UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

March 23, 1977

DECISION

Before Barnako, Chairman; Moran and Cleary, Commissioners.

  The decision of Judge James P. O’Connell dated December 31, 1975 is hereby affirmed due to lack of objection thereto by either party.

  Commissioner Moran would affirm for the reasons given in the Judge’s Decision.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

December 31, 1975

Appearances:

Francis V. LaRuffa, Regional Solicitor, New York City, for Secretary of Labor; Louis D. DeBernardo, Esq., of Counsel.

Vincent J. Mutari, Esq., of Garden City, New York for Respondent.

James P. O’Connell, Judge

MEMORANDUM AND ORDER

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., hereinafter referred to as the Act) contesting a citation for nonserious violation issued by complainant against respondent under the authority vested in complainant by section 9(a) of the Act.

The citation, issued on March 10, 1975, alleges that as a result of an inspection made on February 27, 1975 of a place of employment located at 50 Austin Blvd., Commack, New York, the respondent violated Section 5(a)(2) of the Act by failing to comply with the occupational safety and health standard1 set forth at 29 CFR § 1910.97(a)(2)(i), in the following respects:

“Employee exposed to electro-magnetic exposure in excess of 10 milliwatts per square centimeter at the operator position on RF heat sealer machine # 5 in the Screen Room.”

No penalty was proposed for the cited violation.

The standard allegedly violated states as follows:

Subpart G—Occupational Health and Environmental Control

29 CFR § 1910.97 Nonionizing radiation

(a) Electromagnetic radiation.

(1) Definitions applicable to this paragraph.

(iii) Radiation protection guide. Radiation level which should not be exceeded without careful consideration of the reasons for doing so.

(2) Radiation protection guide.

(i) For normal environmental conditions and for incident electromagnetic energy of frequencies from 10 MHz to 100 GHz, the radiation protection guide is 10 mW/cm. 2 (milliwatt per square centimeter) as averaged over any possible 0.1–hour period. This means the following:

Power density: 10 mW./cm. 2 for periods of 0.1–hour or more.

Energy density: 1 mW.–hr./cm. 2 (milliwatt hour per square centimeter) during any 0.1–hour period.

This guide applies whether the radiation is continuous or intermittent.

Respondent timely filed a notice of contest of the citation on March 21, 1975 and as a consequence thereof the matter was referred to the Review Commission for hearing and determination. The parties filed their complaint and answer subsequent thereto, after which, the case was assigned to this Judge for hearing. An informal pre-hearing conference was held on June 10, 1975. The hearing originally scheduled, at the request of the parties was rescheduled to July 30, 1975.

At the hearing convened at New York City on the latter date no affected employee or authorized employee representative appeared. The main purpose of such initial hearing, as stated of record by this Judge, was to have a determination of a threshold question as to whether the standard cited, by its language, was advisory or mandatory. This Judge, as explained to the parties in open hearing, was concerned about the non-mandatory wording of the cited standard (Tr. 6–7). Also, he had become aware that OSHA had made a determination “not to issue a proposed standard on exposure to electromagnetic pulses”. The detailed notice of such determination was published in the Federal Register on June 9, 1975, in Vol. 40, at page 24579. The parties were advised that such publication had additionally precipitated the Judge’s concern as to the applicability of the standard cited in this proceeding (Tr. 8).

This Judge acknowledged that he was raising this issue on his own initiative at the early stage of the proceeding rather than have the parties and the Review Commission incur an expenditure of time and financial resources in conducting a hearing on the merits which might involve a regulation which was not mandatory in nature.2 Respondent concurred that a hearing would necessitate the testimony of expert witnesses on both sides and would be expensive to both respondent and the government (Tr. 17).

Counsel for the respective parties presented oral arguments on the threshold issue raised by the Judge. In open hearing respondent’s counsel orally moved for a dismissal of the Secretary’s complaint on the grounds that no violation of the Act exists and that the standard cited is not a compulsory standard (Tr. 20–21). This Judge ruled that a better procedure would be for respondent’s oral motion be submitted in writing, together with any affidavit and memorandum of law in support of such motion and that complainant would have an opportunity of filing papers in opposition to such motion. This procedure was agreed upon by the parties. It was also agreed that all papers in support of and in opposition to the motion would be filed with the Judge by September 15, 1975 (Tr. 26).

Respondent’s written motion for a dismissal of the complaint and for a vacating of the citation was filed on August 12, 1975. No papers in opposition have been received from complainant. Such failure to oppose respondent’s motion is deemed significant. As was expressed by Commissioner Van Namee in his concurring opinion in Secretary v. Smith’s Transfer Corporation, Docket No. 5786 (April 18, 1975):

“Certainly a party need not oppose a motion. However, if an opposition is not filed a Judge can presume that the party against whom the motion runs is unopposed. And certainly there are grounds for such presumption in this case.”

While there certainly are grounds for such a presumption in ruling on the motion presented herein, it is my view that better procedure would be a full review and determination of the issue raised of record.

The issue presented by respondent’s motion for dismissal and vacating of the citation is whether complainant, in the first instant, has cited respondent with an occupational safety and health standard promulgated under the Act which mandates compliance by respondent. The issue may also be expressed as to whether the regulation set forth at 29 CFR 1910.97(a)(2)(i), as defined by 29 CFR 1910.97(a)(1)(iii), is a standard which is advisory rather than mandatory because of the use therein of the words “should not”.

Complainant alleges in paragraph V of his complaint that respondent violated 29 CFR 1910.97(a)(2)(i) (which was) promulgated pursuant to section 6 of the Act. Section 6 is entitled “Occupational Safety and Health Standards.” Section 6(a), in pertinent part, states:

“... the Secretary shall, ... by rule promulgate as an occupational safety and health standard any national consensus standard, and any established federal standard, .....”

Section 3(8) of the Act reads:

“The term ‘occupational safety and health standard’ means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment”. (Emphasis added)

As was recently held by the majority of the Review Commission in Part C of their decision in Secretary v. Noblecraft Industries, Inc., Docket No. 3367 (November 21, 1975), in discussing the above definition of an occupational safety and health standard: “Pursuant to this definition the Secretary may only adopt mandatory rules.”

Section 5(a)(2) of the Act which respondent herein is alleged to have violated, under the heading “Duties”, states:

“Each employer shall comply with occupational safety and health standards promulgated under this Act”. (Emphasis added)

The Review Commission in Secretary v. Lebanon Lumber Company, 2 OSAHRC 927 (1973) held “that the language of Section 5(a)(2) of the Act is mandatory.”

The question for resolution is the significance of the use of the word “should” in the definition of “Radiation protection guide.” A majority of the Review Commission in Noblecraft Industries, Inc., supra, at page 13, stated:

“.... the words ‘shall’ and ‘should’ are distinguished: The word ‘shall’ is to be understood as mandatory; the word ‘should’ advisory.”

Webster’s New World Dictionary, Second College Edition, at page 1307, defines the word “shall”:

definition 1: “to express simple futurity in the first person [I shall tell him] and determination, compulsion, obligation, or necessity in the second and third persons [You shall obey]”.

On page 1318 of the same dictionary the word “should” is defined as:

definition 2: “an auxiliary used to express: d) futurity in polite or unemphatic requests or in statements with implications of uncertainty or doubt”.

  The general industry standards are set forth under Title 29 CFR § 1910. Under 29 CFR § 1910.2 are contained the definitions as used in that part of the Regulations. Under subdivision (f) thereof the word “standard” is again defined as meaning:

“a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe and healthful employment and place of employment.” (Emphasis added)

In the construction standards, under 29 CFR § 1926.32(p) it is stated that “shall” means mandatory, and under subsection (q) that “should” means recommended.

Finally, it is noted that the Review Commission in Secretary v. Kingery Construction Company, 16 OSAHRC 837 (concurring opinion) (1975), stated, as applicable to a general duty clause violation, that:

“Section 603(L) of the ANSI standard uses the term ‘should’ in stating its requirement. The standard is, therefore only advisory, and Labor could not have adopted it as a mandatory standard. Oberhelman–Ritter Foundry, Inc., 3 OSAHRC 1212 (A.L.J.1973).”

In the Judge’s opinion in the Oberhelman–Ritter Foundry case, supra, it was stated, in pertinent part:

“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 (36 F.R. No. 105, p. 10466).”

“It is noted that the term ‘should’ in 2–1.7.2(a) (Bridge Bumpers) and 2–1.7.3(a) (Trolley Bumpers) was changed to ‘shall’ in the corresponding sections of 29 CFR 1910.179(e)(2)(i) and (e)(3)(i). The ANSI Safety Code used these terms to distinguish between advisory and mandatory rules.1 ”

Footnote 1 states:

“USAS B30.2.0—1967, Section V states: “Mandatory rules of this Code are characterized by the use of the word ‘shall’. If a rule is of an advisory nature it is indicated by the use of the word ‘should’ or is stated as a recommendation.” ‘

Considering the above, I am firmly convinced that the use of the word “should” in the regulation at issue herein can only mean that the standard was meant to be advisory and not mandatory. Accordingly, respondent cannot be held in violation of a regulation which is only advisory in form. The Review Commission in Secretary v. Imco Container Company, 3 OSAHRC 1240 (1973), has unanimously held that:

“... an employer is entitled to rely on the clear language of a standard, and where that is impossible a violation cannot be held.”

The importance for the proper usage of words in occupational safety and health standards promulgated by the Secretary was emphasized most recently by the Court of Appeals for the Seventh Circuit in Langer Roofing & Sheet Metal, Inc., v. Secretary of Labor and OSAHRC, decided November 20, 1975, when it stated:

“Unlike Humpty Dumpty, the Secretary may not give a word whatever meaning he chooses, –––––.” (page 4)

“The Secretary’s interpretation does not accord with normal usage.” (page 3)

The respondent’s motion must be granted.

FINDINGS OF FACT

Having carefully considered all of the pleadings, the oral arguments of the parties entered upon the record of hearing held on July 30, 1975, the written “motion for dismissal” filed herein by respondent, noting that no papers in opposition to such motion were filed by complainant, and having considered the prevailing law involved in these proceedings, I make the following findings:

1. The word “should” as used in the definition of “Radiation protection guide” set forth in 29 CFR § 1910.97(a)(1)(iii) is understood to be advisory and not mandatory in nature.

2. The standard involved herein, namely 29 CFR § 1910.97(a)(2)(i) as defined by 29 CFR § 1910.97(a)(1)(iii), is an advisory (directory) standard rather than a mandatory standard.

3. The standard set forth in 29 CFR § 1910.97(a)(2)(i) is not an occupational safety and health standard as defined by Section 3(8) of the Act.

4. The respondent on February 27, 1975 was not in violation of Section 5(a)(2) of the Act as alleged herein by complainant.

CONCLUSIONS OF LAW

1. The Occupational Safety and Health Review Commission has jurisdiction of the parties and subject matter herein.

2. Respondent, on February 27, 1975, was not in violation of the advisory (directory) standard set forth as 29 CFR § 1910.97(a)(2)(i) as defined by 29 CFR § 1910.97(a)(1)(iii), as alleged in the complaint filed herein and in the citation for nonserious violation issued on March 10, 1975. The citation should be vacated and the complaint dismissed.

ORDER

Based upon respondent’s motion filed in this proceeding, on the foregoing memorandum, Findings of Fact and Conclusions of Law, and upon the pleadings and the entire record of this proceeding, it is ORDERED that:

1. Respondent’s motion for a dismissal of the complaint and vacating of the citation for nonserious violation is granted.

2. The citation herein issued to respondent on March 10, 1975, charging a nonserious violation of 29 CFR § 1910.97(a)(2)(i), for which no penalty was proposed, is hereby vacated. The complaint filed herein is dismissed:

New York, New York

December 31, 1975

JAMES P. O’CONNELL

JUDGE, OSAHRC

1 Promulgated by the Secretary of Labor pursuant to Section 6 of the Act.

2 For the authority of a Review Commission Judge to raise issues sua sponte see Brennan v. OSAHRC and John J. Gordon Company, 492 F.2d 1027, 1032 (2nd Cir.1974). Also, Secretary v. Consolidated Pine, Inc., 17 OSAHRC 591, at 593 (1975) in which it was stated that the Judge may “advise the parties of a recent decision having bearing on issues already in a case.”