“Docket No. 79-5363 SECRETARY Of LABOR,Complainant, v.MARMON GROUP, INC., d\/b\/a DARLING STORE FIXTURES INC., Respondent.OSHRC Docket No. 79-5363DECISION 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 issue on review is whether former Commission Judge John S. Patton erredin concluding that Marmon Group’s failure to comply with a machine guarding standard wasnot a willful violation of the Act.\u00a0 For the following reasons, we affirm the judge’sdecision.[[1]]Marmon Group has a workplace in Corning, Arkansas, where it manufacturesstore fixtures.\u00a0 Numerous mechanical power presses are operated at this workplace,including one identified as press no. 5094, which is used to form brackets.\u00a0 Thepoint of operation on the machine is the area between the ram and the bed.\u00a0 The pressoperator places the workpiece manually into the point of operation, activates the ram bystepping on the foot treadle or by simultaneously pressing two \”palm buttons,\”and then manually removes the formed bracket.The Secretary’s machine guarding standards at 29 C.F.R. ? 1910.217(c)(1)(i)require employers \”to provide and insure the usage of ‘point of operation guards’ orproperly applied and adjusted point of operation devices on every operation performed on amechanical power press.\”\u00a0 At various times, Marmon Group used a barrier guard,\”two-hand controls\” (i.e., the dual palm buttons), and a \”pull-outdevice\” on press no. 5094.[[2]]\u00a0 Any one of these three precautionary measuresis an acceptable and equivalent method of guarding under the standards.\u00a0 However,when an employer relies on a pull-out device as the means of protecting the operator, itmust comply with the following requirement of section 1910.217(c)(3)(iv)(d):Each pull-out device in use shall be visually inspected and checked forproper adjustment at the start of each operator shift, following a new die set-up, andwhen operators are changed.\u00a0 The citation is based on an allegation of failure tocomply consistently with this requirement.In July 1978, press operator Suzanne Maynard was injured on press no. 5094when three fingers were crushed.\u00a0 At that time the method of guarding provided byMarmon Group was a pull-out device with detachable hand straps.\u00a0 Marmon Group’sinvestigation of the accident disclosed that the pull-out device had been functioningproperly and was properly adjusted, but that the likely cause of the accident was theoperator’s failure, upon returning to her work station, to reconnect the hand strap on herleft hand to the pull rope before resuming operation of the press.In February and March 1979, OSHA conducted a workplace inspection.\u00a0 Atthe time of the inspection, Marmon Group was using a barrier guard on press no. 5094rather than the pull-out device.\u00a0 However, the compliance officer determined that thebarrier guard was improperly adjusted because it did not prevent entry into the point ofoperation.\u00a0 The Secretary included this violation in a citation alleging variousviolations of the machine guarding standards.\u00a0 None of the citation items involvedpull-out devices.In April 1979, OSHA conducted a second inspection of the workplace. \u00a0This included an investigation of Marmon Group’s policies and practices concerning the useof pull-out devices.\u00a0 The employer’s representatives explained to the complianceofficer that the devices were checked for proper adjustment whenever the dies were changedon the press, at the beginning of each shift, and whenever there was a change inoperators.\u00a0 The adjustment check consisted of bringing the ram down into the closedposition, placing the operator into the pull-out device, calculating the distance from theends of the operator’s extended fingers to the point of operation, and adjusting thestraps if necessary so that the hands could not be within the point of operation as thedies closed.\u00a0 The compliance officer informed Marmon Group that the procedures werein compliance with the mechanical power press standards.Marmon Group assigned to its assistant foremen or \”set-up men\” theresponsibility for complying with these inspection procedures and trained them to carryout this responsibility.\u00a0 In addition, Marmon Group attached an inspection check-offsheet to every press that used a pull-out device.\u00a0 At the top of these sheets, MarmonGroup set forth a statement of its policy, which accurately paraphrased the standard’srequirements.\u00a0 The assistant foremen were instructed to record on these check-offsheets each of the required inspections when they occurred and the assistant forementhereafter entered notations on the sheets indicating that these instructions had beenfollowed.\u00a0 There is no evidence that any member of management was aware of anyincident in which an assistant foreman failed to conduct a required inspection of apull-out device or falsely recorded an inspection that had not occurred.In June 1979, two months after Marmon Group’s most recent OSHA inspection,another press operator, Crystal Sutton, was injured when two fingers on her left hand werecrushed in the point of operation on press no. 5094.\u00a0 Marmon Group’s investigation ofthis accident indicated that the operator was using the pull out device, that it wasfunctioning properly, and that it was adequately adjusted to keep the operator’s hands outof the area where the upper die contacts the stationary lower die.\u00a0 Afterconsiderable experimentation in an effort to determine how the operator could possiblyhave been injured under these circumstances, Marmon Group concluded that a new \”pinchpoint\” was created when the workpiece was improperly placed in the point of operationin a particular tilted manner.\u00a0 This new pinch point was three inches higher than thenormal pinch point.\u00a0 Prior to this investigation, no one was aware that it was evenpossible for the workpiece to be positioned improperly in the point of operation.As a result of this accident, OSHA again inspected the workplace and issued acitation which alleged that Marmon Group failed to properly adjust the pull out device onpress no. 5094 on the date of Crystal Sutton’s injury.[[3]]\u00a0 At the hearing,assistant foreman Rodney Smith testified that he had consistently complied with hisemployer’s policy by checking the adjustment of pull-out devices whenever a new operatorwas assigned to a press, that this check consisted of a determination that the device wasproperly fitted to the particular operator, and that the check always occurred beforepress operations began.\u00a0 However, four press operators under Smith’s supervisiontestified that, prior to Crystal Sutton’s accident, Smith had never checked to see whetherthe pull-out devices they were wearing were properly adjusted.\u00a0 Press operator Suttondirectly contradicted Smith’s testimony that he had determined on the morning of herinjury that the pull-out device on press no. 5094 was properly adjusted to fit her.In his decision, Judge Patton noted the conflicts in the record and resolvedthem by crediting the testimony of the press operators. Thus, he sustained the specificallegation that the pull-out device on press no. 5094 had not been properly adjusted foruse by press operator Sutton on the day of her injury.\u00a0 Judge Patton further foundthat, although Marmon Group’s policy was to have the pull- out devices checked beforeoperation of the presses, the employer did not adequately enforce its policy.\u00a0 Basedon this finding, he concluded that Marmon Group had committed a serious but not a willfulviolation of the Act.On review, the Secretary argues that the judge erred in vacating the willfulcharge.\u00a0 He asserts that \”Respondent’s long and consistent record ofdisregarding the standard at issue not only establishes a pattern and practice of totaldisregard for employee safety, it establishes an obvious, conscious, intentional andvoluntary decision to ignore safety regulations to the detriment of its workers.\”\u00a0 Having reviewed the record in this case, we affirm the judge’s conclusion that theviolation was not willful.To establish that a violation was willful, the Secretary must prove that itwas committed with an intentional disregard of or a plain indifference to the requirementsof the Act.\u00a0 It is not enough for the Secretary simply to show a lack of diligence orcarelessness in failing to discover or eliminate a violation.\u00a0 On the contrary, wherethe record establishes that the employer has made a good faith effort to comply with astandard or to eliminate a hazard to its employees, a willful charge is not justified eventhough the employer’s efforts are not entirely effective or complete.\u00a0 Mobil OilCorp., 83 OSAHRC ___, 11 BNA OSHC 1700, 1983 CCH OSHD ? 26,699 (No. 79-4802, 1983),and cases cited; Mosites Constr. Co, 81 OSAHRC 40\/A2, 9 BNA OSHC 1808, 1812, 1981CCH OSHD ? 25,357 at p. 31,494 (No. 78-50, 1981) (\”[A]lthough Respondent could haveknown of the . . . violation] with the exercise of reasonable diligence, its lack ofdiligence is not characterized properly as willful.\”); Wright & Lopez, Inc..,80 OSAHRC 36\/A2, 8 BNA OSHC 1261, 1980 CCH OSHD ? 24,419 (No. 76-3743, 1980), petitionswithdrawn, Nos. 80-1569 & 80-1704 (D.C. Cir., July 23, 1981, and Sept. 17, 1980).\u00a0 Thus, for example, the Commission has declined to impute a foreman’s willfulviolation to his employer where the foreman’s behavior was contrary to a consistently andadequately enforced work rule. Chesapeake Operating Co., 82 OSAHRC 36\/C9, 10 BNAOSHC 1790, 1982 CCH OSHD ? 26,142 (No. 78-1353, 1982).Here, the record establishes that Marmon Group had a history of good faithefforts to comply with the mechanical power press standards and to protect its pressoperators from point of operation hazards.\u00a0 For example, Marmon Group replaced all ofits pull-out devices with safer devices following the injury to Suzanne Maynard eventhough its investigation concluded that Maynard would have been fully protected if she hadused the existing device, requested OSHA to evaluate its protective measures, and promptlyabated violations brought to its attention.\u00a0 Marmon Group also unambiguously requiredthe assistant foremen to check the pullouts as required and took measures to assure thatthe assistant foremen carried out their duties.\u00a0 The Secretary did not establish thatMarmon Group’s efforts to implement its policy were so defective as to constitute a plainindifference to or an intentional disregard of the standard’s requirements.\u00a0 Contraryto the Secretary’s argument, the July 1978 accident, the February-March and April 1979inspections, and the March 1979 citation did not place Marmon Group on notice, prior tothe injury to Crystal Sutton, that its safety program was defective.Accordingly, the judge’s decision is affirmed.FOR THE COMMISSION Ray H. Darling, Jr.Executive SecretaryDATED:\u00a0 JUL 19 1984ROWLAND, Chairman, concurring in part and dissenting in part:I join the majority in holding, for the reasons stated in the lead opinion,that Marmon Group’s failure to comply with 29 C.F.R. ? 1910.217(c) (1)(i) was not awillful violation of the Act.\u00a0 However, in my view, the majority fails to follow itsanalysis through to its logical conclusion, that is, that Marmon Group should not be heldresponsible for any violation of the Act.\u00a0 Accordingly, I dissent from the majority’sdecision to affirm a serious violation and assess a penalty of $1000.Under Commission precedent, whenever the Secretary alleges a violation of theAct, he must prove as part of his case-in-chief that the employer knew or with theexercise of reasonable diligence could have known of the violative condition.\u00a0 L.M.Sessler Excavating & Wrecking, Inc., 84 OSAHRC ___, 11 BNA OSHC 2007, 1984CCH OSHD ___ (No. 79-2168, 1984), citing Prestressed Systems, Inc., 81 OSAHRC43\/D5, 9 BNA OSHC 1864, 1869, 1981 CCH OSHD ? 25,358, p. 31,500 (No. 16147, 1981). \u00a0Here the Commission has correctly vacated the willfulness allegation based on the evidenceof Marmon Group’s extensive good faith efforts to comply with the machine guardingstandards.\u00a0 However, it is this same evidence that is critical in determining whetherMarmon Group could have known of the violation with the exercise of reasonablediligence.\u00a0 Nevertheless, the majority does not address the knowledge issue, notinginstead that Marmon Group did not object to the judge’s decision and review was limited tothe issues raised by the Secretary.I would not restrict the Commission to consideration of a singlenarrowly-drawn issue when that issue is intertwined with other issues in the case. \u00a0By focusing solely on the issue of willfulness, the Commission has artificially fragmentedMarmon Group’s contest of the citation and its own consideration of the controversy.\u00a0See Dun-Par Engineered Form Co., 84 OSAHRC ___, 11 BNA OSHC 1912, 1984 CCHOSHD ? 26,883 (No. 79-2553, 1984) (Rowland, Chairman, dissenting).Moreover, unlike the Federal Rules of Appellate Procedure, see Rule4(a)(3), the Commission’s Rules of Procedure do not provide a procedure whereby a partycan petition for review if the other party has filed a petition and obtained review.\u00a0 For this reason, the nonpetitioning party may be denied the opportunity to requestexamination by the Commission of issues decided adversely to it that it wishes to haveconsidered only if the case is otherwise directed for review.\u00a0 In my view theCommission Rules should provide for a cross appeals procedure.\u00a0 Until such time asthis is done, I would not preclude review of issues that are closely related to the issueson which review has been directed.[[1]]Turning to the knowledge issue, I first note that the noncompliance shown onthis record is the misconduct of a single assistant foreman who apparently not onlyknowingly failed to conduct adjustment checks that were required by his employer but alsosuccessfully concealed his omissions by falsely recording that the checks had beenconducted.\u00a0 As stated in the lead opinion, there is no evidence that any member ofmanagement had actual knowledge of the assistant foreman’s actions or omissions. \u00a0Moreover, as found by the majority, none of the events preceding Crystal Sutton’s injuryplaced Marmon Group on notice of any defect in its safety program.\u00a0 With respect tothe inspection of pull-out devices, Marmon Group’s safety program was exemplary.\u00a0Marmon Group had adopted an unambiguous policy that fully implemented the requirements ofthe Secretary’s inspection standard, clearly communicated its policy to the assistantforemen who were responsible for carrying it out, trained these employees in the specificinspection procedures, provided check-off sheets on the presses as a means of determiningwhether its instructions were being followed and as a reminder to the assistant foremen oftheir responsibilities, and provided walkaround tours by a management-level supervisor todetermine whether the pull-out devices were operating effectively.\u00a0 On this record, Iconclude that Marmon Group had in fact exercised reasonable diligence and therefore couldnot have known of the violation.\u00a0 I would vacate the citation for that reason.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]] The judge found that the violation was serious but not willful, andassessed a penalty of $1000.\u00a0 The Secretary petitioned for review on the willfulnessissue; Marmon Group, the party aggrieved by the judge’s affirmance of the citation, didnot petition for review of the judge’s decision.\u00a0 Neither party disputes the judge’sdetermination that $1000 is an appropriate penalty if the violation is not found to bewillful.\u00a0 Review was directed on the issues raised by the Secretary.\u00a0 SinceMarmon Group has not objected to the judge’s decision, we reach only the issue of whetherthe violation was willful.[[2]] As defined at ? 1910.217(c)(3)(iv), a pull-out device is attached atone end to the movable ram and at the other to the operator’s hands.\u00a0 It must beadjusted to restrain the operator from reaching into the point of operation while the diesare closing or forcibly withdraw the operator’s hands if the operator fails to remove thembefore stepping on the foot treadle and activating the press.[[3]] The compliance officer noted, however, that the alleged violation had already beenabated by the time of his inspection.\u00a0 Thus, the press operator was not only wearinga properly adjusted pull-out device but also using the two-hand controls.\u00a0 Afollow-up inspection in September 1979 confirmed that the violation had been abated andthat the employer was in compliance with the machine-guarding standards.[[1]] In view of the Commission practice of limiting the scope of review to the issues onwhich review has been directed, I attach no significance to Marmon Group’s failure toraise the knowledge issue in its brief to the Commission.\u00a0 It is not surprising thatthe employer strictly limited its brief to the issue stated in the direction for review.”