Quality Stamping Products v. Occupational Safety and Health Review Com'n

• Citation: 709 F.2d 1093
• Decision Date: 17 June 1983
• Docket Number: No. 81-3566,81-3566
• Parties: 11 O.S.H. Cas.(BNA) 1550, 1983 O.S.H.D. (CCH) P 26,590 QUALITY STAMPING PRODUCTS, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; Secretary of Labor; United States Department of Labor, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1093

709 F.2d 1093

11 O.S.H. Cas.(BNA) 1550, 1983 O.S.H.D. (CCH)

P 26,590

QUALITY STAMPING PRODUCTS, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; Secretary of Labor; United States Department of Labor, Respondents.

No. 81-3566.

United States Court of Appeals Sixth Circuit.

Argued March 28, 1983.

Decided June 17, 1983.

Douglas B.M. Ehlke (argued) Douglas B.M. Ehlke & Associates, Federal Way, Wash., for petitioner.

Ray Darling, Secretary, O.S.H.R.C., Paul A. Lafranchise, Sr., Allen H. Feldman, Laura V. Fargas/Domenique Kirchner (argued), Office of the Sol., U.S. Dept. of Labor, Washington, D.C., for respondents.

Before JONES and WELLFORD, Circuit Judges, and PORTER, Senior District Judge. ^*

PER CURIAM.

The Occupational Safety and Health Review Commission (OSHRC) cited petitioner, Quality Stamping Products (Quality), for three ¹ violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. Sec. 651 et seq., and the standards promulgated thereunder. Quality maintained a metal stamping The second citation did not charge a "serious violation" under Section 17(k), but it charged two separate violations, one under 29 C.F.R. Sec. 1910.217(b)(8)(i), ⁴ and the other under 29 C.F.R. Sec. 1910.217(g). ⁵ These violations were rather deemed by the Secretary of Labor to be non-serious under 17(c) of the Act. 29 U.S.C. Sec. 666(c). The first citation called for immediate remedy of the violation and a penalty of $630.00. The second for rectification within a specified period.

                shop in Cleveland, Ohio, and employed approximately 40 employees when the alleged violations occurred in the spring of 1980.  The citations occurred after an inspection of Quality's operation by representatives of the Department of Labor.  Both citations involved section 5(a)(2) of the Act and standards issued in respect to the Act. 2   In Citation One the Secretary of Labor charged that Quality's failure to use point of operation guards on a metal stamping press was a "serious violation" within the meaning of Section 17(k) of the Act in that "there was substantial probability that death or serious physical harm could result" as a consequence thereof, and that Quality "knew, or with exercise of reasonable diligence could have known of the presence of the violation." 3
                

The issue in this appeal is whether there was substantial evidence to support the OSHRC finding that Quality committed the violations charged by (1) failing to safeguard the point of operation on a particular mechanical power press, (2) failing to provide a lockout capability on the press, and (3) failing to report accidents resulting from use of power presses to OSHA.

We will consider the charges in reverse order since we deem Citation Two issues to be comparatively clear cut.

CITATION TWO

(CHARGE ONE)

The specifics of charge one are:

Power press control system[s] on mechanical power press[es] were not provided with main power disconnect switch[es] capable of being locked only in the off position:

M-60 Niagara Press # Q1, press room.

The Secretary contends that the standard or regulation, 29 C.F.R. Sec. 1910.217(b)(8)(i), means what it says--that there must be a power disconnect switch capable of being locked in the "off" position. Quality, on the other hand, maintains that the electric cord plug furnishing power to the press in question could easily be unplugged or disconnected from the main power source, and that this should be sufficient. There is no real dispute that there was no "lock out" capability in the particular press by means of a "main power disconnect switch," which could be "locked" in an "off" position. Rather, Quality complains that there is no definition of "disconnect" in the standard; that it requires a useless capability, and is therefore unfair, illogical, arbitrary and illegal.

Petitioner cites H & H Tire Co. v. U.S. Department of Transportation, 471 F.2d 350 (7th Cir.1972) in support of its position. That case involved a standard imposed upon tire retreaders by the Department of Transportation which required that they meet the same safety test requirements for high speed and endurance as developed originally for new tires. The court found on the record developed in the case that this standard had a "considerable impact on the retreading industry," and was not "technologically and economically feasible." The court, therefore, could not "conclude from the record ... that the respondents adequately investigated the practicability" of the standard involved. Id. at 354-55. It should be noted that the H & H Tire suit was filed shortly after promulgation of the challenged standard, which affected a substantial segment of an entire industry, and indications were that the Department involved "failed to inquire adequately into certain important topics" before effectuating the standard through "informal rulemaking procedures." Id. at 355. Justice Stevens, then a member of that panel, concurred in the decision that the proposed standard had not been given proper consideration as " 'reasonable, practicable and appropriate' before (being) prescribed." Id. at 356. The same standard was similarly challenged in National Tire Dealers & Retread Ass'n v. Brinegar, 491 F.2d 31 (D.C.Cir.1974).

We do not believe these cases to be persuasive authority on the record involved in the case sub judice. Petitioner has made no record indicating that the standard in controversy, 29 C.F.R. Sec. 1910.217(b)(8)(i), is not technologically and economically feasible, nor that respondent has not adequately investigated the practicability of the standard. There is no evidence to which petitioner points to indicate that this regulation is not "reasonable, practicable and appropriate" to meet desirable safety standards for heavy machinery that can cause serious bodily harm to the operator or others at the point of operation exposure. Petitioner has failed to demonstrate that the standard is not rationally related to the statute, whose salutary purpose is to provide "so far as possible every working man and woman in the Nation safe and healthful working conditions.... 29 U.S.C. Sec. 651. "The purpose and intent of the Act is to protect the health of the workers." American Smelting Co. v. O.S.H.R.C., 501 F.2d 504, 511 (8th Cir.1974); See also Brennan v. Southern Contractors Service, 492 F.2d 498, 499 (5th Cir.1974). In light of the evident purpose of the Act, neither it, nor standards which on their face reasonably effectuate that purpose, should be narrowly interpreted nor should they be set aside as "useless" or "illogical" absent evidence to support that conclusion. We sustain the holding of respondent as to this citation on the record before us.

CITATION TWO

(CHARGE TWO)

We next consider the charge that Quality failed to report an accident or accidents to OSHA as required by 29 C.F.R. Sec. 1910.217(g). Again, there is no serious dispute that petitioner did in fact fail to report to OSHA a March 4, 1980, accident in which the fingers of power press operator, Melvin Mazza, were crushed and later amputated. A prior accident in the Quality shop on March 20, 1979, was also not reported. Quality contends that since it filed Workmen's Compensation reports with the State of Ohio, and since it maintained records of these accidents, which were voluntarily made available to the Labor Department investigators, the violation should be treated as de minimis, particularly since the Secretary admitted that it had previously treated other such matters as de minimis. Essentially, petitioner argues that the Ohio Workmen's Compensation agency is an approved OSHA data collection course, and filing an accident report with the state agency should be deemed compliance or substantial compliance with OSHA requirements. We agree with Commission Judge Sparks, however, that "under the facts of this case, a violation 'other than serious' classification, without penalty, is appropriate."

It was not demonstrated by petitioner that the Ohio Workmen's Compensation agency was administering a plan approved by the Department of Labor or OSHA. The respondent should be affirmed on both charges in Citation Two.

CITATION ONE

There is little dispute that the underlying basis for Citation One was a March 4, 1980, accident in which the fingers of employee Melvin Mazza were crushed during a die adjustment procedure on a Niagara M-60 press. ⁶ Throughout the hearing before the Commission Judge, Quality objected to introduction of evidence pertaining to this accident. Quality's position was that the accident occurred not during normal operation of the press but during a die adjustment or maintenance mode. Since 29 C.F.R. Sec. 1910.217(c)(1)(i), the regulation allegedly violated, only applies to normal power press operating modes and not to die adjustment or maintenance, Quality claimed the evidence was irrelevant. Quality also noted that respondent's complaint never mentioned March 4, 1980, as the date of the alleged violation. ⁷ These objections were overruled by the Commission Judge after hearing the evidence in the case.

The Commission Judge did not admit evidence of the accident as proof of a violation of Sec. 1910.217(c)(1)(i). The evidence was considered for the limited purpose of showing the gravity of the violation. The Mazza evidence indicated that if an accident did occur during the operational mode, the resulting injury could be serious. The administrative official further concluded that Quality, under all the circumstances, was not prejudiced by the "considerable amount of confusion or disagreement between the compliance officers and Area Director as to the violations ... [and] several discrepancies in times and dates in worksheets prepared by the compliance officers during the inspection and the dates referred to in the complaint." See n. 7 supra. He also held that the citations themselves clearly set out the dates of alleged violations--for Citation One, "on or about March 4,...