“Docket No. 77-3543 1 of 202 DOCUMENTS TURNER COMPANY A. SCHONBEK & CO., INC.? NORANDA ALUMINUM, INC.? GENERAL MOTORS CORP., GM ASSEMBLY DIV.? ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.? CLEMENT FOOD COMPANY MILLCON CORPORATION FWA DRILLING COMPANY, INC.? CCI, INC.? GENERAL ELECTRIC COMPANY CONSOLIDATED ALUMINUM CORPORATION THE BRONZE CRAFT CORPORATION CARGILL, INC.? CHAPMAN CONSTRUCTION CO., INC.? GALLO MECHANICAL CONTRACTORS, INC.? SPECIAL METALS CORPORATION WILLAMETTE IRON AND STEEL COMPANY NASHUA CORPORATION WESTINGHOUSE ELECTRIC CORPORATION RESEARCH-COTTRELL, INC.? ROCKWELL INTERNATIONAL CORPORATION NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.? NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.? BUNKOFF CONSTRUCTION CO., INC.? GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION HARRIS BROTHERS ROOFING CO.? GENERAL DIVERS COMPANY ORMET CORPORATION R. ZOPPO CO., INC.? COEUR D’ALENE TRIBAL FARM L. A. DREYFUS COMPANY CMH COMPANY, INC.? BENTON FOUNDRY, INC.? MICHAEL CONSTRUCTION CO., INC.? WHIRLPOOL CORPORATION BROWN & ROOT, POWER PLANT DIVISION MARION POWER SHOVEL CO., INC.? ERSKINE-FRASER CO.? MORRISON-KNUDSEN AND ASSOCIATES THE BOAM COMPANY DIC-UNDERHILL, a Joint Venture C. R. BURNETT AND SONS, INC.; HARLLEE FARMS STRIPE-A-ZONE, INC.? FORTE BROTHERS, INC.? RAYBESTOS FRICTION MATERIALS COMPANY TEXLAND DRILLING CORPORATION THE ANACONDA COMPANY, WIRE AND CABLE DIVISION SAM HALL & SONS, INC.? VAMPCO METAL PRODUCTS, INC.? LEONE INDUSTRIES, INC.? ASARCO, INC.? DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY PLUM CREEK LUMBER COMPANY PLUM CREEK LUMBER COMPANY STEARNS-ROGER, INC.? FERRO CORPORATION, (ELECTRO DIVISION) AMERICAN PACKAGE COMPANY, INC.? BROWN & ROOT, INC., POWER PLANT DIVISION FLEETWOOD HOMES OF TEXAS, INC.? DONALD HARRIS, INC.? A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.? ELECTRICAL CONSTRUCTORS OF AMERICA, INC.? DAYTON TIRE & RUBBER COMPANY (Division of the Firestone Tire & Rubber Company) ASARCO, INC., EL PASO DIVISION; HUGHES TOOL COMPANY NAVAJO FOREST PRODUCTS INDUSTRIES METROPAK CONTAINERS CORPORATION AUSTIN BUILDING COMPANY BABCOCK AND WILCOX COMPANY DARRAGH COMPANY BABCOCK & WILCOX COMPANY OTIS ELEVATOR COMPANY R. ZOPPO COMPANY, INC.? LUTZ, DAILY & BRAIN – CONSULTING ENGINEERS PENNSYLVANIA POWER & LIGHT CO.? HARSCO CORPORATION, d\/b\/a PLANT CITY STEEL COMPANY NORTHWEST AIRLINES, INC.? INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.? GENERAL MOTORS CORPORATION, INLAND DIVISION WELDSHIP CORPORATION S & S DIVING COMPANY SNIDER INDUSTRIES, INC.? NATIONAL STEEL AND SHIPBUILDING COMPANY MAXWELL WIREBOUND BOX CO., INC.? CONTINENTAL GRAIN COMPANY MISSOURI FARMER’S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE; MFA, INC., d\/b\/a MFA GRAIN DIVISION; DESERT GOLD FEED COMPANY CAPITAL CITY EXCAVATING CO., INC.? GAF CORPORATION PPG INDUSTRIES (CARIBE) a Corporation DRUTH PACKAGING CORPORATION SOUTHWESTERN ELECTRIC POWER COMPANY TUNNEL ELECTRIC CONSTRUCTION CO.? WEATHERBY ENGINEERING COMPANY JOHNSON STEEL & WIRE CO., INC.? AUSTIN ROAD CO.? MAYHEW STEEL PRODUCTS, INC.? LADISH CO., TRI-CLOVER DIVISION, a Corporation PULLMAN POWER PRODUCTS, INC.? NATIONAL ROOFING CORPORATION OSCO INDUSTRIES, INC.? HIGHWAY MOTOR COMPANY, d\/b\/a PARK PRICE MOTOR COMPANY S.J. GROVES AND SONS COMPANY CAR AND TRUCK DOCTOR, INC.? PRESTRESSED SYSTEMS, INC.? TEXACO, INC.? GEORGIA HIGHWAY EXPRESS, INC.? RED LOBSTER INNS OF AMERICA, INC.? SUNRISE PLASTERING CORP.? STONE & WEBSTER ENGINEERING CORPORATION H.B. ZACHRY COMPANY (INTERNATIONAL) NATIONAL INDUSTRIAL CONSTRUCTORS, INC.? BUSHWICK COMMISSION COMPANY, INC.? CIRCLE T DRILLING CO., INC.? J.L. FOTI CONSTRUCTION COMPANY, INC.? TEXACO, INC.? KENNETH P. THOMPSON CO., INC.? HENRY C. BECK COMPANY HEATH & STICH, INC.? FARMERS EXPORT COMPANY FOSTER AND KLEISER TURNER WELDING & ERECTION CO., INC.? TRI-CITY CONSTRUCTION CO.? THE DURIRON COMPANY, INC.? SAMSON PAPER BAG CO., INC.? MEL JARVIS CONSTRUCTION COMPANY, Inc.? MIDWEST STEEL ERECTION, INC.? GEISLER GANZ CORPORATION OSHRC Docket No. 77-3543 Occupational Safety and Health Review Commission June 6, 1980 ?[*1]? Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.? COUNSEL: Baruch A. Fellner, Office of the Solicitor, USDOL Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor Daniel M. Ganz, President, Geisler Ganz Corporation, for the employer OPINION: DECISION BY THE COMMISSION: A decision of Administrative Law Judge Jerome C. Ditore is before the Commission for review pursuant to section 12(j), 29 U.S.C. ?? 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. ? ?? 651-678 (\”the Act\”).? In his decision, Judge Ditore vacated a citation alleging a serious violation of the Act in that the Respondent, Geisler Ganz Corporation, failed to comply with the standard at 29 C.F.R. ?? 1910.217(c)(1)(i), which requires employers to provide and insure the use of point of operation guards or point of operation devices on mechanical power presses.? The judge concluded that the Secretary of Labor (\”the Secretary\”) has the burden of proving the feasibility and utility of a particular method of guarding as a part of his prima facie showing that an employer has failed to comply with the cited standard.? The judge further concluded that in the case before us the Secretary failed to meet [*2]? this burden.? Accordingly, Judge Ditore vacated the citation on the grounds stated. The Secretary thereafter petitioned the Commission for review of Judge Ditore’s decision and that petition was granted by Chairman Cleary.? In particular, the Chairman directed review on the following issue: Whether the Administrative Law Judge erred in placing upon the Secretary the burden of proving the existence of a feasible means of guarding a point of operation on a power press to support a citation that alleges noncompliance with the standard at 29 C.F.R. ?? 1910.217(c)(1)(i). Subsequent to the issuance of this direction for review and the filing of the parties’ responses to the direction for review, the Commission issued its decision in F.H. Lawson Co., 80 OSAHRC \u00a0\u00a0\u00a0, 8 BNA OSHC 1063, 1980 CCH OSHD P24,277 (No. 12883, 1980).? In that decision, both the Commission majority and the dissenting member (Commissioner Barnako) affirmed the administrative law judge’s conclusion \”that the Secretary makes out a prima facie case of noncompliance with respect to 29 C.F.R. ?? 1910.217(c)(1)(i) by showing that the point of operation on a press is not guarded.\” 8 BNA OSHC at 1066, 1980 CCH OSHD at p.? [*3]? 29,574. See also, 8 BNA OSHC at 1069, 1980 CCH OSHD at p. 29,575-5. The Commission also clearly indicated that, once the Secretary has established his prima facie case, the burden is on the cited employer to establish an affirmative defense such as impossibility of compliance or performance. The Commission’s decision in F.H. Lawson Co. is dispositive of the principal issue on review in the case now before us.? It requires us to reverse Judge Ditore’s decision and to remand the case for reconsideration in light of the Commission’s precedent on the respective burdens of proof of the parties. Accordingly, the case is remanded to Judge Ditore.? The judge should issue a decision and order disposing of the citation alleging noncompliance with 29 C.F.R. ?? 1910.217(c)(1)(i), including any affirmative defenses raised directly or indirectly by the Respondent’s assertions concerning the \”feasibility\” of guarding its mechanical power presses.? SO ORDERED.? “