONAL FINDINGS AND PURPOSE

SEC. (2)..........

(b) The congress declares it to be its purpose and policy, through the exercise of its powers to regulate commerce among the several States and with foreign nations and to provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources—

(3)........ by creating an Occupational Safety and Health Review Commission for carrying out adjudicatory functions under the Act;’

(2) All findings of violations and imposition of penalties by default—for failure to contest an action of the Secretary—are those of the Review Commission. The statute provides: ‘They shall be deemed a final order of the Commission.....’ (Sec. 10(a)(3))

(3) With the exception of certain equitable powers to restrain conditions or practices in the event of imminent danger, vested in the United States District Courts (Sec. 13), all civil actions and adjudications under the Act are in the Review Commission. All findings of violations of the Act are functions of the Review Commission.

Under Section 10(c), if a proposal of the Secretary is contested, ‘the Commission shall afford an opportunity for a hearing’ under the provisions of the Administrative Procedures Act. Thereafter the Commission must enter an order ‘based on findings of fact, affirming, modifying, or vacating the Secretary’s citation or proposed penalty, or directing other appropriate relief,...’

We have referred to a common practice by both the Review Commission and its judges to hold various standards of the Secretary invalid for a variety of announced reasons. In each case the challenge to the standard was in the Commission proceedings and the real basis for the holding was that the Secretary was acting in excess of his statutory power and authority in adopting the standard. A few examples were given.

Of equal—or greater—importance is the fact that implicit in every finding of a violation of an occupational safety or health standard under Section 5(a)(2) of the Act, is a holding that the standard is valid—that it was enacted by the Secretary in a proper exercise of his legislative power and authority.

The Commission is directed to ‘affirm’ a citation and proposed penalty in some cases. If a standard is questioned and can be held valid only by a ‘judicial’ court; the Commission might find itself in the completely untenable position of being required to affirm a penalty without a finding that the standard is valid.

Can this be the intention of the Congress? We think not.

(4) Not only does it have sole power to find violations of the law and standards with respect to occupational safety and health, but ‘The Commission shall have authority to assess all civil penalties.....’ (Sec. 17(j)). This is not a review—it is the first adjudicatory act with respect to the penalty.

(5) Contempt powers are granted as under the National Labor Relations Act (Sec. 12(i)).

(6) The Chairman is authorized to ‘appoint such hearing examiners..... as he deems necessary to assist in the performance of the Commission’s functions.....’ (Sec. 12(e)). Some of these functions are enumerated (Sec. 12(j)). As stated above, and for the purpose of this inquiry, the duties and powers of a hearing examiner (judge) are no greater or less at the hearing level than are those of the Review Commission at the review level.

(7) A direct method of review is provided of all decisions of the Commission to the United States Court of Appeals. Section 11(a) provides:

‘JUDICIAL REVIEW

SEC. 11. (a) Any person adversely affected or aggrieved by an order of the Commission issued under subsection (c) of section 10 may obtain a review of such order in any United States court of appeals for the circuit in which the violation is alleged to have occurred or where the employer has its principal office, or in the Court of Appeals for the District of Columbia Circuit, by filing in such court within sixty days following the issuance of such order a written petition praying that the order be modified or set aside. A copy of such petition shall be forthwith transmitted by the clerk of the court to the Commission and to the other parties, and thereupon the Commission shall file in the court the record in the proceeding as provided in section 2112 of title 28, United States Code. Upon such filing, the court shall have jurisdiction of the proceeding and of the question determined therein, and shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter upon the pleadings, testimony, and proceedings set forth in such record a decree affirming, modifying, or setting aside in whole or in part, the order of the Commission and enforcing the same to the extent that such order is affirmed or modified. The commencement of proceedings under this subsection shall not, unless ordered by the court, operate as a stay of the order of the Commission. No objection that has not been urged before the Commission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. If any party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearing before the Commission, the court may order such additional evidence to be taken before the Commission and to be made a part of the record. The Commission may modify its findings as to the facts, or make new findings, by reason of additional evidence so taken and filed, and it shall file such modified or new findings, which findings with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive, and its recommendations, if any, for the modification or setting aside of its original order. Upon the filing of the record with it, the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review by the Supreme Court of the United States, as provided in section 1254 of title 28, United States Code. Petitions filed under this subsection shall be heard expeditiously.’

Two provisions are particularly worthy of note here. First, no objection that has not been urged before the Commission can be considered by the Court of Appeals. Thus, if there has been no question, or decision, on the validity of a standard; it cannot be considered by the Court of Appeals on review.

Secondly, additional evidence may be ordered in exceptional circumstances. In this case it is taken ‘before the Commission,’ which may thereafter modify its findings or make new ones; and any review thereafter shall be considered as from the beginning.

The foregoing should show without question the intent of Congress to allow the Review Commission the right to pass on the validity and legality of standards adopted by the Secretary; and also require that they be challenged in the Review Commission proceedings. Perhaps viewing the question from a somewhat different angle might be helpful.

As a practical matter, how would an employer test the validity of a standard promulgated by the Secretary in a ‘court’ rather than before the Review Commission?

He could not make his first request for a ruling on review to the United States Court of Appeals under Section 11(a) of the Act after a Commission decision. This Section provides:

‘No objection that has not been urged before the Commission shall be considered by the court,.....’

Should the employer then start an action in the United States District Court seeking an injunction? Again, this action would fail. On the state of the record of every one of the cases I now have before me, relief would be denied because of failure to exhaust administrative remedies. Perhaps not all decisions would be on exactly the same basis as that of the three judge panel in Lance Roofing Co. vs. Hodgson, Secretary of Labor (1972), 1 OSHC 1012, 343 F.Supp. 685. Good reasons exist in all for holdings other than on the identical ground. For a variety of holdings involving the principle of exhausting administrative remedies, see cases cited in Davis-Administrative Law Treatise, Chapter 20.

An action for declaratory judgment would meet no better fate. The doctrine of exhaustion of administrative remedies applies alike to such actions. In Lance Roofing, supra, the plaintiffs sought declaratory—as well as injunctive—relief.

The question was asked as to how an employer wishing to challenge the validity of a standard now may go about doing it in a ‘judicial’ court. The obvious answer is that he has no way of doing it. The first challenge must be made before the trial judge at the hearing stage of the Review Commission proceeding. Failing this, a Respondent will necessarily be held to have failed to exhaust his administrative remedies.

We believe the implication is so clear that the Review Commission Proceeding is not only the proper, but the exclusive forum for a current challenge to the validity of a standard of the Secretary, there should be no need to resort to legislative history as an aid in reaching this conclusion. Since the Act does not so provide by its express terms, however, a contention considered by some to be reasonable might be made that it is subject to construction to the extent that legislative history may be invoked, and we shall therefore turn in this direction for additional assistance.

In the Legislative History, there are references carrying a clear implication of the Congressional intent that the legality and validity of a regulation (standard) of the Secretary may be tested and decided by the Review Commission. These are in two contexts. First, in reference to the fact that Section 6(f) of the Act is a pre-enforcement remedy only and that the standard may be tested in an enforcement proceeding. Secondly, in emphasis on the adjudicatory function of the Review Commission.

Two such references have already been cited. Following are additional expressions of Congressional intent.

For example, in the Index itself, under ‘Standards’, is the following:

‘Standards, pre-enforcement review. (See Section 6(f) in Section-by-Section Index, ‘Judicial Review of Standards’)’

In a Section by Section analysis and comparison of the Committee reported Bill S.2193—containing the pertinent language of the present Act—and substitute Bill S.4044, is this reference to the former:

‘6. Judicial Review of Standards Judicial review of standards is provided in the various United States Courts of Appeals. This right may be exercised up to 60 days after the standard is promulgated. (sec. 6(f)). Judicial review or standards would also be possible in enforcement proceedings.’ (Emphasis supplied)

(Legislative History, p. 304)

Representative Steiger of Wisconsin made the following statement with respect to the specific language of the Bill which became part of the law having to do with the Raview Commission and its adjudicatory procedures:

‘Persons aggrieved by a citation of the Secretary of Labor will appeal to the Commission rather than to the Secretary, as is the case in the committee bill. We will, with this amendment, provide for a separation of powers. Standards will be promulgated by the Secretary of Labor and contested citations will be considered by an independent court, so to speak, an independent review commission.’

(Legislative History, p. 1074)

In preparing this decision, we are not unmindful of the decision in Secretary of Labor vs. Boise Cascade Corporation, Docket 2944. By stipulation of counsel, Judge Kennedy had before him a transcript of a major portion of the proceedings in our cases, (three of four days of the supplemental hearing), but none of the 17 exhibits.

This brings us to the heart of the case. We are faced squarely with the necessity of deciding the merits of Respondents challenge to particular sections of 29 CFR 1910.213—and only those sections as they apply to the facts in this record.

Perhaps a word of caution—and of limitation—might be appropriate here. Not only have there been inferences, but also broad sweeping statements that the effect of this action may be to establish the validity or invalidity of all parts of subsection 213 of Part 1910. These are all the sections having to do with machine guarding of woodworking machinery. Hopefully such statements were inadvertent, but at best that show a disregard of the actual effect of decisional law.

Neither this forum nor any other can do more than pass on the precise questions before it in a particular case, here the validity or invalidity of enumerated sections or subsections of standards; and then only with reference to the record before it. The practical effect of some holdings may go much farther; but the adjudications themselves are so limited.

Before going into a detailed consideration of the specific sections of the standards and the grounds on which they are challenged, a brief review of some of the evidence in the record would seem to be in order.

I called six witnesses who testified at the supplemental hearing. They are:

Patrick F. Cestrone, Silver Springs, Maryland; Consultant, Occupational Safety and Health Associates. In 1971, Mr. Cestrone was Director of the Office of Safety and Health Standards, United States Department of Labor. He was charged with the responsibility of what has been aptly termed a ‘crash program’ to develop national consensus standards and established Federal standards for the Secretary to ‘. . . by rule promulgate as occupational safety or health’ standards under Section 6(a) of the Act.

Nixon deTarnowsky, Scarsdale, New York; Standards Coordinator for Safety and Health Standards, American National Standards Institute, New York City.

David Zabriskie, Fairlawn, New Jersey; Manager of Construction Safety Division, Engineering and Safety Services, American Insurance Association, New York City; Secretary of the ANSI 01 Committee since June of 1970.

Lewis R. Morrison, Ardsley, New York, Corporate Safety Manager, ACF Industries, Inc., New York City. As an employee of the Lumbermen’s Mutual Casualty Company of Chicago and as a representative of the National Association of Mutual Casualty Companies, he was a member of the ANSI 01 Committee at the time ANSI 01.1 was adopted in 1954.

A. A. Skonning, Riverside, Illinois; retired Senior Engineer, Western Electric Company; 29 years’-experience in safety engineering, particularly woodworking; representative of the National Safety Council on the ANSI 01 Committee in 1954 and 1961.

Joseph J. Prabulos, Woodbury, Connecticut; retired Safety Director, National Distillers and Chemical Corporation; member of ANSI 01 Committee in 1954, 1961 and 1971; representative on the committee of a trade association, Associated Cooperage Industries.

Dan Adair, Portland, Oregon; Vice President of consulting firm, Hearing Conservation and Noise Control, Inc.; representative of National Safety Council on ANSI 01 Committee in 1954 and 1961.

In addition, Respondent Weyerhaeuser called Thaden Demas, Assistant Director for the Division of Products Approval, American Plywood Association, Tacoma, Washington.

There is no conflict in evidence on any material fact in the case.

ANSI does not write standards. In case of a consensus standard, one of its prime functions is to certify that standards presented to it are in fact representative of a ‘consensus’ of those parties who have an interest in the subject covered.

Usually the standards are written by committees of the organization, commonly sponsored by one or more members. There are 160 national organizations and 1,000 individual company dues paying members. The areas of activity of the organization in promulgating standards and approving them are very broad. The Safety Technical Advisory Board involved with the standard here under consideration is only one of 26 such advisory boards, each concerned with its own category of standards.

In this case, the 01 Committee was sponsored by the Association of Casualty and Surety Companies, a large trade association of the biggest stock casualty companies in the country (new a part of the American Insurance Association by reason of merger with the National Board of Fire Underwriters); and the International Association of Government Labor Officials.

When a request is made for permission to sponsor a standard, and certain formalities have been completed, such as a finding by ANSI of the need for such a standard, approval of its scope, the competence of the proposed sponsors, membership of the committee, including competence and comprehensive interests of committee members (usually trade associations or other organizations of groups of companies rather than individual companies, along with labor and governmental organizations); the committee is pretty much left alone to do its job of writing the standard. In the process, technical assistance is supplied by the ANSI organization only on request. Committee members are usually highly skilled experts in the field in which they are working.

When the job is completed and the proposed standard. approved by a ‘consensus’ of the committee, it then undergoes further scrutiny. In this case the Safety Technical Advisory Board passed on the technical competence of the standard and the Board of Standards Review on whether it represented a ‘consensus.’ Involved in the process now is a public review and comment period following distribution of the proposed standard to recipients of ‘ANSI Resporter.’ This has a circulation of 10,000, including The Bureau of National Affairs, Commerce Clearing House, National Safety Council, and other publishers of trade periodicals.

Early in 1971, Patrick F. Cestrone had completed about 31 years of government service as a professional safety engineer, most of it in supervisory capacities. He was Director of the Office of Safety and Health Standards, United States Department of Labor. For more than 2 years, Cestrone and those under his supervision had worked on planning for the Labor Department in anticipation of some type of comprehensive Federal occupational safety and health law.

The ‘crash program’ to which reference was made was principally the preparation of a comprehensive set of occupational safety and health standards promulgated by the Secretary of Labor under Section 6(a) of the Occupational Safety and Health Act of 1970. These were published on May 29, 1971 in 36 Federal Register, commencing at page 10466.

Adoption of these standards by the Secretary was mandated by Section 6(a) of the Act. They were of two kinds, ‘national consensus standards’ and ‘established Federal standards.’ As the man primarily responsible for ‘putting together the package’ Cestrone was familiar with all the details of the project.

Cestrone does not remember specifically the details of rewriting ANSI 01.1 and its adoption as 29 CFR 1910.213 and 214. Nor does he have a definite recollection of considering and eliminating the headnote previously quoted at the beginning of Section 4, ‘Woodworking Machinery’, on page 9 of the ANSI printed standard (Respondent’s Exhibits S–1 and S–3); or the reason for its omission from Section 213 of Part 1910. He does recall ANSI 01.1, and that it was adopted as a national consensus standard.

Among the objectives of the group headed by Mr. Cestrone was to make no changes in either the scope or the substance of any national consensus standard. Part of the job also was to eliminate any consensus standards that were advisory, or recommended. No provision was intended to be included in the final product unless its requirements were mandatory.

Neither Cestrone nor, so far as he knew, anyone else engaged in the project took any steps to insure the legality of the standards being adopted; for example, to determine whether the national consensus standards met the statutory definitions of Section 3 (9) of the Act. As to ANSI 01.1 there were two reasons for this.

First, the Secretary was not only under a mandate of the statute (Section 6(a)) to adopt national consensus standards produced by ANSI and the National Fire Protection Association (NFPA); but the legislative history of the Act contained numerous committee reports and other comments urging speed and purporting to explain why the standards, having already met the ‘consensus principle’, could and should be adopted without further ado.

Further scrutiny will show that the language of the legislative history tending to show compliance of the ANSI standards with the statutory definition of a national consensus standard was in error.

In his testimony, Mr. Cestrone referred to several such passages from the legislative history:

‘Q. What part of the legislative history, and to what part of the legislative history do you refer there, if you know?

A. May I sit and refer and to my notes?

Q. Yes, yes, refer to any notes you have.

A. With respect to support of the legislative history and support of interim standards, my reference is to report 21–82, starting on page 141, which accompanied the Senate version of the bill S 2193, particularly legislative history starting on page 146–6.

Q. Is that in the legislative history?

A. It’s in the green June book, and I can read to you if you want me.

Q. If you have the pertinent language it might be good to put it in the record.

A. Senate Report 91–1282, page 141, calendar number 1300; Accompanying Senate Bill S 2193, page 146–6. ‘The purpose of this procedure is to establish as rapidly as possible National Occupational Safety and Health standards with which industry is familiar. These standards may not be as effective or up to date as is desirable, but they will be useful for immediately providing a nation wide minimal level of safety and health. Two private organizations are the major sources of consensus standards; the American National Standards Institute, Incorporated and the National Fire Protection Association. By the Act’s definition a consensus standard is one which has been adopted under procedures which have given diverse views an opportunity to be considered, and which indicated interested and affected persons have reached substantial agreement on its adoption.’

Q. Pardon me, sir. I’m interested in the part before ‘affected persons.’

A. Which indicate that interested and affected persons have reached substantial agreement on its adoption.

Q. This is saying what has been done and the statute says it must be done, is that correct, sir?

A. Yes, sir, and if I may finish this last phrase, the point I wanted to make here. I don’t know whether I left what I thought was non-applicable language out but it follows that, ‘It is appropriate to permit the Secretary to promulgate such standards without regard to the provisions of the Administrative Procedures Act. The bill also provides for the issuance in similar fashion of those standards—

Q. Are you guoting now?

A. Yes, sir. ‘. . . which have been issued under other federal standards and which under this Act may be applicable to additional employees who are not under the protection of such other federal laws. Such standards have already been subjected to the procedural scrutiny mandated by law under which they were issued. Such standards moreover in large part represent the incorporation of voluntary industrial standards.’

Your Honor, in the House Report 911291 which accompanied HR 16785 starting on page 831, but the pages of specific reference are page 847. The intent of this interim standards provision is to give the Secretary of Labor a speedy mechanism to promulgate standards with which industry is familiar. These may not be as effective as the current standards promulgated under formal procedures but they will be useful for immediately providing a nation-wide minimum level of health and safety.

Section 6—

Q. Does that refer to the reference or standards referred to by the terms of the statement elsewhere? Did those include ANSI national consensus standards?

A. Yes.’

(Tr. S54, S55, S56 and S57)

As to the adoption of ANSI 01.1 as a national consensus standard, Cestrone recalled believing the legality of the standard was protected not only by the congressional mandate of the statute and congressional urgency in reports and debates, but also by the fact that the Labor Department’s Solicitor advised that the standard had been adopted ‘by reference under the Walsh-Healy Act.

There is some question as to was intended by the witness when he referred to adoption ‘by reference.’

Cestrone referred specifically to the provisions of Section 4(b)(2) of the Act. This simply purported to ‘blanket in’ all existing Walsh-Healy regulations—as well as those under other safety Acts—as Occupational Safety and Health standards; by ‘deeming’ all such—without further identification or reference—to be occupational safety and health standards.

The witness may have been referring to the adoption ‘by reference’ in 41 CFR 50.204–2. This reference applies to the general machine guarding requirements for all machines and states that all standards on this subject produced by the four named major standards-producing organizations are effective under the Walsh-Healy Act; without specific reference to any such privately produced standards, their provisions, or their application.

This section was mentioned by the Solicitor at the beginning of the supplemental hearing on the Secretary’s Motion for Summary Judgment on the pleadings. It was not urged thereafter by the Solicitor except in connection with his argument that 29 CFR 1910.213 is in fact a national consensus standard.

The fact is ANSI 01.1954 (R 1961) was taken apart and reassembled, under the direction of Mr. Cestrone, to become 29 CFR 1910.213 and 214. (See Respondent’s Exhibit G–3, showing details of the dismantling and reassembling job.) It was then adopted as a national consensus standard. In the process the headnote at the beginning of Section 4 was removed and appears nowhere in the Occupational Safety and Health standards.

There was no intent or effort to adopt any standard in the alternative, or as both a national consensus standard and an established Federal standard.

‘The new Part 1910 contains Occupational Safety and Health standards which are either national consensus standards or established Federal standards.’

36 Fed. Reg. 10466, May 29, 1971)

The Secretary’s own regulation showing source—29 CFR 1910.221—shows that both Sections 213 and 214 were derived from ‘ANSI—01.1—1954—(R–1961)—Safety Code for Woodworking Machinery.’

There is no statutory authority to promulgate the standard except as one or the other.

Thus, the standard under scrutiny in this case—or portions of it—is either a valid general industry occupational safety and health standard adopted as a national consensus standard; or so far as we are here concerned, it has no relevance.

We now come to consideration of the three principal questions to be answered by this decision.

The first is the effect of deleting the headnote to Section 4.0 ‘Woodworking Machinery’, page 9, ANSI 01.1 1954 (R 1961). It is as follows:

The record shows a similar note to have been part of the 01.1 standard in 1944. Another is a part of the 1971 revision.

The record further shows that at a meeting in the summer of 1973, for the first time the ANSI 01 Committee considered removing the text of the note as it has appeared and placing its provisions as part of the text of the various sections applicable. (See Secretary’s Exhibit S–2.)

A number of undisputed facts should be considered.

First, all of the provisions of 29 CFR 1910.213 are mandatory. The headnote is not.

The note is not ‘explanatory’, ‘preliminary’, ‘a suggestion’, ‘a recommendation’, ‘for informational purposes’, or even an ‘exhortation.’ It is an integral part of the standard itself.

‘JUDGE WATKINS: Mr. Ehlke, I forgot to ask Mr. deTarnowsky something. If you want to cover it, okay; if not, ‘I’ll ask him again.

I want to make sure he testified as to whether the headnote that we’ve been talking about is a part of the standard. Would you cover that?

Mr. EHLKE: That’s my next question.

Q. (By Mr. Ehlke) Turn to page 9 of that document, sir. Is there a note at the beginning of section 4 entitled ‘Woodworking Machinery?’

A. Yes, it is.

Q. What type of note would that be, sir?

A. We call it a headnote.

Q. Are headnotes an integral part of the standards?

A. Yes.

Q. Is this headnote an integral part of that standard?

A. Yes, it is.’

(Tr. S172)

There is considerably more evidence in the record to the same effect. There is no evidence to the contrary.

The saws covered by Section 213 of Part 1910 simply cannot be used for many jobs they are designed to do while guarded as required by the standard. This evidence is also undisputed and from expert and technically competent witnesses—members of the Committee.

All Committee members stated that ANSI 01.1 would not be—and could not be—a ‘consensus’ standard with the headnote removed. Those asked stated they would not have voted for it as a consensus standard in the absence of the headnote.

It is interesting to note the difference in the method used by the Secretary in adopting ANSI 01.1 in the Construction. Standards, from the used here in the General Industry Standards.

Subpart I of the Construction Standards covers ‘Tools—Hand and Power’, and includes 29 CFR 1926.300 ‘General Requirements’, through Section 305: Section 304 of Part 1926, entitled ‘Woodworking Tools’, has some specific requirements for portable, power driven circular saws (subparagraph (d)); and then provides:

‘(f) Other requirements. All woodworking tools and machinery shall meet other applicable requirements of American National Standards. Institute, 01.1–1961. Safety Code for Woodworking Machinery.’

Leaving aside other questions for the purpose of discussion; the result is the adoption of ANSI 01.1 with its headnote. This is a procedure—and the result—intended by Congress in Sec. 6(a) of the Act.

Whatever may be the good or bad things about mandatory standards, or the validity or invalidity of adoption by reference; this was the enactment of what appeared on its face to be a national consensus standard—as such; not as changed. With the headnote still a part of the standard, enforcement of Construction standards must consider that all parts of Section 4.1 of ANSI 01.1 are optional—not mandatory.

In adopting Part 1910, including Section 213, on the other hand, the Secretary states in Volume 36, No. 105, Federal Register, page 10466, May 29, 1971:

‘The national consensus standards contain only mandatory provisions of the standards promulgated by those two organizations. The standards of ANSI and NFPA may also contain advisory provisions and recommendations, the adoption of which by employers is encouraged, but they are not adopted in Part 1910.’

Perhaps the Secretary made a mistake in including Section 213 of Part 1910. With the headnote, provisions of Section 4.1 of ANSI 01.1: ‘are not perfectly applicable to all operations for which saws are used.’ The standards are only those ‘which woodworkers have agreed are most generally useful.’ ‘........ there are a considerable number of cases not satisfactorily met by these standards.’

With the headnote, ANSI 01.1 is not mandatory. Without the headnote, all provisions as they appear in 29 CFR 1910.213 are mandatory. The answer is that simple.

The Secretary exceeded his statutory authority in failing to retain the headnote as it was—an integral part of the standard.

The second and third questions for consideration are whether, in two respects, ANSI 01.1 1954 (R 1961) meets the statutory definition of national consensus standard.

The Act provides:

‘SEC.3. For the purposes of this Act—

(9) The term ‘national consensus standard’ means any occupational safety and health standard or modification thereof which (1), has been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption, (2) was formulated in a manner which afforded an opportunity for diverse views to be considered and (3) has been designated as such a standard by the Secretary, after consultation with other appropriate Federal agencies.’

Although Section 3 (9) of the Act contains only three numbered subsections, as we view it two requirements are contained in the first. There are therefore, four requirements for a standard to meet this statutory definition.

(1) It must have been ‘adopted and promulgated by a nationally recognized standards-producing organization.’

(2) ‘Under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption.’

(3) ‘Was formulated in a manner which afforded an opportunity for diverse views to be considered.’

(4) ‘Has been designated as such a standard by the Secretary, after consultation with other appropriate Federal agencies.’

Respondent Konkolville argues in its brief that the first and fourth requirements are not met. We find it unnecessary to decide these questions because we hold that ANSI 01.1 does not meet the statutory definition of a national consensus standard under the second.

A word about the fourth (has been designated, etc.) is in order, however, because it has significance in our holding that the standard under discussion was adopted as a national consensus standard. It was designated as such, and as nothing else. Further, it was ‘. . . by rule promulgated’ as such by the Secretary, as provided by Section 6(a) of the Act.

In the Federal Register adopting Part 1910, ‘Occupational Safety and Health Standards’ (36 Fed. Reg. 10466, May 29, 1971), the Secretary states:

‘The national consensus standards are occupational safety and health standards adopted and promulgated either by the American National Standards Institute (ANSI) or by the National Fire Protection Association (NFPA) under procedures whereby it can be determined that persons interested and affected by the scope or provisions of the standards have reached substantial agreement on their adoption. I have determined that those standards have been adopted and promulgated under such procedures. Accordingly, pursuant to this determination, after consultation with other appropriate Federal agences, and in accordance with section 3 (9) of the Act, I do hereby designate as national consensus standards those standards in Part 1910 which are standards adopted and promulgated by either the American National Standards Institute or the National Fire Protection Association.’ (Emphasis added)

The first question which must be decided under this statutory definition (the second of the principal questions in the case) is whether the standard was promulgated

‘under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption.’

Assuming first of all that the ‘procedures’ are those of ANSI—the standards-producing organization—a number of other unanswered questions are immediately apparent. For example,

(1) Who are persons interested and affected by the scope or provisions of the standards?

(2) How many such persons are there?

(3) How many must ‘have reached substantial agreement on its adoption?

(4) What is ‘substantial agreement on its adoption?’

It might be pointed out there is no requirement that the Secretary find or ‘determine’ that the persons contemplated have reached substantial agreement. Rather the requirement is that the circumstances of adoption of the standard be such that these things ‘can be determined by the Secretary.’

The Secretary does purport to so find in the Federal Register cited. His statement to this effect is in the last quotation from it.

We may assume the Secretary cannot find that which is untrue. He cannot ‘determine’ that something happened when in fact it did not happen. Thus, although the statute does not require the Secretary to ‘determine’ the specific facts regarding the adoption of the standard by ANSI; those facts must exist so that the Secretary could so determine them. Those facts are ‘that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption,’

Who are ‘persons interested and affected by the scope or provisions of the standard?’ Little time need be spent in answering this question. The record shows so many thousands of persons who are clearly within this class we need not concern ourselves with the niceties of deciding in a borderline case whether or not a particular person or class of persons is within it.

For example, these are shown by the record:

Workmen who operate the machinery

Labor organizations to which the workmen belong

Employers who hire the workmen

Trade associations of those employers

Workmens compensation or industrial insurance carriers who insure the employers and workmen, both by reason of their financial interest in the safety of the workmen and the insurance companies’ traditional interest in safety.

Trade associations of the workmens compensation insurance carriers

Governmental organizations with an interest in employee safety

Private safety organizations, for example, the National Safety Council

Producers of safety standards, such as ANSI

The last two questions posed above present greater difficulties of solution. How many ‘persons interested and affected’ must have agreed on the adoption of an ANSI standard? The literal language of the statute would be satisfied if the answer were either ‘two’ or ‘all.’ Either answer is ridiculous.

Might the answer be ‘a representative number’; or ‘a substantial number’; whatever either of these expressions means? I have been unable to find anything in the Legislative History helpful in trying to answer this question.

It would rather seem from numerous passages in the history that Congress became enamored of its own definition and began to assume that both ANSI and NFPA standards met it. At the same time, from some of the testimony, one might draw the inference that ANSI began to believe its standards met the Congressional definition.

As will be shown, the answer to the question is academic. Since we are talking about ‘consensus’ standards, however, would it not be sensible to believe Congress intended that ‘a consensus’ of ‘persons interested and affected’ agreed to the adoption of the standard?

Consensus means

‘General agreement.’ ‘Collective opinion. The judgment arrived at by most of those concerned.’

(Webster—3rd Unabridged)

‘Majority of opinion.’

(Random House—College Edition)

DeTarnowsky quoted from one of ANSI’s principal publications, ‘Consensus implies much more than a concept of a simple majority, not necessarily unanimity.’

Perhaps it would be helpful to delve slightly deeper into ANSI procedures, particularly in its method of ‘obtaining a consensus.’ There is reference to the question in the testimony of Mr. deTarnowsky:

‘Q. (By Judge) The other day when we had—well, that was Tuesday—and we had this meeting with all of us there, I asked, I believe, if there is an ANSI—if ANSI defines consensus anywhere. I didn’t ask then, but I meant it, of course, as a guide. You then consulted your files, and would you tell us what you found about that?

A. The term ‘consensus in standardization practice is achieved when substantial agreement is reached by concerned interests according to the judgment of duly appointed authority.’

Q. Then we ought to identify it. I’m reading in a different place.

A. I’m reading from the ‘Guide of the Development of American National Standards’, dated November 2, 1972, page 6, the third paragraph, ‘Consensus Principle.’ I better read the whole paragraph.

Q. Go ahead, sir.

A. The title of this paragraph is ‘Consensus Principle’, ‘The basic principle underlying ANSI approval of a standard is that a consensus must be reached of those having substantial concern with its scope and provisions. In standardization practice a consensus is achieved when substantial agreement is reached by concerned interests according to the judgment of a duly appointed authority. Consensus implies much more than a concept of a simple majority, not necessarily unanimity.’

(Tr. S164–165)

From the record it is not clear who is the ‘duly appointed authority’ whose judgment is used to determine when a ‘consensus is achieved’ by ‘substancial agreement.’ Although the Board of Standards Review of ANSI is charged with only one function—to determine whether or not the standard ‘represents a consensus’—other procedures of ANSI apparently also go into the determination.

First there is the selection and approval of the committee which is to write the standard and the determination that it was as broad a base in the particular field as possible. One factor not considered at length in testimony is the theory of planning somewhat unusual duties and responsibilities on members of ANSI, and their individual committee members, to keep the member organization informed of the work of ANSI committees in writing standards. At the same time the individual is charged with the responsibility of interpreting the attitude of the organization he represents—and its members—in the development of the standards work.

Testimony of Committee members does not disclose any particular attention having been paid to these responsibilities.

The following quotation from ‘The ASA System’ (Secretary’s Exhibit S–1) is of interest in this connection.

‘These principles require thoroughgoing responsibility on the part of cooperating bodies and their representatives—responsibility in three senses, viz:

(a) Responsibility in representation. It is the duty of a representative (1) to keep sufficiently in touch with his organization so that he can correctly interpret its attitude in the development of the work and can participate in decisions in committees; (2) to keep his organization informed of developments; (3) to act as a leader in the formulation of the policies of his organization in regard to the matters with which he is dealing; and (4) to refer back to his organization questions upon which he feels unauthorized to speak for it;.....’

The statement was made above that the number of ‘persons interested and affected’ who reach ‘substantial agreement’ on the adoption of the standard is academic. The fact is, nobody reaches substantial agreement—or any other kind of agreement—on the adoption of an ANSI consensus standard except the individual committee members writing the standard and the organizations they represent.

The organizations are usually not the employers but trade or other associations, or the like. ‘Substantial agreement’ could also be said to be reached by subsequent reviewing authorities within the ANSI organization itself.

It is not only a matter of common knowledge, but it is the uncontradicted evidence in this record; that except in unusual circumstances not here shown, no member of a trade association or similar organization allows the organization to act for it, agree to anything for it, to speak for it, to express an opinion for it, or to commit it in any way.

The evidence in this record does not include all the 13 or 14 organizations constituting the ANSI 01 committee in 1954 and 1961. It does, however, include the following:

Nixon deTarnowsky testified that ANSI’s members do not authorize the organization to make any decision for them involving judgment or to speak for them on any matter involving the technical content of a standard. He is familiar with the operation and practices of trade associations and has represented at least one. With respect to the representative and in connection with ANSI procedures, he testified:

‘Q. But he normally speaks for the association and industry or the trade association only, not for individual members?

A. That’s right. He’s a representative of the association. This is his function.

Q. I wonder if it isn’t usually the practice for a trade association representative to be very careful not to speak in the names of the individual members?

A. That is correct, they do. They must remember they are speaking for an association and not for their company or themselves.’

(Tr. S166–167)

David Zabriskie is an employee of the American Insurance Association and Secretary of the ANSI Committee. ‘Roughly’ all company members who subscribe to the engineering and safety services of the Association write workmens compensation insurance. These are the largest stock casualty companies in the country (formerly constituting the Association of Casualty and Surety Companies). Zabriskie testified that there are some mutual companies who are now members.

There are 150 to 160 of these companies writing workmen’s compensation insurance. The record does not show how many million policy holders they have or how many such policy holders own or operate saws of the type covered by the woodworking machine guarding standards in question. A fair inference can be drawn the number is very large.

Neither Zabriskie nor any other representative of the American Insurance Association has authority from any member company to ‘agree’ to anything, to speak for it, or to make any decision or express an opinion on the question of the adoption of any safety standard. If the committee member is a company employee, he is authorized to speak and vote for the Association only, not for his company. This situation is often the case. Nelson, the current chairman of the ANSI 01 Committee, is an employee of St. Paul Fire and Marine. Steinman, the previous Chairman, was an employee of the United States Fidelity and Guaranty Company.

No company member of the American Insurance Association has authority from any policy holder to speak for it, ‘agree’ for it, take any position for it or express any opinion for it on any matter having to do with a safety standard. Every policy holder (in case of its insurance company) and every company (in case of its trade association) jealously guards its own right to ‘agree’, ‘assent’, ‘take a position’, ‘take action’, or withhold it, and in all respects to form its own opinions and conclusions and to express them on all matters—including safety.

Lewis R. Morrision was a representative of the National Association of Mutual Casualty Companies on the ANSI 01 Committee in 1954. He was an employee of the Lumbermens Mutual Casualty Company of Chicago. The trade association he represented was made up of the large mutual companies writing workmens compensation insurance.

The same facts are true with respect to Mr. Morrison as with Mr. Zabriskie. He spoke for—voted for—only the trade association—not his employer or any other company. No company member of the trade association had authority to take any action or position or express any view on behalf of any of its policy holders.

A. A. Skonning, Senior Engineer, Western Electric Company, was a representative on the committee in 1954 and 1961 for the National Safety Council. Dan Adair, an employee of the Safety Council, was also a representative. Both were active in the work of the committee for a considerable number of years.

In 1970, the National Safety Council had 9,000 members, 8,000 of them industrial concerns. Others included labor unions and insurance companies. In 1963, a listing was developed of 28,000 industrial plants involved in memberships of the National Safety Council.

No member of the National Safety Council authorized either Skonning or Adair to speak for it, act for it, or do anything else in connection with safety. As a member of the committee, Mr. Skonning voted only on behalf of the National Safety Council, not on behalf of Western Electric.

Joseph J. Prabulos represented the Associated Cooperage Industries, a trade association, on the committee in its work resulting in the revision of the standard in 1954, its reaffirmation in 1961 and its further revision in 1971. He was employed as Safety Director of the National Distillers and Chemical Corporation.

Prabulos’ recollection was that the trade association had about 130 member companies. As a committee member, he spoke and voted only for the trade association, not for his employer. In other respects his testimony is the same as that of the witnesses just mentioned except that, in addition, he had no specific instructions or authorization from the trade association on how to cast any vote with respect to the standard.

As with the other witnesses, Mr. Prabulos had no contact or communication with the member companies of his trade association, or with his own company, with respect to the work of the ANSI committee.

In fact, each committee member who testified was an expert in his field, and used his own judgment in casting his vote in a manner that caused the committee to be in substantial agreement.

It would serve no useful purpose to speculate on the precise meaning of ‘substantial agreement’ to the extent of framing a definition. Certainly it means much less than formal and recorded agreement, either written or oral. It might be inferred from inaction—with knowledge of essential facts—rather than from any positive action.

At a minimum there must be some communication—or chance to communicate—by a person held to be in ‘substantial agreement.’ In any event, to hold that many thousands of people are in ‘substantial agreement’ means more than the best judgment of safety experts about what they are thinking; when the experts have received no communications from them as to what they are thinking, and no authority from anyone to take or withhold any action.

At the conclusion of the first three days of testimony and at the request of counsel for Respondent, the case was continued to September 17. Although not so limited, this was principally for the purpose of obtaining further evidence tending to improve the record as to the number of ‘persons interested and affected by the scope or provisions of the standard.’

Most of the evidence we have is general—some of it vague. From the total, however, certain valid inferences may be drawn, particularly with respect to minimum numbers of persons who may be so interested and affected.

A number of documents, or portions of them, were introduced in evidence. With the background record of the insurance and cooperage industries, the National Safety Council, and the ANSI members, perhaps reference to one and a stipulation in connection with it would be sufficient for our present purpose.

Mr. George J. Tichy, counsel for Konkolville, did not testify. By stipulation, however, the equivalent of his testimony was received.

It was stipulated that, based on Respondent’s Exhibit S–8, that portion having to do with lumber, sawmills and wood products, Mr. Tichy would testify if he were called as a witness, and based upon his experience in the industry, not only as counsel but also including extensive experience as a workman; that in 1954, 1961, 1971 and 1973 there were no less than 30,000 industrial users of the types of saws found in Section 4.1 of ANSI 01.1 1954 (R 1961) and adopted thereafter as 29 CFR 1910.213. The stipulation was further that on each of the dates the number of such saws in use was no less than 50,000.

It was further agreed that the stipulation might be accepted in lieu of Mr. Tichy’s testimony, that he was qualified to testify to the facts stated, and that the stipulation might be so used even though Tichy was in court and could have taken the witness stand.

It is of interest to note that so far as all the logging and sawmill, as well as the Northwest Plywood industries are concerned; there was no representative—either company or trade association—on the ANSI 01 Committee. One of the reasons assigned for this was that at the time a ‘vertical’ standard for sawmills was being considered and prepared. (29 CFR 1910.265)

From the foregoing it is abundantly clear that the ANSI national consensus standard here under consideration does not meet the definition of Section 3(9)(1) of the Act, as having been adopted ‘under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption.’

One can but conclude that Congress mandated the use of national consensus standards as occupational safety and health standards under the Act, espoused their adoption as interim regulations and under abbreviated procedures, sought to speed their promulgation and implementation; and at the same time adopted a statutory definition that no national consensus standard could meet. At least the standard here under consideration does not meet it.

The third question for decision is whether the ANSI 01.1 1954 (R 1961) standard ‘was formulated in a manner which afforded an opportunity for diverse views to be considered.....’.’

In an earlier explanation of the working of ANSI, reference was made to ‘a public review and comment period.’ References to this procedure under the same or similar language are in several places in the Legislative History.

Nixon deTarnowsky testified the present system started in 1969. Previous efforts, while not haphazard, were much less complete.

‘The old ASA system did not include a public review and comment period such as we have now. The old system relied exclusively on the membership of the ASA system. It was published in the Magazine of Standards, however, which was given general distribution, and was subscribed to by a great many more companies, but as I understand it the public review and comment, as we have it today, did not exist at the time 01 was promulgated.’

(Tr. S154–155)

The Magazine of Standards was published by ANSI. Its circulation is not shown. Other trade publications reproduced proposals with respect to the adoption of standards.

Mr. Cestrone testified he had no difficulty in knowing of any ANSI action contemplated in which he was interested over the years. At the same time, however, it appears that for many years he was active in ANSI and served on many of its committees and bodies.

In general, the record indicates dissemination of information about proposed actions regarding standards before the change in 1969. The change brought about a much wider and more selective distribution of information, and also brought into effect a number of new procedures with respect to comments received.

The statute does not designate whose ‘diverse views’ are to be considered; or who must be ‘afforded an opportunity.’ If the ‘opportunity’ and ‘diverse views’ are limited to safety professionals, there would be compliance with the statute.

Nor is there a specific provision about who is to do the ‘considering.’ By implication, however, this would be some part of the ANSI organization.

There is no indication Congress intended that a procedure such as that provided by Section 6(b) of the Act was thought to be required of private standards-producing organizations. No attempt is made to spell out times, places, manners of publication or other dissemination of information or methods used.

Under all the circumstances, we feel there was no failure on the part of ANSI to meet the requirements of Section 3(9)(2) in its adoption or promulgation of the standard here under consideration.

In order that there may be no misunderstanding, I should like to make it clear there is no intention in this decision to criticize anybody.

First, the Secretary of Labor was required by Section 6(a) of the Act to adopt national consensus standards as occupational safety and health standards ‘unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees.’

There are numerous references in the Legislative History to the assumption—stated as fact—that national consensus standards of ANSI and NFPA met the tests of the definition Section of the Act; even though the ANSI standard here under review did not. All the Congressional views were known to the people in the Labor Department charged with the responsibility of developing the program.

Mr. Cestrone and his organization of about 60 people did a monumental job in about 34 days in putting together the package. There must have been many other people in the Department of Labor under similar pressure. It just happens their identities and efforts have not come to our attention.

Least of all do we consider this decision any criticism of the American National Standards Institute; its philosophies, its procedure or its results. The procedures have been tested by time and found to be in the public interest, and specifically in the interest of occupational safety and health. Nothing here should be construed as in any way reflecting on the integrity or effectiveness of ANSI or of any of its procedures or results. It simply has a statutory definition of ‘consensus’ that its procedures cannot meet—nor could those of any other private organization setting out to do the same job.[3]

The Citation and Proposed Penalty must be vacated and the Complaint of the Secretary dismissed with prejudice.

Based upon a review of the entire record in this case, the undersigned hereby makes the following

FINDINGS OF FACT

Respondent Juhr & Sons is a general partnership with its principal place of business in Portland, Oregon. It is engaged in the contracting business. On January 19, 1973, it was one of several general contractors constructing an Administrative Services Building on the campus of the University of Oregon at Eugene. At its worksite there it had 25 employees and in its entire organization, about 30.

At all times material to this case Respondent used building materials, machinery and other goods brought into the state of Oregon from points outside the state. It used the mails, telephone and other facilities in interstate commerce. It was engaged in a business affecting commerce.

III

On January 19, 1973 Respondent’s worksite at Eugene, Oregon was inspected by a Compliance Officer of the Occupational Safety and Health Administration, United States Department of Labor. As a result a citation was issued on February 16, 1973 alleging Respondent was in violation of Section 5(a)(2) of the Occupational Safety and Health Act of 1970 by failing to comply with the machine guarding standard for woodworking machinery set out in 29 CFR 1910.213(h)(1), in having its employees use at the worksite a radial arm saw with no guard covering the lower portion of the blade. Respondent gave Complainant timely notice of contest of the citation and of the proposed penalty in the amount of $550.00.

On January 19, 1973 the radial arm saw described was at Respondent’s worksite, available for use by its employees. There is no evidence it was used that day, but by admitting the facts constituting the violation, such use is admitted. There is some evidence it was used other times, but no evidence as to when, by how many employees or in what manner. The employees who used it were experienced and well trained in its use.

The Secretary purported to promulgate 29 CFR 1910.213 as a national consensus standard by publication on May 29, 1971 in 34 Fed. Reg. 10466. The source standard is one of the American National Standards Institute, adopted in 1954 and reaffirmed in 1961, commonly known as ANSI 01.1 1954 (R 1961).

A headnote to ANSI 01.1 1954 (R 1961) at the beginning of Section 4.1 thereof provides:

Section 213(h)(1) of Part 1910 was derived from Section 4.1.9 RADIAL SAWS (a) Hoods and Guards of ANSI 01.1 1954 (R 1961). The headnote is an integral part of Sec. 4.1 and every sub-section and part thereof. Section 4.1.9(a) with the headnote produces the result that the use of lower blade guards for radial arm saws is optional. Section 213(h)(1) of Part 1910 has the effect of requiring the use of lower blade guards for all radial arm saws, at all times used. Its requirements are mandatory. The meaning, scope and application of the source standard are thereby materially changed.

VII

ANSI 01.1 1954 (R 1961) before its purported adoption by the Secretary, had not been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it could be determined by the Secretary that persons interested and affected by the scope or provisions of the standard had reached substantial agreement on its adoption. In fact, only the 13 or 14 organizational members of the committee writing the standard—not the corporations or other persons constituting such organizations—and the individuals representing them, along with members of the Safety Technical Advisory Board and the Board of Standards Review of ANSI had reached such substantial agreement.

VIII

ANSI 01.1 1954 (R 1961) was formulated in a manner which afforded an opportunity for diverse views to be considered.

Based upon the foregoing and upon all facts admitted, stipulated, or proved by uncontradicted substantial credible evidence, the undersigned hereby makes the following:

CONCLUSIONS OF LAW

Respondent is engaged in a business affecting commerce within the provisions of 3(3) of the Occupational Safety and Health Act of 1970. The Review Commission has jurisdiction of the parties and subject matter of this action.

ANSI 01.1 1954 (R 1961) was not enacted in part as 29 CFR 1910.213(h)(1) because the Secretary was acting in excess of his statutory authority in the deletion of the headnote to Sec. 4.1.

III

ANSI 01.1 1954 (R 1961) is not a national consensus standard as defined in Sec. 3 (9) of the Act.

29 CFR 1910.213(h)(1) was not a valid enactment by the Secretary of a national consensus standard, under Sec. 6(a) of the Act. 29 CFR 1910.213(h)(1) is invalid and unenforceable.

The Respondent is entitled to an Order vacating the citation and proposed penalty, and dismissing the Complaint of the Secretary with prejudice.

ORDER

Based upon the foregoing:

IT IS HEREBY ORDERED:

That the Citation for Serious Violation issued by Complainant to Respondent February 16, 1973 and reciting therein the operation of a radial arm saw in Eugene, Oregon on January 19, 1973 in violation of 29 CFR 1910.213(h)(1) and the proposed penalty in the amount of $550.00 be and the same hereby are Vacated.

IT IS FURTHER ORDERED:

That the Complaint of the Secretary be and the same hereby is dismissed with prejudice.

Dated: April 16, 1976

GARL WATKINS, Judge

[1] Respondent’s notice of contest did not contest the non-serious citation or penalties. Judge Watkins so found and we agree.

[2] Wording of the decision from this point will probably be identical to that covering the same questions in the decisions of the other cases. Footnotes will point out the start and finish of the decisional language repeated in each case.

[3] This end that part of the decision which is the same as a number of others, as mentioned in footnote 1.