UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 2004
COLLATOR CORPORATION,
Respondent.

February 25, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BARNAKO, Chairman:

This case presents the question of whether Commission Judge Henry C. Winters erred in ruling that: (1) both a citation and penalty were properly before the Commission for disposition when the notice of contest was limited to the penalty; and (2) the Secretary failed to establish that Respondent’s press brakes needed additional point of operation guarding. For the reasons stated herein, we affirm the Judge’s decision.

Following an inspection of its workplace, Respondent was issued a citation on December 12, 1972 and Amended Notification of Proposed Penalty on January 2, 1973, for numerous non-serious violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter, ‘the Act’). On January 4, 1973, Respondent filed a notice of contest pro se which stated:

In accordance with the procedures in the Federal Register, Part II, Volume 36, #105, dated May 29, 1971, Occupational Safety and Health Standards, we hereby contest the notice of proposed penalties.

Thereafter, the Secretary filed his complaint in which he alleged that Respondent’s notice of contest was ‘limited to the citation items involving only those violations charged in paragraph IV above.’[1] Respondent’s answer generally denied the violations alleged in the complaint and asserted an affirmative defense as to subparts (1) and (4) of item number 7 of the citation which alleged a violation of 29 C.F.R. 1910.212(a)(1)[2] for failure to guard two types of press brakes.

At the opening of the hearing, counsel for the Secretary moved for judgment on the pleadings on the basis, inter alia, that Respondent’s notice of contest was limited to the penalties. Respondent replied that by its notice of contest, it intended to contest the merits of the citation, but went on to state that it was only ‘seriously’ contesting sub-items 1 and 4 of item 7 of the citation (failure to guard press brakes). Judge Winters denied the Secretary’s motion, ruling that the citation and penalties were in issue.

In his decision, the Judge stated his reasons for finding that both the citation and penalties were before the Commission. He found, however, that Respondent was only contesting the failure to guard the press brakes.

In Florida East Coast Properties, Inc., 6 OSAHRC 404 (1974), BNA 1 OSHC 1532, CCH Employ. S. & H. Guide para. 17,272 (1974), the Commission ruled that where a timely notice of contest is limited by its words to the penalties, the citation becomes a final order of the Commission under Section 10(a) of the Act. In this case there can be no doubt that Respondent’s notice of contest was limited to the penalties. However, it is equally clear from Respondent’s answer that it wished to contest the citation as well as the penalty for the failure to guard the press brakes.[3] We recently held in Turnbull Millwork Company, OSHRC Docket No. 7413 (December 15, 1975), that we would permit amendment of notices of contest which by their words are limited solely to the penalty to include a contest of the citation, if a respondent’s subsequent pleadings indicate that it was his intent to also contest the citation when he filed his notice of contest. Accordingly, we find in the instant case that the merits of sub-items 1 and 4 of item 7 of the citation are properly before the Commission.

The relevant portions of the citation alleged that Respondent had failed to guard the points of operation of a ‘Cyril Bath’[4] press brake and three ‘Star-Di-Arco’ press brakes. Judge Winters vacated this allegation on the basis that 29 C.F.R. 1910.212 does not apply to press brakes and even if it did, the Secretary failed to establish that the press brakes, as they were set up and used at the time of the inspection, presented a hazard to Respondent’s employees. With regard to Judge Winter’s finding that 1910.212 does not require point of operation guarding, we note that we ruled to the contrary in a decision issued subsequent to Judge Winter’s decision here. Irvington Moore, Division of U. S. Natural Resources, Inc., 16 OSAHRC 608, BNA 3 OSHC 1018, CCH. S. & H. Guide para. 19,523 (April, 1975); pet. for review filed, No. 75–2159 (9th Cir., May 27, 1975). However, we do agree with Judge Winters’ alternative finding that Respondent’s press brakes, as they were used here, presented no hazard to Respondent’s employees.

In this regard, the record establishes that when the presses are set up for operation, they are adjusted so that the space between the female and male dies is only large enough to allow the stock to be inserted; that is ⅛” to 1/32” inch. In order to remove the formed metal, it is necessary to separate the dies by ¼”. The record also establishes that Respondent’s press brakes are always set-up with the power off and the treadle, which activates the machine, removed. In view of the foregoing, we find the Secretary has failed to establish that Respondent’s press brakes present a hazard to its employees. Inasmuch as 29 C.F.R. 1910.212(a)(1) only requires guarding of hazards, we will affirm the Judge’s vacation of sub-items 1 and 4 of item number 7 of the citation.

Accordingly, the Judge’s disposition is affirmed. It is so ORDERED.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATE: FEB 25, 1976

CLEARY, Commissioner, CONCURRING:

Because the Commission’s precedent cited by Chairman Barnako requires that we reach the merits of this case,[5] I concur because my colleague’s factual findings are supported by the preponderant evidence. My colleague, Commissioner Moran, states that he would consider the validity of a standard a question of subject matter jurisdiction. Our precedents do not accord with his individual view. Acme Metal, Inc., supra, and cases cited therein. As to the nature of subject matter jurisdiction, and whether it is affected by the merits, see generally, West Coast Exploration Co. v. McKay, 213 F.2d 582, 591–592 (D.C. Cir.) (collecting authorities), cert. denied, 347 U.S. 989 (1954); 21 C.J.S. Courts §§ 23, 35(b) and (c), and 37–49.[6] Finally, the matter is obviously not one for sua sponte consideration and disposition.

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I concur in the affirmation of the decision below vacating subitems 1 and 4 of item 7. I find, however, that Judge Winters properly concluded that 29 C.F.R. § 1910.217(a)(5), rather than 29 C.F.R. § 1910.212(a)(1), applies to press brakes. I have previously discussed this matter at some length in my dissenting opinions in Secretary v. Irvington Moore, Division of U.S. Natural Resources, Inc., 16 OSAHRC 608, 612 (1975), and Secretary v. Gem-Top Mfg., Inc., 16 OSAHRC 591 (1975). Since Judge Winters’ decision is affirmed herewith, I attach its full text hereto as Appendix A.

I respectfully dissent, however, from the Commission’s implied affirmation of the decision below concerning items 5, 6 and 9. The standards for which respondent was cited therein were promulgated outside of the authority conferred on the Secretary of Labor by Congress. When this occurs, a question of subject matter jurisdiction arises because the regulations are null and void. See Utah Power & Light Company v. United States, 243 U.S. 389, 410–411 (1917). A question of subject matter jurisdiction may be raised at any time before or after a matter has been adjudicated. Secretary v. Stevens Equipment Co., 2 OSAHRC 1501, 1506 (1973). I therefore believe that those three items should not be affirmed.

Items 5 and 6 alleged that respondent failed to comply with the fire extinguisher standards codified at 29 C.F.R. § 1910.157(a)(3)[7] and § 1910.157(c)(5)(i).[8] These standards were promulgated by the Secretary of Labor pursuant to 29 U.S.C. § 655(a)[9] which authorized him to promulgate as standards under this Act any national consensus standard,

‘. . . unless . . . [it] would not result in improved safety or health for . . . employees.’

Thus, Congress mandated that a standard promulgated under § 655(a) must be directed at ‘safety or health’ of employees in order for it to be a proper standard under this Act.

Sections 1910.157(a)(3) and (c)(5)(i) are concerned with fire extinguishers. To determine the reason for such regulations requires an analysis of the general section of which they are a part: 29 C.F.R. § 1910.157. Contained therein are numerous examples that indicate that the purpose thereof is to protect property.

Section 157(c)(1)(i) states ‘[t]he number of fire extinguishers needed to protect a property . . .;’ § 157(c)(1)(ii) states that ‘[f]ire extinguishers shall be provided for the protection of . . . the building structure . . .;’ § 157(c)(1)(iii) states ‘[r]equired building protection shall be provided by fire extinguishers . . .;’ § 157(c)(1)(v) states ‘[e]xtinguishers provided for building protection . . .;’ § 157(c)(1)(vi) states ‘[c]ombustible buildings . . . shall have a . . . fire extinguisher . . . for building protection . . ..’

Even though the two standards in issue here do not include similar words, it is quite evident from the foregoing that all of § 1910.157 is, at least in part, aimed at the protection of property. This intent clearly permeates the entire section of 1910.157, thereby rendering the property protection purpose inseverable from the purpose of employee protection. The Occupational Safety and Health Act, however, does not grant the Secretary of Labor authority to promulgate property protection regulations. Section 655(a) directs that regulations protect employees.

When a regulation applies at least in part to a nonpermissible objective, and that part is not severable from any possible purpose that could fall within the statutory mandate, the entire standard must be struck down. See Fowler v. Gage, 301 F.2d 775, 778 (10th Cir. 1962). That is the case here.

Thus, 29 C.F.R. §§ 1910.157(a)(3) and (c)(5)(i) were promulgated ultra vires of the limitations set forth by Congress. When this occurs, the standards are void. See Utah Power & Light Company v. United States, supra; Federal Maritime Commission v. Anglo-Canadian Shipping Company, Ltd., 335 F.2d 255, 258 (9th Cir. 1964).

These two standards do not meet the statutory criteria for occupational safety and health standards under this Act and therefore no violation can be predicated thereon. That part of the citation should therefore be vacated.

Item 9 alleges a violation of 29 C.F.R. § 1910.213(h)(1), pertaining to woodworking machinery, which was also promulgated by the Secretary of Labor under the authority of 29 U.S.C. § 655(a). This standard, however, was improperly promulgated because it did not contain certain limitations specified in a headnote of the standard from which it was derived, American National Standards Institute (ANSI) standard 01.1–1954 (R 1961).

As I expressed in my dissenting opinion in Secretary v. Noblecraft Industries, Inc., OSAHRC Docket No. 3367, November 21, 1975, this modification of the ANSI standard was ultra vires of the Secretary’s authority under § 655(a). The standard is therefore null and void, and no violation of 29 U.S.C. § 654(a)(2) can be predicated thereon.

Accordingly, this part of the citation should also be vacated.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 2004
COLLATOR CORPORATION,
Respondent.

April 11, 1974

DECISION AND ORDER

Appearances:

Jane Ann McKenzie, Esq. for Complainant

Fred N. Hoover, Esq. for Respondent

Henry C. Winters, Judge

STATEMENT OF THE CASE

This is an action brought by the Secretary of Labor under Section 10 of the Occupational Safety and Health Act of 1070 (29 U.S.C. 651 et seq.) to affirm a citation, issued December 12, 1972, alleging non-serious violations of the Act, and to affirm proposed civil penalties totaling $330.00.

The citation was issued by the Secretary’s area director as a result of an inspection made by a compliance officer on October 27, 1972 of a plant in Seattle, Washington where Respondent was and is engaged in the manufacture of collating machines. Citation Number 1, issued December 12, 1972, alleges the following violations:

Item No.	Standard or Regulation allegedly violated	Description of alleged violation	Date on which alleged violation must be corrected
1	29 CFR 1904.2(a)	Failure to maintain a log of occupational injuries and illnesses on Form OSHA No. 100	Immediately upon receipt of this citation.
2	29 CFR 1910.23(c)(1)	Failure to guard the openside of a loft, above the center bay machine shop in the “R&D” area area, with a standard guardrail and toeboard or the equivalent.	January 2, 1973
3	29 CFR 1910.37(q)(1)	Failure to mark the access to exits with readily visible signs at the following locations: 1) access doorways on the east side of the basement leading to the approach to exit above. 2) Access doorways to exits on the east and west sides of the tool room on the third floor.	January 2, 1973
4	29 CFR 1910.37(k)(2)	Means of egress on the east side of the “R&D” area, blocked in a manner that prevents immediate use in case of fire or other emergency.	Immediately upon receipt of this citation.
5	29 CFR 1910.157(a)(3)	Failure to conspicuously indicate the location and intended use of portable fire extinguishers at the following locations: 1) Location not indicated for a soda acid extinguisher located in the basement. 2) Location and intended usage of not indicated or extinguishers located in the 2^nd floor wood shop.	January 2, 1973
6	29 CFR 1910.157(c)(5)(1)	Failure to locate a portable fire extinguisher with class-c ratings where energized electrical equipment (metal cutting saws) are in use in the basement.	December 15, 1972
7	29 CFR 1910.212(a)(1)	Failure to provide for one or more methods of adequate machine guarding to protect the operator and other employees in the machine area from hazards created by the point of operation, at the following machines: 1) the “Cyril Bath” press brake, model 100-6, serial #6711 (Ex Boeing) located on the west side of the “R&D” area. 2) the “Cincinnati shear, serial #12600,Oct 27, 1972 located in the “R&D” area, and having a barrier guard placed a height of approximately 1” above the cutting table that allows space to insert fingers. 3) “Lodge and Shipley” shear located in the metal fabrication area of the third floor. The barrier guard in place on the machine is worn in the center to the extent that hands may be slipped under the guard. 4) Three “Star-Di Arco” press brakes located in the metal fabrication area of the third floor are without point of operation guards.	January 2, 1973
8	29 CFR 1910.213(g)(1)	“Walker-Turner” swing cut-off saw in saw shop located in the basement area has the lower half of 12” diameter saw blade unguarded.	January 2, 1973
9	29 CFR 1910.213(h)(1)	1) “DeWalt” cross cut radial saw located in the wood shop on the 2^nd floor has an unguarded lower half of the 18” diameter saw blade. 2) The “DeWalt” cross cut radial saw, used for metal cutting in the basement saw shop is without a guard on the lower half of cutting blade.	January 2, 1973
10	29 CFR 1910.213(h)(4)	The cutting head of the cross cut radial saws does not return to its original starting position when released by the operator, on the following two saws: 1) “DeWalt” cross cut radial used for metal cutting and located in the saw shop of the basement. 2) “DeWalt” cross cut radial, with 18” diameter head, located in the wood shop on the second floor.	December 15, 1972
11	29 CFR 1910.213(i)(1)	Failure to guard the 12” portion of the blade between the sliding guide and the upper-saw-wheel guard on the “Walker-Turner” band saw in the machine shop of the “R&D” area.	December 15, 1972
12	29 CFR 1910.219(d)(1)	Failure to guard exposed pulleys, less than seven feet off the floor or adjacent work surfaces, at the following locations: 1) Exposed pulleys (approximately 41/2’high) on the “Ingersoll-Rand” compressor in the basement compressor room. 2) Exposed pulleys (4’high) on the “Brown and Sharpe, Turner Uni-Drive” automatic screw machine in the tooling room of the third floor. 3) Exposed pulley (approximately 51/2’ high) on Hollidie punch press #3 located in the third floor metal fabrication shop. 4) Exposed pulley (approximately 4’ high) on the Allis Chalmers air compressor located in the third floor machine shop.	January 2,1973
13	29 CFR 1910.219(f)(1)	Failure to guard exposed revolving gears on the grit barrel tumbler located in the welding shop area of the third floor.	January 2, 1973
14	29 CFR 1910.242(b)	Failure to limit static pressure of compressed air hoses less than 30 PSI at the: 1) Etching tank area. 2) Second floor wood shop.	Immediately upon receipt of this citation.
15	29 CFR 1910.252 (a)(2)(iv)(c)	Oxygen and acetylene, compressors gas bottles were stored adjacent without a noncombustible barrier at least 5’ high or a minimum distance of 20’ located in the welding shop of the third floor.	Immediately upon receipt of this citation.
16	29 CFR 1910.309(a)	Electrical disconnect switches at the following six locations not legibly identified as required in article 110-22 of the NEC-1971: 1) light switch box located in the center of the south bay of the third floor. 2) Two light switch boxes located adjacent to the “Cincinnati” shear in the “R&D” area. 3) Switch box for “Cincinnati” shear in “R&D” area. 4) Light switch box on north wall of south bay on 4^th floor. 5) Power switch box (240 v.a.c., 100 amp) on each wall of 4^th floor machine assembly area. 6) Power switch box (240 v.a.c., 200 amp) on east end of bin assembly area of 4^th floor.	January 2, 1973

By Amended Notification of Proposed Penalty, issued January 2, 1973, the Secretary proposed the following penalties:

Item No.	Proposed Penalty
1a	0
2	0
3	0
4	0
5	0
6	30.00
7	65.00
8	35.00
9	65.00
10	30.00
11	30.00
12	45.00
13	30.00
14	0
15	0
16	0
Total for All Alleged Violations	$330.00

Respondent’s notice of contest consists of a letter, dated January 4, 1973, from Respondent’s president to the Secretary’s area director. The letter reads as follows:

In accordance with the procedures in the Federal Register, Part II Volume 36, #105, dated May 29, 1071, Occupational Safety and Health Standards, we hereby contest the notice of proposed penalties.

In the Complaint, filed January 12, 1973, the Secretary seeks to have affirmed certain violations, charged in paragraph IV of the Complaint, namely, those violations described in Item Numbers 6, 7, 8, 9, 10, 11, 12 and 13 of Citation Number 1, and the penalties proposed therefor. The Complaint alleges in part (paragraph X) as follows:

…The notice of contest by its terms is limited to the citation items involving only those violations charged in paragraph IV above. Jurisdiction over such limited contest has thereby been conferred upon the Commission pursuant to Section 10(c) of the Act…

In its answer, filed February 6, 1973, the Respondent denies the allegations of paragraph IV of the Complaint and particularly with respect to subparts (1) and (4) of Item Number 7, alleges that the Department of Labor has failed to promulgate standards pertaining to point of operation guarding of press brakes.

Hearing was held at Seattle, Washington before this Judge on April 10 and 11, 1973.

At the opening of the hearing, counsel for the Secretary made the following oral motion (TR3):

At this time the Secretary would move for a judgement on the pleadings in the Secretary’s favor based on the fact that there is no genuine issue of material factors resulted [10] by this Commission. Respondent’s Notice of Contest limited its contest to the Notice of Proposed Penalties. This Commission was therefore given jurisdiction over the reasonableness of those proposed penalties. The Secretary filed a complaint alleging that the proposed penalties were computed in accordance with Section 17(j) of the Occupational Safety and Health Act. Respondent’s answer admitted that the proposed penalties were reasonable in that Rule 33 of the Commission’s Rules of Procedure the Respondent did not deny that the proposed penalties were reasonable. Therefore, there are no general issues of material fact before this Commission.

In reply, the Respondent asserted that in its letter of January 4, 1973 the Respondent intended not only to contest the proposed penalties but each of the substantive violations alleged in the citation. Counsel for Respondent then stated (TR12 and 13):

Let the record show Respondent is not seriously contesting those items in citations dated December 12, 1972 other than those items which are designated as Item No. 7, Sub (1) and Sub (4) and referred to in the complaint as Paragraph 2 Sub (1) and Sub (4). However, again for the record, and to protect the Respondent, we continue to contest all other items and will present testimony to show that the remaining items of the citation have been corrected and/or abated to the best knowledge and means of the Respondent in the absence of any specific directions as to how abatement and/or correction should be accomplished.

Whereupon this Judge ruled as follows:

…At this stage of the proceeding it is my interpretation from this letter that the Respondent intended to contest the entire citation and the notification of proposed penalty, and I’m putting the Secretary on notice to proceed on that basis or argue with me on brief.

Briefs and proposed findings were submitted by the parties.

DISCUSSION

The recent decision in Docket No. 2354, Secretary v. Florida East Coast Properties, Inc., (decided February 4, 1974) would seem to require this Judge to reverse his ruling with respect to what was at issue in this case. This Judge, will, however, confirm this ruling for two reasons:

(1) The rationale of the decision in Docket No. 1086, Secretary v. P.M.F., Inc., which became the final order of this Commission on January 2, 1974 supports the ruling and has not been specifically reversed or modified; and

(2) a respondent should have the opportunity up to the time of hearing to change the basis of his contest, if, indeed, he could be required to specify a basis for wanting a hearing. In the P.M.F. case, this Judge said (pages 6, 7, and 8):

The Judge concludes from a reading of the Act, particularly section 10 thereof, that Congress intended that if an employer contests either the citation or the proposed assessment of a penalty, the employer is entitled to a hearing at which, subject to reasonable rules of procedure, all matters are at issue, including the validity of the alleged violations, the reasonableness of the proposed abatement date, and the appropriateness of a penalty. Section 10(a) provides that an employer has fifteen working days from the time he is notified of a proposed penalty to contest the citation or proposed penalty; and that if the employer fails to notify the Secretary that he intends to contest the “citation or proposed assessment of penalty” and no timely notice is filed by an employee or representative of employees, “the citation and assessment as proposed shall be deemed a final order of the Commission and not subject to review by any court or agency.” It is significant that this statute refers to the Citation and proposed assessment of penalty as “a final order” and not as “final orders.” Congress did not separate the finality of the citation from the finality of the penalty assessment, as contended by the Secretary.

Section 10(c) provides that if an employer notifies the Secretary he intends to contest a citation or notification of proposed penalty, the Secretary shall advise the Commission and the Commission shall afford an opportunity for a hearing; and that the Commission shall thereafter issue an order affirming, modifying or vacating the citation or proposed penalty, or ‘directing other appropriate relief.’ The statute did not limit the issues of the hearing to the scope of the notice of contest but rather puts the whole matter before this Commission with a broad power to direct other appropriate relief.

Under the Secretary’s interpretation of this statute, if an employer contests the proposed penalty but does not specifically state that he is contesting the citation, and a hearing is held, the following rather strange consequence would result:

1) The Respondent would be precluded from asserting that the reason he should not have a penalty assessed against him is because he did not violate the Act; and

2) This Commission, although holding a hearing to consider the facts and circumstances surrounding an alleged violation, would be prevented by its own final order (an order which it did not issue and over which it at no time had any control) from vacating or modifying a citation which it considered to be erroneous. This Judge cannot believe Congress intended such consequences.

When one considers that the citation and notification of proposed penalty are not required to be issued simultaneously and it is only the notification of proposed penalty that starts the fifteen working day period within which a notice of contest must be made, and when one considers that the abatement date is automatically postponed when a good faith notice of contest is made, the conclusion is even more evident that a notice of contest does not have to mention specifically that the citation is contested in order to put the validity of the citation as an issue before this Commission. This is not to say that a Respondent may not admit the validity of a citation either by making an explicit admission in a notice of contest, or by way of a pleading or in testimony, thereby eliminating the necessity of proving the allegations of a citation….

This Judge persists in his belief that his decision in the P.M.F. case is sound.

In this Judge’s opinion, Congress intended that the notice of contest be the vehicle by which an employer would exercise the right conferred on him by the Administrative Procedure Act to have the opportunity for a hearing; [11] and that Congress did not intend that the notice of contest be a responsive pleading in the sense that an employer must, within a period as short as 15 days, decide precisely what his objections or his defense would be. If it were the intent of Congress in Section 10 of the Act that an employer by the particular language be used in a notice of contest would thereby make an irrevocable decision limiting the issues of the proceeding and the jurisdictional power of this Commission, such provisions of the Act would, in this Judge’s opinion, contravene the guarantee of the Fifth Amendment of the U.S. Constitution that a person shall not be deprived of property without due process of law.

This Judge concludes in this case that Respondent’s notice of contest was sufficient to challenge the validity of the citation as well as the appropriateness of the proposed penalties; and that the jurisdiction of this Commission is not restricted by the language of the notice of contest.

The Respondent has, however, by its answer to the complaint and by statements of its counsel at the hearing narrowed its concern to the validity of subparts (1) and (4) of Item No. 7, and the reasonableness of proposed penalties.

The standard alleged in Item No. 7 as having been violated, provided as follows:

1910.212 General requirements for all machines

(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.

Since subpart (1) and (4) of Item No. 7 concern point of operation guarding, it is necessary to consider, in addition to the provisions above-quoted, the provisions of subparagraph (3) of paragraph (a) of Section 1910.212, dealing specifically with point of operation guarding. Additionally, since the language of such subparagraph (3) differs rather drastically from the established federal standard which its the source, it is necessary to compare this part of the standard with its source.

By notification published in the Federal Register on May 29, 1971, the Secretary promulgated as standards under the Act certain established federal standards which were in effect on April 28, 1971.[12] One of such established federal standards was that in 41 CFR 50-204-5 which was originally promulgated under the Walsh-Healey Public Contracts Act, amended (41 U.S.C. 35) and which is the source of the standard in Section 1910.212.[13]

The standard in 41CFR 50-204.5 in effect on April 28, 1971 contains verbatim the above provisions as quoted from Section 1910.212(a)(1) but when dealing specifically with point of operation guarding OSHA standard uses quite different language from that in the Walsh-Healey standard from which it was adopted. There are set forth below the corresponding provisions of both standards:

Walsh-Healey standard[14]

5[0]-204.5 Machine guarding.

***

OSHA standard

1910.212 General requirements for all machines.

***

(2) Where existing standards prepared by organizations listed in Section 50-204.2 provide for point of operation guarding such standards shall prevail. Other types of machines for which there are no specific standards, and the operation exposes an employee to injury, the point of operation shall be guarded. The guarding device shall be so designed and constructed so as to prevent the operator from having any part of his body in the danger zone during the operating cycle.

***

(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 body part in the danger zone during the operating cycle.

It is apparent from reading the above standards that in order to determine whether within the meaning of Section 1910.212(c), there are any “appropriate standards” governing point of operation guarding, one must take into consideration the provisions of 41 CFR 50-204.2 as the existed on April 28, 1971. On that date, the only organization listed in Section 50-204.2 which had standards in effect pertaining to press brakes was American National Standards Institute (ANSI).[15]

A press brake is a particular kind of mechanical power press.[16] The ANSI standard, pertaining to mechanical power presses which was in effect on April 28, 1971, was promulgated under the act as a national consensus standard and codified as 29 CFR 1910.217.[17] Section 1910.217 provides in part as follows:

1910.217 Mechanical power presses.

(a) General requirements--***

(5) Excluded machines. Press brakes, hydraulic and pneumatic power presses,….are excluded from the requirements of this section.

Taking into consideration all of the above provisions, this Judge concludes that there were no standards in effect on October 27, 1972 requiring point of operation guarding of press brakes. The Walsh-Healey general standard provided that the more specific ANSI standard shall prevail. The more specific ANSI standard by excluding press brakes thereby determined in effect that there should be no point of operation guarding standards applicable to press brakes. ANSI at the time it issued the standards forming the source of Section 1910.217, had no general machine guarding standards. So when the framers excluded press brakes from the specific standards relating to power presses, it was clearly the intent to exclude press brakes from coverage by any safety standard. [18] The more specific standard pertaining to power presses but excluding press brakes from coverage prevails over the broad standard covering general requirements for all machines.

Even it were here determined that the provisions of Section 1910.212 are applicable to the operation of press brakes, there is insufficient credible evidence in this proceeding upon which to conclude that, as the press brakes in question were equipped and operated a the time of inspection, any employee was exposed to injury. There is no showing that additional point of operation guarding was required by Section 1910.212. The compliance officer, although taking the position that some kind of barrier guard was required, was unable to advise Respondent’s officials of what kind of a guard could be used on such a machine nor what must be done to correct what he considered to be a violation.

No conclusion adverse to Respondent can be inferred because of the fact that subsequent to the inspection it has followed a practice of requiring its employees to use work handling tongs in connection with the operation of those press brakes remaining in service. Such hand tools were not intended to be used in lieu of other guarding. There has never been an accident in Respondent’s plant involving press brakes.

Subparts (1) and (4) of Item No. 7 and any penalties proposed therefor should be vacated.

All alleged violation, except those involving the press brakes, have been abated by the Respondent.

As to such remaining violations, this Judge has imposed appropriate penalties giving due consideration to the four criteria of Section 17(j) of the Act.

In consideration of the entire record and of the briefs and proposed findings submitted by the parties, this Judge makes and enters the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1. On October 27, 1972 at a worksite in Seattle, Washington, Collator Corporation, a corporation, Respondent failed in the manner alleged in Citation No. 1, issued December 12, 1972, to comply with standards promulgated by the Secretary except that the alleged violations set forth in subparts (1) and (4) of Item No. 7 of such citation do not constitute instances of noncompliance.

2. The instances of noncompliance referred to in paragraph 1 above had a direct and immediate relationship to safety and health but were not alleged to be of a serious nature and are, therefore, found not to be of a serious nature.

3. At all times herein pertinent, the Respondent acted in good faith.

4. Respondent has no history of past violations.

5. All instances of noncompliance referred to in paragraph 1 above have been corrected.

CONCLUSIONS OF LAW

1. At all times herein pertinent, the Respondent was and is engaged in a business affecting commerce and subject to the provisions of the Act.

2. This Commission has jurisdiction of the parties and of the subject matter of this case.

3. The instances of noncompliance referred to in paragraph 1 of Findings of [Fa]ct constitute non-serious violations of standards promulgated pursuant to Section 6 of the Act and subject the Respondent to assessment of civil penalties as provided in Section 17(c) of the Act.

4. Due consideration having been given to the appropriateness of the penalties with respect to the size of the business of the Respondent, the gravity of each violation, the good faith of the Respondent and the history of previous violations, the penalties proposed by the Secretary should be imposed, except that the penalty with respect to Item No. 7 should be $30.00 instead of the $65.00 as proposed.

5. With respect to the violations alleged in subparts (1) and (4) of Item No. 7 dealing with guarding of press brakes, the Secretary has failed to prove a violation and such alleged violations and any penalties proposed therefor, should be vacated.

ORDER

In view of the foregoing Findings of [Fa]ct and Conclusions of Law, it is ORDERED:

1. Subparts (1) and (4) of Item No. 7 of Citation No. 1, issued December 12, 1972 and any penalties proposed therefor, be, and they hereby are, vacated;

2. In all other respects Citation No. 1 be, and it hereby is affirmed;

3. The Respondent be, and it hereby is, assessed civil penalties totaling $295.00 and apportioned for each item number of Citation No. 1 as follows:

Item No.	Proposed Penalty
1	0
2	0
3	0
4	0
5	0
6	30.00
7	30.00
8	35.00
9	65.00
10	30.00
11	30.00
12	45.00
13	30.00
14	0
15	0
16	0

Dated at Seattle, Washington this March 13 1974 day of March 1974.

Henry C. Winters, Judge.

[1] Paragraph IV of the complaint alleged violations of those items of the citation for which penalties were proposed

[2] § 1910.212(a)(1): 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] While the answer might be read as contesting the merits of more than the press brake allegations, we view Respondent’s statements at the hearing, like Judge Winters, as indicating an intent to limit its contest to the press brake allegations.

[4] Subsequent to the issuance of the citation, Respondent sold its Cyril Bath press brake.

[5] The divided Commission decision in Turnbull Millwork Company, supra, has been favorably cited but distinguished in Juhr & Sons, No. 2314 (January 13, 1976) and Acme Metal, Inc., Nos. 1811 & 1931 (January 29, 1976), and has been followed by a majority of the Commissioners in the instant case. I continue to adhere to the views I expressed in my dissent in Turnbull, but until such time as a majority of the Commission elects to return to the salutary rule of Florida East Coast Properties, Inc., supra, Turnbull is the controlling precedent. Out of a prudent respect for the Commission’s policy of adherence to precedent, I accordingly join with Chairman Barnako’s disposition of the notice of contest issue.

[6] My colleague in dissent implicitly recognizes that Utah Power & Light Company v. United States, 243 U.S. 389, 410–411 (1917), does not speak directly to the question of the subject matter jurisdiction. Rather, the opinion of the Court addresses the merits of a well-pleaded claim that a regulation was invalid, and treats the matter as going to the merits of the case. Under these circumstances, the conclusion that the validity of a standard affects the subject matter jurisdiction of either the federal courts or this Commission is not suggested by a liberal reading of the Courts’ opinion.

[7] This standard provides:

‘Extinguishers shall not be obstructed or obscured from view. In large rooms, and in certain locations where visual obstruction cannot be completely avoided, means shall be provided to indicate the location [thereof] . . ..’

[8] This standard provides:

‘Extinguishers with Class C ratings shall be required where . .. electrical equipment may be encountered. . . .’

[10] There is obviously an error in the transcript. The words “factors resulted” should be stricken, and the words “facts to be resolved” substituted in lieu thereof.

[11] See 5 U.S.C. 554, 556, and 557. The fact that a hearing is required does not imply that oral testimony is necessary with respect to uncontroverted factual matters.

[12] See preamble to Part 1910 in 36 Federal Register 10466 (May 29, 1971).

[15] ANSI was referred to in Section 50-204.2 as “United States of America Standards Institute”.

[16] Both “mechanical press brake” and “hydraulic press brake” qualify as “mechanical power presses”.

[18] At the time of the hearing ANSI was in the process of developing specific standards applicable to press brakes. See Respondent’s Exhibit No. 2.