“Docket No. 79-1686 SECRETARY OF LABOR, Complainant, v.HAMILTON DIE CAST, INC., Respondent. INTERNATIONAL MOLDERS andALLIED WORKERS UNION,Authorized Employee Representative.OSHRC DOCKET NO. 79-1686DECISION Before:\u00a0 ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners. BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration.\u00a0 It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor under the Act and has no regulatoryfunctions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).The case involves the Secretary of Labor’s (\”Secretary\”) allegationthat Hamilton Die Cast (\”HDC\”) committed a repeated violation of the standard at29 C.F.R. ? 1910.212(a)(1).[[1]]\u00a0 The Secretary contends on review that HDC violatedthe standard by failing to use a shield as a barrier on an operating die casting machine.\u00a0The shield was allegedly needed to protect the machine’s operator and otheremployees from the hazards created by hot metal that was occasionally ejected from thedies of the machine.\u00a0 The administrative law judge found that the standard wasviolated, characterized the violation as a repeated violation, and assessed a $150penalty.\u00a0 We reverse the judge’s decision.HDC is a corporation engaged in the production and sale of aluminum diecastings from its plant in Hamilton, Ohio.\u00a0 The company manufactures a variety ofdifferent castings from fifteen cold chamber die casting machines.\u00a0 A machineoperator obtains molten aluminum from a furnace close to his machine and pours thealuminum into a small hole in the machine called a \”shot hole.\”\u00a0 Theoperator next activates the dies of his machine by pushing two palm buttons located abouttwo or three feet from the dies.\u00a0 When the dies come together the aluminum is forcedinto the die cavities and a product is formed.\u00a0 The dies are then opened and theproduct is removed.Occasionally, when the dies are brought together, the pressure which forcesthe molten aluminum into the cavities of the dies causes some of the molten aluminum to beexpelled from the line where the dies meet (the \”parting line\”).\u00a0 Thealuminum, which has been heated to 1140 ?F., is expelled as a fine mist(\”spit\”) that may travel an indefinite distance in all directions and possiblyburn employees within its range.On January 25 and 26, 1979, the Secretary inspected HDC’s plant andsubsequently issued a citation for repeated violations of the Act.\u00a0 Item 2 of thiscitation alleged as follows:29 CFR 1910.212(a)(1):\u00a0 Machine guarding was not provided to protectoperator(s) and other employees from hazard(s) created by flying hot metal:(b) The shield at the operator’s side of the #2 die casting machine was notbeing used while it was in operation.This item also included another subpart that the judge vacated and is notbefore us for review.The Secretary had previously inspected HDC’s die casting machines in 1977 andhad issued a citation also alleging HDC’s violation of section 1910.212(a) (1) for failureto have shields in place to protect employees from the ejection of hot metal. \u00a0Subsequent to the receipt of the 1977 citation, HDC’s president, Woltering, met with fourOSHA officials:\u00a0 Connors, the acting area director; and Paull, Collins, and Ellwood,the compliance officers who had conducted the inspection.\u00a0 Woltering discussed withthem the problems of installing operator-side shields on HDC’s die cast machines andagreed to install interlocking side shields on all the machines, not just those specifiedin the citation, if OSHA agreed to allow him sufficient installation time.\u00a0 He alsoexplained, however, that during core pulls, where a piece of metal is suspended within thecavities of a die to make a portion of the casting come out hollow, the core pullmechanism extends as much as five or six feet out from the side surface of a die andtherefore extends beyond the point where a spit guard door shield would be.\u00a0 Woltering stated: In the meeting that we had I pointed out to those people present in themeeting that there would be dies that would have core pull mechanisms on them that wouldextend beyond the reasonable travel area or extension area of a spit guard door.\u00a0 AndI asked them if, in fact, they wanted us to refuse any additional business of that typeand surrender the business of that type we had.\u00a0 They said, no, on those occasions,of course, reason would dictate that you simply disconnect the mechanism of the door, theinterlocking mechanism while that die is being run.As many as eighty percent of HDC’s castings involve core pulls.\u00a0 Corepulls are performed on all HDC die cast machines.After the meeting, the 1977 citation was amended to include additionalmachines.\u00a0 HDC did not contest the amended citation and subsequently installed sideshields on its die cast machines which extended about two feet beyond the parting lines ofthe dies on the machines.\u00a0 The side shield on its number two machine, however, wasnot being used when the 1979 OSHA inspection wasconducted because the machine was performing a core pull.\u00a0 HDC president Wolteringtestified that the door shield for machine number two was open during the core pullbecause OSHA had agreed that HDC could leave its door shields open during core pulls atthe meeting concerning HDC’s 1977 OSHA citation.HDC contested the Secretary’s 1979 citation and a hearing was held before anadministrative law judge of the Commission.\u00a0 The judge found that HDC violated ?1910.212(a)(1) by failing to guard the operator’s side of machine number two.\u00a0 Heclassified the violation as repeated based on the 1977 citation.\u00a0 The judge did notmake any factual findings as to whether OSHA officials had agreed that HDC could dispensewith the need to use side shields during core pulls.HDC petitioned for review of the judge’s decision and review was directed on, interalia, whether the application of section 1910.212(a)(1) to the cited conditionsviolated constitutional due process notice requirements.\u00a0 For the reasons thatfollow, we conclude that due process requires that the citation for violation of section1910.212(a)(1) be vacated.\u00a0 We, therefore, do not reach the other issues directed forreview.A fundamental principle of due process is that one charged with violating astatute or regulation is entitled to adequate notice of what is required by that statuteor regulation.\u00a0 HDC contends it did not have such notice because the generality ofthe language in the standard, \”combined with the assertions made by OSHA agents tothe president of the company that the use of the operator’s safety door was not requiredwhen a die with an extending core pull was being run,\” led HDC to believe that it wasunnecessary to use spit shields during core pulls.\u00a0 The Secretary contends that HDCwas on notice from the prior citation itself of a need to provide guards to protectagainst hot metal.\u00a0 The Secretary further disputes that his agents made therepresentation described by Woltering. The Secretary points out that the judge did notaddress Woltering’s testimony and asks that we construe the judge’s silence as an implicitcredibility determination which should not be disturbed.As HDC contends, section 1910.212(a)(1) is a broad standard generallyapplicable to the hazards presented by the moving parts of all types of industrialmachinery unless a more specific machine guarding standard applies.\u00a0 Ladish Co.,10 BNA OSHC 1235, 1982 CCH OSHD ? 25,820 (No. 78-1384, 1981).\u00a0 See Diebold,Inc. v. Marshall, 585 F.2d 1327, 1333 (6th Cir. 1978).\u00a0 It has been recognized bythe Commission as a performance standard, and as such the standard requires that theemployer exercise a certain degree of judgment in evaluating whether its machinery is incompliance with the standard and what types of guarding methods would be appropriate toachieve compliance.\u00a0 Stacey Manufacturing Co., 82 OSAHRC 14\/B1, 10 BNA OSHC1534, 1982 CCH OSHD ? 25,965 (No. 76-1656, 1982); George C. Christopher & Son, Inc.,82 OSAHRC 9\/A2, 10 BNA OSHC 1436, 1982 CCH OSHD ? 25,956 (No. 76-647, 1982).In this case, in an attempt to obtain guidance from the Secretary inascertaining its obligations under the standard, HDC inquired of the Secretary’srepresentatives whether guarding was required during the performance of one specific workoperation, the core pull. In response HDC was informed that side shields would not have tobe in place at these times.[[2]]\u00a0 Despite this representation, the Secretarysubsequently issued the citation now before us, alleging a violation of the standard forfailure to use a shield during a core pull operation.We conclude that to affirm this citation and find HDC in violation as allegedby the Secretary would be contrary to the fundamental principle of due process thatstatutes and regulations which purport to govern conduct must give an adequate warning ofwhat they command or proscribe.\u00a0 Diebold, supra, 585 F.2d at 1335.\u00a0\u00a0 In considering a similar situation in which compliance officers maderepresentations to an employer regarding the measures necessary to achieve compliance witha standard, the D.C. Circuit noted that such representations or interpretations of astandard by compliance officers are relevant in a particular case to whether an employerhas adequate notice of what is required under the Act.\u00a0 L. R. Willson & Sons,Inc. v. Donovan, 685 F.2d 664, 676 (D.C. Cir. 1982).\u00a0 In view of the generalnature of the cited standard and the lack of any express language specifically addressingdie casting machines, HDC cannot reasonably be said to have been on notice of arequirement to guard during core pull operations once the Secretary had informed HDC thatguarding was not needed at such times.\u00a0 See Auto Sun Products, 81OSAHRC 71\/E14, 9 BNA OSHC 2008, 1981 CCH OSHD ? 25,808 (No. 77-2616, 1981), petitionfor review dismissed, No. 81-3503 (6th Cir. Jan. 6, 1982); cf. Kent NowlinConstruction Co. v. OSHRC, 593 F.2d 368, 371 (10th Cir. 1979) (employer \”shouldnot be penalized for deviation from a standard the interpretation of which . . . cannot beagreed upon by those who are responsible for compelling compliance with it\”).Accordingly, we find that HDC has not violated 29 C.F.R. ? 1910.212(a)(1),and we vacate the citation item in issue.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:\u00a0 JUL 20 1984 CLEARY, Commissioner, dissenting:I dissent from the majority’s decision to vacate the citation in this case.\u00a0Essentially, the majority has made a factual determination, based on the testimonyof a single witness, that has determined the outcome of the case.\u00a0 The majority findsHDC has not violated cited section 1910.212(a)(1) after determining that HDC presidentWoltering, according to his testimony, was told by an OSHA official that the interlockingmechanism on the spit shield doors of HDC’s die cast machines could be disconnected duringcore pulls.\u00a0 The administrative law judge who heard this case and who observedWoltering while the latter was testifying had the opportunity to make the same factualdetermination as the majority does, but did not do so.My reading of the record does not allow me to conclude that OSHA granted HDCan exemption from the standard’s requirement. Only one very brief reference to the OSHAstatement authorizing the disconnecting of interlocks is found in the record, and that inWoltering’s testimony.\u00a0 Woltering testified that the authorizing statement had beenmade at a meeting he had attended with OSHA officials in 1977 following issuance of acitation against HDC for violation of the same standard as is involved in this case.However, Paull, an OSHA industrial hygienist who had been present at that meeting,testified at the hearing in this case and failed to confirm Woltering’s testimony on thepoint.\u00a0 Woltering himself failed to specify in his testimony which particular OSHAofficial made the authorizing statement.\u00a0 Further, Paull, who also was involved inthe inspection in this case, is unlikely to have recommended that HDC be cited for notusing side shields during core pulls if HDC had been authorized at the 1977 meeting todispense with the use of side shields during core pulls.I also believe it unlikely that OSHA would have granted the dispensation it is said tohave granted and yet not put it in writing.\u00a0 As the Sixth Circuit court of appealsheld in Empire-Detroit Steel Div., Detroit Steel Corp. v. OSHRC, 579 F.2d 378, 383(6th Cir. 1978):\”[M]en must turn square corners when they deal with theGovernment.\”\u00a0 We are cited to no statute, regulation or other authority thatwould authorize an attorney for the Secretary of Labor to enter into a binding compromiseby means of a telephone conversation, without formalizing the compromise by a writtenagreement.Up to eighty percent of HDC’s castings involved core pulls.\u00a0 I cannotconclude from this record that OSHA waived the protection afforded employees by side spitshields for such a substantial portion of HDC’s workload without recording the waiver.Moreover, in the two year period between the time when HDC was last cited fora violation of the standard and the inspection in this case, HDC had abundantopportunities to observe its employees’ exposure to parting line spit while side shieldswere open during core pulls.\u00a0 HDC’s expert, Harvill, testified that spitting is\”very common\” in the die cast industry and that there is a \”strong need toprotect\” die cast machine operators from spit.\u00a0 Compliance officer Zuccherotestified that a machine operator could be protected during core pulls simply by\”extending the side shield a little further away from the machine.\” \u00a0Zucchero’s testimony on the matter was not disputed by HDC and HDC’s Exhibit D indicatesthat HDC had been able to design guards to accommodate core pulls. \u00a0Therefore, I amconcerned that there was a continuing hazard here of which HDC was aware, and which HDCcould have abated.Consequently, I would find that HDC violated the cited standard.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation Office by e-mail ( [email protected]), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).FOOTNOTES: [[1]] Section 1910.212(a)(1) provides:? 1910.212 General requirements for all machines.(a) Machine guarding–(1) Types of guarding.\u00a0 One or more methods ofmachine guarding shall be provided to protect the operator and other employees in themachine area from hazards such as those created by point of operation, ingoing nip points,rotating parts, flying chips and sparks.\u00a0 Examples of guarding methods are–barrierguards, two-hand tripping devices, electronic safety devices, etc. [[2]] We agree with HDC that Woltering’s testimony establishes that the OSHAofficials represented to Woltering that the interlocks on HDC’s sliding spit shields couldbe disconnected during certain core pulls.\u00a0 Although the administrative law judgefailed to specifically resolve this point, we see no basis for taking his silence on thematter as an implicit credibility finding against HDC. Instead, we note that Woltering’saccount of the discussion at the informal meeting between himself and OSHA officialsConnors, Paull, Collins, and Ellwood was not refuted by the testimony of any of the otherparticipants at the meeting, even though Paull gave rebuttal testimony in this case andConnors was available to testify in the case but did not.”