Diebold, Inc. v. Marshall

• Decision Date: 03 November 1978
• Docket Number: No. 76-1278,76-1278
• Citation: 585 F.2d 1327
• Parties: 6 O.S.H. Cas.(BNA) 2002, 1978 O.S.H.D. (CCH) P 23,124 DIEBOLD, INCORPORATED, Petitioner, v. F. Ray MARSHALL, Secretary of Labor, and Occupational Safety and Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1327

585 F.2d 1327

6 O.S.H. Cas.(BNA) 2002, 1978 O.S.H.D. (CCH) P 23,124

DIEBOLD, INCORPORATED, Petitioner, v. F. Ray MARSHALL, Secretary of Labor, and Occupational Safety and Health Review Commission, Respondents.

No. 76-1278.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 14, 1977.

Decided Nov. 3, 1978.

Hulse Hays, Jr., Roger A. Weber, Cincinnati, Ohio, for petitioner.

General Counsel, Occupational Safety & Health Review Com'n, Washington, D. C., William J. Kilberg, Stephen A. Bokat, Baruch A. Fellner, Allen H. Feldman, Jeffrey Lewis Berger, Michael H. Levin, U. S. Dept. of Labor, Washington, D. C., William S. Kloepfer, Assoc. Regional Sol., U. S. Dept. of Labor, Cleveland, Ohio, for respondents.

Before WEICK and LIVELY, Circuit Judges, and WALINSKI, ^* District Judge.

WALINSKI, District Judge.

Petitioner Diebold, Inc. seeks judicial review of a decision by the Occupational Safety and Health Review Commission (hereinafter "the Commission") that Diebold has violated a safety regulation promulgated by the Secretary of Labor pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-78 (hereinafter "the Act"). Diebold contends that the Commission erred in its interpretation of the applicable regulations and that, even if the Commission's interpretation is correct, the regulations are so vague as to be unenforceable under the due process clause of the Fifth Amendment. For the reasons which follow, we accept the Commission's interpretation of the regulations in question but hold that on the facts of this case their application to Diebold would be a denial of due process. We therefore set aside that portion of the Commission's order which is challenged on appeal.

I.

Diebold is a manufacturer of security files, safes, and other record handling and retrieval systems. At the times which are relevant here, Diebold operated plants at Hamilton, Wooster, and Malvern, Ohio, where its employees used various kinds of presses, including press brakes, to shape a variety of metals for use in the assembly of Diebold's products.

The press brake, which is the kind of machine at issue on this appeal, is a species of large mechanical power press used primarily for bending sheet metal. The "stock," or metal to be formed, is placed on a bottom die attached to the bed of the machine, and the operator then causes the metal to be struck with a matching top die which is attached to a movable ram mounted on rails. The area between the dies, i. e., the area where the stock is placed, is called the "point of operation." When the press brake is in use, the descending ram strikes the point of operation with a pressure of several hundred tons per square inch.

Based on inspections of Diebold's plants in January, March, and July, 1974, the Secretary issued a citation as to each plant charging Diebold with having violated § 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), ¹ by failing to provide point of operation guards on its press brakes as require by 29 C.F.R. § 1910.212. The Secretary proposed penalties totalling $190. Diebold contested the citations and proposed penalties, and the charges as to all three plants were consolidated for administrative review. ²

In his decision, the Administrative Law Judge vacated the citations and proposed penalties, having concluded that a regulation specifically applicable to mechanical power presses, 29 C.F.R. § 1910.217, relieved press brakes from any point of operation guarding requirement. The Commission thereupon called the case for review, 29 U.S.C. § 661(i), and a Commission majority of 2-1 reversed the Administrative Law Judge, reinstating the citations and proposed penalties. The Commission majority determined that, although press brakes are excluded from the guarding requirements applicable to power presses (§ 1910.217), they remain subject to the requirements which the regulations set out for machines generally (§ 1910.212). In addition, the Commission rejected Diebold's contentions that the regulations were improperly promulgated, impossible to comply with, and impermissibly vague. Diebold, Inc. (OSHRC Docket Nos. 6767, 7721, 9496), OSAHRC , 3 BNA-OSHC 1897, 1975-76 CCH-OSHD P 20,333 (1976), Rev'g, 1974-75 CCH-OSHD P 19,214 (Ad.L.Judge, 1975).

Diebold then filed the instant petition for judicial review of the Commission's decision pursuant to 29 U.S.C. § 660(a), advancing the same claim that it made before the Commission.

II.

The Act's central purpose is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources." 29 U.S.C. § 651(b). As the principal method for achieving this ambitious end, the Act authorizes the Secretary of Labor to promulgate national standards of occupational safety and health, 29 U.S.C. § 655, and places upon each covered employer ³ a duty to comply with the promulgated standards. 29 U.S.C. § 654(a)(2).

In general, the Secretary's standard-setting authority is to be exercised as the product of substantial prior research, advisory committee review, and notice-and-comment rule-making. 29 U.S.C. § 655(b). Congress recognized, however, that these procedures would be highly time-consuming and in the first years of the Act would run counter to the congressional interest in "immediately providing a nationwide minimum level of health and safety." S.Rep.No. 1282, 91st Cong. 2d Sess., 1970 U.S.Code Cong. & Admin.News, pp. 5177, 5182. For that reason the Act provided that, "as soon as practicable" and without regard to the usual rule-making procedures, the Secretary was to adopt as his own any existing health and safety standards already promulgated under federal law ("established Federal standards") or issued by a nationally-recognized standards-setting organization based on full public discussion and on the substantial agreement of those affected ("national consensus standards"). 29 U.S.C. § 655(a). Notice-and-comment requirements could be dispensed with, thereby permitting establishment of the "nationwide minimum level" of safety with the desired rapidity, because these § 655(a) "interim standards" ⁴ would have already been subjected to close public scrutiny through the use of equivalent procedures in their original issuance.

Shortly after the Act's passage, the Secretary exercised his § 655(a) authority and promulgated a voluminous collection of standards drawn from existing federal and consensus sources. 36 Fed.Reg. 10466 (May 29, 1971), Codified at 29 C.F.R. Part 1910. Among these was the general machine guarding requirement which Diebold is charged with having violated in the instant case. The standard, 29 C.F.R. § 1910.212, embodies an "established Federal standard" previously promulgated by the Secretary of Labor under the Walsh-Healey Public Contracts Act, 41 U.S.C. §§ 35-45. It provides in pertinent part:

(a) Machine guarding (1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation * * *.

(3) Point of operation guarding.

(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.

(iv) The following are some of the machines which usually require point of operation guarding:

(D ) Power presses.

It is conceded that Diebold's press brakes are a form of mechanical power press, that their operators are exposed to point of operation injuries, and that no guarding devices are used to protect them from this hazard. In the Secretary's view, those facts establish a violation of § 1910.212 beyond any possibility of dispute. Diebold advances several reasons for its position that the regulation cannot properly be construed as applying to press brakes.

The company argues first that, despite the facial breadth of § 1910.212, the regulation's Walsh-Healey predecessor was never understood to require point of operation guarding on press brakes; indeed, it claims, such guarding was impossible in 1971, ⁵ the year in which the Secretary promulgated the Walsh-Healey regulation as an "established Federal standard" under the Act. Thus, in Diebold's view, the standard could not have been intended to cover press brakes, and the Secretary's application of it to such machines necessarily modifies the substantive content of the Walsh-Healey original without adherence to the rule-making procedures which the Act prescribes for such modifications.

We agree with Diebold's premise that 29 U.S.C. § 655(a) required adoption of "established Federal" and "national consensus" standards without substantive modification, and that the Secretary may not enforceably construe a § 655(a) standard to impose requirements which the standard's source did not impose. ⁶ See Dunlop v. Ashworth, 538 F.2d 562, 563 (4th Cir. 1976); Diamond Roofing Co., Inc. v. OSHRC, 528 F.2d 645, 650 (5th Cir. 1976). Thus, we also agree that the question whether § 1910.212 applies to press brakes is determined by whether its Walsh-Healey source applied to press brakes.

As Diebold's arguments make clear, however, resolution of that issue depends in large part upon essentially historical or factual determinations relating to industrial and technological conditions at the time the standard was promulgated. Those are precisely the kinds of determinations which the Commission is peculiarly fitted to make by virtue of its members' "education, training, or experience." 29 U.S.C. § 661(a). As a general matter, the Commission is entitled to great deference in its reasonable interpretations of regulations promulgated under the Act. Dunlop v. Ashworth, sup...