WALINSKI, District Judge.
Petitioner Diebold, Inc. seeks judicial review of a decision by the Occupational Safety and Health Review Commission (hereinafter "the Commission") that Diebold has violated a safety regulation promulgated by the Secretary of Labor pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-78 (hereinafter "the Act"). Diebold contends that the Commission erred in its interpretation of the applicable regulations and that, even if the Commission's interpretation is correct, the regulations are so vague as to be unenforceable under the due process clause of the Fifth Amendment. For the reasons which follow, we accept the Commission's interpretation of the regulations in question but hold that on the facts of this case their application to Diebold would be a denial of due process. We therefore set aside that portion of the Commission's order which is challenged on appeal.
Diebold is a manufacturer of security files, safes, and other record handling and retrieval systems. At the times which are relevant here, Diebold operated plants at Hamilton, Wooster, and Malvern, Ohio, where its employees used various kinds of presses, including press brakes, to shape a variety of metals for use in the assembly of Diebold's products.
The press brake, which is the kind of machine at issue on this appeal, is a species
Based on inspections of Diebold's plants in January, March, and July, 1974, the Secretary issued a citation as to each plant charging Diebold with having violated § 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2),
In his decision, the Administrative Law Judge vacated the citations and proposed penalties, having concluded that a regulation specifically applicable to mechanical power presses, 29 C.F.R. § 1910.217, relieved press brakes from any point of operation guarding requirement. The Commission thereupon called the case for review, 29 U.S.C. § 661(i), and a Commission majority of 2-1 reversed the Administrative Law Judge, reinstating the citations and proposed penalties. The Commission majority determined that, although press brakes are excluded from the guarding requirements applicable to power presses (§ 1910.217), they remain subject to the requirements which the regulations set out for machines generally (§ 1910.212). In addition, the Commission rejected Diebold's contentions that the regulations were improperly promulgated, impossible to comply with, and impermissibly vague. Diebold, Inc. (OSHRC Docket Nos. 6767, 7721, 9496), ___ OSAHRC ___, 3 BNA-OSHC 1897, 1975-76 CCH-OSHD ¶ 20,333 (1976), rev'g, 1974-75 CCH-OSHD ¶ 19,214 (Ad.L.Judge, 1975).
Diebold then filed the instant petition for judicial review of the Commission's decision pursuant to 29 U.S.C. § 660(a), advancing the same claim that it made before the Commission.
The Act's central purpose is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources." 29 U.S.C. § 651(b). As the principal method for achieving this ambitious end, the Act authorizes the Secretary of Labor to promulgate national standards of occupational safety and health, 29 U.S.C. § 655, and places upon each covered employer
In general, the Secretary's standard-setting authority is to be exercised as the product of substantial prior research, advisory committee review, and notice-and-comment rule-making. 29 U.S.C. § 655(b). Congress recognized, however, that these procedures would be highly time-consuming and in the first years of the Act would run counter to the congressional interest in "immediately providing a nationwide minimum level of health and safety." S.Rep.No. 1282, 91st Cong. 2d Sess., 1970 U.S.Code Cong. & Admin.News, pp. 5177, 5182. For that reason the Act provided that, "as soon as practicable" and without regard to the
Shortly after the Act's passage, the Secretary exercised his § 655(a) authority and promulgated a voluminous collection of standards drawn from existing federal and consensus sources. 36 Fed.Reg. 10466 (May 29, 1971), codified at 29 C.F.R. Part 1910. Among these was the general machine guarding requirement which Diebold is charged with having violated in the instant case. The standard, 29 C.F.R. § 1910.212, embodies an "established Federal standard" previously promulgated by the Secretary of Labor under the Walsh-Healey Public Contracts Act, 41 U.S.C. §§ 35-45. It provides in pertinent part:
It is conceded that Diebold's press brakes are a form of mechanical power press, that their operators are exposed to point of operation injuries, and that no guarding devices are used to protect them from this hazard. In the Secretary's view, those facts establish a violation of § 1910.212 beyond any possibility of dispute. Diebold advances several reasons for its position that the regulation cannot properly be construed as applying to press brakes.
The company argues first that, despite the facial breadth of § 1910.212, the regulation's Walsh-Healey predecessor was never understood to require point of operation guarding on press brakes; indeed, it claims, such guarding was impossible in 1971,
As Diebold's arguments make clear, however, resolution of that issue depends in large part upon essentially historical or factual determinations relating to industrial and technological conditions at the time the standard was promulgated. Those are precisely the kinds of determinations which the Commission is peculiarly fitted to make by virtue of its members' "education, training, or experience." 29 U.S.C. § 661(a). As a general matter, the Commission is entitled to great deference in its reasonable interpretations of regulations promulgated under the Act. Dunlop v. Ashworth, supra, 538 F.2d at 563; Brennan v. OSHRC (Ron M. Fiegen, Inc.), 513 F.2d 713, 715-16 (8th Cir. 1975). Cf. Dunlop v. Rockwell International, 540 F.2d 1283, 1289 (6th Cir. 1976) (deference to Commission constructions of the Act itself). That deference is especially appropriate in a case like the present one where the Commission has expressly addressed historical and technological arguments and resolved them adversely to the petitioner.
Thus, we find no reason to second-guess the Commission's rejection of the claim that industrial practice and belief contradicted the applicability to press brakes of § 1910.212's Walsh-Healey source. To be sure, the Secretary has noted on appeal that press brake guarding is rarely used in practice, a fact which certainly indicates a widespread belief that guarding was not required. However, assuming that no one in industry was aware of any guarding requirement applicable to press brakes, we do not consider that fact to be dispositive of the guarding standard's meaning. It is true that the Act's authorization of expedited rule-making was based on a congressional belief that industry would already be thoroughly familiar with the "interim standards." S.Rep.No. 1282, supra, 1970 U.S. Code Cong. & Admin.News at 5182. As has become obvious in the years since the Act's passage, however, Congress was mistaken: Neither the "established Federal" nor the "national consensus" standards were widely known to or understood by industry at the time of their promulgation by the Secretary. See Gov't Res. Corp., Occupational Safety and Health: A Policy Analysis, pp. i, 21-22 (1973); N. Ashford, Crisis in the Workplace: Occupational Disease and Injury, pp. 248, 295 (Ford Foundation Rep. 1976). See, e. g., Brennan v. Smoke-Craft, Inc., 530 F.2d 843, 845 (9th Cir. 1976).
We are similarly unpersuaded that the Commission erred in rejecting Diebold's claim that the Walsh-Healey standard could not have required press brake guarding because such guarding was impossible in 1971. In the first place, the standards promulgated under § 655(a) appear to have included some whose sources indisputably set impossible requirements. See, e. g., AFL-CIO v. Brennan, 530 F.2d 109, 120-22 (3d Cir. 1975) ("national consensus" standard imposing a universal "no-hands-in-dies" requirement for power presses, revoked by the Secretary as impossible). Second, we recognize that national safety legislation is not limited to the present "state-of-the-art" but may properly force technological advances through the promulgation of requirements which are beyond what industry is immediately capable of attaining. See Society of Plastics Industry, Inc. v. OSHA, 509 F.2d 1301, 1309 (2d Cir. 1975); Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 548 (3d Cir. 1976). See also Chrysler Corp. v. Department of Transportation, 472 F.2d 659, 671-74 (6th Cir. 1972) (Automobile Safety Act of 1966). Thus, even if Diebold is correct that press brake guarding was generally impossible in 1971, that would not necessarily be incompatible with the correctness of the Commission's view that the Walsh-Healey source required such guarding.
In any event, we do not read the Commission's interpretation as requiring an impossible performance. It is true, as the Secretary has recognized in the past and conceded on this appeal, that there are many situations in which the installation of point of operation guards on press brakes would in fact render the machines unfit for their intended uses. See OSHA Field Information Memorandum No. 75-46, CCHESHG ¶ 9915 (July 17, 1975), superseded with modifications, OSHA Program Directive No. 100-44, CCH-ESHG ¶ 10,204 (January 21, 1976) (1975-76 Developments Transfer Binder), revised, id. ¶ 10,680 (October 26, 1976) (1977 Developments Transfer Binder). It is implicit in the Commission's decision, however, that § 1910.212 would not, and its Walsh-Healey source did not, require guarding in such cases. Rather, the standard applies only where there exists an identifiable and practical means for guarding the specific machine in the specific uses to which the cited employer puts it. See, e. g., Production Control Units, Inc. (OSHRC Docket No. 6976), 15 OSAHRC 617, 2 BNA-OSHC 3294, 1975-76 CCH-OSHD ¶ 20,238 (Ad.L.Judge, 1975).
We believe that this approach places an eminently reasonable limitation on the breadth to which the standard's literal language might otherwise be extended. Further, it comports with the principle that where a standard imposes a duty without specifying the means of compliance, the Secretary has the burden of establishing the existence of a specific and technologically feasible means of compliance as an element of his showing that a violation has occurred. See General Electric Co. v. OSHRC, 540 F.2d 67, 70 (2d Cir. 1976); Ace Sheeting & Repair Co. v. OSHRC, 555 F.2d 439, 440-41 (5th Cir. 1977); Irvington Moore, Division of U. S. Natural Resources, Inc. v. OSHRC, 556 F.2d 431, 433 n. 3 (9th Cir. 1977).
29 C.F.R. § 1910.217(a)(5).
Diebold argues that the exclusion of press brakes "from the requirements of" § 1910.217 should be read as an exemption of press brakes from point of operation guarding requirements altogether. Applying the principle that "[i]f a particular standard is specifically applicable * * *, it shall prevail over any different general standard which might otherwise be applicable * *," 29 C.F.R. § 1910.5(c)(1), Diebold contends that in relation to power presses (and therefore press brakes
In contrast to Diebold's reading of § 1910.217(a)(5) as an exemption of press brakes from guarding requirements, the Secretary construes the language "excluded from the requirements of this section" as no more than a definition of the power press standard's scope or coverage. Thus, in the Secretary's view, § 1910.217 is "specifically applicable" only to a class of machines composed of all mechanical power presses except press brakes, so that there is no standard "specifically applicable" to press brakes and the general requirements of § 1910.212 can properly be applied.
Given the inartful drafting of § 1910.217(a)(5), neither interpretation can be branded as particularly unreasonable. In this instance, however, the Commission has adopted the Secretary's resolution of the ambiguity, and we are mindful of the great deference which we owe to the Commission's reasonable interpretations of the Secretary's regulations.
Thus, the Walsh-Healey source from which the Secretary derived § 1910.212 reads:
Finally, Diebold argues that, as the Commission recognized, its resolution of the ambiguity in § 1910.217 creates something of an inconsistency in the structure of guarding requirements established by the regulations. Specifically, the Commission has determined that the temporary exclusion of some existing power presses from the guarding requirements of the power press standard does not operate to subject those presses to the immediately effective requirements of § 1910.212 as a generally applicable standard. Stevens Equipment Co. (OSHRC Docket No. 1060), 2 OSAHRC 1501, 1 BNA-OSHC 1227, 1971-73 CCH-OSHD ¶ 15,691 (1973). See 29 C.F.R. § 1910.217(a)(1)-(3).
The inconsistency of that decision with the Commission's treatment of the press brake exclusion in § 1910.217 may be more apparent than real, since the temporary "exclusion" is really more in the nature of a time-phased inclusion. Assuming, however, that there is an inconsistency, we do not believe it is fatal. After all, it should hardly be surprising that anomalies occur in "the Byzantine pattern of OSHA standards." General Electric Co., supra, 540 F.2d at 70 n. 2. Given the wide variety of sources for the initial standards package and the rapidity of its promulgation, we would be frankly surprised if there were not anomalies. See, e. g., Builders Steel Co. v. Marshall, 575 F.2d 663, 666 (8th Cir. 1978); Diamond Roofing Co., supra, 528 F.2d at 649-50; Dunlop v. Ashworth, supra, 538 F.2d at 563. Cf. AFL-CIO, supra, 530 F.2d at 115 n. 15. Indeed, a thoroughly integrated and internally consistent initial standards package probably would have required modification of some source standards, thereby raising serious questions as to the validity of their promulgation without benefit of the Act's full rule-making procedures. See note 6, supra.
While we are persuaded that the Commission's interpretation of the applicable regulations is correct, that does not lead inexorably to a conclusion that the regulations may be applied in the instant case. Here, as it did before the Commission, Diebold argues that even if the Commission properly construed § 1910.212, the regulation is so vague in its requirements that its enforcement would violate the due process clause of the Fifth Amendment. Within certain limits, we find ourselves in agreement with that contention.
Among the myriad applications of the due process clause is the fundamental principle that statutes and regulations which purport to govern conduct must give an adequate warning of what they command or forbid. In our jurisprudence,
Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972). The principle applies with special force to statutes which regulate in the area of First Amendment rights, but the due process requirement of fundamental fairness is hardly limited to that context. Even
There is no doubt that the violation of § 1910.212 exposed Diebold to penalties. See 29 U.S.C. § 666. See also Brennan v. Winters Battery Mfg. Co., 531 F.2d 317, 324-25 (6th Cir. 1975). Our concern, therefore, is with the question whether the regulation gave Diebold sufficient warning that press brakes were within the scope of its point of operation guarding requirements. The question is to be answered, of course, "in the light of the conduct to which [the regulation] is applied." United States v. National Dairy Products Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 600, 9 L.Ed.2d 561 (1963). Moreover, the constitutional adequacy or inadequacy of the warning given must be "measured by common understanding and commercial practice." United States ex rel. Shott v. Tehan, 365 F.2d 191, 198 (6th Cir. 1966), cert. denied, 385 U.S. 1012, 87 S.Ct. 716, 17 L.Ed.2d 548 (1967). See also Jordan v. De George, 341 U.S. 223, 231-32, 71 S.Ct. 703, 95 L.Ed. 886 (1951); Stout v. Dallman, 492 F.2d 992, 994 (6th Cir. 1974).
Certainly, if § 1910.212 stood alone, with its meaning (and hence the sufficiency of its warning) evaluated in the abstract, there would be substantially less merit to Diebold's claim. The due process clause does not impose drafting requirements of mathematical precision or impossible specificity. United States v. Powell, 423 U.S. 87, 94, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975); Boyce Motor Lines, supra, 342 U.S. at 340, 72 S.Ct. 329; Stout, supra, 492 F.2d at 994. Though the guarding requirement of § 1910.212 is stated quite generally, the generality is a necessary by-product of the broad scope of the subject matter and the nearly infinite variety of machines which might pose hazards of the sort within the rule's coverage. Thus, if our concern here were simply the non-specificity of the regulation, there would be little room for debate.
In the instant case, however, the non-specificity of the general guarding standard is but one in a collection of several factors which we believe operated together to deprive Diebold of a constitutionally sufficient warning. First is the inartful drafting of § 1910.217, the power press guarding standard. As described in § II, supra, that regulation is framed in terms which could well lead an employer reasonably to believe that press brakes had been specifically exempted from the generally applicable point of operating guarding requirements. Second is the undisputed "common understanding and commercial practice" relative to press brake guarding. As stated in the Secretary's brief on this appeal, press brake point of operation guarding has been "rarely used" in practice. Brief for the Secretary of Labor, Addendum C (at p. 62 of the Addendum). Thus, unless we embrace the untenable assumption that industry has been habitually disregarding a known legal requirement, we must conclude that the average employer has been unaware that the regulations required point of operation guarding. Third is the confirmation of industry practice by the pattern of administrative enforcement: Prior to the Commission's decision in Irvington Moore,
Nor are we persuaded by the Secretary's argument that, whatever the adequacy of the warning as to other employers, Diebold must be held to have received notice because it was aware of the guarding requirement prior to issuance of the instant citations. Certainly, if Diebold had been aware of the guarding requirement, it would have received a constitutionally sufficient warning and could have no complaint on that score.
United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960). There is nothing in the record before us, however, to show that Diebold was so aware. The Commission did not rest its rejection of the due process claim on this ground but relied on its earlier stated view that reasonable men could not be led astray by the unfortunate wording of the press brake standard. See Irvington Moore, note 11, supra. For the reasons stated above, we disagree with that premise and we are not empowered to substitute a new ground for decision which the Commission itself did not invoke. S. E. C. v. Chenery Corp., 318 U.S. 80, 95, 63 S.Ct. 454, 87 L.Ed. 626 (1943).
Moreover, even if the Commission had found that Diebold was aware of the requirement, we would be hard put to discover substantial evidence in this record upon which to affirm such a finding. See 29 U.S.C. § 660(a). The sole evidentiary basis put forward by the Secretary is the
We emphasize that our holding as to the insufficiency of the warning given is reached with reference to the particular "facts of the case at hand." United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975).
The validity of prospective enforcement of the Commission's interpretation does raise a question as to the precise disposition of the instant proceeding, since the Commission not only fined Diebold for its failure to provide guarding on the days the citations were issued but also ordered the Company to provide such guarding in the future. As to the fines, of course, the lack of a constitutionally sufficient warning precludes enforcement of the Commission's order. As to the requirement of future guarding on the other hand, it is at least arguable that prospective enforcement of the order would be inoffensive to the constitutional guarantee. Cf. F. T. C. v. Ruberoid Co., 343 U.S. 470, 483-94, 72 S.Ct. 800, 96 L.Ed. 1081 (1952) (Jackson, J. dissenting); Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L. Rev. 67, 77 n. 55 (1960). However, while we recognize that there are probably cases in which an order such as the present one could properly be treated as severable,
Before the Commission, Diebold relied in large part on its contention that the required guarding of its press brakes was technologically impossible. Both the Commission and the courts have habitually looked on such claims with a jaundiced eye when they have been raised for the first time in enforcement proceedings by employers who made no prior effort to seek either a variance, 29 U.S.C. § 655(d), or a modification of the applicable standard, id. § 655(c).
In the instant case, the Commission's order that Diebold provide press brake guarding in the future necessarily rests on the Commission's rejection of the claim that such guarding is impossible, a holding which was substantially affected (indeed, as to half the Commission majority, was determined) by Diebold's failure to seek a variance. But Diebold's failure to seek a variance is directly attributable in turn to the insufficiency of the warning given by the regulations: Plainly, an employer has no reason to seek relief from a regulatory requirement unless it is first on notice that the requirement exists. Thus, even if we limited enforcement of the Commission's order to its prospective elements, we would nonetheless be enforcing an obligation which very well might not have been imposed had Diebold received a fair opportunity to seek a variance and, if unsuccessful in that quest, had it then been able to proceed without the procedural disadvantages visited on those who sidestep their variance opportunities.
Because the lack of a constitutionally sufficient warning thus affected the whole of the Commission's decision and order, we are unable to regard the prospective elements of the order as severable from the penalties. Rather, the only way by which to give Diebold the full benefit of the notice denied by the regulations is to vacate the order in its entirety.
For the foregoing reasons, the decision of the Commission is reversed, the order of the Commission is vacated, and the underlying citations are dismissed. No costs are taxed; each party will bear its own costs on this appeal.
29 U.S.C. § 654(a).
29 U.S.C. § 652(5).