UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY
OF LABOR, |
|
Complainant, |
|
v. |
OSHRC
DOCKET NO. 2270 |
THUNDERBIRD
COOS BAY, INC., |
|
Respondent. |
|
January
23, 1976
DECISION
Before BARNAKO, Chairman; MORAN and CLEARY,
Commissioners.
CLEARY, Commissioner:
I. Introduction
On
February 12, 1973, respondent, Thunderbird Coos Bay, Inc., was issued two
citations alleging serious violations of section 5 of the Occupational Safety
and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter cited as “the
Act”]. One citation alleged a serious violation of section 5(a)(2) of the Act
for failing to comply with the safety standard at 29 CFR § 1910.213(h)(1)[1] [hereinafter cited as §
1910.213(h)(1) ]. The other citation alleged a serious violation of section
5(a)(1) of the Act, the general duty clause,[2] in that two employees were
riding on a stack of loose lumber which was being carried on the forks of a
forklift truck.
Following
a timely notice of contest of both citations, a hearing was held in this case
before Administrative Law Judge Garl Watkins. On May 15, 1974, Judge Watkins
issued a decision vacating both citations and their corresponding proposed
penalties.
On
June 10, 1974, the Secretary of Labor filed a petition for discretionary review
taking exception to the Judge’s actions in vacating both citations. Review was
directed pursuant to
section 12(j) of the Act on the issue of whether the
Judge erred in vacating the alleged serious violation of § 1910.213(h)(1). The
direction for review was accompanied by the express statement that submissions
are not limited to the issue or issues actually directed for review. Consistent
with the foregoing statement, the Secretary submitted a brief excepting to the
vacating of the alleged serious violation of section 5(a)(1) of the Act as well
as the alleged serious violation of § 1910.213(h)(1).2a
II. Issues on review
The
issues on review are the following:
1.
Whether the Judge erred in vacating the alleged serious violation of §
1910.213(h)(1) by holding:
(a) That section 6(f) of the Act was not
the exclusive method for challenging a safety standard.
(b) That the Commission was a proper forum
for determining the validity of a safety 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(h)(1), a serious violation of the
standard was shown by the Secretary.
3.
Whether the Judge erred in holding that respondent did not violate section
5(a)(1) of the Act.
III. Decision
1.
The Judge’s invalidation of § 1910.213(h)(1).
A
hearing in this case was held in Coos Bay, Oregon, on June 27, 1973. At the
close of this hearing the record was left open pending the reception of further
evidence regarding the asserted invalidity of § 1910.213(h)(1). This reception
of further evidence took the form of a
“supplemental hearing” held before Judge Watkins on
August 28–31 and September 17, 1973, in Seattle, Washington.[3][4]
A
substantial portion of the Judge’s decision in the instant case concerned the
validity of § 1910.213 and attendant issues litigated at the “supplemental
hearing.”[5] Judge Watkins concluded
that: (1) section 6(f) of the Act was not the exclusive method for challenging
a safety standard; (2) the Commission was a proper forum for determining the
validity of a safety 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 Judge Watkins’ conclusions regarding the validity of § 1910.213 were common
to this case and nine other cases5 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).
Our
decision in Noblecraft Industries, Inc., No. 3367 (November 21, 1975)
addresses the Judge’s conclusions regarding the validity of § 1910.213 and
attendant issues. We reversed the Judge and held that § 1910.213 is a valid and
enforceable standard. Our holding in Noblecraft Industries, Inc., supra,
is dispositive of the § 1910.213 issue in this case. Accordingly, we reach the
merits of the alleged serious violations of § 1910.213(h)(1) and section
5(a)(1) of the Act.
2.
Alleged serious violation of § 1910.213(h)(1).[6]
Judge
Watkins vacated the citation for serious violation of § 1910.213(h)(1) solely
on the grounds that the cited standard was invalid and unenforceable. Indeed,
the Judge stated that the evidence supported the Secretary’s allegation that
respondent’s Dewalt radial arm saw was not equipped with a guard covering the
lower portion of the saw blade. Respondent admitted the existence of the saw
and its use without a lower blade guard on the date of the inspection.
Based
on the foregoing, we conclude that a violation of § 1910.213(h)(1) was
established. The question remains, however, as to whether this violation was
“serious” within the meaning of section 17(k) of the Act.
Unrebutted
testimony of the compliance officer showed a substantial probability that
amputations and serious lacerations could result in the event of an accident
involving the use of respondent’s unguarded radial saw. There was also
preponderating evidence showing that respondent knew of the unguarded condition
of the saw. Accordingly, we hold that the violation of § 1910.213(h)(1) was
“serious.”[7]
Respondent
conducts a small business and has no history of previous violations of the Act.
Moreover, there is nothing in the record that leads us to doubt respondent’s
good faith. Finally, as noted, there is a paucity of evidence regarding the
number of employees exposed to the unguarded saw and the duration of such
exposure. Considering these facts in light of the section 17(j) penalty
assessment criteria, we find inappropriate the $500 penalty proposed by the
Secretary. Under the circumstances, we deem a $100 penalty appropriate for the
serious violation of § 1910.213(h)(1).
3.
Alleged serious violation of section 5(a)(1) of the Act.[8]
In
the citation for a serious violation of section 5(a)(1) the Secretary alleged
that:
The employer failed to provide a place of
employment that was free from recognized hazards that are causing or are likely
to cause death or serious physical harm in that two (2) employees were riding
on unbanded lumber that was on the forks of a lift truck and the forks were
approximately fifteen (15) feet above the ground level.
Evidence
adduced at the hearing established the conditions alleged to exist on the date
of the inspection. In his findings of fact, Judge Watkins found:
On that date, two of its employees were
seen by Respondent’s construction superintendent at a dangerous height from the
ground on the lifting part of a forklift truck. A loose load of lumber was also
on the lift portion of the forklift truck. Immediately he saw them [sic], the
superintendent went a distance of fifty feet or possibly a little farther to
where they were, spoke to them, and the men came down.
These
findings and other relevant evidence must be examined in order to determine
whether a violation of section 5(a)(1) was established.
In
order to establish a violation of section 5(a)(1), the Secretary must prove:
(1) that the employer failed to render its workplace
‘free’ of a hazard which was (2) ‘recognized’ and (3) ‘causing or likely to
cause death or serious physical harm.’
National Realty & Constr. Co., Inc. v.
O.S.H.R.C., 489 F.2d 1257, 1265 (D.C.Cir.1973). Our
examination of the record in light of the above elements indicates that the
Judge erred in vacating the citation.
There
was little question that the practice of allowing employees to ride on the
elevated forks of a forklift truck was a recognized hazard in the construction
industry. Photographic exhibits and testimony of the compliance officer showed
the patent nature of the hazard posed by this practice. Indeed, the hazard in
this case was compounded by the fact that the employees were riding on top of a
stack of loose lumber that was on the forks of the lift. Apart from the patent
nature of this hazard, the Secretary placed in evidence several state safety
codes, all of which indicated that no person should be permitted to ride on
powered industrial vehicles unless safe riding facilities are provided.
Considering these facts, we find that the conduct referred to in the citation
was a “recognized hazard” within the meaning of section 5(a)(1) of the Act.
The
Secretary also showed that the hazard was likely to cause death or serious
physical injury to the employees being transported on the forks of the lift.
The compliance officer testified that when a lift truck is moving the fork mast
has a tendency to move back and forth. He further testified that, since the
passengers were provided with no fall protection and were in fact sitting on
top of an unbanded stack of lumber, they could very easily have fallen off if
the lift driver had stopped suddenly or hit something. The resulting fifteen
foot fall to the ground could result in serious physical injury or death in the
event the passengers fell forward into the path of the moving forklift truck.
We conclude, therefore, that the requisite likelihood of death or serious
physical injury was shown by the Secretary.
Finally,
we conclude that the evidence showed that respondent failed to render its
workplace free from this recognized hazard. The compliance officer testified
that the forklift riding incident occurred while both he and respondent’s
construction superintendent were within plain view of the men riding on the
forks of the lift truck.[9]
Judge
Watkins refused to hold respondent in violation of section 5(a)(1). He inferred
that this “may have been an isolated, momentary, foolhardy (and even
belligerent) act on the part of two or three employees (emphasis added).”[10] We consider it more
reasonable in light of our experience to infer that respondent, through its
construction superintendent, condoned, or at least, failed to prohibit this
practice. In the absence of evidence negating this inference, we find that the
Secretary has sustained his burden of showing that respondent failed to render
its workplace free from this recognized hazard.
In
light of the above, we reverse Judge Watkins and affirm the citation for
serious violation of section 5(a)(1) of the Act.
As
noted, the consequences of an accident occurring as a result of this violation
would probably be serious. But, respondent’s construction superintendent
immediately ordered the employees down off the lift. Consequently, the duration
of the employees’ exposure to the hazard was relatively short.[11] We, therefore, conclude
that the gravity of this violation was moderate. This determination coupled
with our previous observations concerning respondent’s small size, good faith,
and absence of a history of previous violations leads us to conclude that the $500
penalty proposed by the Secretary is excessive. A $100 penalty is appropriate
under the circumstances of this case.
It
is, therefore, 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 section 5(a)(1) of the Act is affirmed
and a $100 penalty is assessed.
FOR THE COMMISSION
William S. McLaughlin
Executive Secretary
January 23, 1976
MORAN, Commissioner, Dissenting:
For
the reasons expressed in my opinion in Secretary v. Noblecraft Industries,
Inc., OSAHRC Docket No. 3367, November 21, 1975, I would vacate the
citation for noncompliance with 29 C.F.R. § 1910.213(h)(1) because that
standard was improperly promulgated. Furthermore, it is palpably wrong for the
Commission to reverse the Judge’s dismissal of an alleged violation of 29
U.S.C. § 654(a)(1) without ever advising the respondent that the correctness of
the Judge’s decision on that charge would be reviewed by the Commission. To act
in this manner contradicts the basic underpinnings of due process of law.[12]
The
complainant’s petition for discretionary review requested review of the Judge’s
holdings on both citations. However, the direction for review specifically indicates
that review was granted only on the citation for noncompliance with §
1910.213(h)(1).[13]
Thereafter, the employer elected not to file a review brief. Now, he is told
without any prior warning that the Judge’s decision is reversed and that he is
being held in violation of 29 U.S.C. § 654(a)(1). Such a procedure is unjust
and injudicious.
Messrs.
Barnako and Cleary attempt to justify their action on the basis of a loophole:
a form letter attached to the direction for review by the Office of the Executive
Secretary when it was transmitted to the parties which suggested that briefs
could be submitted on other issues. This is a type of response often raised by
the bucket-shop operators of yesteryear. In effect, Mr. Cleary’s direction
denied review on item 1, the § 654(a)(1) charge. The only reasonable conclusion
of a reader of that review order is that item 1 was no longer in issue
regardless of what the opposing party might say in an appellate brief.
Furthermore, the aforementioned form letter advised each party that briefs must
“be filed within 30 days of the date of this notice.” It contains no provision
for the submission of a reply brief if an opposing party were to raise an issue
in his initial brief that was not included in the direction for review. Resort
to this type of procedure smacks of bureaucratic sleight-of-hand ill-suited for
use by persons who are sworn to dispense equal justice under the law.
It
should also be noted however that the Executive Secretary’s form letter is not
provided for in the Commission’s Rules of Procedure and has never before been
regarded as an official position upon which a party may rely. As a matter of
fact the Commission members never see this form letter prior to its mailing and
have no way of knowing what wording the Executive Secretary’s office may choose
to place in that form letter.
A
good example of this is contained in the pending case of Secretary v. Morris
Enterprises, Inc., OSAHRC Docket No. 12283. In that case separate
Directions for Review were issued by two members of the Commission: Mr. Cleary
and myself. The one I filed was mailed to the parties accompanied by a form
letter dated November 7, 1975. That form letter contained only the following
statement:
“Review has been directed of the Judge’s
decision previously filed in the above-captioned case (see attached).”
The
Direction for Review filed by Mr. Cleary, however, was accompanied by a form
letter dated November 6, 1975 which stated as follows:
“Review has been directed of the Judge’s
decision previously filed in the above case.
Submission of briefs are invited with
respect to (see attached).
Briefs are invited specifically with
respect to the above-referenced issues.
If the parties wish to file briefs on
these issues, notice must be given the undersigned within 10 days of the date
of this notice. Such briefs must then be filed within 30 days of the date of
this notice. Extensions of time will not be granted except in extraordinary
circumstances.
An original and seven copies must be
submitted to the Commission on paper as prescribed in the Commission’s Rules of
Procedure.”
The
fact that different form letters are used willy-nilly in the very same case
demonstrates both the sapless basis on which form letters are attached and the
flimsy footing upon which the Barnako–Cleary foundation for justifying their
action in this case is based.
Fairness
dictates that my colleagues, when they decided to entertain this issue—instead
of pulling a loophole from their bag of tricks—should have issued a supplemental
direction for review indicating that they would consider this additional issue.
See Secretary v. Trustees of Penn Central Transportation Co., OSAHRC
Docket No. 5796, December 22, 1975 (dissenting opinion) in which I am
criticized (by the same two members who make up the majority in this case) for
delaying that case by adding issues in a supplemental direction for review.
That case was originally directed for review on October 22, 1974, whereas
review was granted in the instant case on June 14, 1974. In the former case, my
colleagues accuse me of causing a delay, yet they have no trouble reversing
here in a case that has been before the Commission more than four months longer
even though the respondent was told that the Judge’s action on that citation
would not be reviewed. Not only is the fallaciousness of that reasoning
apparent, but it smacks of moral double-bookkeeping.
Since
the foregoing opinion refers to the Judge Watkins’ decision several times and
footnote 4 thereof directs the attention of its readers to specific pages in
his decision, that decision is attached hereto as Appendix A.
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY
OF LABOR, |
|
Complainant, |
|
v. |
OSHRC
DOCKET NO. 2270 |
THUNDERBIRD
COOS BAY, INC., |
|
Respondent. |
|
FINAL ORDER DATE: June
14, 1974
DECISION
AND ORDER
Appearances:
Ernest A. Scott,
Jr. Attorney Office of the Solicitor United States Department of Labor Seattle,
Washington For the Secretary
James A. McClaskey
Messrs. Gilley, Busey & Porter Portland, Oregon 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 in Docket 2437
GARL WATKINS, Judge:
In this enforcement action under Section 10 of the
Occupational Safety and Health Act of 1970, 29 USCA 651, et seq.—notable only
for its paucity of evidence on material facts to be proved—the Secretary of
Labor seeks a finding of two violations of the Act by Respondent at a motel
construction site in Coos Bay, Oregon on January 16, 1973.
The first alleged is a violation of Section 5(a)(1) in
failing to furnish a place of employment free from recognized hazards because
two employees were seen by Complainant’s Compliance Officer fifteen feet in the
air on a forklift truck. In the second Citation, the Secretary alleges a
serious violation of Section 5(a)(2) of the Act because, on the day of
inspection it is admitted that an employee of Respondent used a Dewalt radial
arm saw without a guard on the lower portion of the blade as required by 29 CFR
1910.213(h)(1). For each alleged violation of the Act, the Secretary seeks the
imposition of a monetary penalty of $500.00.
The Citations, allegations of the Complaint, and in the
case of the second, the standard under consideration follow.
CITATION
FOR SERIOUS VIOLATION: Citation Number 1
of 2
Standard or
regulation allegedly violated |
Description of
alleged violation January 16, 1973 |
Section 5(a)(1)
of Public Law 91–596 The Occupational Safety & Health Act. |
The employer
failed to provide a place of employment that was free from recognized hazards
that are causing or are likely to cause death or serious physical harm in
that two (2) employees were riding on unbanded lumber that was on the forks
of a lift truck and the forks were approximately fifteen (15) feet above the
ground level.’ |
COMPLAINT
IV On or about January 16, 1973, at the
aforesaid Coos Bay, Oregon worksite and place of employment, respondent
contrary to section 5(a)(1) of the Act failed to furnish to its employees a
place of employment which was free from recognized hazards that were causing or
were likely to cause death or serious physical harm to its employees in that
respondent permitted a number of its employees to ride on top of unbanded
lumber that was being transported or carried on the forks of a lift truck whose
forks were at such time approximately fifteen (15) feet above ground level.
PROPOSED PENALTY: $500.00
CITATION
FOR SERIOUS VIOLATION: Citation Number 2
of 2
Standard or
regulation allegedly violated |
Description of
alleged violation January 16, 1973 |
29 CFR 1910.213(h)(1) |
A ‘Dewalt’
Radial Arm Saw had no guard covering the lower portion of the saw blade. |
COMPLAINT
V. On or about January 16, 1973, at the
aforesaid Coos Bay, Oregon worksite and place of employment, respondent
violated the safety and health regulations in the following respects:
‘A
‘Dewalt’ Radial Arm Saw did not have a guard covering the lower portion of its
blade, contrary to 29 C.F.R. § 1910.213(h)(1).’
STANDARD: 29
C.F.R. 1910.213(h) Radial saws.
‘(1) The upper hood shall completely enclose
the upper portion of the blade down to a point that will include the end of the
saw arbor. The upper hood shall be constructed in such a manner and of such
material that it will protect the operator from flying splinters, broken saw
teeth, etc., and will deflect sawdust away from the operator. The sides of the
lower exposed portion of the blade shall be guarded to the full diameter of the
blade by a device that will automatically adjust itself to the thickness of the
stock and remain in contact with stock being cut to give maximum protection
possible for the operation being performed.’
PROPOSED PENALTY: $500.00
The hearing was in Coos Bay, Oregon on June 28, 1973. The
record indicates compliance with the Rules of Procedure regarding service and
posting. No one appeared and sought to assert a party status.
Respondent’s Answer was an admission that it was an
Oregon corporation doing business in Coos Bay and then a general denial,
followed by an affirmative defense that it had no notice of either allegation
and as ‘partial defense and in mitigation’ an allegation that the proposed
assessment of penalties was not reasonable.
The Secretary propounded two sets of Requests for
Admissions. The first was answered, and the second admitted at the hearing.
As in other related cases, I announced at the outset of
the hearing the questions which had arisen with respect to the validity of Part
1910 of 29 CFR. This question had not been raised specifically by Respondent up
to that time but the Secretary’s allegation of a valid enactment of 29 CFR 1910
had been denied by Respondent’s Answer. Respondent has consistently taken the
position that the standard is invalid although counsel did not participate in
the supplemental hearing.
From the testimony of David M. Hancock, Secretary’s
Compliance Officer, Manni Weiseke, Respondent’s Coos Bay manager (for the
motel—not for construction), and from admissions of Respondent, the following
‘bare bones’ case is satisfactorily established.
Respondent is in the motel business. In January of 1973,
it was also doing construction at Coos Bay in the building, re-building, or
enlargement of its motel. All that is established is that it was doing
construction work and the pictures show some of it. The motel was apparently in
partial operation at the time.
Tex Martin was its construction superintendent. There is
some confusion because Hancock testified throughout on direct that the
superintendent was Tex ‘Winter.’ The record was reopened and, on being recalled,
he said he meant ‘Martin’ all the time. It is unnecessary to decide whether
Martin’s statement that he was Respondent’s superintendent is necessary to
prove the fact of his employment because Request for Admission No. 15 of the
first set admits ‘that Respondent had a superintendent (Tex. Martin) at its job
site, 1313 Bayshore Drive, Coos, bay, Oregon, on January 16, 1973.’
Pictures were taken of the two men high in the air on the
forklift in question accompanied only by a pile of loose lumber (Secretary’s
Exhibits 1, 2 and 10). Martin said they were Respondent’s employees. The record
does not show their identity, their jobs or in any detail what they were doing.
Hancock did say, ‘They were moving from section to section, and instead of
walking or getting down on a ladder and moving over, they just rode on the
forklift truck.’ (Tr. 29) There is no indication whether this is observation or
conjecture.
So far as the record shows, immediately on Martin first
seeing the men on the truck—when Hancock mentioned them—he said, ‘I had better
get them down before they kill themselves.’ (Tr. 30) He went to where the men
were, spoke to them, and they got down.
The existence of the saw and its use on the date of
inspection without a lower blade guard are admitted. There is no evidence as to
how it was used, by whom, or how long. It is shown in Secretary’s Exhibits 3
and 4.
Thus if 29 CFR 1910.213(h)(1) is valid, Respondent was in
violation of it. Since only the violation is shown, it is not serious. Since
there is no evidence of acts of any person connected with the use of the saw,
there is no justification for imposing a penalty.
Our inquiry will now be into the woodworking machinery
guarding standards and the charges laid under it, specifically into the
question of the validity of the standards themselves.
This question was the subject of a supplemental hearing
in Seattle on August 20, 30 and 31, 1973, and completed at a continued hearing
on September 17. Ten cases were consolidated in that part of the hearings for
the purpose of receiving evidence on the validity of the standards set out in
29 CFR 1910.213 and the legality of the actions of the Secretary in adopting
them. This is one of the ten cases. At the conclusion of the session on
September 17, an order of severance of the cases was entered.
Three more cases containing the identical question have
since been assigned to me. One has been heard.[14]
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’, 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)
Respondent Weyerhaeuser, and later Konkolville (Docket
2347), squarely raised the question of legality and validity of the standard
from every point of approach necessary to test it.
In the meantime, eight more cases (including Konkolville)
were assigned to me, all alleging violations of subsections of 29 CFR 1910.213.
In some the question of the validity of the standard was raised. In some it was
not. Two of the Respondents were not represented by counsel.
Under the circumstances is 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.
(Konkolville was not reopened. The record was left open for the supplemental hearing.)
I have been told repeatedly that I am not (and of course the Review Commission
is not) a ‘court.’ Apparently the feeling is that a ‘judicial’ adjudicatory
body can do what an independent or ‘administrative’ adjudicatory body cannot
do.
The question is interesting, and it must be resolved
contrary to the Secretary’s position. While most authorities refer to the
‘inherent power’ of courts to call witnesses in order to develop the truth in a
judicial inquiry; the fact is, it is an ‘inherent duty.’ However far able and
competent advocacy may cause us to digress from some fundamental principles
involved in adjudicatory proceedings under our system, the fact remains that
the primary responsibility for developing the record lies with the presiding
officer of the tribunal.
Briefly expressed, ‘courts have inherent power to do all
things that are reasonably necessary for the administration of justice within
the scope of their jurisdiction.’ (20 Am Jur 2d, Courts § 79)
Federal Rule of Evidence 614(a) provides
CALLING AND
INTERROGATION OF WITNESSES BY JUDGE
(a) Calling by
Judge. The judge may, on his own motion or at the suggestion of a party, call
witnesses, and all parties are entitled to cross-examine witnesses thus called.
(b) Interrogation
by judge. The judge may interrogate witnesses, whether called by himself or by
a party.
(c) Objections.
Objections to the calling of witnesses by the 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.
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 its effective date, this method is
exclusive; even though the Act doesn’t say so.
Respondents, on the other hand, take the position that this
is a pre-enforcement remedy only, and that the validity of any standard may be
challenged in an enforcement proceeding.
Respondents’ position seems fundamentally correct. The
words underlined above indicate the action is optional, not mandatory. There is
no express language indicating this is an exclusive method for attacking a
standard. Additionally it would seem that investing ‘any person who may be
adversely affected’ with a right to test the validity of a standard, but
limiting that right to 60 days from the effective date indicates an intent on
the part of Congress to provide this as a preliminary pre-enforcement
procedure, rather than as the sole procedure by which a standard can be
challenged.
Respondent Weyerhaeuser quotes from Divesco Roofing
& Insulation Company, Docket 345, 1 OSHC 1079:
‘........ the
legal validity of the standards under the Constitution and Statutes of the
United States is necessarily involved in the adjudication of enforcement
proceedings, and this function has been reserved for the Commission subject to
judicial review.
Admittedly the language of the entire statute could
provide a clearer guide to the answer we seek here. Perhaps it is ambiguous or
unclear and subject to construction. If so, then it is proper to examine the
Legislative History for assistance.
Two such references would seem sufficient. In the final
Senate report, No. 91–1282, page 8, as reprinted in the Legislative History,
page 148, we find the following:
‘Judicial Review
of Standards.—Section 6(f) provides that any person who may be adversely
affected by a standard may, within 60 days of its issuance, seek judicial
review in an appropriate United States court of appeals. While this would be
the exclusive method for obtaining pre-enforcement judicial review of a
standard, the provision does not foreclose an employer from challenging the
validity of a standard during an enforcement proceeding. Unless otherwise
ordered by the court, the filing of the petition would not operate as a stay 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 board-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 unenforceable 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 issued 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 the 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 citation or proposed penalty, or directing other appropriate
relief,.....’
We have referred to a common practice by both the Review
Commission and its judges to hold various standards of the Secretary invalid
for a variety of announced reasons. In each case the challenge to the standard
was in the Commission proceedings and the real basis for the holding was that
the Secretary was acting in excess of his statutory power and authority in
adopting the standard. A few examples were given.
Of equal—or greater—importance is the fact that implicit
in every finding of a violation of an occupational safety or health standard
under Section 5(a)(2) of the Act, is a holding that the standard is valid—that
it was enacted by the Secretary in a proper exercise of his legislative power
and authority.
The Commission is directed to ‘affirm’ a citation and
proposed penalty in some cases. If a standard is questioned and can be held
valid only by a ‘judicial’ court; the Commission might find itself in the
completely untenable position of being required to affirm a penalty without a
finding that the standard is valid.
Can this be the intention of the Congress? We think not.
(4) Not only does it have sole power to find violations
of the law and standards with respect to occupational safety and health, but
‘The Commission shall have authority to assess all civil penalties.....’ (Sec.
17(j)). This is not a review—it is the first adjudicatory act with respect to
the penalty.
(5) Contempt powers are granted as under the National
Labor Relations Act (Sec. 12(i)).
(6) The Chairman is authorized to ‘appoint such hearing
examiners..... as he deems necessary to assist in the performance of the
Commission’s functions.....’ (Sec. 12(e)). Some of these functions are
enumerated (Sec. 12(j)). As stated above, and for the purpose of this inquiry,
the duties and powers of a hearing examiner (judge) are no greater or less at
the hearing level than are those of the Review Commission at the review level.
(7) A direct
method of review is provided of all decisions of the Commission to the United
States Court of Appeals. Section 11(a) provides:
JUDICIAL REVIEW
SEC. 11. (a) Any
person adversely affected or aggrieved by an order of the Commission issued
under subsection (c) of section 10 may obtain a review of such order in any
United States court of appeals for the circuit in which the violation is
alleged to have occurred or where the employer has its principal office, or in
the Court of Appeals for the District of Columbia Circuit, by filing in such
court within sixty days following the issuance of such order a written petition
praying that the order be modified or set aside. A copy of such petition shall
be forthwith transmitted by the clerk of the court to the Commission and to the
other parties, and thereupon the Commission shall file in the court the record
in the proceeding as provided in section 2112 of title 28, United States Code.
Upon such filing, the court shall have jurisdiction of the proceeding and of
the question determined therein, and shall have power to grant such temporary
relief or restraining order as it deems just and proper, and to make and enter
upon the pleadings, testimony, and proceedings set forth in such record a
decree affirming, modifying, or setting aside in whole or in part, the order of
the Commission and enforcing the same to the extent that such order is affirmed
or modified. The commencement of proceedings under this subsection shall not,
unless ordered by the court, operate as a stay of the order of the Commission. No
objection that has not been urged before the Commission shall be considered by
the court, unless the Failure or neglect to urge such objection shall be
excused because of extraordinary circumstances. The findings of the Commission
with respect to questions of fact, if supported by substantial evidence on the
record considered as a whole, shall be conclusive. If any party shall apply to
the court for leave to adduce additional evidence and shall show to the
satisfaction of the court that such additional evidence is material and that
there were reasonable grounds for the failure to adduce such evidence in the
hearing before the Commission, the court may order such additional evidence to
be taken before the Commission and to be made a part of the record. The
Commission may modify its findings as to the facts, or make new findings, by
reason of additional evidence so taken and filed, and it shall file such
modified or new findings, which findings with respect to questions of fact, if
supported by substantial evidence on the record considered as a whole, shall be
conclusive, and its recommendations, if any, for the modification or setting
aside of its original order. Upon the filing of the record with it, the
jurisdiction of the court shall be exclusive and its judgment and decree shall be
final, except that the same shall be subject to review by the Supreme Court of
the United States, as provided in section 1254 of title 28, United States Code.
Petitions filed under this subsection shall be heard expeditiously.
Two provisions are
particularly worthy of note here. First, no objection that has not been urged
before the Commission can be considered by the Court of Appeals. Thus, if there
has been no question, or decision, on the validity of a standard; it cannot be
considered by the Court of Appeals on review.
Secondly, additional evidence may be ordered in
exceptional circumstances. In this case it is taken ‘before the Commission,’
which may thereafter modify its findings or make new ones; and any review
thereafter shall be considered as from the beginning.
The foregoing should show without question the intent of
Congress to allow the Review Commission the right to pass on the validity and
legality of standards adopted by the Secretary; and also require that they be
challenged in the Review Commission proceedings. Perhaps viewing the question
from a somewhat different angle might be helpful.
As a practical matter, how would an employer test the
validity of a standard promulgated by the Secretary in a ‘court’ rather than
before the Review Commission?
He could not make his first request for a ruling on
review to the United States Court of Appeals under Section 11(a) of the Act
after a Commission decision. This Section provides: ‘No objection that has not
been urged before the Commission shall be considered by the court,.....’
Should the employer then start an action in the United
States District Court seeking an injunction? Again, this action would fail. On
the state of the record of every one of the cases I now have before me, relief
would be denied because of failure to exhaust administrative remedies. Perhaps
not all decisions would be on exactly the same basis as that of the three judge
panel in Lance Roofing Co. vs. Hodgson, Secretary of Labor (1972), 1 OSHC 1012,
343 F.Supp. 685. Good reasons exist in all for holdings other than on the
identical ground. For a variety of holdings involving the principle of
exhausting administrative remedies, see cases cited in Davis-Administrative Law
Treatise, Chapter 20.
An action for declaratory judgment would meet no better
fate. The doctrine of exhaustion of administrative remedies applies alike to
such actions. In Lance Roofing, supra, the plaintiffs sought declaratory—as
well as injunctive—relief.
The question was asked as to how an employer wishing to
challenge the validity of a standard now may go about doing it in a ‘judicial’
court. The obvious answer is that he has no way of doing it. The first
challenge must be made before the trial judge at the hearing stage of the
Review Commission proceeding. Failing this, a Respondent will necessarily be
held to have failed to exhaust his administrative remedies.
We believe the implication is so clear that the Review
Commission proceeding is not only the proper, but the exclusive forum for a
current challenge to the validity of a standard of the Secretary, there should
be no need to resort to legislative history as an aid in reaching this
conclusion. Since the Act does not so provide by its express terms, however, a
contention considered by some to be reasonable might be made that it is subject
to constitution 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 NASI 01.1 and its adoption as 29 CFR 1910.213 and 214. Nor does he
have a definite recollection of considering and eliminating the headnote
previously quoted at the beginning of Section 4, ‘Woodworking Machinery’, on
page 9 of the ANSI printed standard (Respondent’s Exhibits s–1 and S–3); or the
reason for its omission from Section 213 of Part 1910. He does recall ANSI
01.1, and that it was adopted as a national consensus standard.
Among the objectives of the group headed by Mr. Cestrone
was to make no changes in either the scope or the substance of any national
consensus standard. Part of the job also was to eliminate any consensus
standards that were advisory, or recommended. No provision was intended to be
included in the final product unless its requirements were mandatory.
Neither Cestrone nor, so far as he knew, anyone else
engaged in the project took any steps to insure the legality of the standards
being adopted; for example, to determine whether the national consensus
standards met the statutory definitions of Section 3 (9) of the Act. As to ANSI
01.1 there were two reasons for this.
First, the Secretary was not only under a mandate of the
statute (Section 6(a)) to adopt national consensus standards produced by ANSI
and the National Fire Protection Association (NFPA); but the legislative history
of the Act contained numerous committee reports and other comments urging speed
and purporting to explain why the standards, having already met the ‘consensus
principle’, could and should be adopted without further ado.
Further scrutiny will show that the language of the
legislative history tending to show compliance of the ANSI standards with the
statutory definition of a national consensus standard was in error.
In his testimony, Mr. Cestrone referred to several such
passages from the legislative history:
Q. What part of
the legislative history, and to what part of the legislative history do you
refer there, if you know?
A. May I sit and
refer and to my notes?
Q. Yes, yes, refer
to any notes you have.
A. With respect to
support of the legislative history and support of interim standards, my
reference is to report 21–82, starting on page 141, which accompanied the
Senate version of the bill S 2193, particularly legislative history starting on
page 146–6.
Q. Is that in the
legislative history?
A. It’s in the
green June book, and I can read to you if you want me.
Q. If you have the
pertinent language it might be good to put it in the record.
a. Senate Report
91–1282, page 141, calendar number 1300; Accompanying Senate Bill S 2193, page
146–6. ‘The purpose of this procedure is to establish as rapidly as possible
National Occupational Safety and Health standards with which industry is
familiar. These standards may not be as effective or up to date as is
desirable, but they will be useful for immediately providing a nation wide
minimal level of safety and health. Two private organizations are the major
sources of consensus standards; the American National Standards Institute,
Incorporated and the National Fire Protection Association. By the Act’s
definition a consensus standard is one which has been adopted under procedures
which have given diverse views an opportunity to be considered, and which
indicated interested and affected persons have reached substantial agreement on
its adoption.’
Q. Pardon me, sir.
I’m interested in the part before ‘affected persons.’
A. Which indicate
that interested and affected persons have reached substantial agreement on its
adoption.
Q. This is saying
what has been done and the statute says it must be done, is that correct, sir?
A. Yes, sir, and
if I may finish this last phrase, the point I wanted to make here. I don’t know
whether I left what I thought was non-applicable language out but it follows
that, ‘It is appropriate to permit the Secretary to promulgate such standards
without regard to the provisions of the Administrative Procedures Act. The bill
also provides for the issuance in similar fashion of those standards—
Q. Are you 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 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.’
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 information 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 Requirements’,
through Section 305. Section 304 of Part 1926, entitled ‘Woodworking Tools’,
has some specific requirements for portable, power driven circular saws
(subparagraph (d)); and then provides:
(f) Other
requirements. All woodworking tools and machinery shall meet other applicable
requirements of American National Standards Institute, 01.1—1961. Safety Code
for Woodworking Machinery.
Leaving aside other questions for the purpose of
discussion; the result is the adoption of ANSI 01.1 with its headnote. This is
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. 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 standard 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 adoption?
(4)
What is ‘substantial agreement on its adoption?’
It might be pointed out there is no requirement that the
Secretary find or ‘determine’ that the persons contemplated have reached
substantial agreement. Rather the requirement is that the circumstances of
adoption of the standard be such that these things ‘can be determined by the
Secretary.’
The Secretary does purport to so find in the Federal
Register cited. His statement to this effect is in the last quotation from it.
We may assume the Secretary cannot find that which is
untrue. He cannot ‘determine’ that something happened when in fact it did not
happen. Thus, although the statute does not require the Secretary to
‘determine’ the specific facts regarding the adoption of the standard by ANSI;
those facts must exist so that the Secretary could so determine them. Those
facts are ‘that persons interested and affected by the scope or provisions of
the standard have reached substantial agreement on its adoption,’
Who are ‘persons interested and affected by the scope or
provisions of the standard?’ Little time need be spent in answering this
question. The record shows so many thousands of persons who are clearly within
this class we need not concern ourselves with the niceties of deciding in a
borderline case whether or not a particular person or class of persons is
within it.
For example, these are shown by the record:
Workmen
who operate the machinery
Labor
organizations to which the workmen belong
Employers
who hire the workmen
Trade
associations of those employers
Workmens compensation or industrial insurance carriers
who insure the employers and workmen, both by reason of their financial
interest in the safety of the workmen and the insurance companies’ traditional
interest in safety.
Trade
associations of the workmens compensation insurance carriers
Governmental
organizations with an interest in employee safety
Private
safety organizations, for example, the National Safety Council
Producers of safety standards, such as ANSI
The last two questions posed above present greater
difficulties of solution. How many ‘persons interested and affected’ must have
agreed on the adoption of an ANSI standard? The literal language of the statute
would be satisfied if the answer were either ‘two’ or ‘all.’ Either answer is
ridiculous.
Might the answer be ‘a representative number’; or ‘a
substantial number’; whatever either of these expressions means? I have been
unable to find anything in the Legislative History helpful in trying to answer
this question.
It would rather seem from numerous passages in the
history that Congress became enamored of its own definition and began to assume
that both ANSI and NFPA standards met it. At the same time, from some of the
testimony, one might draw the inference that ANSI began to believe its
standards met the Congressional definition.
As will be shown, the answer to the question is academic.
Since we are talking about ‘consensus’ standards, however, would it not be
sensible to believe Congress intended that ‘a consensus’ of ‘persons interested
and affected’ agreed to the adoption of the standard?
Consensus means
‘General
agreement.’ ‘Collective opinion. The judgment arrived at by most of those
concerned.’ (Webster—3rd Unabridged)
‘Majority
of opinion.’ (Random House—College Edition)
DeTarnowsky quoted from one of ANIS’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 judgement is used to determine when a ‘consensus is
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
It was further agreed
that the stipulation might be accepted in lieu of Mr. Tichy’s testimony, that
he was qualified to testify to the facts stated, and that the stipulation might
be so used even though Tichy was in court and could have taken the witness
stand.
It is of interest to note that so far as all the logging
and sawmill, as well as the Northwest Plywood industries are concerned; there
was no representative—either company or trade association—on the ANSI 01
Committee. One of the reasons assigned for this was that at the time a
‘vertical’ standard for sawmills was being considered and prepared. (29 CFR
1910.265)
From the foregoing it is abundantly clear that the ANSI
national consensus standard here under consideration does not meet the
definition of Section 3(9)(1) of the Act, as having been adopted ‘under
procedures whereby it can be determined by the Secretary that persons
interested and affected by the scope or provisions of the standard have reached
substantial agreement on its adoption.’
One can but conclude that Congress mandated the use of
national consensus standards as occupational safety and health standards under
the Act, espoused their adoption as interim regulations and under abbreviated
procedures, sought to speed their promulgation and implementation; and at the
same time adopted a statutory definition that no national consensus standard
could meet. At least the standard here under consideration does not meet it.
The third question for decision is whether the ANSI 01.1
1954 (R 1961) standard ‘was formulated in a manner which afforded an
opportunity for diverse views to be considered.....’
In an earlier explanation of the working of ANSI,
reference was made to ‘a public review and comment period.’ References to this
procedure under the same or similar language are in several places in the
Legislative History.
Nixon deTarnowsky testified the present system started in
1969. Previous efforts, while not haphazard, were much less complete.
‘The old ASA
system did not include a public review and comment period such as we have now.
The old system relied exclusively on the membership of the ASA system. It was
published in the Magazine of Standards, however, which was given general
distribution, and was subscribed to by a great many more companies, but as I
understand it the public review and comment, as we have it today, did not exist
at the time 01 was promulgated.’
(Tr. S154–155)
The Magazine of Standards was published by ANSI. Its
circulation is not shown. Other trade publications reproduced proposals with
respect to the adoption of standards.
Mr. Cestrone testified he had no difficulty in knowing of
any ANSI action contemplated in which he was interested over the years. At the
same time, however, it appears that for many years he was active in ANSI and
served on many of its committees and bodies.
In general, the record indicates dissemination of
information about proposed actions regarding standards before the change in
1969. The change brought about a much wider and more selective distribution of
information, and also brought into effect a number of new procedures with
respect to comments received.
The statute does not designate whose ‘diverse views’ are
to be considered; or who must be ‘afforded an opportunity.’ If the
‘opportunity’ and ‘diverse views’ are limited to safety professionals, there
would be compliance with the statute.
Nor is there a specific provision about who is to do the
‘considering.’ By implication, however, this would be some part of the ANSI
organization.
There is no indication Congress intended that a procedure
such as that provided by Section 6(b) of the Act was thought to be required of
private standards-producing organizations. No attempt is made to spell out
times, places, manners of publication or other dissemination of information or
methods used.
Under all the circumstances, we feel there was no failure
on the part of ANSI to meet the requirements of Section 3(9)(2) in its adoption
or promulgation of the standard here under consideration.
In order that there may be no misunderstanding, I should
like to make it clear there is no intention in this decision to criticize
anybody.
First, the Secretary of Labor was required by Section
6(a) of the Act to adopt national consensus standards as occupational safety
and health standards ‘unless he determines that the promulgation of such a
standard would not result in improved safety or health for specifically designated
employees.’
There are numerous references in the Legislative History
to the assumption—stated as fact—that national consensus standards of ANSI and
NFPA met the tests of the definition Section of the Act; even though the ANSI
standard here under review did not. All the Congressional views were known to
the people in the Labor Department charged with the responsibility of
developing the program.
Mr. Cestrone and his organization of about 60 people did
a monumental job in about 34 days in putting together the package. There must
have been many other people in the Department of Labor under similar pressure.
It just happens their identities and efforts have not come to our attention.
Least of all do we consider this decision any criticism
of the American National Standards Institute; its philosophies, its procedure
or its results. The procedures have been tested by time and found to be in the
public interest, and specifically in the interest of occupational safety and
health. Nothing here should be construed as in any way reflecting on the
integrity or effectiveness of ANSI or of any of its procedures or results. It
simply has a statutory definition of ‘consensus’ that its procedures cannot
meet—nor could those of any other private organization setting out to do the
same job.[15]
Little time need be taken in deciding there was not a
violation of Section 5(a)(1) of the Act. The evidence set out above is all
there is in the record.
For example, the record is completely consistent with the
following. Suppose we assume Respondent had a strict rule, rigidly enforced,
against any employee riding on the fork of a forklift truck, at any level.
Suppose further that a violation of this rule would result in immediate
discharge of both the rider and forklift truck operator. We may also assume
that the two employees shown in the pictures and the forklift operator were
discharged immediately. We could assume further facts such as an ongoing
effective safety program, employees who are proved to have knowledge of the rule
against riding forklifts, signs on the truck setting out the rule against
employees riding it, and a record of employees having received immediate
discipline for less serious infractions of company rules.
There is no evidence of any of these assumed facts, of
course. The point is this record is completely consistent with the existence of
all these facts.
All we are able to determine from the record is that
immediately he saw the two employees, Respondent’s superintendent said, ‘I had
better get them down before they kill themselves.’ Then, in the words of
Hancock, ‘he departed at that moment and I stood there. He told the men to get
down, and they did.’ We are unwilling to hold Respondent in violation of
Section 5(a)(1) of the Act for what may have been an isolated, momentary,
foolhardy (and even belligerent) act on the part of two or three employees.
There is simply no evidence it was anything else.
Both Citations and proposed penalties must be vacated and
the Complaint of the Secretary dismissed with prejudice. Based upon the entire
record in this case, the undersigned now makes the following
FINDINGS
OF FACT
I
Respondent is an Oregon corporation operating a motel at
Coos Bay. On January 16, 1973, it was engaged in construction work at its
motel.
II
On that date, two of its employees were seen by
Respondent’s construction superintendent at a dangerous height from the ground
on the lifting part of a forklift truck. A loose load of lumber was also on the
lift portion of the forklift truck. Immediately he saw them, the superintendent
went a distance of fifty feet or possibly a little farther to where they were,
spoke to them, and the men came down.
III
There is no evidence from which any other fact regarding
the incident in question can be found. There is no evidence that Respondent
failed to furnish such employees employment and a place of employment which was
not free from recognized hazards that were likely to cause death or serious
physical harm.
IV
On that date, an employee of Respondent operated a Dewalt
radial arm saw at its work place when the saw was not equipped with a guard for
the lower portion of the blade. There is no evidence about how the saw was
used, by whom, or for how long.
V
The Secretary purported to promulgate 29 CFR 1910.213 as
a national consensus standard by publication on May 29, 1971 in 34 Fed. Reg.
10466. The source standard is one of the American National Standards Institute,
adopted in 1954 and reaffirmed in 1961, commonly known as ANSI 01.1 1954 (R
1961).
VI
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.
Section 213(h)(1) of Part
1910 was derived from Section 4.1.9 RADIAL SAWS (a) Hoods and Guards of ANSI
01.1 1954 (R 1961). The headnote is an integral part of Section 4.1 and every
sub-section and part thereof. Section 4.1.9(a) with the headnote produces the
result that the use of lower blade guards for radial arm saws is optional.
Section 213(h)(1) of Part 1910 has the effect of requiring the use of lower
blade guards for all radial arm saws, at all times used. Its requirements are
mandatory. The meaning, scope and application of the source standard are
thereby materially changed.
VII
ANSI 01.1 1954 (R 1961) before its purported adoption by
the Secretary, had not been adopted and promulgated by a nationally recognized
standards-producing organization under procedures whereby it could be
determined by the Secretary that persons interested and affected by the scope
or provisions of the standard had reached substantial agreement on its
adoption. In fact, only the 13 or 14 organizational members of the committee
writing the standard—not the corporations or other persons constituting such
organizations—and the individuals representing them, along with members of the
Safety Technical Advisory Board and the Board of Standards Review of ANSI had
reached such substantial agreement.
VIII
ANSI 01.1 1954 (R 1961) was formulated in a manner which
afforded an opportunity for diverse views to be considered.
Based upon the foregoing and upon all facts admitted,
stipulated, or proved by uncontradicted substantial credible evidence, the
undersigned hereby makes the following
CONCLUSIONS
OF LAW
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 subject
matter of this action.
II
On January 16, 1973, Respondent was not in violation of
Section 5(a)(1) of the Act by failing to furnish to each of its employees
employment and a place of employment which were free from recognized hazards
that are causing or likely to cause death or serious physical harm to them.
III
ANSI 01.1 1954 (R 1961) was not enacted in part as 29 CFR
1910.213(h)(1) because the Secretary was acting in excess of his statutory
authority in the deletion of the headnote to Section 4.1.
IV
ANSI 01.1 1954 (R 1961) is not a national consensus
standard as defined in Section 3 (9) of the Act.
V
29 CFR 1910.213(h)(1) was 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) is invalid and unenforceable.
VI
The Respondent is entitled to an Order vacating the
Citations and proposed penalties, and dismissing the Complaint of the Secretary
with prejudice.
ORDER
Based upon the foregoing:
I
IT IS HEREBY ORDERED:
That two Citations issued to Respondent February 12,
1973, naming therein a construction site at 1313 Bayshore Drive, Coos Bay,
Oregon alleging violations of the Act, January 16, 1973, and proposed penalties
in connection therewith of $500.00 each, be and the same hereby are Vacated.
II
IT IS FURTHER ORDERED:
That the Complaint of the Secretary be and the same
hereby is dismissed with prejudice.
Dated: May 15, 1974
GARL WATKINS
Judge
[1] See note 6
infra.
[2] See note 8 infra.
2a The exception
being properly before us must be ruled upon. 5 U.S.C. section 557(c).
[3] The “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; Jones Oregon Stevedoring Co., No. 2271; Juhr & Sons,
No. 2314; Konkolville Lumber Co., Inc., No. 2437 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.
[4] For a statement
of the § 1910.213 validity issue and related issues, see issue 1.(a)–(d) at p.
2, supra.
Judge Watkins’
treatment of these issues appears in Thunderbird Coos Bay, Inc., No.
2270 (May 15, 1974) (Administrative Law Judge) (slip op. at 8–57). That
decision is substantially similar to those issued in the cases referred to in
note 2, supra.
[5] See note 3, supra.
[6] This standard
provides:
§ 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 operator from flying splinters, broken saw
teeth, etc., and will deflect sawdust away from the operator. The sides of the
lower exposed portion of the blade shall be guarded to the full diameter of the
blade by a device that will automatically adjust itself to the thickness of the
stock and remain in contact with stock being cut to give maximum protection
possible for the operation being performed.
[7] In his decision,
Judge Watkins stated that the § 1910.213(h)(1) violation was not “serious”
because there was insufficient evidence indicating how, by whom, or how long
the unguarded saw was used. This was error.
The deficiencies noted by the Judge
do not relate to “seriousness” within the meaning of section 17(k) of the Act.
Rather, evidence relating to the number of employees exposed to a hazardous
condition and the duration of such exposure is only relevant in determining the
gravity of the violation for penalty assessment purposes. See Pack River
Lumber Co., No. 1728 (February 18, 1975).
[8] Section 5(a)(1)
of the Act provides:
Each employer shall furnish to each of his
employees employment and a place of employment which are free from recognized
hazards that are causing or are likely to cause death or serious physical harm
to his employees.
[9] Specifically, the
evidence showed that the compliance officer and the construction superintendent
were fifty feet from the forklift and facing it at the time of the incident.
[10] Slip op. at
58–59.
[11] The fact that the
employees were immediately ordered down is also indicative of respondent’s good
faith.
[12] It also appears
that the Commission is without jurisdiction at this time to consider the § 654(a)(1)
charge. The law provides that a Judge’s decision becomes the final order of the
Commission within 30 days of its filing unless directed to be reviewed by a
Commission member. 29 U.S.C. § 661(i). In this case the Judge’s disposition of
the § 654(a)(1) charge was never so directed. A careful review of the record in
this case leads me to the conclusion that Judge Watkins’ dismissal of the §
654(a)(1) charge became a final order of the Commission on June 14, 1974.
Compare Brennan v. OSAHRC, 487 F.2d 230 (5th Cir. 1973).
[13] The Direction for
Review was issued by Commissioner Cleary on June 14, 1974. Its full text
follows:
Pursuant to section 12(j) of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.), item 2 of
the Petition for Discretionary Review filed by the Secretary of Labor is
granted. The issues raised by that section of the Petition, a copy of which is
attached, are whether the Administrative Law Judge had authority to consider
the validity of the standard and whether the standard and the ANSI standard
from which it was adopted were properly construed.
Review is also directed on the issue of
whether the fact finding procedure followed by the Administrative Law Judge was
within his authority.
Item 2 of the Secretary’s Petition took exception to the Judge’s disposition of the § 1910.213(h)(1) charge. Item 1 of that Petition—on which review was not directed—takes exception to the Judge’s disposition of the § 654(a)(1) charge. The reference in the Direction for Review to the “fact finding procedure followed by the Administrative Law Judge,” although not otherwise identified, was apparently directed to the supplemental hearing of June 27, 1973, discussed in footnote 3, supra, and accompanying text. No part of that hearing concerned the § 654(a)(1) charge.
[14] Wording of the
decision from this point will probably be identical to that covering the same
questions in the decisions of the other cases. Footnotes will point out the
start and finish of the decisional language repeated in each case.
[15] This ends that
part of the decision which is the same as a number of others, as mentioned in
footnote 1.