“SECRETARY Of LABOR,Complainant,v.MARMON GROUP, INC., d\/b\/aDARLING STORE FIXTURES INC.,Respondent.OSHRC Docket No. 79-5363_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).The issue on review is whether former Commission Judge John S. Pattonerred in concluding that Marmon Group’s failure to comply with a machineguarding standard was not a willful violation of the Act. For thefollowing reasons, we affirm the judge’s decision.[[1]]Marmon Group has a workplace in Corning, Arkansas, where it manufacturesstore fixtures. Numerous mechanical power presses are operated at thisworkplace, including one identified as press no. 5094, which is used toform brackets. The point of operation on the machine is the areabetween the ram and the bed. The press operator places the workpiecemanually into the point of operation, activates the ram by stepping onthe foot treadle or by simultaneously pressing two \”palm buttons,\” andthen manually removes the formed bracket.The Secretary’s machine guarding standards at 29 C.F.R. ?1910.217(c)(1)(i) require employers \”to provide and insure the usage of’point of operation guards’ or properly applied and adjusted point ofoperation devices on every operation performed on a mechanical powerpress.\” At various times, Marmon Group used a barrier guard, \”two-handcontrols\” (_i.e_., the dual palm buttons), and a \”pull-out device\” onpress no. 5094.[[2]] Any one of these three precautionary measures isan acceptable and equivalent method of guarding under the standards. However, when an employer relies on a pull-out device as the means ofprotecting the operator, it must comply with the following requirementof section 1910.217(c)(3)(iv)(d):Each pull-out device in use shall be visually inspected and checked forproper adjustment at the start of each operator shift, following a newdie set-up, and when operators are changed. The citation is based on anallegation of failure to comply consistently with this requirement.In July 1978, press operator Suzanne Maynard was injured on press no.5094 when three fingers were crushed. At that time the method ofguarding provided by Marmon Group was a pull-out device with detachablehand straps. Marmon Group’s investigation of the accident disclosedthat the pull-out device had been functioning properly and was properlyadjusted, but that the likely cause of the accident was the operator’sfailure, upon returning to her work station, to reconnect the hand strapon her left hand to the pull rope before resuming operation of the press.In February and March 1979, OSHA conducted a workplace inspection. Atthe time of the inspection, Marmon Group was using a barrier guard onpress no. 5094 rather than the pull-out device. However, the complianceofficer determined that the barrier guard was improperly adjustedbecause it did not prevent entry into the point of operation. TheSecretary included this violation in a citation alleging variousviolations of the machine guarding standards. None of the citationitems involved pull-out devices.In April 1979, OSHA conducted a second inspection of the workplace. This included an investigation of Marmon Group’s policies and practicesconcerning the use of pull-out devices. The employer’s representativesexplained to the compliance officer that the devices were checked forproper adjustment whenever the dies were changed on the press, at thebeginning of each shift, and whenever there was a change in operators. The adjustment check consisted of bringing the ram down into the closedposition, placing the operator into the pull-out device, calculating thedistance from the ends of the operator’s extended fingers to the pointof operation, and adjusting the straps if necessary so that the handscould not be within the point of operation as the dies closed. Thecompliance officer informed Marmon Group that the procedures were incompliance with the mechanical power press standards.Marmon Group assigned to its assistant foremen or \”set-up men\” theresponsibility for complying with these inspection procedures andtrained them to carry out this responsibility. In addition, MarmonGroup attached an inspection check-off sheet to every press that used apull-out device. At the top of these sheets, Marmon Group set forth astatement of its policy, which accurately paraphrased the standard’srequirements. The assistant foremen were instructed to record on thesecheck-off sheets each of the required inspections when they occurred andthe assistant foremen thereafter entered notations on the sheetsindicating that these instructions had been followed. There is noevidence that any member of management was aware of any incident inwhich an assistant foreman failed to conduct a required inspection of apull-out device or falsely recorded an inspection that had not occurred.In June 1979, two months after Marmon Group’s most recent OSHAinspection, another press operator, Crystal Sutton, was injured when twofingers on her left hand were crushed in the point of operation on pressno. 5094. Marmon Group’s investigation of this accident indicated thatthe operator was using the pull out device, that it was functioningproperly, and that it was adequately adjusted to keep the operator’shands out of the area where the upper die contacts the stationary lowerdie. After considerable experimentation in an effort to determine howthe operator could possibly have been injured under these circumstances,Marmon Group concluded that a new \”pinch point\” was created when theworkpiece was improperly placed in the point of operation in aparticular tilted manner. This new pinch point was three inches higherthan the normal pinch point. Prior to this investigation, no one wasaware that it was even possible for the workpiece to be positionedimproperly in the point of operation.As a result of this accident, OSHA again inspected the workplace andissued a citation which alleged that Marmon Group failed to properlyadjust the pull out device on press no. 5094 on the date of CrystalSutton’s injury.[[3]] At the hearing, assistant foreman Rodney Smithtestified that he had consistently complied with his employer’s policyby checking the adjustment of pull-out devices whenever a new operatorwas assigned to a press, that this check consisted of a determinationthat the device was properly fitted to the particular operator, and thatthe check always occurred before press operations began. However, fourpress operators under Smith’s supervision testified that, prior toCrystal Sutton’s accident, Smith had never checked to see whether thepull-out devices they were wearing were properly adjusted. Pressoperator Sutton directly contradicted Smith’s testimony that he haddetermined on the morning of her injury that the pull-out device onpress no. 5094 was properly adjusted to fit her.In his decision, Judge Patton noted the conflicts in the record andresolved them by crediting the testimony of the press operators. Thus,he sustained the specific allegation that the pull-out device on pressno. 5094 had not been properly adjusted for use by press operator Suttonon the day of her injury. Judge Patton further found that, althoughMarmon Group’s policy was to have the pull- out devices checked beforeoperation of the presses, the employer did not adequately enforce itspolicy. Based on this finding, he concluded that Marmon Group hadcommitted a serious but not a willful violation of the Act.On review, the Secretary argues that the judge erred in vacating thewillful charge. He asserts that \”Respondent’s long and consistentrecord of disregarding the standard at issue not only establishes apattern and practice of total disregard for employee safety, itestablishes an obvious, conscious, intentional and voluntary decision toignore safety regulations to the detriment of its workers.\” Havingreviewed the record in this case, we affirm the judge’s conclusion thatthe violation was not willful.To establish that a violation was willful, the Secretary must prove thatit was committed with an intentional disregard of or a plainindifference to the requirements of the Act. It is not enough for theSecretary simply to show a lack of diligence or carelessness in failingto discover or eliminate a violation. On the contrary, where the recordestablishes that the employer has made a good faith effort to complywith a standard or to eliminate a hazard to its employees, a willfulcharge is not justified even though the employer’s efforts are notentirely effective or complete. _Mobil Oil Corp_., 83 OSAHRC ___, 11BNA OSHC 1700, 1983 CCH OSHD ? 26,699 (No. 79-4802, 1983), and casescited; _Mosites Constr. Co_, 81 OSAHRC 40\/A2, 9 BNA OSHC 1808, 1812,1981 CCH OSHD ? 25,357 at p. 31,494 (No. 78-50, 1981) (\”[A]lthoughRespondent could have known of the . . . violation] with the exercise ofreasonable diligence, its lack of diligence is not characterizedproperly as willful.\”); _Wright & Lopez, Inc._., 80 OSAHRC 36\/A2, 8 BNAOSHC 1261, 1980 CCH OSHD ? 24,419 (No. 76-3743, 1980), _petitionswithdrawn_, Nos. 80-1569 & 80-1704 (D.C. Cir., July 23, 1981, and Sept.17, 1980). Thus, for example, the Commission has declined to impute aforeman’s willful violation to his employer where the foreman’s behaviorwas contrary to a consistently and adequately enforced work rule._Chesapeake Operating Co_., 82 OSAHRC 36\/C9, 10 BNA OSHC 1790, 1982 CCHOSHD ? 26,142 (No. 78-1353, 1982).Here, the record establishes that Marmon Group had a history of goodfaith efforts to comply with the mechanical power press standards and toprotect its press operators from point of operation hazards. Forexample, Marmon Group replaced all of its pull-out devices with saferdevices following the injury to Suzanne Maynard even though itsinvestigation concluded that Maynard would have been fully protected ifshe had used the existing device, requested OSHA to evaluate itsprotective measures, and promptly abated violations brought to itsattention. Marmon Group also unambiguously required the assistantforemen to check the pullouts as required and took measures to assurethat the assistant foremen carried out their duties. The Secretary didnot establish that Marmon Group’s efforts to implement its policy wereso defective as to constitute a plain indifference to or an intentionaldisregard of the standard’s requirements. Contrary to the Secretary’sargument, the July 1978 accident, the February-March and April 1979inspections, and the March 1979 citation did not place Marmon Group onnotice, prior to the injury to Crystal Sutton, that its safety programwas defective.Accordingly, the judge’s decision is affirmed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: JUL 19 1984ROWLAND, Chairman, concurring in part and dissenting in part:I join the majority in holding, for the reasons stated in the leadopinion, that Marmon Group’s failure to comply with 29 C.F.R. ?1910.217(c) (1)(i) was not a willful violation of the Act. However, inmy view, the majority fails to follow its analysis through to itslogical conclusion, that is, that Marmon Group should not be heldresponsible for any violation of the Act. Accordingly, I dissent fromthe majority’s decision to affirm a serious violation and assess apenalty of $1000.Under Commission precedent, whenever the Secretary alleges a violationof the Act, he must prove as part of his case-in-chief that the employerknew or with the exercise of reasonable diligence could have known ofthe violative condition. _L.M. Sessler_ _Excavating & Wrecking, Inc_.,84 OSAHRC ___, 11 BNA OSHC 2007, 1984 CCH OSHD ___ (No. 79-2168, 1984),citing _Prestressed Systems, Inc_., 81 OSAHRC 43\/D5, 9 BNA OSHC 1864,1869, 1981 CCH OSHD ? 25,358, p. 31,500 (No. 16147, 1981). Here theCommission has correctly vacated the willfulness allegation based on theevidence of Marmon Group’s extensive good faith efforts to comply withthe machine guarding standards. However, it is this same evidence thatis critical in determining whether Marmon Group could have known of theviolation with the exercise of reasonable diligence. Nevertheless, themajority does not address the knowledge issue, noting instead thatMarmon Group did not object to the judge’s decision and review waslimited to the issues raised by the Secretary.I would not restrict the Commission to consideration of a singlenarrowly-drawn issue when that issue is intertwined with other issues inthe case. By focusing solely on the issue of willfulness, theCommission has artificially fragmented Marmon Group’s contest of thecitation and its own consideration of the controversy. _See_ _Dun-ParEngineered Form Co_., 84 OSAHRC ___, 11 BNA OSHC 1912, 1984 CCH OSHD ?26,883 (No. 79-2553, 1984) (Rowland, Chairman, dissenting).Moreover, unlike the Federal Rules of Appellate Procedure, _see_ Rule4(a)(3), the Commission’s Rules of Procedure do not provide a procedurewhereby a party can petition for review if the other party has filed apetition and obtained review. For this reason, the nonpetitioningparty may be denied the opportunity to request examination by theCommission of issues decided adversely to it that it wishes to haveconsidered only if the case is otherwise directed for review. In myview the Commission Rules should provide for a cross appeals procedure. Until such time as this is done, I would not preclude review of issuesthat are closely related to the issues on which review has beendirected.[[1]]Turning to the knowledge issue, I first note that the noncomplianceshown on this record is the misconduct of a single assistant foreman whoapparently not only knowingly failed to conduct adjustment checks thatwere required by his employer but also successfully concealed hisomissions by falsely recording that the checks had been conducted. Asstated in the lead opinion, there is no evidence that any member ofmanagement had actual knowledge of the assistant foreman’s actions oromissions. Moreover, as found by the majority, none of the eventspreceding Crystal Sutton’s injury placed Marmon Group on notice of anydefect in its safety program. With respect to the inspection ofpull-out devices, Marmon Group’s safety program was exemplary. MarmonGroup had adopted an unambiguous policy that fully implemented therequirements of the Secretary’s inspection standard, clearlycommunicated its policy to the assistant foremen who were responsiblefor carrying it out, trained these employees in the specific inspectionprocedures, provided check-off sheets on the presses as a means ofdetermining whether its instructions were being followed and as areminder to the assistant foremen of their responsibilities, andprovided walkaround tours by a management-level supervisor to determinewhether the pull-out devices were operating effectively. On thisrecord, I conclude that Marmon Group had in fact exercised reasonablediligence and therefore could not have known of the violation. I wouldvacate the citation for that reason.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] The judge found that the violation was serious but not willful,and assessed a penalty of $1000. The Secretary petitioned for review onthe willfulness issue; Marmon Group, the party aggrieved by the judge’saffirmance of the citation, did not petition for review of the judge’sdecision. Neither party disputes the judge’s determination that $1000is an appropriate penalty if the violation is not found to be willful. Review was directed on the issues raised by the Secretary. Since MarmonGroup has not objected to the judge’s decision, we reach only the issueof whether the violation was willful.[[2]] As defined at ? 1910.217(c)(3)(iv), a pull-out device is attachedat one end to the movable ram and at the other to the operator’s hands. It must be adjusted to restrain the operator from reaching into thepoint of operation while the dies are closing or forcibly withdraw theoperator’s hands if the operator fails to remove them before stepping onthe foot treadle and activating the press.[[3]] The compliance officer noted, however, that the alleged violationhad already been abated by the time of his inspection. Thus, the pressoperator was not only wearing a properly adjusted pull-out device butalso using the two-hand controls. A follow-up inspection in September1979 confirmed that the violation had been abated and that the employerwas in compliance with the machine-guarding standards.[[1]] In view of the Commission practice of limiting the scope of reviewto the issues on which review has been directed, I attach nosignificance to Marmon Group’s failure to raise the knowledge issue inits brief to the Commission. It is not surprising that the employerstrictly limited its brief to the issue stated in the direction for review.”