FAULTLESS DIVISION, BLISS & LAUGHLIN INDUSTRIES, INC., a corporation, Petitioner, v. SECRETARY OF LABOR, and Occupational Safety and Health Review Commission, Respondent.
No. 81-1740
United States Court of Appeals, Seventh Circuit.
Decided March 30, 1982.
Argued Sept. 17, 1982.
We emphasize that our holding is of necessity limited to the unique circumstances of this case. In light of the Supreme Court‘s recent opinion in Schweiker v. Hansen, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981) (per curiam), it does appear that generally oral misinformation provided by a government employee does not provide a basis for estoppel against the Government. See, e.g., Cheers v. Secretary of HEW, 610 F.2d 463 (7th Cir. 1979), cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980). Beyond that, however, it is far from clear when the Government may be estopped. Compare Corniel-Rodriguez v. INS, 532 F.2d 301 (2nd Cir. 1976); United States v. Lazy FC Ranch, 481 F.2d 985 (9th Cir. 1973); United States v. Fox Lake State Bank, 366 F.2d 962 (7th Cir. 1966); Walsonavich v. United States, 335 F.2d 96 (3d Cir. 1964); Simmons v. United States, 308 F.2d 938 (5th Cir. 1962); Semaan v. Mumford, 118 U.S.App.D.C. 282, 335 F.2d 704 (1964); Eichelberger v. Commissioner of Internal Revenue, 88 F.2d 874 (5th Cir. 1937), cited in Schweiker v. Hansen, 450 U.S. 785, 791, 101 S.Ct. 1468, 1472, 67 L.Ed.2d 685 (1981) (Marshall, J., dissenting). Neither of the parties has attempted to address or articulate any general standard and, therefore, resolution of the issue on a broad basis appears inappropriate in this case. Thus, we limit our holding to the facts of this case and do not intend to intimate in any way an appropriate standard for resolution of future cases until the issue is squarely before this court.
We are simply holding on the quite unique facts of this case that a government agency will not be permitted belatedly to assert a technical defense to a law suit which admittedly, if it had been in a state court against a private insurance carrier, would not have prevailed. The Agency was not in any sense acting in a sovereign capacity here but was engaged in essentially a private business. We are not saying that the Agency‘s actions were intentionally designed to cause the appellant not to see to it that a formal proof of claim was filed. We do say here, however, that the actions of paying a part of the claim under a policy which the insurer has treated as being fully applicable to the entire claim, over many months of time, does not permit a withdrawal thereafter from the position clearly and unambiguously taken.
Accordingly, the district court‘s granting of summary judgment for the defendant is reversed. As there are no other issues regarding the defendant‘s liability under the policy, the case is remanded to the district court for a determination on the issue of damages alone with summary judgment to be entered thereafter in that amount in favor of the plaintiff.
REVERSED AND REMANDED.
Andrea C. Casson, U. S. Dept. of Labor, Washington, D. C., for respondent.
Before PELL, Circuit Judge, FAIRCHILD, Senior Circuit Judge and CUDAHY, Circuit Judge.
CUDAHY, Circuit Judge.
Petitioner Faultless Division, Bliss & Laughlin Industries, Inc. (“Faultless“) seeks judicial review of an order of the Occupational Safety and Health Review Commission (“Commission” or “OSHRC“) citing
Faultless here petitions for review of the ALJ‘s decision and order, which became the Commission‘s final order on March 25, 1981, when no Commissioner granted Faultless’ petition for discretionary review. See
I.
Faultless manufactures small rubber caster wheels at its plant in Evansville, Indiana. As part of its manufacturing process, Faultless operates 17 hydraulic rubber molding presses. These presses employ both pressure and heat to form small rubber “preforms” into wheel-shaped casters. There are two types of presses at the plant arrayed along two separate production lines. Line A contains twelve “French-type” hydraulic rubber molding presses; Line B contains five “clam shell” hydraulic rubber molding presses. The two types of presses are similar in structure and operation except that the French-type is a two-sided press requiring two operators to simultaneously load and operate the press, while the clam shell presses need only one operator loading from one side.
Operators load the press dies while standing at the side of the press on a work platform. Line B operators pull a mold out of the clam shell press, insert the rubber preforms in the mold, and then close the mold and push it back into the press. Line A operators, however, push sheets containing the preforms directly into the French-type press. The preforms are held in place on the sheets by a jig board located on top of the sheet. After inserting the sheet and jig board, the operators pull the sheet out of the press and then shake the board to position the preforms on guiding pins. The operators then pull the jig board out of the press and the preforms drop into the molding cavities. Unlike the Line B clam shell operation, the mold used on Line A is not closed outside the press; instead, the mold remains stationary (positioned inside the press) and the die with exposed preforms is lifted upward against the stationary mold by the action of the closing press.
On both lines, after the preforms are loaded into the press, the operator activates the press by depressing a momentary-contact start button located near the press opening. (The paired Line A operators must simultaneously depress the start buttons located on the two sides of the press.) Immediately after depressing the start button (or buttons), the ram of the press in question lifts hydraulically upward, closing the gap or opening which exists at the point of operation. Depending upon the thickness of the die, the opening at the point of operation for Line B presses varies from three to seven inches in height and the time taken for the ram to close is approximately seven seconds.
The OSHA compliance officer found no guarding device on the presses at the time of his inspection. The only safety device presently guarding the presses is a single emergency stop button. The activation of the stop button releases the hydraulic pressure, permitting the press ram to descend to the press base and restoring the opening at the point of operation. This button is located approximately six feet above the work platform on the upper left side of the press.
Faultless disputes the ALJ‘s findings of fact pertaining to the operators’ behavior after they activate the presses. Based upon the testimony of a former Faultless production supervisor (La Mar), the ALJ found that press operators often reach into the press mold area during the closing cycle to realign preforms, thereby attempting to prevent the molding of imperfect caster wheels and reducing the potential for damage to the press. Given this reaching into the press mold area, if the operator should be unable to remove his hand or arm before the ram completed its closing cycle, his limb would be crushed or amputated by the powerful thrust of the press ram. The ALJ foresaw an increased possibility of such an unfortunate accident resulting from Faultless’ work rule requiring operators to wear long-sleeved shirts; an operator wearing long sleeves might entangle his shirt in the numerous recessed pins and guidepins inside the press mold. La Mar also testified that an operator who entangled his left arm shirt sleeve in the mold probably could not reach the emergency stop button located on the upper left side of the press with his free right hand. The ALJ made a finding, which Faultless challenges, that press operators stand near the presses and watch the seven to ten second closing cycle before walking to the next press.
After hearing the evidence adduced by both parties, the ALJ concluded that Faultless failed to guard its hydraulic rubber molding presses as required by
Faultless contends that the ALJ‘s findings (which were, of course, adopted by the Commission) lack substantial evidentiary support in the whole record. As one branch of this contention, Faultless asserts that the ALJ‘s alleged preconception of the merits precluded him from rendering an impartial and objective decision. Moreover, Faultless claims that the ALJ improperly relied on the testimony of an admittedly biased witness and that other factual findings contradict Faultless’ unrebutted testimony and evidence.
Our standard of review of the ALJ‘s findings of fact is provided by the OSH Act. Thus, section 11(a) of the OSH Act,
In connection with its challenge to the Commission findings, Faultless directs our attention to several parts of the record which, in its opinion, demonstrate the ALJ‘s bias against Faultless. Thus as part of its case, Faultless offered into evidence a video tape display of a French-type hydraulic rubber molding press in operation. At the time of this offer, the ALJ told Faultless’ counsel that he was familiar with the machine in question and indicated to counsel that the display was not necessary.4 Faultless points out that, before the colloquy about the tape, the ALJ denied a motion by Faultless to dismiss the citation, relying on an earlier case which had allegedly been decided by the ALJ.5 Additionally, Faultless asserts that the ALJ‘s bias is demonstrated by his crediting of the testimony of Faultless’ former supervisor, La Mar. An admittedly biased witness,6 La Mar testified that he personally observed press operators reach into the press to straighten misaligned parts as the ram ascended. Faultless contends that its witnesses contradicted La Mar‘s testimony and thus, the ALJ improperly credited biased evidence.
We also reject Faultless’ contention that the ALJ exhibited bias by crediting La Mar‘s testimony. The ALJ carefully considered La Mar‘s bias when assessing this evidence. No one directly contradicted La Mar‘s crucial observation that operators actually placed their hands inside the presses 7 during the closing cycle. Faultless’ witnesses (who are also at least potentially susceptible to charges of bias) merely noted that they had never personally observed an operator place his hand inside a press. The OSHA compliance officer also testified that operators could reach into a closing press, although he did not observe any operator reach into a closing press during his compliance inspection. Finally, the ALJ carefully compared all of La Mar‘s testimony with the testimony given by Faultless’ witnesses, finding that there were no material contradictions between the two sets of testimony. Under such circumstances, we cannot find error based on a demonstration of bias.8
As noted above, apart from its allegation of bias, Faultless attacks the ALJ‘s factual findings as lacking substantial evidentiary support in the record. According to Faultless, the ALJ‘s finding that the press operators would stand at their work platforms, after activating the press closure cycle, to observe their presses close contradicts the unrebutted testimony of Faultless’ witnesses. Moreover, the ALJ allegedly ignored the testimony of Faultless’ witnesses who claimed that the operators realigned any misplaced rubber preforms before activating the press. These findings are crucial because Faultless argues that the operators habitually walked over to the press next in line immediately after activating the closure cycle and, thus, were not in a position to extend their hands into the closing press.
The ALJ‘s findings with respect to these matters are supported by substantial evidence. Faultless does not refer us to
Likewise, we conclude that the ALJ‘s finding that press operators would reach into closing presses to realign rubber preforms is supported by substantial evidence. Obviously, safety-conscious operators would, as Faultless’ witnesses testified, make every effort to realign the preforms before activating the press. Faultless’ witnesses, however, testified only that they never observed an operator place his hand inside a closing press. Obviously, Faultless does not assert that operators could not as a matter of fact place their hands inside a closing press. La Mar, on the other hand, testified that, based on over sixteen years of day to day experience working with these machines and their operators, he personally observed operators place their hands inside a press as it closed.
Finally, we note that substantial evidence, considering the whole record, supports the ALJ‘s conclusion that Faultless committed a serious violation of the machine guarding regulation. The Secretary‘s regulation requires that “[t]he point of operation of machines whose operation exposes an employee to injury, shall be guarded.”
Faultless contends that the Secretary‘s application of the machine guarding standard to it violated due process because the standard‘s requirements are impermissibly vague. We believe that Faultless misunderstands the law.
First, Faultless premises its vagueness argument on its characterization of the machine guarding standard as a “performance” rather than a “specification” standard. According to Faultless, the courts and the Commission have struck down performance standards as unconstitutionally vague unless the standard‘s scope is limited by extrinsic norms, including industry customs and practices. Because, in the rubber industry, hydraulic rubber molding presses are not customarily guarded, Faultless asserts that application of the machine guarding standard does not provide it with sufficient and fair warning. Second, Faultless argues that the regulation is vague because other regulations specifically exempt its presses from any guarding requirements.
When considering remedial legislation such as the OSH Act and its implementing regulations, the purported vagueness of a standard is judged not on its face but rather in the light of its application to the facts of the case. PBR, Inc. v. Secretary of Labor, 643 F.2d 890, 897 (1st Cir. 1981); McLean Trucking Co. v. OSHRC, 503 F.2d 8, 10-11 (4th Cir. 1974). Moreover, the regulations will pass constitutional muster even though they are not drafted with the utmost precision; all that due process requires is a fair and reasonable warning. Allis-Chalmers Corp. v. OSHRC, 542 F.2d 27, 30 (7th Cir. 1976). The constitution does not demand that the employer be actually aware that the regulation is applicable to his conduct or that a hazardous condition exists.11
In construing the regulation before us, we decline Faultless’ invitation in effect to characterize the provision as “very general,” “unclear,” or a “performance standard” in order to lay the predicate for considering evidence of industry custom and practice. Faultless correctly notes that some courts have considered evidence of industry practice when construing very general or unclear regulations. Indeed, we note that industry practice may be relevant in limited situations to avoid prejudicing a party by the application of a generalized statute or regulation of unfocused import. Prejudice might arise when the regulatory impact resulted in a complex and costly compliance program in cases where there was no reasonable expectation that the regulation was applicable to the questioned conduct. The instant case, however, does not require or permit consideration of industry practice for the purpose of defining machine guarding requirements since we are confronted with a clearly applicable, unarguable and specific regulation on the subject in question. In general, courts have considered industry practice evidence only when a specific standard of expected employer conduct is proposed to be derived from a very general statutory or regulatory
The regulation here, on the other hand, unlike regulations relating, for example, to noise or to personal protective equipment, or to the general duty clause regulations, is sufficiently specific as to the machines affected and as to the methods of compliance to reasonably apprise Faultless in clear terms that its presses must be guarded. The machine-guarding regulation applies to all machines, defines the areas that must be guarded, states what an effective guarding device must achieve and even provides several examples of guarding devices. Neither the noise regulation standard nor the personal protective equipment standard nor the general duty clause are comparably specific. We agree with the holding of A. E. Burgess Leather Co. v. OSHRC, 576 F.2d 948 (1st Cir. 1978), that industry practice should not be considered when construing the regulation before us because the standard for employer conduct is quite specific and essentially requires no such construction.
Our position follows without question from the stated purposes of the OSH Act. On the other hand, carried to its logical conclusion, Faultless’ argument for reliance on industry practice would permit employers to avoid compliance with specific safety mandates by relying on the (perhaps equally objectionable) practices of their peers. Cf. Voegele Co. v. OSHRC, 625 F.2d 1075, 1078-79 (3rd Cir. 1980) (even those courts that consider industry custom and practice do not ignore reasonable person test because to do so would allow entire industries to avoid liability for unsafe conditions). Nothing in the OSH Act or its legislative history requires or permits the Secretary to await an industry consensus about unsafe conditions before moving to enforce. See Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717 (4th Cir. 1979).18
The OSH Act regulations expressly provide that exclusion under certain specific regulatory commands does not preclude application of the slightly more generalized, albeit explicitly comprehensive, command of another regulation. See
Faultless’ final contention is that the ALJ improperly imposed upon it the burden of proving the infeasibility of the Secretary‘s compliance order. In addition, and regardless of any applicable burden of proof, Faultless argues that the ALJ erred in holding that the evidence Faultless presented on the feasibility issue was insufficient. We shall consider each contention separately.
As to the first, courts have placed the burden of demonstrating the feasibility of a proposed compliance order on the Secretary in only two situations. First, the Secretary must demonstrate the feasibility of any remedial administrative or engineering controls ordered under
Unlike the regulations involved in the above cited cases, the machine-guarding regulation does specify several ways for an employer to comply with its standards. Three specific guarding techniques—“barrier guards, two-hand tripping devices [and] electronic safety devices” are set out in the regulation.
On the question of sufficiency of the evidence of infeasibility, after reviewing the evidence presented by Faultless on these issues, we conclude that the ALJ properly held that Faultless failed to demonstrate the infeasibility of complying with the Secretary‘s order. Feasibility, in the context of safety regulations, refers not only to technical feasibility but also to economic feasibility. See International Harvester Co. v. OSHRC, 628 F.2d 982, 987-89 (7th Cir. 1980); A. E. Burgess Leather Co. v. OSHRC, 576 F.2d 948, 951 n.2 (1st Cir. 1978); Turner Co. Division of Olin Corp. v. Secretary of Labor, 561 F.2d 82, 85-86 (7th Cir. 1977). We note first that Faultless did not argue either before the ALJ or on this appeal that it was technologically infeasible to install some type of point of operation guarding device on its presses. Thus, we are left only with the issue of economic feasibility.
A successful economic feasibility argument must demonstrate both that it is extremely costly for the employer to comply with the Secretary‘s order and that the employer cannot absorb this cost. Faultless claims that two-hand controls would increase its yearly operating costs by $116,000 (lost production time and capacity); in addition, Faultless has alleged that it would expend $82,000 for new presses to make up for lost production time generated by the use of two-hand controls together with $34,000 to install the two-hand controls. This evidence alone, however, does not demonstrate economic infeasibility. Faultless has not alleged or demonstrated that it cannot absorb or pass on in the price of the product this added expense. Although the expense of installing two-hand controls may be somewhat burdensome, economic infeasibility is established only when the employer‘s existence as an entity is financially imperiled by compliance. See Arkansas-Best Freight Systems, Inc. v. OSHRC, 529 F.2d 649, 654 (8th Cir. 1976); cf. Industrial Union Department, AFL-CIO v. Hodgson, 499 F.2d 467, 478 (D.C. Cir. 1974) (OSH Act contemplates demise of employers who cannot comply with safety standards); National Realty and Construction Co. v. OSHRC, 489 F.2d 1257, 1266 n.37 (D.C. Cir. 1973) (if cost to implement precautionary measure threatens employer‘s economic vitality, this precaution should be proposed by regulation and not by compliance order). With respect to the economic burdens what ideally occurs is that costs which may otherwise be imposed on employees are internalized by compliance orders in the cost of the product to consumers. The economic heart of OSHA is the internalization of certain external costs of unsafe or unhealthy conditions otherwise imposed, at least in part, on innocent employees.
Moreover, we agree with the ALJ‘s conclusion that Faultless’ cost computations were inflated and conjectural. Faultless failed to explain various discrepancies in the figures it used to determine the number of new presses required to compensate for the alleged lost production time generated by two-hand controls. We also question the accuracy of Faultless’ computations of lost production time. According to Faultless, much of this lost production time will be caused by operators standing at their presses for seven to ten seconds as they hold down the two-hand tripping control to activate the closing cycle. The ALJ found, however, that operators stand at their machines during this interval even though they now use only a one-hand start button. Further, we are puzzled by Faultless’ assertion that 21 to 30 seconds per hour (three closures per hour—Faultless’ most liberal estimate) translate into a loss of production time requiring Faultless to expand its production capacity by two presses—or more than 11%. Faultless’ most egregious error, however, has been to double count, at least in part, the cost of lost production time and capacity ($116,000) and the cost of new presses ($82,000) when the new presses are intended to compensate for the loss of capacity. Thus, we find that Faultless failed to demonstrate the infeasibility of the Secretary‘s order.
Petition for review denied.
PELL, Circuit Judge, dissenting.
I respectfully dissent from the majority‘s conclusion that application of
At issue in this case is whether Faultless had the requisite notice that the point of operation of its hydraulic molding presses “expose[d] an employee to injury.”
The majority opinion finds the language of section 1910.212 so “clearly applicable” to the presses in question that it does not inquire further. I disagree, for reasons discussed below, with this conclusion. Further, Faultless‘s actual experience with the machines did not constitute notice that a hazard existed. I therefore think that industrial practice was a relevant consideration in this case. Had the ALJ considered the prevailing custom in reaching his decision, which he did not, he would necessarily have concluded from the record that hydraulic mold presses are not usually guarded. I cannot agree therefore that Faultless had a sufficient warning, measured by any “common understanding or practice,” that its presses required guarding pursuant to section 1910.212.1
First, I will explain why I do not find the language of
The majority reads section 1910.212 as though any machine falling within the technical definition of a power press must have point of operation guards. This reading ignores the fact that the regulation is applicable only if an employee is exposed to injury. Further, the fact that power presses “usually” create the requisite hazard is not equivalent to a statement that all power presses do so.2 Faultless apparently con-
Nothing in the record suggests that Faultless should have recognized a potential for injury. First, the presses had an extremely slow closure speed, moving approximately one inch per second or slower. They have little in common with the rapidly moving machines, such as punch presses, that one normally associates with the term “power press.” Second, it is significant that no employee had been injured by the molds since records were first kept in 1970, despite 900,000 hours of use and an estimated 1.8 to 2.7 million closures. Third, the Company had a clearly articulated rule that employees were not to reach into an activated press but rather were to move immediately to the next machine after commencing the closure cycle. The ALJ did not discredit the testimony as to this rule nor did he find that the Company either implicitly encouraged or willingly permitted employees to ignore it. The ALJ relied on the fact that the policy was not conclusive as to whether employees did in fact reach into the machines, referring to the testimony of La Mar who claimed that he had seen employees do so.
La Mar also testified that he had suggested guarding the machines approximately ten years earlier. The record does not establish, however, that La Mar ever informed Faultless, prior to his testimony before the ALJ, that he had witnessed employees reaching into the machines. His verbal suggestion regarding guarding was that Faultless “install something of a guarding nature for the employees to be unable to reach in these presses once they‘ve been activated.” The suggestion was apparently made in response to a “good ideas” program instituted by the Company and pursuant to which some employees were compensated for their suggestions. Under these circumstances, La Mar‘s “idea” that the machines might be guarded is not evidence that the machines were hazardous in the first place, a conclusion evidently shared by Faultless.3 Even if La Mar‘s testimony is an accurate record of his observations, there is no evidence in the record that Faultless was aware, prior to the hearing before the ALJ, that their nondiscretionary safety rule was being disobeyed.
The speed at which the presses closed and the safety record at Faultless convince me that Faultless did not err in concluding that the molds failed to create the exposure to injury that is a prerequisite to the guarding duty embodied in
If the regulatory language, considered on its face and in light of the employer‘s experience, has failed to provide actual notice that the activity is subject to the provision, one should consider the prevailing custom in the industry. E.g., B & B Insulation, Inc. v. OSHRC, 583 F.2d 1364, 1369 & n.10 (5th Cir. 1978) (quoting 116 Cong.Rec. 38377 (1970) (remarks of Rep. Daniels)). I do not suggest that industrial practice should negate the applicability of an otherwise clearly relevant regulation.4 The significance of industrial custom is that it will in some cases imply the notice that is otherwise lacking. Further, if no one in the industry recognizes the relevance of a particular regulation, that fact furthers the conclusion that a reasonable employer would not have foreseen its applicability.
The majority opinion strenuously rejects the relevance of industrial practice to a case in which the pertinent regulation is clearly applicable and specific. Although I agree with this proposition as a general statement of law, as noted supra, I disagree with the majority‘s reliance on it in the case at bar because I do not find that section 1910.212 gave the employer such actual notice. I think industrial practice is relevant here because it furthers the conclusion that a reasonable employer would not have found sufficient warning of the provision‘s applicability in the regulatory language.
The majority has distinguished a number of cases that considered industrial practice on the bare conclusion that they involved more “general” regulations or statutes than section 1910.212.5 A closer examination of these cases demonstrates that at least two turned on the precise question at issue here: whether the employer had notice that his activity constituted a hazard. Both Donovan v. Royal Logging Co., 645 F.2d 822 (9th Cir. 1981), and R. L. Sanders Roofing Co. v. OSHRC, 620 F.2d 97 (5th Cir. 1980) (per curiam), involved citations pursuant to the general duty clause,
Another case directly on point, which is not cited by the majority, is McLean Trucking Co. v. OSHRC, 503 F.2d 8 (4th Cir. 1974). In McLean, the citation had been issued pursuant to
McLean makes clear that when the due process issue is whether an employer had notice that a hazard existed, the inquiry is the same as that necessitated by the “recognized hazard” language of
Five other cases that referred to industrial custom are also distinguished by the majority as involving “very general statutory or regulatory commands.” S & H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273 (Former 5th Cir. 1981); Kropp Forge Co. v. Secretary of Labor, 657 F.2d 119, 124 n.10 (7th Cir. 1981);7 B & B Insulation, Inc. v. OSHRC, 583 F.2d 1364 (5th Cir. 1978); American Airlines, Inc. v. Secretary of Labor, 578 F.2d 38 (2d Cir. 1978); Cape & Vineyard Division, New Bedford Gas & Edison Light Co. v. OSHRC, 512 F.2d 1148 (1st Cir. 1975). Each of these cases involves the means of compliance required of an employer once it is determined that a hazard exists. Four of the cases involve regulations requiring personal protective equipment that make no statement as to the kinds of equipment required or the degree of protection necessary.8 Kropp involved a citation pursuant to
The majority follows the holding of A. E. Burgess Leather Co. v. OSHRC, 576 F.2d 948 (1st Cir. 1978), in concluding that the degree of specificity of section 1910.212(a)(3)(ii) precludes consideration of industry practice. In Burgess, the employers admitted that their beam dinker created some risk. They questioned whether it created the “potential for injury” that triggers the regulatory section and whether a feasible means of mitigation existed. Like Faultless, the employers in Burgess demonstrated the machine‘s perfect safety record. The Commission concluded that the risk was sufficient to require guarding and that a means of abatement existed. On review, the First Circuit discussed those cases that have looked to industry practice and concluded that such reference was unnecessary in the case before it.
The Burgess court denied the petition for review because “substantial evidence that the beam dinker exposed its operator to injury, and therefore violated the Act, existed in the record.” Id. at 951. The First Circuit panel did not discuss whether the employers had sufficient warning, prior to issuance of the citation, that the dinker constituted a hazard. The mode of analysis in Burgess is that employed by the majority in the instant case: the findings of the
The Commission here purported to decide what the reasonable employer in B&B‘s industry would have done under the conditions for which B&B was cited. The Commission‘s conclusion is inaccurate because it is based entirely upon the opinion of people employed by the Government and depends not at all upon the evidence drawn from the people employed by the industry. This application of the reasonable person rule stands the principle on its head. . . . In other words, the Commission would assert the authority to decide what a reasonable prudent employer would do under particular circumstances, even though in an industry of multiple employers, not one of them would have followed that course of action.
Id. at 1370.9
I do not question the Secretary‘s power to require guards on hydraulic mold presses. I do suggest, however, that such a requirement must be imposed pursuant to the rule-making provision of the Occupational Safety and Health Act,
INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, and Shirley Millard, Mary J. Simons, Madeline Akerberg and Rosalie Dion, Plaintiffs-Appellants, v. Donald A. JOHNSON, Director, State of Illinois Department of Labor, and State of Illinois Bureau of Employment Security, Defendants-Appellees.
No. 81-1673
United States Court of Appeals, Seventh Circuit.
Decided March 31, 1982.
Argued Jan. 19, 1982.
Notes
In a recent case, Judge Godbold similarly rejected the Commission‘s equation of its finding that safety equipment was required pursuant to
(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, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are—barrier guards, two-hand tripping devices, electronic safety devices, etc.
* * * * * *
(3) Point of operation guarding. (i) Point of operation is the area on a machine where work is actually performed upon the material being processed.
(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.
Judge Dixon [ALJ]: Will it bust it up if we shut it off? Will it break your continuity? It don‘t bother me because I‘ve seen it before.
Mr. Magan: Not really. I think we can kind of move through the thing. Well, I hope that you‘re going to look carefully at this. This may not be—
Judge Dixon: There‘s an old expression, “I‘ve been there“, Mr. Magan.
Mr. Magan: Not one of these presses is guarded in the whole industry, as far as I know, of this type. Can you see all right, counsel? At this time we‘re going to show a video tape.
Transcript at 72-73. It is clearly within the power of the Secretary to promulgate regulations setting a more stringent safety standard than that commonly employed by the industry. E.g., B & B Insulation, Inc. v. OSHRC, 583 F.2d 1364, 1371 & n.13 (5th Cir. 1978) (quoting Society of Plastics Industry, Inc. v. OSHA, 509 F.2d 1301, 1309 (2d Cir. 1975), cert. denied, 421 U.S. 992, 95 S.Ct. 1998, 44 L.Ed.2d 482 (1975)). Allowing prevailing industrial practice to displace such regulations would be contrary to Congressional intent.
The dissent also contends, citing judicial interpretations of the general duty clause, that Faultless must be on notice of a hazard connected with molding presses. To the extent that any proof of hazard is required here, we think such a requirement is governed by
Thus, the dissent mischaracterizes the Fourth Circuit‘s decision in McLean Trucking Co. v. OSHRC, 503 F.2d 8 (1974) as “mak[ing] clear that when the due process issue is whether an employer had notice that a hazard existed, the inquiry is the same as that necessitated by the ‘recognized hazard’ language of [the general duty clause].” Post at 1194 (emphasis supplied). The language from McLean quoted by the dissent, post at 1194, makes clear that the hazard need not be known “necessarily by each and every individual employer.” McLean, 503 F.2d at 11 n.5 (quoting 116 Cong. Rec. 38377 (remarks of Rep. Daniels)). Moreover, the Fourth Circuit concludes that “the totality of the foregoing elements was sufficient to convey to McLean a reasonable understanding of the conduct required of it.” McLean, 503 F.2d at 11 (emphasis supplied). Accord, Donovan v. Royal Logging Co., 645 F.2d 822, 829 (9th Cir. 1981) (“An employer need not be aware of [the hazard].“).