Irvington Moore, Div. of U.S. Natural Resources, Inc. v. Occupational Safety and Health Review Com'n
| Decision Date | 20 June 1977 |
| Docket Number | Nos. 75-2159 and 75-2160,s. 75-2159 and 75-2160 |
| Citation | 556 F.2d 431 |
| Parties | 5 O.S.H. Cas.(BNA) 1585, 1977-1978 O.S.H.D. ( 21,954 IRVINGTON MOORE, DIVISION OF U. S. NATURAL RESOURCES, INC., Petitioner, v. The OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and F. Ray Marshall, Secretary of Labor, Respondents. GEM TOP MANUFACTURING, INC., Petitioner, v. The OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and F. Ray Marshall, Secretary of Labor, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James B. Ruyle, Sabin, Newcomb, Sabin & Meyer, Portland, Or., argued for petitioner.
Jeffrey L. Berger, Atty., William S. McLaughlin, Executive Secretary Occupational Safety & HRC, Washington, D. C., argued for respondents.
On Petition for Review of the Occupational Safety and Health Review Commission.
Before LUMBARD *, WRIGHT and ANDERSON, Circuit Judges.
Gem Top Manufacturing, Inc. and Irvington Moore, Division of U.S. Natural Resources, petition for review under 29 U.S.C. § 660 of decisions by the Occupational Safety and Health Review Commission holding that they have been violating 29 C.F.R. § 1910.212(a)(3)(ii) by failing to provide point-of-operation guarding on press brakes operated in their plants. Petitioners' principal contention is that press brakes are exempt from the general safety standards of .212(a)(3) by virtue of their explicit exclusion from more detailed requirements for power presses provided in 29 C.F.R. § 1910.217. We think the Commission's interpretation of the regulations is the more reasonable, and we affirm the decisions.
Gem Top produces metal truck canopies at a plant in Clackamus, Oregon, where it employs 160 workers and grosses about $5 million per year. Irvington Moore makes sawmill equipment at a plant in Tigard, Oregon, where it employs 190 workers and grosses over $6 million per year. A press brake is a machine that bends and shapes pieces of metal which are placed between its two dies. Gem Top has two press brakes at its plant, and Irvington Moore has one.
After routine plant inspections by Occupational Safety and Health Administration compliance officers in March 1973, Gem Top and Irvington Moore were cited under 29 C.F.R. § 1910.212(a)(3)(ii) for failing to guard their press brakes. 1 This regulation provides that:
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.
Subsection .212(a)(3)(iv) provides a list of machines which "usually require point of operation guarding"; included in this list is "power presses" of which press brakes are one type.
Point-of-operation guarding is also required under 29 C.F.R. § 1910.217, which sets forth a number of detailed safety standards for "mechanical power presses." However, subsection .217(a)(5) provides that press brakes (and several other types of power presses) are "excluded from the requirements of this section." Gem Top and Irvington Moore interpreted this as an exemption of press brakes from any point-of-operation guarding requirement whatsoever.
At hearings before separate administrative law judges, employees at each plant and OSHA personnel testified regarding the operation of the press brakes. At both plants the pieces of metal are hand-fed into the pressing dies the "point of operation" of the press brakes. At Gem Top, this customarily brings the operators' hands to within 11/2 to 3 inches of the point of operation. The dies, which close with a force of 90 tons per square inch, have amputated the fingers of Gem-Top workers on at least two occasions.
At Irvington Moore, the press brake was used mostly for bending large aluminum panels; during activation of the machine the panel would normally be held at either end by two employees whose hands would be over two feet from the point of operation. One day a month, the press brake was used for punching and channeling operations on smaller metal pieces, which would bring the operators' hands within 3 inches of the dies. There was no testimony of any accidents on the Irvington Moore press brake. At both plants the press brakes were operated by a foot pedal, which was covered in order to avoid accidental triggering; by lifting his foot off the pedal, the operating employee could stop the closing of the dies almost instantaneously. Nevertheless, there was substantial evidence that both plants' press brakes exposed employees to injury. In both plants it was possible for employees to activate the machines while their hands were between the dies, and there was also nothing to ensure against employees reaching back in between closing dies in order to make last-minute adjustments of the material about to be pressed. 2
At each hearing, an expert witness for the government described a number of different ways in which points of operation of press brakes can be guarded. The uncontroverted testimony was that some of these mechanisms could be used on the press brakes in this case. 3 There was no evidence that Gem Top and Irvington Moore had attempted to guard the points of operation of their press brakes or had supplied their employees with hand tools which would lessen the chances of an accident. 4
The administrative law judges in the two cases reached opposite conclusions regarding the applicability of 1910.212(a)(3) to press brakes, and the Commission granted review. By a two-to-one vote, the Commission found a violation in each case, reasoning that .217(a)(5) excludes press brakes only from the coverage of section .217, and not from .212(a)(3), which, by its terms, clearly applies to "power presses." See 3 O.S.H.C. 1018 (1975); 3 O.S.H.C. 1022 (1975). A civil penalty of $600 was imposed on Gem Top, and $350 was assessed against Irvington Moore.
Under section 6(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 655(a), the Secretary of Labor was required to promulgate regulations incorporating "any national consensus standard, and any established Federal standard, unless he determined that the promulgation of such a standard would not result in improved safety or health for specifically designated employees." 5 In the event of conflict among any such standards, the Secretary was required to promulgate the standard "which assures the greatest protection" for the employees. Id. The purpose of this rulemaking-by-reference approach was to establish national safety standards "as rapidly as possible"; time-consuming rulemaking procedures were dispensed with on the theory that the consensus standards and the federal standards would already have been subjected to substantial public scrutiny and comment by the parties concerned. See S.Rep.No.1282, 91st Cong., 2d Sess., at 1970 U.S.Code Cong. & Adm.News p. 5182. See generally Associated Industries v. United States Dept. of Labor, 487 F.2d 342, 345 (2d Cir. 1973).
The two guidelines at issue in this case come from different sources. See 29 C.F.R. § 1910.22. The precursor of 29 C.F.R. § 1910.212 was a regulation promulgated by the Secretary of Labor in 1969 under the Walsh-Healey Public Contracts Act, 41 U.S.C. §§ 35(e), 38. On the other hand, 29 C.F.R. § 1910.217 was derived from consensus standards devised in 1971 by the American National Standards Institute ("ANSI"), a private organization made up of industry representatives and some representatives of labor and government. 6
Since in this case the Secretary's interpretation of his own regulations has been affirmed by the Commission, this interpretation must be accorded substantial weight. Budd Co. v. OSHRC, 513 F.2d 201, 204-05 (3d Cir. 1975); see California Stevedore & Ballast Co. v. OSHRC, 517 F.2d 986, 988 (9th Cir. 1975); Brennan v. OSHRC, 513 F.2d 553, 554 (10th Cir. 1975); Brennan v. Southern Contractors Service, 492 F.2d 498, 501 (5th Cir. 1974); cf. Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); United States v. Whelan, 463 F.2d 1093, 1094 (9th Cir. 1972). See also Brennan v. OSHRC, 513 F.2d 713 (8th Cir. 1975). Court review here serves only to ensure against circumvention of the public rulemaking process or punishment of employers without fair notice. See, e. g., Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976). Our task is to determine whether the agency's reading of the regulations is reasonable and whether the regulations are not unduly vague.
By its terms, 29 C.F.R. § 1910.212 clearly requires point-of-operation guarding on petitioners' press brakes. Subsection .212(a)(3)(ii) states flatly that "the point of operation of machines whose operation exposes an employee to injury shall be guarded." In addition, subsection .212(a)(3)(iv) informs employers that this guarding is usually required on power presses. There is substantial evidence to support the Commission's finding that the operation of Gem Top's and Irvington Moore's press brakes exposes their employees to serious injury; indeed, in Gem Top's case this fact was stipulated.
Citing 29 C.F.R. § 1910.5(c)(1), which provides that an applicable "particular standard" shall prevail over any "general standard" which might otherwise by applicable, petitioners urge that section .212 must give way before the more specialized provisions of § 1910.217. Section .217 details a number of different forms of point-of-operation guarding and requires that every power press be guarded by at least one of these methods. It also establishes other safety requirements for power presses. 7 Petitioners maintain that when .217(a)(5) provides that press brakes (and several other types of power presses) "are excluded from the requirements of this section," this means that no point-of-operation guarding is required on such machines.
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