UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 2437
KONKOLVILLE LUMBER CO., INC.,
Respondent.
DECISION
BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
This case is before the Commission pursuant to a sua sponte order for review. The parties
have filed no objections to the Administrative Law Judge’s decision, either by way of petitions
for discretionary review or response to the order for review. Accordingly, there has been no
appeal to the Commission, and no party has otherwise expressed dissatisfaction with the
Administrative Law Judge’s decision.
In these circumstances, the Commission declines to pass upon, modify or change the
Judge’s decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA
OSHC 2032, 1975–76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC
1015, 1975–76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc.,
v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no
compelling public interest issue.
The Judge’s decision is accorded the significance of an unreviewed Judge’s decision.
Leone Constr. Co., 3 BNA OSHC 1979, 1975–76 CCH OSHD para. 20,387 (No. 4090, 1976).
It is ORDERED that the decision be affirmed.
Dated: December 22, 1976
FOR THE COMMISSION:
William S. McLaughlin
Executive Secretary
(SEAL)
MORAN, Commissioner, Concurring:
I would affirm the Judge’s decision for the reasons set forth in his decision which is attached
hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz
Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority’s
view regarding the significance of decisions rendered by Review Commission Judges.
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 2437
KONKOLVILLE LUMBER CO., INC.,
Respondent.
DECISION ON REMAND
Appearances:
Charles G. Preston, Seattle, Washington
for Complainant
George J. Tichy, Spokane, Washington
for Respondent.
GARL WATKINS, Judge:
By its decision of December 15, 1975 the Review Commission remanded this
enforcement proceeding under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651,
et seq. to determine whether on January 23, 1973 Respondent was in violation of 29 U.S.C.
654(a)(2) with respect to two fire extinguishers in its sawmill at Orofino, Idaho; for failure to
comply with 29 CFR 1910.265(i) and 29 CFR 1910.157(a)(1).
The issues arise from Item 13 of Citation No. 1 for nonserious violations issued February
28, 1973. The proposed penalty is $25.00. In its decision the Review Commission disposed of all
other issues in the case. Secretary of Labor v. Konkolville Lumber Company, Inc., Docket 2437
(1975), 3 OSHC 1796, CCH OSHD § 18,296.
That part of the original charge in Item 13 of Citation No. 1 and now before us for
decision follows:
Item No. Standard or regulation Description of alleged violation
allegedly violated
13 29 CFR Part 1910 January 23, 1973
1910.265(i) 2. Fire extinguisher in the yellow truck at the shop
was empty.
3. Fire extinguisher on the wall of the outfeed at
Planer was empty.
The Complaint alleges:
V.
On January 23, 1973, at the aforesaid worksite and place of business and
employment, the Respondent further violated the safety and health regulations in
the following respects:
1. . . ..
2. Fire extinguisher in the yellow truck at the shop was empty; and,
3. Fire extinguisher on the wall of the outfeed at Planer was empty,
All contrary to 29 C.F.R. 1910.265(i).’
At the hearing in Spokane, Washington on July 31, 1973 and during the course of the
testimony of the Compliance Officer, the Secretary moved to amend the citation and complaint
to allege a failure to comply with 29 CFR 1910.157(a)(1) in addition to 29 CFR 1910.265(i). The
motion was denied.
Respondent’s motion for involuntary dismissal for Rule 41(b) of the Federal Rules of
Civil Procedure conclusion of the Secretary’s case. The same question was raised again on the
Secretary’s post-hearing motion for reconsideration and I adhered to the previous ruling. The
Review Commission reversed on both rulings stating:
We, therefore, reverse the Judge and grant the Secretary’s motion to amend the
complaint so as to allege a violation of § 1910.157(a)(1).
Since the Judge erroneously granted respondent’s motion to dismiss the citation at
the close of the Secretary’s case, respondent was not afforded an opportunity to
present any defense or rebuttal. We remand this case for a hearing to determine
whether a violation existed on the date of inspection.’ (CCH § 18,296, p. 22,406)
After the case was set for hearing on remand, the parties were granted permission to
submit the case on the original record and additional stipulated facts. The latter are contained in
‘Stipulation in Lieu of Additional Hearing’. What is now required, therefore, is a decision on
facts and law as to ‘... whether a violation existed on the date of inspection.’ (January 23, 1973)
under both 29 CFR 1910.265(i) and 29 CFR 1910.157(a)(1).
FACTS
Ronald C. Ostrom, the Secretary’s Compliance Officer, Donald J. Konkol, Vice President
and General Manager of Respondent, and Donald Gilkey, who described his job as ‘maintenance
man’, but whose description of his duties made the job sound like maintenance foreman or
millwright, testified at the original hearing. The Stipulation in Lieu of Additional Hearing, after
reference to certain procedural matters and the issues at this juncture of the case, is couched in
terms of what these three witnesses ‘would testify’ if the hearing were held now.
On the issues still remaining before us the Stipulation is much more detailed than the
testimony in the original transcript. Most of the facts to which these witnesses ‘would testify’ are
undisputed. Being credible, they become established facts of the case.
I shall try to keep this summary as brief as possible and still give full consideration to the
two charges remaining. Some matters will be treated as fact because they are established without
contradiction either by testimony or by the stipulation that a witness ‘would testify’. Appropriate
comment will be made on collateral matters, including apparent inconsistencies. Actually there
are no substantial conflicts on material facts.
Respondent is an Idaho corporation and operates a ‘typical’ sawmill at Orofino. It
includes a planer mill and dry kiln. At the time of Secretary’s inspection on January 23, 1973
there were 37 employees. The year (whether calendar or fiscal is not disclosed) previous to the
hearing at the end of July 1973 the company had two million dollars in gross sales.
Except as regards the two portable extinguishers identified in the citation evidence about
fire protection is from the Stipulation and what Respondent’s witnesses would testify. There is
no evidence or inference to the contrary.
For the convenience of discussion we shall consider Respondent’s fire protection system
as having four parts. First, all ‘covered areas’ were protected by an automatic sprinkler system.
When the sprinklers were activated at any point, three warning bells sounded—all loud enough
to be heard throughout the mill.
Secondly, ‘A complete system of active fire hydrants was located throughout the plant
premises’. To each was attached ‘. . . at least 150 feet of usable 2” fire hose’ with the hose so
folded that it could be drawn away from the hydrant immediately.
Third, an intercom system had its base station in Respondent’s office where at least one
employee was throughout the plant (the exact number and distance apart is not shown). All
supervisors and most employees knew that from any outlet a call was to be made immediately to
the office to report a fire or any other emergency. The mill was covered by two fire departments,
one rural and one city. Fire stations of both are within two and one-half miles of the mill.
Fourthly, before installation of the portable fire extinguisher system throughout the mill,
a survey of it was made by the American Fire Equipment Company of Lewiston, Idaho; working
with Respondent. This company now has an oral agreement under which it inspects, tests, repairs
and recharges the portable fire extinguishers regularly and monthly. (The service is not always
that frequent. A representative of the company visited the mill the day after the Secretary’s
inspection.)
Before installation the fire equipment company and Respondent agreed on positioning of
portable fire extinguishers throughout the mill. Each place where one was to be put was painted
red for an area considerably larger than the extinguisher. The brackets and extinguishers were
then installed by the fire equipment company. a panel truck without rear doors, used only for
maintenance on the premises. Although the red ‘designation’ on the yellow background was on
the outside of the panel, the portable fire extinguisher was mounted inside. It was high on the left
panel and within two feet of the back of the truck.
With the reservation noted, Ostrom, the Secretary’s Compliance Officer, knew nothing of
the fire protection system of Respondent except for the two fire extinguishers forming the basis
of the charges against Respondent. He did say,
‘A. I checked the fire extinguishers in the shop.’(TR 131)
In context he was probably referring to the mechanic’s shop. He may have been referring to the
carpenter’s shop.
He knew nothing of the location of any extinguisher (except the two) and did not recall
the red paint under and around fire extinguishers where they were mounted, including the red
paint on the maintenance truck.
While testifying affirmatively that he knew nothing of the fire hydrants and attached
hoses, the sprinkler system and the inter-communication system and its use in the event of fire or
other emergency he did say,
‘Q. Did you check into the fire protection system that was employed by the
Konkolville Lumber Company?
A. No, sir. The only thing I checked was the fire extinguisher that was on the
truck. It was sitting on the truck, and that’s what I looked at, and I found it was
empty.
Q. Did you make any attempt to determine what the fire hydrant and fire hose
situation was on these premises?
A. I believe at the opening conference I asked what type of fire inspection he had,
and I was told that he had—I’d have to look at my notes again, what type of fire
extinguisher—
A. Well, I would say I asked about the fire inspection, but I don’t recall going into
the whole system, what was the procedure.
Q. (By Mr. Tichy) Or the location of the fire hydrants?
A. You are right.
Q. Did you go into—was anything said about the fire intercommunication system
as it exists on these premises?
A. No, sir, not to my recollection.’
(TR 133–134)
On the floor of the maintenance truck was a 2 1/2 pound empty portable fire extinguisher
(Ostrom thought it was “…approximately a four pound one…”
No one knows why it was empty except that Ostrom ‘would testify’ ‘That the fire
extinguisher in the yellow truck was empty because it had been used;’ (Stipulation, 8E). There is
insufficient foundation to give this evidence any credibility.
No one knows how long the empty tire extinguisher had been in the bed of the truck,
where it came from, who put it there, whether there was a tag attached showing when or whether
it had been charged or what happened to it thereafter. Ostrom picked it up and put it down, but
decided it was empty solely from the pressure gauge.
It is established that ‘This was a fire extinguisher which the Company had at no time
prepared or directed a designated place.’. (Stipulation, 7C) There was no one besides the
company to ‘designate’.
Neither at the hearing nor in the Stipulation almost three years later did Ostrom recall the
other fire extinguisher mounted on brackets inside the maintenance truck. Konkol and Gilkey,
based on their failure to notice its absence, ‘believe’ that a fully charged 2 1/2 pound fire
extinguisher was in its usual place mounted in brackets on the left inner wall of the panel
maintenance of the outfeed at the planer was in fact fully charged. A faulty gauge showed it to be
empty. The parties stipulated that Konkol and Gilkey ‘would testify’:
‘H. The portable fire extinguisher on the wall of the outfeed at the Planer was, in
fact, fully charged and in an operable condition at the time of the inspection on
January 23, 1973. The Respondent examined this extinguisher and had the fire
extinguisher in question examined by an employee of the American Fire
Equipment Company, Lewiston, Idaho. A malfunction existed in the gauge on
that fire extinguisher. It was a faulty gauge. The examination of the cited fire
extinguishers in the planer showed that the seal had not been broken, that it was
fully charged and in an immediately operable condition. The faulty gauge in no
manner impaired its operability.’
(Stipulation, 7H)
Ostrom testified at the hearing:
‘Q. Do you know whether this extinguisher was empty?
A. I just know what the guage says.
Q. Is there any standard that compels a fire extinguisher to have a gauge?
A. No, sir. They say they will be monthly and periodically checked to insure that
they are full.
Q. But there’s nothing that requires you to have a gauge on a fire extinguisher?
A. Not that I am aware of.
Q. There are other methods by which a fire extinguisher can be tested to
determine whether or not it’s full. Can it not?
A. This is correct.’
(TR 136)
Attention should be drawn to the language of the Stipulation: ‘The seal had not been
broken. . . .’ in light of the following testimony of Ostrom at the hearing:
‘Q. Your judgment that the fire extinguisher was empty was solely by examining
the gauge which indicated it to be empty?
A. This is correct.
Q. There was no other effort made to determine whether the extinguisher was
empty?
A. I did look to see if the pin was pulled, and this helps in my determination, but
at the time I don’t recall whether the pin was pulled.’
(TR 157)
We interpret both to refer to one of several types of devices designed to show whether an
extinguisher had any use at all after it was last charged (or recharged). We interpret the language
to mean that the stipulation says there had been no such use and that Ostrom didn’t know.
DISCUSSION
First of all since we vacate both items of the citation, we do not reach the interesting
question raised by counsel for Respondent in his letter of April 27, 1976 (submitted in lieu of a
more formal brief) as to whether in this specific case the fire protection standards apply to
employee safety at all. Obviously the primary purpose of such standards is the protection of
property. In some cases a secondary purpose may be found in the protection of workmen.
Here however we have a little sawmill, few workmen and almost unlimited means of
ingress and egress. There is no evidence of the use of flammable materials, liquids or anything
else on which to base a finding of more than the most remote possibility of the workmen’s
clothing being on fire. Respondent invites such scrutiny of the standard in light of those facts.
However, since decision on this point is unnecessary to our disposition of the case, it will not be
made.
Under 29 CFR 1910.157(a)(1) the employer is required to do two things with portable
fire extinguishers: (1) maintain them fully charged and in operable condition, and (2) keep them
in their designated places. In what way has the Secretary met his burden of proving that
Respondent has failed to meet the duties imposed by the standard? For convenience we shall
discuss the two charges in reverse order, starting with the fire extinguisher mounted on the wall
of the outfeed at the planer.
We suppose our imagination is not stretched too far to find that when Respondent, in
consultation with fire extinguisher experts, chose certain positions for the location of portable
fire extinguishers; and then painted each area red, it was establishing a ‘designated’ place within
the contemplation of the standard.
Counsel is not being frivolous when he asks whether this ‘designated place’ would be
‘dedesignated’ if the extinguisher is then removed. Since the standard imposes duties with
respect to the fire extinguishers and not to the places, if another extinguisher were then placed in
the bracket from which the first had been removed, there would certainly be a ‘redesignation’.
The question then would seem to be whether the fully charged, portable fire extinguisher
capable of functioning as such, is in ‘operable condition’ when it has an unbroken seal showing
no use after its last charge and a faulty gauge showing no pressure.
‘Operable’ is defined in Webster’s Unabridged Dictionary, Third Edition, as ‘working’
and as ‘fit, possible or desirable to use’.
Random House, College Edition, defines the word as ‘capable of being put into use,
operation or practice’.
It seems to us the word ‘operable’ means ‘function’ or ‘ability to function’; not ‘indicated
measurement of ability to function’. This is the plain, ordinary meaning of the word.
That the standard does not denote a contrary meaning is evidenced by the fact that there
is no requirement for a pressure gauge on any portable fire extinguisher. Ostrom so testified and
our limited research tends to verify his conclusion.
Is an automobile with a full gasoline tank less ‘operable’ because it has a faulty gasoline
guage showing the tank to be empty. We think not. The defective gauge may make one less
likely to want to operate the car, but it in no way impairs the function of the vehicle.
We therefore hold that the fully charged fire extinguisher with a defective gauge was in
‘operable condition’ and thus this portion of the citation must be vacated.
Remaining for decision is ‘The Case of the Unwanted Stray’, about which next to nothing
is known.
The only facts proved about this extinguisher is its capacity (2 1/2 pounds) and that it was
empty and lying in the back of the maintenance truck. We don’t know the kind of extinguisher or
of contents previously in it. It was within arm’s reach of another mounted extinguisher of similar
capacity. A ten pound extinguisher was less than ten feet from the driver’s seat of the truck.
A simple answer to the question presented is that the standard imposes two obligations on
Respondent. The second is to keep portable extinguishers ‘... in their designated places ...’. The
facts establish that at no time did Respondent have ‘a designated place’ for this one. There was
no one besides Respondent to do the ‘designating.’
The two duties imposed are not in the alternative. Both are required for compliance. It is
impossible for Respondent to meet the second requirement. It is therefore not in violation of the
standard.
Laying aside for the moment the niceties (or ‘technicalities’, if you will) of construction
of the words used, it simply makes no sense that Congress in enacting the Act, or the Secretary
of Labor in adopting the standards; could intend the result the Solicitor would have us reach.
Counsel for Respondent is correct when he says that under the construction sought by the
Solicitor there is no ‘... logical and reasonable manner in which to recharge an expended fire
extinguisher, so that there is a violation by reason of the simple act of utilizing the extinguisher.’
To be more precise—extreme though it may be—violation of the Act immediately after
the use of the extinguisher under the interpretation sought by the Solicitor could be avoided only
if the extinguisher were immediately thrown off the premises.
Specifically there is no evidence as to where this fire extinguisher came from or when; or
where it went or when. Nor is there evidence as to how, when, where or whether it was used
either before or after the Secretary’s inspector saw it lying in the back of the truck. Under these
circumstances I am unwilling to find the Respondent in violation of the Act as charged.
ORDER
The findings of fact and conclusions of law having heretofore been made and stated in
the preceding decision.
It is hereby ORDERED:
That Citation No. 1, Item 13, subitems 2) and 3) issued to Respondent February 28, 1973
growing out of an inspection by the Secretary of Respondent’s sawmill at Orofino, Idaho on
January 23, 1973, be and the same are hereby VACATED along with the proposed penalty in the
amount of $25.00.
DATED: July 6, 1976
GARL WATKINS
Judge
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 2437
KONKOLVILLE LUMBER CO., INC.,
Respondent.
DECISION
BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
CLEARY, Commissioner:
I. Introduction
On February 28, 1973, respondent employer, Konkolville Lumber Co., Inc., was issued
citations alleging three ‘serious’ and seventeen ‘other than serious’ violations of section 5(a)(2)
of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter cited as
‘the Act’]. The citations were issued following an inspection of the employer’s sawmill by a
compliance officer of the Department of Labor’s Occupational Safety and Health
Administration.
By notice of contest dated March 14, 1973, the employer contested the three citations
alleging serious violations and one item of the citation alleging other violations. One citation for
serious violation alleged a failure to comply with the standards at 29 CFR § 1910.213(g)(1) &
(h)(1). The other two citations for serious violations alleged non-compliance with the standards
at 29 CFR § 1910.219(c)(5) & (f)(3). The contested other than serious item alleged a failure to
comply with the safety standard at 29 CFR § 1910.265(i).
Following a hearing, Administrative Law Judge Garl Watkins issued a decision vacating
the contested citations and their corresponding proposed penalties, except for the citation for
serious violation alleging non-compliance with 29 CFR § 1910.219(f)(3). Regarding this citation,
Judge Watkins reduced the nature of the violation to non-serious and assessed a $50 penalty.
On July 26, 1974, the Secretary of Labor filed a petition for discretionary review taking
exception to the Judge’s rulings resulting in the vacating of citations. This petition was granted
and review before the Commission was directed pursuant to section 12(j) of the Act.
II. Issues on review
The issues raised by the Secretary’s petition include the following:
1. Whether the Judge erred in vacating the alleged serious violation of 29 CFR §
1910.213(g)(1) and (h)(1) [hereinafter § 1910.213(g)(1) & (h)(1)] by holding:
(a) That section 6(f) of the Act was not the exclusive method for challenging a
standard.
(b) That the Commission was a proper forum for determining the validity of a
standard.
(c) That headnote 4 of American National Standards Institute (ANSI) standard
01.1 1954 (R-1961) was an integral part of the standard and was adopted through
the language of 29 CFR § 1926.304(f).
(d) That ANSI 01.1 1954 (R-1961) was not a ‘national consensus standard’ within
the meaning of section 3 (9) of the Act.
2. Whether, assuming the validity of § 1910.213(g)(1) & (h)(1), the Judge erred in
holding that there was insufficient evidence to prove employee exposure to the
saws allegedly in violation of these standards.
3. Whether the Judge erred in denying the Secretary’s motion to amend his
complaint alleging non-compliance with 29 CFR § 1910.265(i) so as to allege a
failure to comply with 29 CFR § 1910.157(a)(1).
4. Whether the Judge erred in holding that there was insufficient employee
exposure to the cable drum alleged to be in serious violation of 29 CFR §
1910.219(c)(5).
III. Decision
1. The Judge’s invalidation of § 1910.213(g)(1) & (h)(1)
The hearing on the merits of this case was held on July 31 and August 1 and 2, 1973, in
Spokane, Washington. At the close of this hearing, however, the record was left open to receive
further evidence relating to the asserted invalidity of § 1910.213(g)(1) & (h)(1). The reception of
further evidence took the form of a ‘supplemental hearing’ held before Judge Watkins on August
1
28-31 and September 17, 1973.
Following the ‘supplemental hearing,’ Judge Watkins issued his decision in this case, a
2
portion of which addressed itself to the issue of the validity of § 1910.213 and attendant issues.
The Judge concluded that: (1) section 6(f) of the Act was not the exclusive method for
challenging a standard; (2) the Commission was a proper forum for determining the validity of a
standard; (3) the ANSI headnote was an integral part of the standard and was adopted through
the language of 29 CFR § 1926.304(f); and (4) the ANSI 01.1 1954 (R-1961) standard was not a
‘national consensus standard’ within the meaning of section 3 (9) of the Act.
Inasmuch as the above conclusions of the Judge were common to this case and nine other
3
cases, all ten cases were consolidated for review purposes on August 29, 1974. In addition,
Judge Watkins’ decision in Noblecraft Industries, Inc., No. 3367 (August 8, 1974), which
incorporated the above conclusions, was consolidated for review purposes with the other ten
cases on September 26, 1974.
In Noblecraft Industries, Inc., No. 3367 (November 21, 1975), we addressed ourselves to
the Judge’s conclusions regarding the validity of § 1910.213 and attendant issues. We held that
§ 1910.213 is a valid and enforceable standard. Our holding in Noblecraft Industries, Inc., supra
applies here.
4
2. Alleged serious violation of § 1910.213(g)(1) & (h)(1)
1
1 This ‘supplemental hearing’ was held pursuant to Judge Watkins’ order in this case and the
following nine cases: Weyerhauser Co., Nos. 1231 & 1758; Acme Metal, Inc., Nos. 1811 &
1931; Brady Hamilton Stevedore Co., No. 2265; Thunderbird Coos Bay, Inc., No. 2270; Jones
Oregon Stevedoring Co., No. 2271; Juhr & Sons, No. 2314 and Continental Kitchens, Inc., No.
2920.
These cases were pending before Judge Watkins and each involved at least one citation alleging
non-compliance with a paragraph of 29 CFR § 1910.213.
2
2 See Konkolville Lumber Co., Inc., No. 2437 (July 18, 1974) (Administrative Law Judge)
(slip op. at 7-56) for Judge Watkins’ treatment of the validity issue and attendant issues. This
treatment occurs in this case and the other nine cases referred to in note 1 supra.
For a statement of the § 1910.213 validity issue and attendant issues, see 1.(a)-(d) at p.2, supra.
3
See note 1 supra.
4 These standards provide:
§ 1910.213 Woodworking machinery requirements.
(g) Swing cutoff saws.
Although Judge Watkins based his decision to vacate the citation for serious violation of
§ 1910.213(g)(1) & (h)(1) primarily upon the asserted invalidity of the standards, he also stated
that the citations should be vacated because there was insufficient proof of employee exposure to
either of the cited saws.
Regarding the citation for a serious violation of § 1910.213(h)(1), the Secretary alleged
that the radial arm saw in respondent’s carpentry shop was not equipped with a guard completely
enclosing the sides and the full diameter of the blade. There was no question that the radial arm
saw was not equipped with the guards required by the standard. Judge Watkins held, however,
that there was insufficient proof of employee exposure to the unguarded saw. This was error.
Donald Gilkey, one of respondent’s employees, testified that the cited saw was operable
but only used two or three times a month. This unrebutted testimony clearly establishes
employee use of the unguarded saw. The mere fact that the saw was infrequently used does not
negate the existence of a violation. The respondent is required to afford protection to its
employees on those occasions when the saw is used. Infrequent use is only relevant in
determining the gravity of a violation for penalty assessment purposes. See Pack River Lumber
Co., No. 1728 (February 18, 1975).
Accordingly, we hold that the evidence establishes a violation of § 1910.213(h)(1).
Moreover, inasmuch as serious lacerations and possible amputations may result in the event of
an accident, we hold that the violation was ‘serious’ within the meaning of section 17(k) of the
Act.
(1) Each swing cutoff saw shall be provided with a hood that will completely
enclose the upper half of the saw, the arbor end, and the point of operation at all
positions of the saw. The hood shall be constructed in such a manner and of such
material that it will protect the operator from flying splinters the lower portion of
the blade, so that when the saw is returned to the back of the table the hood will
rise on top of the fence, and when the saw is moved forward the hood will drop on
top of and remain in contact with the table or material being cut.
(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 sawduct away from
the operator. The sides of the lower exposed maximum protection possible for the
operation being performed.
The citation for serious violation of § 1910.213(g)(1) alleged that the swing cutoff saw at
the rip saw station did not have a guard completely enclosing the saw blade at the point of
operation. Evidence showed that the cited saw was not equipped with the guard required by the
standard. There was, however, unrebutted proof that the saw was inoperable at the time of
inspection. Indeed, it was shown that the saw would have to be rewired in order to be operated.
5
Under this circumstance, we agree with the Judge that the citation should be vacated.
Accordingly, we affirm the vacating of the alleged serious violation of § 1910.213(g)(1).
The Secretary proposed an aggregate penalty of $550 for the alleged serious violation of
§ 1910.213(g)(1) & (h)(1). Respondent conducts a moderately sized business with approximately
two million dollars in annual gross sales. There is no history of previous violations and no reason
to doubt respondent’s good faith. Moreover, inasmuch as the evidence showed infrequent use of
the cited radial saw by only one employee, we deem the gravity of the serious violation of §
1910.213(h)(1) to be moderate. See Pack River Lumber Co., supra. Accordingly, we assess a
$100 penalty for this serious violation.
3. Vacation of the citation alleging non-compliance with 29 CFR § 1910.265(i) and
refusal to amend it to allege non-compliance with 29 CFR § 1910.157(a)(1)
The standard at 29 CFR § 1910.265(i) [hereinafter § 1910.265(i)] provides:
§ 1910.265 Sawmills
(i) Fire protection.
The requirements of Subpart L of this part shall be complied with in providing the
necessary fire protection for sawmills.
Subpart L (Fire Protection) includes the standard at 29 CFR § 1910.157(a)(1) [hereinafter §
1910.157(a)(1)] which provides:
§ 1910.157 Portable fire extinguishers
(a) General requirements.
(1) Operable condition. Portable extinguishers shall be maintained in a fully
charged and operable condition, and kept in their designated places at all times
when they are not being used.
In the citation the Secretary described the alleged violation of § 1910.265(i) as follows:
5
Although the Secretary petitioned for review of the Judge’s decision insofar as it vacated the
alleged § 1910.213(g)(1) serious violation, in his brief on review he has withdrawn his exception
to the vacation of this item.
1. There was no fire extinguisher in the shop area where there was flammable
material and electric equipment. 2. Fire extinguisher in the yellow truck at the
shop was empty. 3. Fire extinguisher in the wall of the outfeed at planer was
empty.
Neither the citation nor the complaint cited the specific standard within Subpart L that
respondent had allegedly violated. Subpart L contains three sections, two of which contain
substantive provisions—sections 1910.157 and .158.
At the hearing, the Secretary, without objection from respondent, offered evidence
tending to establish the three conditions alleged in the citation. Moreover, during his case in
chief, the Secretary moved to amend the citation and complaint to allege a violation of
§ 1910.157(a)(1). This motion was denied. At the close of the Secretary’s evidence, the Judge
granted respondent’s motion for an involuntary dismissal under Rule 43(b) of the Federal Rules
of Civil Procedure. Judge Watkins reasoned that the citation ‘was faulty from the time of
issuance because it did not meet the test of ‘particularity’ required by section 9 of the Act.’ We
disagree with both rulings of the Judge.
Even without any reference to § 1910.157(a)(1), both the citation and complaint afforded
respondent fair notice of the nature of the alleged violation. Although the citations and complaint
did not expressly refer to § 1910.157(a)(1), they did allege facts that would constitute non-
compliance with that standard. Under these circumstances it was error for the Judge to rule that
the citation did not comport with the particularity requirements of § 9(a) of the Act.
It was also error for the Judge to refuse to amend the complaint so as to allege a violation
of § 1910.265(i) in conjunction with § 1910.157(a)(1). The purpose of the amendment was
merely to specify what standard was violated by the conduct alleged in the citation. This was
essentially a technical clarification inasmuch as the citation identified section 1910.265 and
informed respondent of the alleged violation. In this regard, the following statements of the court
in Nat’l Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973) are
particularly applicable to this case:
Moreover, any ambiguities surrounding the Secretary’s allegations could have
been cured at the hearing itself. So long as fair notice is afforded, an issue
litigated at an administrative hearing may be decided by the hearing agency even
though the formal pleadings did not squarely raise the issue. This follows from the
familiar rule that administrative pleadings are very liberally construed and very
easily amended. The rule has particular pertinence here, for citations under the
1970 Act are drafted by non-legal personnel, acting with necessary dispatch.
Enforcement of the Act would be crippled if the Secretary were inflexibly held to
a narrow construction of citations issued by his inspectors (footnotes omitted).
489 F.2d at 1264.
We, therefore, reverse the Judge and grant the Secretary’s motion to amend the complaint so as
to allege a violation of § 1910.157(a)(1).
Since the Judge erroneously granted respondent’s motion to dismiss the citation at the
close of the Secretary’s case, respondent was not afforded an opportunity to present any defense
or rebuttal. We remand this case for a hearing to determine whether a violation existed on the
date of inspection.
4. Alleged serious violation of 29 CFR § 1910.219(c)(5)
Judge Watkins vacated the citation alleging a serious violation of 29 CFR
§ 1910.219(c)(5) on the ground that the Secretary failed to establish that any of respondent’s
employees were exposed to the unguarded power transmission equipment. The Secretary took
exception to this holding in his petition for discretionary review.
In his brief on review, however, the Secretary has withdrawn his exception to the
vacating of the 29 CFR § 1910.219(c)(5) item. We will, therefore, affirm the Judge’s disposition
of this item.
IV. Order
It is ORDERED that:
(1) The citation for serious violation of § 1910.213(h)(1) is affirmed and a $100
penalty is assessed.
(2) The citation for serious violation of § 1910.213(g)(1) is vacated.
(3) The vacating of the citation alleging a violation of § 1910.265(i) is reversed.
The citation and complaint are amended to allege a violation of § 1910.157(a)(1)
in conjunction with § 1910.265(i) and the case is remanded for further
proceedings consistent with this decision.
(4) The citation for serious violation of 29 CFR § 1910.219(c)(5) is vacated.
(5) The Judge’s decision, insofar as it is consistent with the above, is in all other
respects affirmed.
FOR THE COMMISSION:
William S. McLaughlin
Executive Secretary
DATED: DEC 15, 1975
MORAN, Commissioner, Concurring in Part, Dissenting in Part:
I agree with vacating the charges which allege noncompliance with the occupational
safety standards codified at 29 C.F.R. §§ 1910.213(g)(1) and 1910.219(c)(5). However, my
agreement with the lead opinion’s disposition of the latter charge is based on the conclusion that
the Judge correctly found that the evidence failed to establish employee exposure to the alleged
hazard, not on the complainant’s withdrawal of his assignment of error.
Although I agree with the disposition of the § 1910.213(g)(1) charge, I believe that it and
also the § 1910.213(h)(1) charge should be vacated because all of the standards codified within §
1910.213 were improperly promulgated. The rationale for this conclusion is set forth in my
dissenting opinion in Secretary v. Noblecraft Industries, Inc., OSAHRC Docket No. 3367,
November 21, 1975.
I agree with Judge Watkins’ refusal to allow amendment of the remaining charge for the
reasons stated in his opinion. Furthermore, it is senseless and unfair to remand the case to allow
the respondent to present evidence. The Judge has already determined that the complainant failed
to establish a violation of the amended charge. The inspection which initiated this case was
conducted almost three years ago and the case has been pending before the Commission for well
over a year. A penalty of $25.00 was proposed for this alleged violation. Under these
circumstances, it is clear that this case should be finally disposed of at this time. I am sure that
the respondent and the average taxpayer will cringe over the additional monetary expenditures
which will be caused by a continuance of the litigation in this case, and rightfully so.
Since I rely on the Judge’s decision on two matters and my colleagues refer in their
footnote 2 to his decision, I am attaching the Judge’s decision hereto as Appendix A to insure
6
that readers of this opinion are provided with the referenced decision.
6
It seems peculiar to me that the lead opinion would refer its readers to a decision which might
not ever be published. In regard to the present controversy within the Commission concerning
the publication of its decisions, see 5 BNA Occupational Safety & Health Reporter 865-866, 896
(1975).
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 2437
KONKOLVILLE LUMBER CO., INC.,
Respondent.
DECISION AND ORDER
Appearances:
Charles G. Preston Attorney Office of the Solicitor United States Department of
Labor Seattle, Washington For the Secretary
George J. Tichy Attorney Spokane, Washington For the Respondent
At Consolidated Supplemental Hearing:
Robert A. Friel Associate Regional Solicitor Jane Ann McKenzie Attorney 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
GARL WATKINS, Judge:
This is an enforcement proceeding under the Occupational Safety and Health Act of
1970, 29 U.S.C. 651, et seq.
Respondent operates a ‘typical’ sawmill at Orofino, Idaho. It includes a planer mill and
dry kiln. At the time of the Secretary’s inspection on January 23, 1973 there were 37 employees.
The previous year, the company, an Idaho corporation, had two million dollars in gross sales.
The citations and notifications of proposed penalties were issued February 28, 1973. At
issue here are alleged violations of Section 5(a)(2) of the Act in failing to comply with standards
covering machine guarding of radial power-driven saws and power transmission equipment; as
well as one violation, charged and not alleged to be serious, having to do with fire extinguishers.
Two claimed serious violations—grouped in one citation—state that a radial arm saw and
a swing cutoff saw were not equipped with guards for the lower portion of the blades as required
by 29 CFR 1910.213(h)(1) and (g)(1) respectively.
The second alleged serious violation cites the absence of a protective guard rail or other
barricade at the cable drum located on the first floor of the mill and operating the band saw
carriage, in violation of 29 CFR 1910.219(c)(5).
The third cites an unguarded sprocket and chain at the pony rig allegedly in violation of
29 CFR 1910.219(f)(3).
The charge not alleged to be serious has to do with fire protection. It is Item 13 of
Citation No. 1 (Non-Serious) and alleges failure to comply with 29 CFR 1910.265(i).
The allegations of the citations, the language of the Secretary’s complaint with respect to
each, the standards with which Respondent is alleged not to have complied and proposed
penalties as to each are included in the Appendix which is attached and made a part of this
decision.
The first part of the hearing was held in Spokane, Washington on July 31 and August 1
and 2, 1973. The record was left open to receive further evidence regarding the validity of the
standards and legality of the action of the Secretary in adopting them. Further hearing was in
Seattle, Washington on August 29, 30 and 31 and September 17, 1973. At no point did anyone
other than named parties appear and ask to assert a party status in the action.
At the hearing and during the Secretary’s case in chief, the Solicitor moved to amend the
Citation for Non-Serious Violation and his Complaint to add as an additional fire protection
standard alleged to be violated, 29 CFR 1910.157(a)(1). The motion to amend was denied.
The standard originally alleged is 29 CFR 1910.265(i) which requires ‘(i) Fire Protection.
The requirements of Subpart L of this Part shall be complied with in providing the necessary fire
protection for sawmills.’
Subpart L is headed ‘Fire Protection.’ It contains Sections 156 through 162 of Part 1910.
Exclusive of definitions and statements of source standards, there are about 150 sections or
subsections within the Subpart.
Thus the Citation was faulty from the time of its issuance because it did not meet the test
of ‘particularity’ required by Section 9 of the Act. No motion was directed against the charge
until the close of the Secretary’s evidence when a motion for involuntary dismissal under Rule
43(b) of the Federal Rules of Civil Procedure was granted.
We have made no attempt to determine how many of the approximately 150 sections and
subsections might be applicable to the particular language of the citation. It seems clear that no
employer should be required to make such a search to determine what he might possibly be
charged with violating.
Even if the motion had been granted and if we consider 29 CFR 157(a)(1), the proof was
still faulty. The evidence is that two fire extinguishers in a shop—one in a vehicle—had gauges
that showed no pressure. Thus there is insufficient proof to make a prima facie case that
‘portable designated places at all times when they are not being used. (Emphasis supplied). Proof
of a gauge reading alone is suspect—although it might get by a motion for non-suit. There is no
proof of a ‘designated’ place; and it is difficult for us to imagine how there could be such proof.
The Secretary’s motion for reconsideration, reciting as two of its grounds the failure to
grant the motion to amend, and the granting of the motion for non-suit, is therefore denied as to
these two portions.
The third ground for the motion for reconsideration was error in sustaining an objection
to a question directed to one of Respondent’s employees about whether he had been injured on
the radial arm saw some time before 1964 when the saw was sold to the company by Donald
Konkol, Respondent’s Vice President and General Manager. On further consideration we find no
error in this ruling and the motion of the Secretary for reconsideration is therefore denied in its
entirety.
We shall discuss separately each of the three alleged serious violations.
SAWS
First of all, we question the authority of the Secretary to group two alleged serious
violations in one citation. The same practice was followed in the Weyerhaeuser cases appropriate
to this case. We note also the comments of Judge Winters in Allstate Trailer Sales, Inc., Docket
2446.
Both are applicable to this case, but it is unnecessary to base our decision on what
appears to be a practice directly contrary to the statute, because of our holding on the validity of
the standards involved.
As the record reflects, shortly after the hearing on the Weyerhaeuser cases, I became
concerned about the question of the validity of the saw guarding standard and the authority of the
Secretary in enacting it. This led to several conferences and to the supplemental hearing on
August 29, 30 and 31 and September 17, 1973, following a prehearing conference on August 28.
In the supplemental hearing ten cases were consolidated 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
1
session on September 17, an order of severance of the cases was entered.
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
(Consolidated Pine, Docket #945 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’,
1
Wording of the decision from this point will probably be identical to that covering the same
question in the decisions of the other courts. Footnotes will point out the start and finish of the
decisional language in each case.
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. 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)
First Weyerhaeuser and then this case raised squarely 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 is 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. (This case 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 INTERROCATION 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 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 Procedure 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 Procedure. 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, 492 F.2d 1027.
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 the 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 the 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.
Respondent’s 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 of 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 committee 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 unenforceably
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 or ‘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 is 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.
Nor 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
Respondents 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 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.
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 Procedure 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.’(Underlining added)
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 of 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 Review
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 section 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 they 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 this part of 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 (now
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
Reporter.’ 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 (5) 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 quoting 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 what 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 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 S–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 4.1 ‘Woodworking Machinery’,
page 9, ANSI 01.1 1954 (R 1961). It is as follows:
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 note 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.
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 that 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 Reguirements’, 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 the 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 agencies, 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 adoptions?
(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 in achieved’ by ‘substantial 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 has as broad a base in the particular field as possible. One factor not
considered at length in testimony is the theory of placing 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
had 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. Morrison 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 a 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.
Although unnecessary to this decision, there is yet another ground for vacating the
citation alleging violation of the saw guarding standard. There is insufficient proof of employee
exposure to either saw.
The radial arm saw was operated only by Donald Gilkey, the maintenance man at the
mill. He testified that at times he used the saw two or three times a month. On other occasions
there was two months between uses. On further direct examination he then testified as follows:
‘Q. Do you recall how long it had been since you had used that saw before the
inspection?
A. No, I can’t recall for sure, but it was when—I remember when I ripped with it
last, but I don’t remember when it was—I’d have to look it up on the time book.
Q. You don’t have any estimate, reasonable estimate you could give us?
A. I would say, three or four weeks.
Q. Prior to the inspection?
A. That’s right.
Q. I believe you have already testified you’re the only one that was ever assigned
to use that saw.
A. That’s right.’
(Tr. 309)
This is insufficient proof of use sufficiently related to the date of inspection to show the
necessary employee exposure to a hazard governed by the standard.
There is a greater deficiency of proof with respect to the swing cutoff saw. The clearest
proof of its use was about two times a year and it had probably been used about six months
before. It was never used after the inspection. It was junked.
There was no plug on the end of the electric cord attached to the saw. Rather there were three
wires—one a ground. Anyone using the saw would have first had to wire it into an electrical
connection.
ABSENCE OF RAILING OR OTHER BARRICADE ADJACENT TO CABLE DRUM
OPERATING MAIN LOG CARRIAGE OF THE MILL
Assuming for purposes of discussion that the area adjacent to the cable drum operating
the log carriage on the floor above was a room ‘..... used exclusively for power transmission
equipment.....’ and that the standard therefore required it to be ‘..... guarded in accordance with
this section.....’; we are unable to determine what guards ‘this section’ requires.
The decision to vacate the citation and proposed penalty are made considerably easier,
however, because of the fact there is no evidence that any employee was ever in the area while
the machinery was in operation. The only exception would be at the time of the inspection when
the maintenance man, Donald Gilkey, was there as an employer representative accompanying the
Compliance Officer.
Ostrom, the Compliance Officer, saw an area which he described as a ‘platform’ and off
one side of it, a cable drum and cable leading from it to the carriage above. On the other side was
a battery of electrical boxes on the wall which he ‘assumed’ to be the main electrical panel for
the mill.
The platform was in fact a concrete slab constituting the floor of the mill at this point.
The electrical boxes are secondary ‘disconnects.’ They are never used to turn any machine in the
mill on or off. Every machine in the mill running from power passing through these
‘disconnects’ has switches used to turn it on and off in closer proximity to the work station of
men operating the machines.
The area is not a work station; it is not a walkway or area used by workmen while the
mill is operating—carrying out their duties or otherwise.
The sum total of all the evidence indicates there was never a workman in the area while
the adjacent machinery was in operation. Donald Konkol, General Manager of the mill,
estimated that about twice a year it had been necessary for a workman to go to the area while the
Mill was in operation; but the machinery adjacent to the area was neither operating nor operable.
Under the circumstances, the various measurements from the edge of the ‘platform’ to the
cable drum and to the cables and from the electrical boxes to the cable drum and cables are
immaterial. There is simply no evidence that any workman was ever there while the machinery
operating the cable drum was connected so that it could be operated. Maintenance men were in
the area at least three times a week when the mill was completely down.
INCOMPLETE GUARD OF CHAIN AND SPROCKET BECAUSE A PORTION WAS
BROKEN OFF
Here there was another open space (the flooring was wood) with a guarded chain and
sprocket immediately adjacent to one side. There were also electrical boxes and switches on the
opposite wall.
At the hearing the Solicitor stated the guarding was adequate before a short piece of the
top guard fell off because its hinges broke, leaving the sprocket exposed.
It was stipulated this occurred on January 17 or 18. The inspection was January 23. The evidence
is undisputed that Donald Konkol, General Manager of the mill, did not know of the occurrence
until after the inspection. There is no evidence that any other supervisory employee, whose
knowledge could be imputed to Respondent, had knowledge of the broken guard. As a matter of
fact, there is no evidence anyone had such knowledge except a vague statement that ‘the
millwright was having it repaired.’ After Konkol learned about it, the guard was repaired and
returned to its former position within two days.
Again this is not a work station. It is not an area to which employees go whether
performing their duties or otherwise. If one is in the area, there is no reason for him to be at the
extreme edge of the platform where he might be exposed to the danger of the chain and sprocket.
Two things, however, lead us to the conclusion there was a violation of the cited
standard. First, Konkol testified there was ‘a limited amount of travel in the area.’ He was
probably referring to the fact that switches turning certain machinery on and off are on the panel
across the platform form from the chain and sprocket. It is necessary for one employee to go
there to start certain machinery at the beginning of the shift in the morning, again to turn it off at
the end of the morning shift, and again to turn it on at the start of the afternoon’s operation, and
finally to turn the switches off at the end of the day. Clean up men, of course, are in the area
when the mill is down.
Although the danger is slight and the chance of accident remote, an employee is required
to be in the general area performing his duties, and it is possible he might be exposed to the
unguarded chain and sprocket. We therefore find the standard in question was violated.
The question of lack of knowledge of Respondent was covered above. As to notice, or
whether Respondent could ‘..... with the exercise of reasonable diligence, know of the presence
of the violation.....’; the question is whether Konkol should have inspected the area in the five or
six days between the time the portion of the guard fell off, and January 23, when it was
discovered by the Compliance Officer. Intervening was a two-day weekend. There was no
interruption or interference with the use of the machinery guarded. We cannot, therefore, find
that Konkol, as general manager of the mill, should have inspected the area in order to put
Respondent on notice; and consequently we find that requirements of Section 17(k) of the Act
for a serious violation are not met.
In view of the minimal nature of the hazard, a penalty in the amount of $50.00 would
seem to be reasonable, considering all statutory factors.
Based upon the entire record, the undersigned now makes the following
FINDINGS OF FACT
I
At all times herein mentioned the Respondent was an Idaho corporation organized and
existing under the laws of the State of Idaho. Respondent operated a sawmill at Orofino where it
employed 37 people and in the previous year had gross sales of approximately two million
dollars.
II
On January 23, 1973 Respondent’s sawmill was inspected by a Compliance Officer of the
Occupational Safety and Health Administration, United States Department of Labor, resulting in
the issuance on February 28, 1973 of certain citations alleging violations of the Occupational
Safety and Health Law of 1970. These findings have to do with citations and items thereof at
issue because of Respondent’s timely notice of contest to the Secretary following issuance of the
citations.
III
With respect to Citation for Serious Violation No. 1, Respondent owned and had in its
possession the two saws described therein on the dates and at the places alleged. Neither saw had
a guard on the lower portion of its blade.
IV
The Secretary purported to promulgate 2. 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).
V
A headnote to ANSI 01.1 1954 (R 1961) at the beginning of Section 4.1 thereof provides:
‘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.’
Sections 213(h)(1) and 213(g)(1) of Part 1910 were derived from Section 4.1 of ANSI 01.1
1954(R 1961). The headnote is an integral part of Section 4.1 and every subsection and part
thereof. Section 4.1 with the headnote produces the result that the use of lower blade guards for
redial arm saws and swing cutoff saws is optional. Sections 213(h)(1) and (g)(1) of Part 1910
have the effect of requiring the use of lower blade guards for such saws at all times used. The
requirements are mandatory. The meaning, scope and application of the source standard are
thereby materially changed.
VI
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.
VII
ANSI 01.1 1954 (R 1961) was formulated in a manner which afforded an opportunity for
diverse views to be considered.
VIII
No employee of Respondent was exposed to any hazard from either saw because neither was
operated on or about the
IX
With respect to Citation for Serious Violation No. 2 for failure to guard a cable drum and
cable used in operating the carriage in the mill, no employee of Respondent was exposed to any
hazard in connection therewith because none was adjacent to the cable drum and cable at any
time when it was operated.
X
In connection with Citation for Serious Violation No. 3, Respondent was in violation of
the Act for failure to guard a chain and sprocket from which a short piece of guard had broken
off. Respondent neither knew, nor in the exercise of reasonable diligence could have known, of
the absence of a portion of the guard.
XI
With respect to Citation No. 1 and Item 13 thereof, alleging violation of a fire protection
standard, there is no evidence or reasonable inference from evidence to substantiate the same.
Based upon the foregoing and upon all facts admitted, stipulated proved by
uncontradicted substantial credible evidence, the undersigned hereby makes the following
CONCLUSIONS OF LAW
I
Respondent is engaged in a business affecting commerce within the provisions of Section
3(3) of the Occupational Safety and Health Act of 1970. The Review Commission has
jurisdiction of the parties and the subject matter of this action.
II
ANSI 01.1 1954 (R 1961) was not enacted in part as 29 CFR 1910.213(h)(1) and (g)(1)
because the Secretary was acting in excess of his statutory authority in the deletion of the
headnote to Section 4.1.
III
ANSI 01.1 1954 (R 1961) is not a national consensus standard as defined in Section 3 (9)
of the Act.
IV
29 CFR 1910.213(h)(1) and (g)(1) were not a valid enactment by the Secretary of a
national consensus standard under Section 6(a) of the Act. 29 CFR 1910.213(h)(1) and (g)(1) are
invalid and unenforceable.
V
Citations for Serious Violation Nos. 1 and 2, dated February 28, 1973, and Citation No.
1, Item 13 thereof, and proposed penalties should be vacated.
VI
Citation for Serious Violation No. 3, dated February 28, 1973 should be affirmed as a
non-serious violation. The penalty therefor should be $50.00.
ORDER
Based upon the foregoing,
IT IS HEREBY ORDERED THAT:
I
Citation for Serious Violation No. 3, dated February 28, 1973 is hereby affirmed as a
non-serious violation. A civil penalty of $50.00 is assessed.
II
Citations for Serious Violation Nos. 1 and 2 and Citation No. 1, Item 13, and the
proposed penalties therefor are hereby Vacated.
Dated: July 18, 1974
GARL WATKINS
Judge
APPENDIX
CITATION FOR SERIOUS VIOLATION NO. 1
Standard or regulation allegedly violated Description of alleged violation
29 CFR 1910.213(g)(1) January 23, 1973
The radial arm saw in the carpenters shop does
not have a saw guard that completely encloses
the sides and full diameter of the blade.
29 CFR 1910.213(g) (1) The swing saw, at the rip saw station, did not
have a guard that completely enclosed the saw
blade to include the point of operation.
COMPLAINT
‘IV
On January 23, 1973, at the aforesaid worksite and place of business and employment,
the Respondent violated the safety and health regulations in the following respects:
1. The radial arm saw in the carpenters shop does not have a saw guard that
completely encloses the sides and full diameter of the blade, contrary to 29 C.F.R.
1910.213(h)(1);
2. The swing saw, at the rip saw station, did not have a guard that completely
enclosed the saw blade to include the point of operation, contrary to 29 C.F.R.
1910.213(g)(1);
STANDARDS
‘1910.213 Woodworking machinery requirements.
(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 operation
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 out to give
maximum protection possible for the operation being performed.’
‘1910.213 Woodworking machinery requirements.
(g) Swing cutoff saws.
(1) Each swing cutoff saw shall be provided with a hood that will completely
enclose the upper half of the saw, the arbor end, and the point of operation at all
positions of the saw. The hood shall be constructed in such a manner and of such
material that it will protect the operator from flying splinters and broken saw
teeth. Its hood shall be so designed that it will automatically cover the lower
portion of the blades, so that when the saw is returned to the back of the table the
hood will rise on top of the fence, and when the saw is moved forward the hood
will drop on top of and remain in contact with the table or material being cut.
PROPOSED PENALTY: $550.00
CITATION FOR SERIOUS VIOLATION NO. 2
Standard or regulation allegedly violated Description of alleged violation
29 CFR 1910.219(c)(5) January 23, 1973
There was no protective guardrail or barricade
at the cable drum that runs the carriage of the
band saw; cable drum was located next to the
electrical panel under the sawmill.
COMPLAINT
‘IV
3. There was no protective guardrail or barricade at the cable drum that runs the
carriage of the band saw; cable drum was located next to the electrical panel
under the sawmill, contrary to 29 C.F.R. 1910.219(c)(5);
STANDARD
‘1910.219 Mechanical power-transmission apparatus.
(c) Shafting
(5) Power-transmission apparatus located in basements. All mechanical power
transmission apparatus located in basements, towers, and rooms used exclusively
for power transmission equipment shall be guarded in accordance with this
section, except that the requirements for safeguarding belts, pulleys, and shafting
need not be complied with when the following requirements are met:
(i) The basement, tower, or room occupied by transmission equipment is locked
against unauthorized entrance.
(ii) The vertical clearance in passageways between the floor and power
transmission beams, ceiling, or any other objects, is not less than five feet six
inches (5 ft.6 in.).
(iii) The intensity of illumination conforms to the requirements of ANSI A11.1–
1965 (R–1970).
(iv) The footing is dry, firm, and level.
(v) The route followed by the oiler is protected in such manner as to prevent
accident.’
PROPOSED PENALTY: $550.00
CITATION FOR SERIOUS VIOLATION NO. 3
Standard or regulation allegedly violated Description of alleged violation
29 CFR 1910.219(f)(3) January 23, 1973
There was no guard on a section of chains and
sprocket of the live rolls behind the pony rig at
the walkway to the steps that cross over the
live rolls.
COMPLAINT
‘IV
4. There was no guard on a section of chains and sprocket of the live rolls behind
the pony rig at the walkway to the steps that cross over the live rolls, contrary to
29 C.F.R. 1910.219(f)(3).
STANDARD
‘1910.219 Mechanical power-transmission apparatus.
(f) Gears, sprockets, and chains—
(3) Sprockets and chains. All sprocket wheels and chains shall be enclosed unless
they are more than seven (7) feet above the floor or platform. Where the drive
extends over other machine or working areas, protection against falling shall be
provided. This subparagraph does not apply to manually operated sprockets.’
PROPOSED PENALTY: $500.00
CITATION NO. 1 (Non-Serious)
Item No. Standard or regulation allegedly Description of alleged violation
violated
13 13 29 CFR 1910.265(i) January 23, 1973
1. There was no fire extinguisher in the shop
area where there was flammable material and
electrical equipment. 2. Fire extinguisher in
the yellow truck at the shop was empty. 3.
Fire extinguisher on the wall of the outfeed at
Planer was empty.
COMPLAINT
‘V.
On January 23, 1973, at the aforesaid worksite and place of business and employment,
the Respondent further violated the safety and health regulations in the following respects:
1. There was no fire extinguisher in the shop area where there was flammable
material and electrical equipment;
2. Fire extinguisher In the yellow truck at the shop was empty; and,
3. Fire extinguisher on the wall of the outfeed at planer was empty,
All contrary to 29 C.F.R. 1910.265(i).
STANDARD
1910.265 Sawmills.
(i) Fire protection. The requirements of Subpart L of this part shall be complied
with in providing the necessary fire protection for sawmills.’
PROPOSED PENALTY: $25.00