Pennsylvania Steel Foundry & Machine Company

Read the official release (oshrc.gov)

Plain-English summary

OSHA's inspection of Pennsylvania Steel Foundry produced citations alleging 298 violations. The Commission declined to suppress the inspection evidence, holding that the later rule against ex parte warrants did not apply retroactively and that suppression would provide little deterrent value under the circumstances. It also refused to let Penn Steel withdraw from its negotiated settlement of 240 unlitigated items because the parties could not be returned to their earlier positions without severe prejudice to enforcement. On the litigated machine items, the Commission vacated two swing-grinder allegations because a more specific standard displaced the cited general rule, affirmed the cutoff-wheel and several grinder items, and vacated a jointer item and another grinder item for insufficient proof of employee access. It affirmed entry of the settlement and the aggregate $5,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.212(a)(1), 1910.212(a)(3)(ii), 1910.213(j)(4), 1910.215(a)(2), and 1910.243(c)(3)
• Outcome: Settlement enforced; items 45(g), 45(h), 50, and 53(e) vacated; items 46(a), 53(a), 63a(a), and 63a(b) affirmed; $5,000 penalty affirmed.
• Key point: A specific machine standard displaced a general guarding rule, and uncited equipment also required evidence showing its use was reasonably predictable.

Full text (OSHRC public release)

Docket No. 78-0638

SECRETARY OF LABOR,

Complainant,

v.

PENNSYLVANIA STEEL FOUNDRY & MACHINE

COMPANY,

Respondent.

UNITED STEELWORKERS OF AMERICA,

AFL-CIO,

Authorized Employee

Representative.

OSHRC Docket No. 78-0638

DECISION

BEFORE:  BUCKLEY, Chairman; RADER and WALL,
Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and
Health Review Commission under 29 U.S.C. � 661(j), section 12(j) of the Occupational
Safety and Health Act of 1970, 29 U.S.C. � 651-678 ("the Act").  The
Commission is an adjudicatory agency, independent of the Department of Labor and the
Occupational Safety and Health Administration ("OSHA").  It was established
to resolve disputes arising out of enforcement actions brought by the Secretary of Labor
under the Act and has no regulatory functions.  See section 10(c) of the Act,
29 U.S.C. � 659(c).

I.  Background

In August 1977, a warrant was issued upon an ex
parte application, empowering OSHA "to conduct an inspection pursuant to
OSHA's National Emphasis Program for Foundries" ("Foundry NEP") of the
Harrisburg, Pennsylvania foundry of the Pennsylvania Steel Foundry & Machine Company
("Penn Steel").  The warrant authorized OSHA to inspect the foundry
"in accordance with the guidelines" set forth in the Foundry NEP.

A team of OSHA compliance officers inspected the Penn
Steel facility for nearly a month.  As a result of the inspection, the Secretary
issued three citations alleging 298 violations of OSHA standards.  Penn Steel
contested all of the alleged citation items.

Protracted settlement discussions ensued.  
Eventually, the parties agreed to litigate some of the citation items while continuing to
try to settle the case.  In January 1979, Administrative Law Judge Joseph Chalk heard
evidence on the 58 citation items that the parties could not agree upon during their
settlement discussions.  The hearings on the 58 items closed and the parties,
including the United Steelworkers of America, continued their settlement discussions.

In August 1979, Penn Steel moved for summary judgment
claiming that the warrant authorizing the inspection was invalid on two grounds:  
that it was not based on probable cause, citing Marshall v. Barlow's, Inc ., 436
U.S. 307 (1978); and that warrants could not be issued ex parte , citing Cerro
Metals Products v. Marshall , 467 F. Supp. 869 (E.D. Pa. 1979), aff'd , 620 F.7d
964 (3d Cir. 1980).  In Barlow's , the Supreme Court held that a search of a
business under the Occupational Safety and Health Act could not be conducted without a
warrant supported by probable cause.  In Cerro , the Eastern District Court of
Pennsylvania held that ex parte warrants were not permissible under the
then-existing version of 29 C.F.R. � 1903.4, a regulation governing OSHA's resort to
search warrants.  Both Barlow's and Cerro were decided after the
inspection of the Penn Steel foundry.  Judge Chalk denied the motion for summary
judgment, stating that he would not apply the Barlow's or Cerro cases
retroactively.

The parties continued their settlement negotiations
and in June 1980, Judge Chalk issued a preliminary decision.  In the preliminary
decision, Judge Chalk addressed the 58 citation items on which evidence was presented and
affirmed some of the citation items and vacated others.  A year later, the parties
settled the remaining items and agreed in a settlement agreement that Judge Chalk's
disposition of the 58 citation items set forth in his preliminary decision would take
effect.  In July 1981, Judge Chalk issued his final decision.  It incorporated
by reference and implemented his preliminary decision and the settlement agreement.

Both parties petitioned the Commission for
review.  In its petition, Penn Steel repeated its contention that the
"inspection was invalid because it was conducted pursuant to a warrant issued on an ex
parte basis and without probable cause and that all evidence collected during said
inspection should have been suppressed."  Penn Steel also petitioned for review
of a number of citation items disposed of by Judge Chalk, but did not seek review of the
settlement agreement.  The Secretary petitioned for review of only three citation
items that were vacated by the judge.

Former Commissioner Cottine directed review on the
issues contained in the Secretary's petition for review, including:

(1) Whether the Judge erred in vacating Citation No.
1, items 45(g) and (h) alleging noncompliance with 29 C.F.R. � 1910.212(a)(1) on the
grounds that "there was no evidence that the grinders have been operated within the
statutory period or that when operated, they presented a hazard [to] employee; operating
them."

(2) Whether the Judge erred in vacating Citation No.
1, item 46(a) alleging noncompliance with 29 C.F.R. � 1910.212(a)(3)(ii) on the grounds
that guarding of the cited machine was impossible and the alternative method of protection
was not required by the standard.

Former Chairman Rowland also added the following
issues:

Whether the judge erred in finding [Penn Steel] in
violation of the Act as alleged in the following items of citation No. 1:  items 50,
53(a), 53(e), 63a(a), and 63a(b).

Supplemental briefs were requested and the parties were asked to address several more
issues.[[1]]  Oral argument was held before the Commission on March 26, 1986.[[2]]

The questions before the Commission involve whether evidence should be suppressed because
the inspection under the warrant was invalid, whether Penn Steel should be allowed to
withdraw from the settlement agreement, and the merits of a few litigated citation
items.[[3]]  For the reasons that follow, we hold that the evidence should not be
suppressed, that judgment on the 240 unlitigated citation items should be entered in
accordance with the settlement agreement, and that Judge Chalk's decision as to several
litigated citation items should be affirmed as to some and reversed as to others.

II.  Validity of the Inspection; Suppression of Evidence.

Penn Steel argues that the inspection was invalid
because OSHA proceeded contrary to its regulation in obtaining an ex parte
warrant.  At the time of the inspection of the Penn Steel foundry in August 1977, the
regulation governing OSHA inspections in the face of an employer's objection, 29 C.F.R. �
1903.4, stated in part:

� 1903.4 Objection to inspection .

(a) Upon a refusal to permit a Compliance Safety and
Health Officer, in exercise of his official duties, to enter without delay and at
reasonable times any place of employment . . . [t]he Compliance Safety and Health Officer
shall endeavor to ascertain the reason for such refusal, and shall immediately report the
refusal and the reason therefore to the Area Director.  The Area Director shall
consult with the Regional Solicitor, who shall take appropriate action, including
compulsory process, if necessary.

(Emphasis added.)  In Cerro Metal Products v.
Marshall , 620 F.2d 964 (3d Cir. 1980), the Third Circuit held that the original
version of this regulation did not permit OSHA to seek a warrant in an ex parte
proceeding.  Penn Steel contends that the Commission must apply the holding of Cerro
to this case because it arises within the Third Circuit, and that the evidence gained
through the inspection should therefore be suppressed.  Penn Steel also argues that
the evidence should be suppressed for various other reasons.

A.  Retroactivity

Even if the warrant here would be declared invalid by
the Third Circuit under Cerro, the question of retroactivity must be considered.  In
deciding whether a decision construing the Fourth Amendment should be applied
retro-actively, the Commission has been guided by United States v. Johnson , 457
U.S. 537 (1982).  See Carl M. Geupel Construction Co ., 82 OSAHRC 60/B5,
10 BNA OSHC 2097, 2100 n.7, 1982 CCH OSHD � 26,309, p. 33,282 n.7 (Nos. 81-55 and 81-56,
1982).[[4]]  In Johnson , the Court reviewed the question of retroactivity and
found that Fourth Amendment cases were generally applied retroactively unless the case was
a "clear break with the past."  Johnson , 457 U.S. at 549.  The
Court stated that a decision was not generally considered a "clear break" unless
that ruling caused "such an abrupt and fundamental shift in doctrine as to constitute
an entirely new rule which in effect replaced an older one," . . . . Such a break has
been recognized only when a decision explicitly overrules a past precedent of this Court,
. . . or disapproves a practice this Court arguably has sanctioned in prior cases, . . .
or overturns a longstanding and widespread practice to which this Court has not spoken,
but which a near-unanimous body of lower court authority has expressly approved.

457 U.S. at 551 (citations omitted).

This case does not fall neatly into two of the
non-retroactivity categories in Johnson .  Cerro did not overturn or
disapprove of a line of OSHA case law that had endorsed the seeking of an OSHA inspection
warrant ex parte .  As far as case law was concerned, Cerro wrote
on an almost clean slate.  This case instead falls within the category of cases
involving an arguably-sanctioned practice--the seeking of warrants ex parte .

When the warrant in this case was issued in August of
1977, no court had disapproved of OSHA's practice of seeking some inspection warrants
without the participation of the party to be inspected.  Indeed, when the warrant was
issued, even the requirement for OSHA to seek a warrant was still uncertain.   The
Supreme Court's decision in Barlow's , holding for the first time that a warrantless
search of a business under the Occupational Safety and Health Act violated the Fourth
Amendment, was decided almost a year later.  The body of OSHA inspection warrant law
that was then evolving tended, however, to look to the model of the criminal search
warrant for guidance on how to proceed.  Yet, criminal search warrants had been ex
parte as a rule.  As the Supreme Court noted in Franks v. Delaware , 438
U.S. 154, 169 (1978), "[t]he pre-search proceeding is necessarily ex parte ,
since the subject of the search cannot be tipped off to the application for a warrant lest
he destroy or remove evidence."

This practice would seemingly have fit the
Occupational Safety and Health Act well, for the Act imposes criminal penalties for giving
advance notice of inspections and the Secretary's regulations also forbade such advance
notice.  Section 17(f) of the Act, 29 U.S.C. � 666(f); 29 C.F.R. � 1903.6 (1977).
  The language of section 1903.4, the regulation that was critical to the Cerro
decision, did not expressly require that adversary process be employed.  As the
district court noted in Cerro, the phrase "compulsory process" in the regulation
encompasses ex parte warrants.  467 F. Supp. at 875 n.9.  And as
the Commission later observed, and the facts of this case suggest, OSHA, as a practical
matter often--though by no means always, had sought warrants ex parte .[[5]]
  "That the OSHA field staff may frequently have sought inspection warrants ex
parte there seems no reason to doubt."  Cerro , 467 F. Supp. at
874.

The holding of Cerro that the original version of section 1903.4 did not authorize
OSHA to seek warrants ex parte was compelled not by the language of section
1903.4 or by a universal practice by OSHA of seeking warrants through adversary process,
but by passages in the Supreme Court's Barlow's opinion.  The Cerro courts
noted that this language, which post-dated the issuance of the warrant here by almost a
year, was precipitated by the litigating position of the Solicitor General before the
Court.  The Cerro courts viewed that litigating position as having represented
to the Supreme Court that section 1903.4 did not permit ex parte warrants.
  See 620 F.2d at 976; 467 F. Supp. at 875 n.9.  However, this litigation
position did not emerge with clarity until after the warrant in this case was issued. The
Solicitor General's brief to the Court in Barlow's did not at all suggest that
section 1903.4 required adversary process.  Only a hint of the position came in the
Solicitor General's jurisdictional statement, which urged the Court to note probable
jurisdiction of the appeal in Barlow's .  Although the jurisdictional
statement, which was filed on February 17, 1977, stated in a footnote that "[a]gency
regulations currently require the Secretary to obtain a court order authorizing entry if
the inspector is initially refused entry," the text on the same page stated that it
is "common"--rather than universal--in civil warrant practice to issue a show
cause order to the employer before compulsory process is obtained.  Statement of
Jurisdiction at 11 & n.13.  The Solicitor General's position before the Court
that adversary process was the rule became clear only during oral argument on January 9,
1977, over four months after the warrant in this Penn Steel case was issued.  See
Cerro , 620 F.2d at 976-7 n.33 (noting text of oral argument).  In short, we
cannot say that the OSHA field officials who sought this warrant would have had sufficient
grounds to conclude from the predecisional events in Barlow's that section 1903.4
did not permit warrants to be sought ex parte .  We therefore conclude
that the Barlow's decision, as applied by the Cerro courts, did overturn a
previously unquestioned and well-grounded practice and that events that preceded the Barlow's
decision did not evince disapproval of the common practice of seeking ex parte
warrants.[[6]] Accordingly, we do not apply Cerro retroactively here.

B.  Suppression as a Remedy

In any event, if Cerro were applied
retroactively, we would not exclude the evidence gathered during the inspection.  In
criminal cases, the exclusionary rule is applied only where the benefits of suppression
outweigh the cost of preventing the use of relevant evidence in law enforcement
proceedings.  United States v. Leon , 104 S.Ct. 3405, 3412-13 (1984).  In
this case, we are dealing with an alleged violation of a regulation rather than a Fourth
Amendment violation, but we believe that a similar balancing test should be employed.
  See Brooks Woolen Co ., 85 OSAHRC , 12 BNA OSHC 1233, 1236, 1985 CCH
OSHD � 27,233, p. 35,151 (Nos. 79-45 and 79-128, 1985) (view of Chairman Buckley), aff'd ,
782 F.2d 1066 (1st Cir. 1986).  As the Supreme Court has pointed out, the suppression
of illegally obtained evidence in criminal cases produces the benefit that it deters law
enforcement officers from engaging in misconduct in the future when they are aware that
the fruits of such misconduct will not be admissible. Leon , 104 S.Ct. at 3418.
  It is similarly desirable to deter OSHA compliance officers from obtaining evidence
by illegal means. Brooks Woolen , 12 BNA OSHC at 1236, 1985 CCH OSHD at p. 35,151
(view of Chairman Buckley).

The alleged misconduct here is that OSHA obtained a
warrant ex parte .  When OSHA did so, however, it did not engage in any
intentional misconduct, but simply implemented a reasonable interpretation of section
1903.4.  As we discussed above, when OSHA applied for the warrant in the ex parte
proceeding involved here, OSHA was following one of its normal practices. Moreover, the
regulation on its face did not impose a strait-jacket on OSHA, requiring it to seek
warrants ex parte or not inspect at all.  Its language did not limit
OSHA to seeking "compulsory process" but simply stated that such process is
included among the "appropriate action[s]" to be taken "if
necessary."  The term "compulsory process," which was not defined in
the regulation, does not expressly forbid ex parte warrants.  Also, the
Supreme Court had not yet expressed the view that the regulation limited OSHA to adversary
proceedings and no federal court had ruled on the question.  From this we conclude
that OSHA's Judgment to use an ex parte warrant was not unreasonable in
light of the state of the law at the time.[[7]]  Finally, suppression here would have
little deterrent value, for in 1980 the Secretary amended section 1903.4 to specifically
allow ex parte warrants.  See 45 Fed. Reg. 65916-24 (October 3,
1980).  We therefore do not find that suppression would be an appropriate remedy
here.

Commissioner Wall would add that this result would in any event be compelled under Leon .
  The OSHA officials who applied for this warrant were obviously proceeding in good
faith reliance on the then-accepted practice of obtaining warrants ex parte .
Similarly, in executing the warrant, they relied in good faith on the judgment of a
neutral and detached judicial officer that the workplace should be inspected.  
Commissioner Wall also concludes that in view of Leon , the Commission's holding in Sarasota
Concrete Co. , 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1981 CCH OSHD � 25,360 (No.
78-5264, 1981), aff'd , 693 F.2d 1061 (11th Cir. 1982), that no good faith exception
is available must be overruled.

C.  Due Process

Penn Steel also argues that its due process rights
were denied because it was denied an adversary hearing required by section 1903.4.
 This is not, however, a case where an individual has reasonably relied on an agency
regulation promulgated for his guidance or benefit and has suffered substantially because
of a violation of the regulation by the agency.  See United States v. Caceres ,
440 U.S. 741, 752-3 (1979).  Here, we are not convinced that Penn Steel reasonably
relied on receiving an adversary hearing when the Secretary applied for the warrant.
  As we discussed above, when the Secretary obtained the warrant in 1977 there was no
judicial interpretation of section 1903.4.  There were only the plain words of the
regulation that the Secretary take "appropriate action, including compulsory process,
if necessary."  This language is subject to several reasonable interpretations.
 As the district court pointed out in Cerro , 467 F. Supp. at 875 n.9,
"[o]f course, the term 'compulsory process' does not have to connote adversary
process."  There was also neither a statute nor a constitutional provision
requiring an adversary hearing in a warrant proceeding.  See Caceres ,
440 U.S. at 744.  It is difficult to see, then, how Penn Steel relied on receiving an
adversary hearing in 1977 on the question of the validity of the warrant.  That Penn
Steel never truly expected to receive such an adversary hearing is strongly indicated by
the fact that Penn Steel never contested the ex parte nature of the warrant
until its motion for summary judgment nearly two years after issuance of the warrant,
after the Supreme Court in Barlow's and the District Court for Eastern Pennsylvania
in Cerro had placed a judicial gloss on section 1903.4.  Since Penn Steel
could not have reasonably relied and most likely did not rely on receiving an adversary
hearing when the Secretary applied for the warrant, we find that there was no violation of
Penn Steel's due process rights.

D.  Probable Cause; Scope of Warrant

Penn Steel argues that the warrant was not based on
probable cause because it was not based on a general administrative plan for enforcement
derived from neutral sources, as required by Barlow's .

Chairman Buckley believes that the Commission is
without authority to consider Penn Steel's arguments.  The Chairman would hold that,
because the Commission is an administrative agency within the executive branch of the
federal government, it cannot perform functions committed to the judicial branch and
therefore cannot review a federal magistrate's decisions about probable cause for or other
legal authority underlying a warrant.  E.g ., Phoenix Forging Co ., 85
OSAHRC ______, 12 BNA OSHC 1317, 1319 1985 CCH OSHD � 27,256 (No. 82-398, 1985) (view of
Chairman Buckley).[[8]]  See Babcock & Wilcox v. Marshall , 610 F.2d
1128, 1136-37 (3d Cir. 1979) (the Commission cannot "sit in direct review of the
decision of the magistrate"); Baldwin Metals Co. v . Donovan , 642 F.2d
768 (5th Cir. 1981).  See also Muskrat v. United States , 219
U.S. 346, 353 (1911) (no executive officer can be "authorized to sit as a court of
errors on the judicial acts or opinions of [an Article III] court.").
 Accordingly, Chairman Buckley believes the Commission cannot consider any of Penn
Steel's arguments requesting review of the magistrate's judgments about the sufficiency of
the probable cause basis for the warrant, the sufficiency of OSHA's affidavit citing facts
and legal authorities for the warrant, or the existence of legal authority for any of the
particular time or scope provisions of the warrant.  Only a federal court can address
these matters.[[9]]

Commissioner Wall would entertain the question of whether there was sufficient probable
cause to obtain a warrant to inspect the Penn Steel foundry.  The majority of the
courts of appeals that have considered this issue have held that the Commission is a
proper forum for the consideration of fourth amendment issues, and that once the statutory
Commission review process has been commenced, any objections to the validity of a warrant
must be raised before the Commission.[[10]]  In accordance with this authority, the
Commission in Sarasota Concrete Co ., 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1981 CCH
OSHD � 25,360 (No. 78-5264, 1981), aff'd , 693 F.2d 1061 (11th Cir. 1982), held
that an OSHA warrant was overbroad in scope.  The Eleventh Circuit expressly affirmed
the Commission's decision, ruling that the Commission should review the magistrate's
determination of probable cause in connection with admitting or excluding evidence in its
own proceeding:

[R]eview by OSHRC does not directly affect the
substance of the magistrate's determination.  As explained by the Third Circuit in Babcock
& Wilcox Co .,

The Article III objections stressed by Babcock
similarly mischaracterize the process.  The Review Commission will not sit in direct
review of the decision of the magistrate.  As already indicated, the decision to
issue the inspection warrant is complete and cannot be negated.  If the challenge is
raised by Babcock, the problem for the Review Commission will be whether to use the
evidence obtained from the inspection.  In deciding whether to use the evidence the
Review Commission must of course, make its own judgment as to the propriety of the
warrant, but such a determination does not reverse the magistrate's action, nor does it
contravene a judicial order.  The OSHA official would not be in contempt if he were
to decide not to execute a warrant signed by the magistrate, and an administrative
tribunal does not flout the authority of the judiciary by refusing to consider evidence
that has been obtained pursuant to a warrant issued by a judge or magistrate.

693 F.2d at 1066.

In Bethlehem Steel Corp. v. OSHRC , 607 F.2d
871, 876 (3d Cir. 1979), the Third Circuit stated that "[c]onceding, arguendo that an
administrative agency is not ordinarily considered the appropriate forum for the
resolution of constitutional claims, we think there are compelling reasons for insisting
that fourth amendment claims for the suppression of evidence in OSHA enforcement cases be
tendered first to the Commission."  Because the courts have so clearly directed
that constitutional challenges to OSHA warrants should be ruled on by the Commission,
Commissioner Wall would consider whether warrants of a particular scope should have
issued.

After examining the application for the warrant,
Commissioner Wall would find that there was sufficient probable cause to allow the
inspection.  In Barlow's , the Supreme Court held that probable cause for an
OSHA inspection could be based on evidence of an existing violation or on the showing
that:

"reasonable legislative or administrative
standards for conducting an . . . inspection are satisfied with respect to a particular
[establishment].'  Camara v. Municipal Court , 387 U.S. [523], at 538, 87 S.Ct.
[1727], at 1736, 18 L.Ed.2d 930 [(1967)].  A warrant showing that a specific business
has been chosen for an OSHA search on the basis of a general administrative plan for the
enforcement of the Act derived from neutral sources such as, for example, dispersion of
employees in various types of industries across a given area, and the desired frequency of
searches in any of the lesser division of the area, would protect an employer's Fourth
Amendment Rights."

Barlow's , 436 U.S. at 320-21 (emphasis added).

Here, the application for the warrant stated that the
inspection was a follow-up inspection "to determine the validity of [Penn Steel's]
claimed inability to comply with safety and health requirements and to conduct the
inspection pursuant to OSHA's National Emphasis Program for Foundries."[[11]]  
A plan similar to the Foundry NEP has been found to be the type of general administrative
plan envisioned by Barlow's .  In In re-Establishment Inspection of Gilbert
& Bennett Mfg. Co. , 589 F.2d 1335 (7th Cir.), cert . denied , 444 U.S.
884 (1979), the court found that an inspection made under a warrant obtained on the basis
of "a National-Local plan" for foundries was supported by probable cause. 
The court stated:

. . . the instant warrant was plainly supported by
probable cause in the Camara/Barlow's sense since Chromalloy was selected for inspection
not as the result of the "unbridled discretion" of a field agent, but rather,
pursuant to "a National-Local plan" designed by agency officials for the purpose
of reducing the high incidence of occupational injuries and illnesses found in the
metal-working and foundry industry.

Commissioner Wall believes the same reasoning applies
to the application for the warrant in this case.  The Foundry NEP, like the
"National-Local plan" in Gilbert & Bennett is the kind of general
administrative plan envisioned by Barlow's and as such supplies sufficient probable
cause for the administrative inspection in this case.

Penn Steel argues, however, that In re
Establishment Inspection of Urick Property , 472 F. Supp. 1193 (W.D. Pa. 1979),
requires a different result.  In Urick , an inspection warrant was sought under
the Foundry NEP.  The warrant was quashed because the warrant application stated that
only one foundry inspection would be conducted in a 17-county area containing at least 11
foundries, but the application did not explain why the Urick Foundry was chosen.  The
district court therefore could find no rational basis for the selection of the foundry in Urick .

Commissioner Wall disagrees with Penn Steel that Urick
requires a finding that the warrant should not have been issued.  The warrant here
stated a rational basis for choosing Penn Steel.  The warrant application recited
that in 1974, Penn Steel withdrew its contest of a citation alleging employee exposure to
excessive levels of silica dust and iron oxide fumes, and the exposure of employees to
toxic materials in their lunch room.  In 1974, a follow-up inspection resulted in two
more citations:  one alleged a "repeated" violation of the silica dust
standard at various locations; another alleged employee exposure to excessive sound levels
in two foundries and one shop; another item alleged exposure to excessive levels of inert
or nuisance dust and a mixture of air contaminants consisting of copper fume, chromium
fume, nickel fume and iron oxide fume.  Penn Steel withdrew its contest of these
citations also after representing to the Commission's administrative law judge that the
violations had already been abated or would be abated.   After six months, however,
Penn Steel claimed in a letter to OSHA that it could not implement controls for dust and
noise.  About three months later, an inspection team proceeding under the Foundry NEP
was refused entry into the Penn Steel foundry and a warrant was issued.

Unlike Urick , Penn Steel's history of previous
violations, and its claim that it could not abate, coupled with an emphasis on foundry
inspections under the Foundry NEP, furnished the magistrate ample cause to authorize an
inspection of the entire foundry.  What appears from the warrant is that this foundry
may have been a dangerous place of employment at the time the warrant was sought and that
Penn Steel's reluctance to implement controls was continuing.  Unlike the record in Urick ,
the record here does not show that OSHA officials had decided that only one inspection in
a large geographical area should be conducted.

In any event, Commissioner Wall would hold under Leon
that OSHA sought the warrant in good faith and executed it in good faith reliance on the
judgment of the magistrate.

E.  Scope of Inspection

Penn Steel also argues that the inspection exceeded
the scope of the warrant.  Chairman Buckley joins with Commissioner Wall in
addressing this argument because it calls into question OSHA's conduct, not that of the
magistrate.  Penn Steel contends that the inspection of the woodworking machinery in
the pattern shop of the foundry was not authorized by the warrant.  Penn Steel argues
that the assembly, repair, and cleaning of patterns, which the inspection covered, were
not a part of the foundry operations that the warrant authorized OSHA to inspect.

The warrant application that OSHA submitted to the
magistrate discussed the Foundry NEP and stated that OSHA was seeking this inspection
under that program.  The warrant stated that OSHA compliance officers were
"authorized to enter the...premises...to inspect and investigate in a reasonable
manner and to a reasonable extent, in accordance with the guidelines set forth in the
[Foundry NEP]..." When OSHA conducted the inspection under this warrant, the
compliance officers inspected a number of different departments and areas, including the
pattern shop.  The citations that were subsequently issued included items alleging
violations in this area.  Among other things, the allegations concerned unguarded or
improperly guarded woodworking machinery. This machinery was used to make, repair, and
maintain the wooden patterns for the molds used to make the castings.

Penn Steel contends that the fabrication and care of
patterns is not a foundry operation covered by the Foundry NEP.  In support of this
contention, Penn Steel does not rely on the Foundry NEP directly but on an OSHA program
directive stating "the compliance policy, requirements, procedures, and instructions
to be followed...for implementing the [Foundry NEP]...." OSHA Program Directive

200-56, Changes 1 and 2, 1 (1977).  The program directive specifies that one main

tool in the Foundry NEP for significantly reducing foundry injuries and illnesses will be
"compliance monitoring," which will consist of initial inspections followed by
scheduled monitoring inspections to assure abatement of hazards.  For the purpose of
this program, the program directive defines "foundry" as "a building,
establishment or works where metal castings are produced."  The term
"casting" is defined as a "metal object cast to required shape by pouring
or otherwise injecting liquid metal into a mold, as distinct from one shaped by a
mechanical process."  In addition, there is a specific definition of
"production area" which is repeated in an attachment, part of the program
directive, as a definition of the operations to be covered in the initial inspection under
the Foundry NEP.  The language of this critical definition is as follows:

[T]hose portions of a plant beginning with the
receipt of raw materials, continuing with foundry processes, and terminating with the
cleaning, finishing and shipping of the cast parts.  Assembly of other parts to
fabricate a final product is not included.

Id . at 1-2, I-V-3 (emphasis added).  
Penn Steel asserts that the assembly and use of patterns is "[a]ssembly of other
parts to fabricate a final product" and that, therefore, under this definition the
operations pertaining to building and maintaining the patterns are not part of the foundry
operations covered by the NEP.  In Penn Steel's view, because the warrant authorized
an inspection only in accordance with the Foundry NEP, inspection of the pattern
operations was improper.

The program directive does not specify exactly what
is meant by the language on which Penn Steel relies.  We have therefore examined the
program directive and the various attachments to the directive and have concluded that the
pattern shop is indeed covered by the Foundry NEP.  In several places the directive
and its attachments specifically address problems in pattern shops.  In an attachment
about industrial hygiene and occupational health, there is a "Guideline of Air
Contaminants 'Normally' Found in Foundry Operations."  One of the operation
areas to which the guideline refers is the "Pattern Shop Area."  The air
contaminants listed include wood dust, solvents, plasticizers, and wood preservatives.
  Id . at I-XIII-1, 13-14.  In an appendix relating to identification of
violations in foundry operations, the OSHA standards governing hazards presented by
woodworking machinery are extensively described and, in the section of this appendix
identifying health hazards and related standards by foundry area and employees exposed,
there is a page pertaining to the pattern shop and pattern-makers.  Id . at
II-1, 72-77, 136.  Also, there are forms in the final appendix explicitly requiring
information about pattern shops.  Id . at IV-1, 12, 18, 47.  All of this
shows that pattern shops were covered by the Foundry NEP and therefore by the inspection
warrant.

III.  The Settlement Agreement

Penn Steel argues that it should be allowed to
withdraw from the settlement of the 240 unlitigated items it entered into with the
Secretary and the United Steelworkers of America.  Penn Steel claims, in its brief to
the Commission, that, because the court in Marshall v. Sun Petroleum Products, Inc .,
622 F.2d 1176 (3d Cir.), cert . denied , 449 U.S. 1061 (1980), held that the
Secretary can withdraw from a settlement agreement at any time, "[f]airness and
justice require that other parties have the same right."  Penn Steel also
maintains that if the Commission alters any of Judge Chalk's dispositions of the 58
litigated items, the settlement is void.  Penn Steel also submits that the
participation of the Union in the settlement negotiations was improper.

The Secretary and the Union argue that the settlement
is not before the Commission.  First, they argue that the settlement is final by
operation of law because Penn Steel did not petition for review of the settlement
agreement and the Commission did not direct the issue of the settlement for review.  
Second, they argue that the settlement is, by its own terms, final.

We held in Hamilton Die Cast, Inc ., 86 OSAHRC
__, 12 BNA OSHC 1797, 1986 CCH OSHD � 27,576 (No. 83-308, 1986), that when the
Commission directs any portion of a judge's report for review, the entire judge's report
is before the Commission, unless the judge's disposition of a citation item is
specifically severed and made a final order under Federal Rule of Civil Procedure 54(b).
  Although some specific citation items were mentioned in the directions for review,
the entire case, including the items covered by the settlement agreement, came before the
Commission.  Therefore, the items covered by the settlement agreement did not become
final merely because they were not mentioned in the direction for review.  Finally,
although the Union had moved for severance of the items covered by the settlement
agreement after Penn Steel had argued that the items were not yet final, the Commission
deferred voting on the motion until it resolved the finality issue; thus, the items
covered in the settlement have not been severed under Fed. R. Civ. P. 54(b).

We also conclude that the settlement agreement has
not become final by its own terms.  In the first paragraph the agreement states:

With respect to the citation items covered in the preliminary decision of Judge Joseph L.
Chalk dated June 27, 1980, the parties agree that the disposition set forth therein shall
take effect.  The preliminary decision will become effective on the date this
stipulation becomes a final order of the Commission.

(Emphasis added.)  The Secretary and the Union
argue that the term "a final order of the Commission" means the date on which
Judge Chalk's preliminary decision became his final decision.  Thus, the
Secretary and the Union claim that settlement became final when Judge Chalk incorporated
the settlement in his final decision, issued June 23, 1981.

We cannot agree with the Secretary's and the Union's
interpretation of the settlement agreement.  Under section 12(j) of the Act, a report
of an administrative law judge becomes "a final order of the Commission" only if
no Commissioner directs the case for review.  Moreover, for the reasons set forth in Hamilton
Die Cast , if a Commissioner directs review of the judge's report, there is no final
order of the Commission until the Commission issues a decision in the case. 
Accordingly, this settlement is not final by its own terms.

Furthermore, the conduct of Penn Steel, the Secretary
and the Union subsequent to the settlement indicates that they did not consider the
agreement to be final.  Several sections of the agreement spell out the future duties
of the parties.  For example, paragraph 3(g) states that,

During the duration of this agreement, [Penn Steel]
will furnish Complainant, through its Harrisburg area director, semi-annual reports
describing its progress in obtaining compliance with the foregoing.  A copy of each
such report will be mailed to Mary-Win O'Brien, Esq., United Steelworkers of America, Five
Gateway Center, Pittsburgh, Pennsylvania 15222.

Also, paragraph 6 provides,

In view of the fact that the costs to [Penn Steel] of
accomplishing abatement as set forth herein will exceed the $78,300 amount of proposed
penalties, all penalty proposals will be withdrawn and, in lieu thereof, there shall be
assessed a single total penalty of $5,000.  One-half of this amount shall be paid
within 10 days of the date this stipulation becomes a final order and the remainder shall
be paid within 12 months thereafter.

It appears from presentations of counsel at the oral
argument that Penn Steel never submitted the reports required under paragraph 3(g) nor did
Penn Steel pay the penalty required under paragraph 6.  Despite these omissions by
Penn Steel, neither the Secretary nor the Union moved to enforce the terms of the
settlement agreement.  At oral argument, counsel for the Union claimed that this was
simply an oversight.  However, the failures of both the Secretary and the Union to
enforce the settlement agreement also suggests that the Secretary and the Union were
awaiting a subsequent event, namely, a final order of the Review Commission. Moreover, the
union's motion to sever the settlement agreement, made after Penn Steel moved to withdraw,
shows implicit recognition that the settlement agreement would not become final unless
severed.  In view of this and because Penn Steel's agreement to the settlement was
certainly founded on its view that the finality of the settlement would be postponed, we
will also not consider that the settlement agreement has yet become final.

Although we do not believe the settlement is final,
the question still remains whether Penn Steel should be allowed to withdraw from the
settlement agreement.  Penn Steel claims that it should be allowed to withdraw from
the agreement because the Secretary can withdraw from a settlement agreement at any time
before final Commission action.  See Marshall v. Sun Petroleum , 622
F.2d at 1187.  However, the court in Sun Petroleum was careful to point out
that if the Secretary withdrew from a settlement agreement the parties were to be placed
"in the position of status quo ante the issuance of the citation."  
This, according to the court, would mean that "neither the employer nor any affected
employees will be prejudiced by the unilateral action of the Secretary."   Sun
Petroleum , 622 F.2d at 1187.

Clearly, the parties could not return to the status
quo ante if Penn Steel was allowed to withdraw from the settlement at this
late date.  Rather the Secretary would be severely prejudiced and Penn Steel would
benefit greatly from its unilateral withdrawal from the settlement agreement.  Penn
Steel's motion for withdrawal comes after extensive proceedings, both in terms of the time
consumed and the record created.  The hearing on the merits of the citation items not
covered by the settlement agreement took place long ago, in late 1978 and early 1979, and
the hearings lasted for more than a week.  The two hundred and forty items that were
not tried would need to be tried.  This would put the Secretary between Scylla and
Charybdis.  He could prosecute the citations but on the basis of stale evidence.
  The alternative would be more onerous.  The Secretary could reinspect and
issue new citations, but at the cost in time and resources of reinspecting all of the work
areas and conditions covered in the original 240 items. Although Penn Steel may have made
alterations to bring conditions into compliance with OSHA standards, the Secretary would
have been deprived of much of his power to encourage timely compliance by seeking
civil penalties for violations discovered at the time of the original inspection.  
Such a choice would undermine the purpose of the civil penalty scheme that Congress
established and the Commission's efforts to encourage settlement of disputes among the
parties.  See Consolidated Edison Co ., 81 OSAHRC 9/B2, 9 BNA OSHC 1267,
1981 CCH OSHD � 25,165 (No. 80-1252, 1981); Commission Rule 100, 29 C.F.R. �
2200.100(a). Finally, we consider it relevant that Penn Steel has attempted to withdraw
from the settlement at a very late stage of this litigation: the point was raised in its
review brief.  This came, as the settlement says, after "lengthy negotiations
and litigation that has lasted for a period of 3 years."  We decline the
invitation to render for nought all this hard work by the parties.  To encourage
settlements and to avoid irreparable harm to the Secretary's interests, the motion for
withdrawal is denied.[[12]]

Penn Steel also claims that if the Commission changes
any of Judge Chalk's dispositions of the 58 litigated items, the settlement agreement as
to the 240 unlitigated items is void.  While this argument appears frivolous at first
glance, it is not entirely so.  The settlement agreement that the parties entered
into came after Judge Chalk rendered a preliminary decision on the 58 unsettled items. A
very lengthy stay then ensued.  The parties later prepared a settlement agreement
resolving the 240 unlitigated items; as to the litigated items, it stated that
"[w]ith respect to the citation items covered in the preliminary decision of Judge .
. . Chalk . . . the parties agree that the disposition set forth therein shall take
effect."  It could therefore be argued that the parties effectively made the
preliminary dispositions by Judge Chalk their final consensual disposition--that the 58
items were settled by the parties rather than by Judge Chalk.

The problems with this argument are that it is
contrary to another provision of the settlement agreement and that it seems not to have
been the intention of any of the parties or the understanding of Judge Chalk.  The
same paragraph of the settlement that contains the language above also states that
"[b]oth parties reserve their rights under [section 11 of the Act] 29 U.S.C. � 660
and the applicable Review Commission Rules of Procedure to petition for review of that
[preliminary] decision."  Judge Chalk expressly noted this provision in his
final decision, declaring that both parties could seek review of his dispositions of the
58 items.  And indeed both the Secretary and Penn Steel did petition the Commission
for discretionary review of some of those litigated items.  We therefore conclude, in
view of the language of the settlement as a whole, the understanding of Judge Chalk and
the conduct, of the parties, that the phrase "the disposition set forth therein"
merely reflected the parties' intention that Judge Chalk's stay of the proceedings pending
settlement discussions would finally end and that his preliminary decision could now be
incorporated in a final decision.

Finally, Penn Steel claims that the participation of the Union "tainted" the
settlement agreement.  Penn Steel evidently believes that the Union's participation
caused it to agree to a settlement to which it would not have otherwise agreed.  
However, Penn Steel has presented no evidence on how the Union's participation affected
the settlement process, nor can we fathom how the Union's participation would have
affected the settlement talks in the way Penn Steel claims.  Therefore, we will not
overturn the settlement agreement based on this unsupported claim.

IV.  The Citation Items

We now turn to the consideration of the citation
items that were directed for review.

Items 45(g) and (h):  29 C.F.R. �
1910.212(a)(1), Swing Grinders

Items 45(g) and (h) allege that Penn Steel violated
section 1910.212(a)(1), a generally applicable machine guarding standard, by failing to
guard the wheels of two swing grinders.  The two grinders had guards over the top
halves of the grinding wheels.  The compliance officer was concerned that chips of
castings or pieces of the wheels could fly back at the operators because the guards did
not extend downward over the backs of the wheels.  Judge Chalk vacated the item on
the basis that the Secretary's evidence of employee exposure was inadequate.   The
Secretary argues on review that the judge erred.  We do not reach this or any other
issue because we conclude that section 1910.212(a)(1) is preempted with respect to these
grinders.

Section 1910.212(a)(1) provides:

� 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.

This standard is generally applicable to all
machines.  There are, however, other standards that are specifically applicable to
certain machines.  See 29 C.F.R. �� 1910.213-1910.219.  Among these latter
particular standards, there is a standard for swing frame grinders that requires the
grinders to have guards enclosing the top half of the wheel.  See 29 C.F.R.
�� 1910.215(b)(2) and (6). Section 1910.215(b)(6) states:

1910.215 Abrasive wheel machinery .

---

(b) Guarding of abrasive wheel machinery .

---

(6) Swing frame grinders .  The maximum
angular exposure of the grinding wheel periphery and sides for safety guards used on
machines known as swing frame grinding machines shall not exceed 180�, and the top half
of the wheel shall be enclosed at all times.  (See Figures 0-14 and 0-15.)

The two figures to which the section refers show a
rounded guard and a squared-off guard, each covering the top half of the grinding wheel.
  Up to 180 degrees of the bottom halves of the grinding wheels are shown open.

Where "a particular standard is specifically
applicable to a condition, practice, means, method, operation, or process, it shall
prevail over any different general standard which might otherwise be applicable . . . .
" 29 C.F.R. � 1910.5(c)(1).  Because section 1910.215(b)(6) fully addresses the
matter of guarding a wheel of a swing frame grinder, specifying where the guard must be
installed and how much of the wheel may remain open, it applies to the condition with
which the Secretary is concerned in this case. Accordingly, section 1910.215(b)(6)
prevails over the more general standard, section 1910.212(a)(1).  See , e.g. ,
Vicon Corp ., 81 OSAHRC 98/C4, 10 BNA OSHC 1153, 1156, 1981 CCH OSHD � 25,749, pp.
32,158-59 (No. 78-2923, 1981), aff'd , 691 F.2d 503 (8th Cir. 1982); General
Supply Co ., 77 OSAHRC 16/A2, 4 BNA OSHC 2039, 1040-41, 1976-77 CCH OSHD � 21,503, p.
25,806 (No. 11752, 1977).[[13]]

We have considered whether the citation should be
amended to allege a violation of section 1910.215(b)(6).  Under Rule 15(b) of the
Federal Rules of Civil Procedure, pleadings may be amended to conform to the evidence when
an issue not raised by the pleadings has been tried by the express or implied consent of
the parties.  Here, the record is very limited.  During the proceedings, the
parties referred neither to the particular standard nor to requirements in the nature of
those stated in that standard.  The parties did not focus on whether the guards which
Penn Steel had installed on the two grinders covered the top half of the wheels and
whether the open portions of the wheels constituted more than one-half of the total
circumference.  Instead, the parties tried only the general issue framed by the
general standard--whether the operator was exposed to a hazard of rotating parts or flying
chips during the operations.  They did not understand that a violation of section
1910.215(b)(6) was at issue.  Under these circumstances, it is inappropriate to amend
the citation under Rule 15(b). See Nu-Way Mobile Home Manufacturing, Inc .,
86 OSAHRC __, 12 BNA OSHC 1670, 1671, 1986 CCH OSHD � 27,489, p. 35,624 (No. 80-7082,
1986); McWilliams Forge Co., 84 OSAHRC ____, 11 BNA OSHC 2128, 2129-30, 1984 CCH OSHD �
26,979, p. 34,669 (No. 80-5868, 1984).  Therefore, citation items 45(g) and (h) are
vacated.

Item 46(a):  Section 1910.212(a)(3)(ii),
Cut-off Wheel

Citation item 46(a) alleges that Penn Steel violated
29 C.F.R.

� 1910.212(a)(3)(ii) by failing to guard the blade
of a 16-inch table cut-off wheel or saw which was used to trim excess material from
castings.[[14]]  There is no doubt that the standard was violated.[[15]] At the
hearing, however, the question arose whether compliance with the standard was infeasible.

The compliance officer stated that, while "some
type of guarding for this kind of cutoff wheel" is available, using this guarding
"can present some problems with the different configurations in the
castings."  The compliance officer, who observed an employee feeding a casting
into the blade, also testified that the "best way" to protect the employee would
be to construct and install a clamp to hold the castings.  Relying on this testimony,
the judge vacated the citation item and stated that the compliance officer's testimony was
"a concession that the type of guarding contemplated by the standard was
impossible."  The judge reasoned that the proposed clamps did not satisfy the
standard because they did not physically prevent the operator from having a part of his
body in the blade of the saw, and that the type of guarding that did prevent the operator
from touching the blade could not be used.

The Secretary argues that Penn Steel failed to
establish that guarding the cited machine was "impossible."  The Secretary
contends that showing that guarding the machine would be difficult is not enough to show
impossibility.  Also, the evidence revealed that clamps could be used as an
alternative means of protection.

In Dun-Par Engineered Form Co ., 86 OSAHRC ___,
12 BNA OSHC __, 1986 CCH OSHD � (No. 79-2553, 1986), the Commission substantially altered
the "impossibility" defense.  Under Dun-Par , the burden of
persuasion is upon the employer to establish that compliance with the cited standard was
"infeasible" as opposed to "impossible."  Also, the burden of
persuasion was placed with the Secretary to establish that a feasible means of protection
not required by the standard was available but that the employer failed to use it.

We agree with the Secretary that Penn Steel did not carry its burden of proving that
compliance was infeasible.  The testimony of the compliance officer shows, at best,
that during some operations, the use of a guard would be infeasible.  However,
the record does not show that compliance would be infeasible during all cutting
operations.  In any event, the record satisfies the Secretary's burden of showing
that feasible alternative means of protection exist.  The compliance officer
testified that clamps could be used to hold down the workpiece so that the employee's
hands could be kept away from the saw.  Because we find that clamps could feasibly be
used when guarding is infeasible, we reject Penn Steel's defense and affirm item 46(a).

Item 53(a):  Section 1910.215(a)(2), Grinding
Wheel Spindle

A different issue is presented by the remaining items
which, like item 53(a), involve unguarded machines.  The issue is whether the
Secretary presented sufficient evidence to establish that Penn Steel employees had access
to the violative conditions.  To establish employee access, the Secretary must
demonstrate a reasonable predictability that, in the course of their duties, employees
will be, are,  or have been in the zone of danger.  Clement Food Co ., 84
OSAHRC 128/B10, 11 BNA OSHC 2120, 2123, 1984 CCH OSHD � 26,972, p. 34,633 (No. 80-607,
1984), citing Gilles & Cotting, Inc ., 76 OSAHRC 30/D9, 3 BNA OSHC 2002,
2003, 1975-76 CCH OSHD � 20,448, p. 24,425 (No. 504, 1976).  Where the danger is
created by defective equipment, such as unguarded machines, the Secretary may satisfy this
burden of proof by demonstrating that the defective equipment was "available for
use"--specifically, that the defective equipment was located where employees could
gain access to it and use it in the course of their normal duties.  See ,
e.g ., Bechtel Power Co ., 79 OSAHRC 34/A2, 7 BNA OSHC 1361, 1366, 1979 CCH OSHD
� 23,575, p. 28,577 (No. 13832, 1979); Marinas of the Future, Inc ., 77 OSAHRC
201/B1, 6 BNA OSHC 1120, 1122-23, 1977-78 CCH OSHD � 22,406, p. 27,011 (No. 13507, 1977);
Mayfair Construction Co ., 77 OSAHRC 178/A14, 5 BNA OSHC 1877, 1881, 1977-78 CCH
OSHC � 22,214, p. 26,732 (No. 2171, 1977); Gilles & Cotting, Inc ., 76 OSAHRC
30/D9, 3 BNA OSHC 2002, 2004, 1975-76 CCH OSHD � 20,448 p. 24,425.  The nature of
the proof will vary depending on the particular type of defective equipment involved and
circumstances at the particular worksite, but, in general, it will not be enough for the
Secretary to establish simply that the defective piece of equipment was at the worksite.
  There must be sufficient evidence about the precise location of the defective
equipment and specific duties of employees likely to involve use of such equipment at the
particular location to show that some use of the equipment in its defective condition at
or around the time of the alleged violation was indeed reasonably predictable.

With respect to item 53(a), the compliance officer
observed a grinder that did not have a guard for the wheel spindle or nut.   The
Secretary alleged that Penn Steel violated 29 C.F.R. � 1910.215(a)(2).[[16]]   The
judge affirmed the citation.  The compliance officer did not describe where this
grinder was located nor did he see the grinder in use.  However, Mr. George Hartman,
Penn Steel's safety director who accompanied the compliance officer during the inspection,
told the compliance officer that the grinder "was used for odd shaped
castings."  On the basis of the compliance officer's uncontroverted testimony
concerning Mr. Hartman's admission, we affirm the judge's decision that the Secretary
established the accessibility of this grinder.  Item 53(a) is therefore affirmed.

Items 63a(a) & (b):  Section
1910.243(c)(3), Portable Grinders.

With respect to items 63a(a) and (b), the compliance
officer observed a series of vertical portable grinders without guards in the back bay of
the cleaning department.  The Secretary alleged that Penn Steel violated 29 C.F.R. �
1910.243(c)(3)[[17]] because none of the grinders were guarded.  The compliance
officer did not see either of the two grinders in use, but, with respect to the grinder
involved in sub-item 63a(a), the compliance officer stated that he saw "a number of
grinders being used in the area" of it and that the grinding wheel of the particular
grinder "was somewhat worn down."  With respect to the grinder involved in
sub-item 63a(b), the compliance officer stated that this grinder was "laying on a
work bench in the area where they're chipping and grinding." The judge affirmed both
of these items.  We affirm his decision in view of this evidence that the grinders
were located in an area where similar grinders were used for grinding and chipping work,
and therefore, that they were "available for use" by Penn Steel employees. 
Items 63a(a) and 63a(b) are affirmed.

Item 50: Section 1910.213(j)(4), Jointer.

Citation item 50 alleged that a hand-fed jointer in
the woodworking area of the shop lacked a suitable guard as required by 29 C.F.R. �
1910.213 (j)(4).[[18]]  The compliance officer did not see anyone using the jointer.
  The compliance officer testified that he noted on his work sheet that the jointer
was used daily.  However, the compliance officer testified that he could not recall
who told him that.  In addition, although the compliance officer had noted the name
of an employee with whom he spoke during the inspection, the compliance officer could not
describe this employee's position or work.  Therefore, there was no evidence that the
employee would know about the usual operations involving the jointer, or that the employee
even worked in the pattern shop.  The record generally indicates that different
machines were used for different operations or materials and the compliance officer did
not provide any reliable information about the duties of employees likely to involve the
use of the unguarded jointer in the pattern shop around the time of the alleged violation.
  Accordingly, Chairman Buckley concludes that the Secretary has not established a
reasonable predictability that Penn Steel employees had access to the cited jointer.
  He therefore joins with Commissioner Rader--whose views are stated in his separate
opinion--in vacating item 50.

Commissioner Wall would, however, find the evidence
was sufficient to affirm the judge's finding that Penn Steel employees had access to the
unguarded jointer.  The judge found that "the jointer was accessible in its
violative condition for use by an employee." Commissioner Wall observes that the
compliance officer's notes included the name and address of a Penn Steel employee.
   Although the compliance officer could not testify for certain, it is more
likely than not that the employee whose name and address was in the compliance officer's
notes was the employee who told him that the jointer was used daily.  In addition,
the compliance officer testified that the inspection followed the normal route of the
foundry process.  Therefore, the jointer was in a place where work was normally
performed and was easily accessible for use by Penn Steel employees.

Item 53(e):  Section 1910.215(a)(2), Grinder

Citation item 53(e) involves the same type of grinder
as item 53(a).  Because the grinder was not guarded, the Secretary cited Penn Steel
under 29 C.F.R. � 1910.215(a)(2).[[19]]  Chairman Buckley joins with Commissioner
Rader in vacating the item.  Chairman Buckley would note that unlike citation item
53(a), there was no evidence about where the grinder cited in item 53(e) was located or
that the grinder was used by Penn Steel employees.  Therefore, Chairman Buckley finds
that the Secretary did not establish that the Penn Steel employees had access to the cited
machine.

Commissioner Wall would affirm the citation item.  The administrative law judge found
that the grinder was located in a work area and accessible to Penn Steel employees.  
Commissioner Wall would defer to the administrative law judge on this finding of fact.

The judge assessed an aggregated penalty of $5,000,
the amount that the parties specified in their settlement agreement.  We affirm this
assessment.

Order

Accordingly, we affirm Judge Chalk's order entering judgment in accordance
with the settlement agreement on the 240 unlitigated items. We also affirm his decision as
to some of the litigated citation items but reverse as to others. Items 45(g), 45(h), 50
and 53(e) are vacated. Items 46(a). 53(a), 63a(a) and 63a(b) are affirmed. We also affirm
the judge's assessment of a $5000 penalty.

BY THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED:  AUG 27 1986

RADER, Commission, dissenting:

I agree with Commissioner Wall that the Commission is
required to consider Penn Steel's constitutional objections to the probable cause showing
by the Secretary for the inspection warrant.  I dissent from the majority's decision
because in my view the warrant was not supported by adequate probable cause and was
overbroad.  Consistent with my opinion in Synkote Paint Co. , OSHRC Docket No.
83-0002 (August 27, 1986), I would suppress the evidence obtained under the warrant.

As Commissioner Wall correctly points out, numerous
courts of appeals have directed the Commission to rule on challenges to the probable cause
showing for an inspection warrant once statutory review proceedings have commenced. 
The courts have not stated that any challenges to the validity of a warrant are to be
raised before the Commission merely to be preserved for appellate review pending the
development of a factual record by the Commission.  Rather, the case law now clearly
holds that such challenges are not only to be raised but are also to be heard and resolved
before the Commission.  Smith Steel Casting Co. v. Donovan , 725 F.2d 1032,
1036 (5th Cir. 1984); Donovan v. Sarasota Concrete Co ., 693 F.2d 1061, 1066 (11th
Cir. 1982); Babcock & Wilcox Co. v. Marshall , 610 F.2d 1128 (3d Cir.
1979).

Consideration of the sufficiency of the probable
cause for the warrant in this case must begin with Marshall v. Barlow's Inc ., 436
U.S. 307 (1978) [[1]]  In Barlow's the Supreme Court held that OSHA may obtain
a warrant by showing (1) specific evidence of an existing violation, or (2) that
"reasonable legislative or administrative standards for conducting an inspection are
satisfied with respect to a particular establishment."  436 U.S. at 320.

The affidavit for the warrant at issue here asserts
two grounds for an inspection of Penn Steel's facility.  The first asserted ground is
the need to conduct a follow-up inspection to verify the validity of Penn Steel's claim
that it could not feasibly abate prior violations for excessive noise, silica dust, and
nuisance dust.  This portion of the affidavit is sufficient under Barlow's to
establish probable cause to conduct an inspection based on specific evidence of an
existing violation.  Pelton Casteel, Inc. v. Marshall , 588 F.2d 1182 (7th Cir.
1978).  Had the warrant and ensuing inspection been limited to matters pertaining to
noise and dust, they would pass constitutional muster.  See my opinion in Synkote
Paint , supra (warrant must be properly tailored to the probable cause showing
for its issuance).  However, the warrant authorized, and the Secretary conducted, a
general or wall-to-wall inspection of the entirety of Penn Steel's premises.  In this
respect the warrant was clearly overbroad in scope because there was no probable cause
shown for a general inspection of Penn Steel's premises.  Barlow's and its
progeny require that an application for a warrant based on a general administrative plan
for the enforcement of the Act must demonstrate both that a reasonable legislative or
administrative inspection program exists and that rational and neutral criteria were used
to select the particular employer for an inspection under this plan.  In re
Establishment Inspection of Northwest Airlines, Inc ., 587 F.2d 12, 13-14 (7th Cir.
1978); In re Establishment Inspection of Pfister & Vogel Tanning Co .,
493 F. Supp. 351, 354 (E.D. Wis. 1980).  The affidavit for the warrant here simply
stated:

The purpose [in addition to the follow-up inspection
for conditions previously cited] was . . . to conduct the inspection pursuant to OSHA's
National Emphasis Program for Foundries.

. . The National Emphasis Program (hereinafter
"NEP") was established in 1976 to reduce hazards in industries reporting a
higher than average rate of injuries and illnesses.  The first target industries
selected by NEP were iron and steel foundries and aluminum, bronze, brass and copper
casting and metal stamping plants.  Foundries reported a 1973 illness and injury rate
of 26.6 per 100 workers as compared to the national average of 8.8.

Assuming without deciding that this limited
description of the NEP program is sufficient to establish a reasonable administrative plan
under Barlow's , supra , the affidavit plainly fails to set forth any basis
whatever for the selection of Penn Steel's worksite for an inspection pursuant to the
NEP.[[2]]  The affidavit states simply that Penn Steel was selected for an inspection
pursuant to the plan; it does not describe the procedure followed in the selection of Penn
Steel for a general inspection under the NEP.  Was it by lot? Was it at random?
  Was it by design?  If by design, what were the facts underlying the purposeful
selection?  The purpose of the warrant requirement is to "guard against
arbitrariness."  Brock v. Gretna Machine & Ironworks , 769 F.2d 1110,
1112 (5th Cir. 1985).  Yet absent such information as to Penn Steel's selection under
the NEP we cannot determine whether the selection of Penn Steel as opposed to any other
foundry for a general inspection under the NEP was "a reasonable exercise of
discretion for the area administrator."  In re Establishment Inspection of
Urick Property , 472 F. Supp. 1193, 1195 (W.D. Pa. 1979).[[3]]  See Gretna
Machine & Ironworks , supra , 769 F.2d at 1112-13, and Marshall v.
Weyerhaeuser Co ., 456 F. Supp. 474 (D.N.J. 1978).  Cf . Marshall v.
Shellcast Corp ., 5 BNA OSHC 1689, 1691 (N.D. Ala. 1977), rev'd on other grounds ,
592 F.2d 1369 (5th Cir. 1979) (where individualized information is available, nationwide
statistics do not establish sufficient probable cause to justify the selection of
particular foundries for inspection under the foundry NEP).  Since probable cause for
a general inspection under the NEP was not established, the warrant should have been
limited in scope to the particular violative conditions for which the Secretary was
seeking a follow-up inspection.  Sarasota Concrete , supra , 693 F.2d at
1068-70 (11th Cir. 1982); Marshall v. North American Car Corp ., 626 F.2d
320, 324 (3d Cir. 1980); Marshall v. Central Mine Equipment Co ., 608 F.2d 719, 720
n.1 (8th Cir. 1979).  See Synkote Paint , supra .

However, that did not happen here.  Instead the Secretary inspected and issued
citations consisting of almost 300 separate violations for matters as diverse as failing
to instruct employees in how to safely lift heavy objects, failure to properly enclose
electrical equipment, and, as the lead opinion points out, failure to properly guard
woodworking machinery in the pattern shop.  Quite clearly the Secretary conducted far
more than merely a follow-up inspection for noise and dust violations, and his inspection
went well beyond any open and obvious hazards that arguably might have been detected
during a properly limited follow-up inspection.  Since there was no probable cause
for an inspection of such scope, the warrant is invalid for being overbroad.  
Consistent with Sarasota Concrete , supra , and my opinion in Synkote
Paint , supra , I would suppress the evidence obtained under the invalid warrant.

Commissioner Wall holds that even if there was not
probable cause for a general inspection, the "good faith" exception of United
States v. Leon , 468 U.S. 897 (1984), applies here to excuse this broad invasion of
Penn Steel's privacy.  However, I believe that Leon , a criminal case, is
founded on different considerations than exist in an OSHA warrant case and should not be
used to justify the incredibly detailed inspection that took place in this case.  The
use of evidence in criminal cases is vastly different than in civil cases before the
Commission under the Act.  The distinctions are well-stated by Chairman Buckley in Brooks
Woolen Co ., 85 OSAHRC _____, 12 BNA OSHC 1233, 1236-37, 1985 CCH OSHD � 27,233,
pp. 35,151-52 (Nos. 79-45 and 79-128, 1985), aff'd , 782 F.2d 1066 (1st Cir. 1986).
  As Chairman Buckley explained, the suppression of evidence normally will defeat the
punitive purposes of the criminal law because evidence of a crime, once suppressed,
usually cannot be recovered.  Different considerations apply in cases under the Act,
however, because the purposes of the Act are not punitive but rather remedial.  Thus,
the Act is intended to achieve safe and healthful working conditions through the
elimination of recognized hazards and compliance with standards promulgated under the Act.
  As Chairman Buckley has accurately stated,

If evidence from an unlawful OSHA inspection is
suppressed, the Secretary can seek to obtain similar evidence from a subsequent, valid
inspection or by other means.  See section 8(b) of the Act, 29 U.S.C. � 657(b)
(Secretary has authority to issue subpoenas in investigating possible violations of the
Act).  If conditions in the employer's workplace have changed to the extent that
evidence of a violation no longer exists, then any violation has ceased to exist, and the
Secretary has achieved the result he sought by initiating the enforcement action.  If
conditions have not changed, the Secretary can reacquire the evidence by lawful means.
  He will have lost some time and resources, but in many cases the lost time and
resources will be less than he would expend in litigation arising from questionable
inspection practices.  In any event, the cost of suppression is much less than it is
in criminal cases.

This distinction between criminal and civil
proceedings was emphasized by the Eleventh Circuit in affirming the Commission's refusal
to apply a good faith exception in Sarasota Concrete , supra .  See
693 F.2d at 1072.  In Sarasota Concrete , 81 OSAHRC 48/A2, 9 BNA OSHC 1608,
1613-1614, 1981 CCH OSHD � 25,360, pp. 31,532-33 (No. 78-5265, 1981), the Commission
applied the exclusionary rule to our proceedings because it creates a clear incentive to
the Secretary to conduct OSHA inspections in accordance with the fourth amendment.  I
see no reason to disregard our prior decision in Sarasota Concrete , as Chairman
Buckley does by refusing to decide these constitutional warrant issues, and as
Commissioner Wall does by applying a good faith exception in the present cast.  On
the other hand, the effect of the majority's ruling will be to unnecessarily encourage
sloppy warrant applications and overbroad OSHA inspections.

Even if the good faith exception did apply to our
proceedings, I cannot find the Secretary to have acted in good faith here.   Although
the warrant here predates the Supreme Court's decision in Barlow's , the Court had
held as far back as Camara v. Municipal Court , 387 U.S. 523, 538 (1967),
that in order to establish probable cause for an administrative warrant there must be
"reasonable legislative or administrative standards for conducting an area inspection
. . . with respect to a particular dwelling."  See In re Establishment
Inspection of Northwest Airlines, Inc ., 437 F. Supp. 533 (E.D. Wis. 1977), aff'd ,
587 F.2d 12 (7th Cir. 1978). By the time the Secretary applied for the warrant in this
case a number of courts had specifically applied Camara to OSHA inspection
warrants.  See the three-judge district court opinions in Barlow's Inc. v.
Usery , 424 F. Supp. 437 (D. Idaho 1976); Dunlop v. Hertzler Enterprises, Inc. ,
418 F. Supp. 627 (D.N.M. 1976); Brennan v. Gibson's Products, Inc. of Plano , 407
F.Supp. 154 (E.D. Tex. 1976); and the district court opinion in Usery v. Centrif-Air
Machine Co ., 424 F. Supp. 959 (N.D. Ga. 1977).  Cf . In re the
Inspection of Rupp Forge Co ., 4 BNA OSHC 1487, 1976-77 CCH OSHD � 20,914 (N.D. Ohio
1976) (probable cause standards appropriate to administrative searches apply to
inspections under the Act).  Thus, the Secretary should have been aware of the need
to demonstrate why he selected Penn Steel for inspection under the NEP.  Similarly,
as I observed in Synkote Paint , supra , the principle that a warrant must be
properly tailored to the probable cause basis for its issuance is a fundamental rule of
fourth amendment law of which we may reasonably expect the Secretary's agents to be aware.
  Therefore, in my view the Secretary could not have reasonably believed that the
warrant authorizing a general inspection of Penn Steel's worksite was valid.

The underlying basis of the majority's decision is
its reluctance to allow Penn Steel to escape the settlement agreement.  I share this
reluctance.[[4]]  However, I believe that when the question of the legality of the
inspection warrant and the inspection is raised, as it is here, we are required by the
precedent I have noted to decide these constitutional issues.  If the warrant or
inspection is unconstitutional or otherwise invalid, our obligation to protect the rights
guaranteed by the fourth amendment requires that we suppress the evidence obtained during
the inspection regardless of our dislike for setting aside the settlement agreement.
  See Sarasota Concrete , supra , 9 BNA OSHC at 1615, 1981 CCH
OSHD at p. 31,533.

Barlow's , supra , reaffirms that the
determination of the reasonableness of a particular OSHA inspection is to be made by the
magistrate, not the Secretary.  The application for a warrant must therefore set
forth sufficient information to enable the magistrate to make an independent determination
of probable cause.  In this case the affidavit should have described how Penn Steel
was selected for inspection under the NEP.  Gretna Machine & Ironworks , supra ,
769 F.2d at 1114.  The Secretary could easily have described his selection process in
the affidavit, if in fact the selection of Penn Steel was done in a neutral manner under
the NEP. He has certainly done so in other cases and the burden has not been onerous.
  See , e.g. , Stoddard Lumber Co., Inc. v. Marshall, 627 F.2d
984, 985 n.2, 988 (9th Cir. 1980) ("detailed explanation" of inspection plan
describing how individual employers are selected for inspection); Reynolds Metals Co.
v. Marshall , 442 F. Supp. 195 (W.D. Va. 1977).  His failure to do so here
contravenes the clear teaching of Barlow's and its progeny.  Accordingly, I
would vacate all the citations issued to Penn Steel since those citations arise from an
illegal inspection.

SECRETARY OF LABOR,

Complainant,

v.

PENNSYLVANIA STEEL FOUNDRY &

MACHINE COMPANY,

Respondent.

DOCKET NO. 78-0638

APPEARANCES

Michael D. Shapiro, Esq.

For Complainant

Robert D. Moran, Esq.

For Respondent

Mary Win-O'Brien, Esq.

For Employees

FINAL DECISION AND ORDER

Chalk, Judge:

I

This protracted case involves some 300 separate
charges (items and subitems), involving four separate hearing sessions dating back to
January 1979.  These hearing sessions were interspaced with recesses requested by the
parties to enable them to conduct settlement sessions and, on one occasion, to permit me
to resolve a renewed motion by Respondent, after receipt of briefs of all parties, to
suppress all the evidence in the case after the Commission, on July 17, 1979, reversed its
prior decisions that it lacked jurisdiction to adjudicate the validity of search warrants
issued by United States District Courts (see Secretary v. Chromalloy American Corp., 79
OSAHRC 55/D11, Docket No. 77-2788).

During one of the hearing sessions convened on
December 5, 1979, the parties requested permission to conduct a full hearing limited to 58
of the 300 charges, those they believed they could not settle, expressing their
expectation that it would enable them to settle the remainder of the case.  
Thereafter, on June 27, 1980, I issued a preliminary or interlocutory decision which
served to advise the parties of my future disposition of each of the 58 charges when this
final decision and order was issued.  That preliminary decision, attached hereto, is
incorporated herein, made a part hereof, and each disposition specified therein will be
fully implemented herein.

Although the parties, in the partial settlement
agreement they have now filed, have reserved unto themselves the right to seek relief at
the Commission and Circuit Court levels from the disposition of those 58 charges specified
in the preliminary decision, as implemented herein, they already have that right as a
matter of law under the provisions of the Act (29 U.S.C. 659(c), 660(a) and 661(j)).

When the final hearing session in this case convened
on January 22, 1981, a recess was immediately declared at the request of the parties to
enable them to resume settlement negotiations.  The hearing was never reconvened as
the parties advised me informally on January 23, 1981 that they had settled all remaining
charges alleged in the citations, other than those resolved in the preliminary decision.

II

A

Items Involved in the Preliminary Decision

Citation Number 1 (Serious)

Items (or subitems) 20 a through g, 25a and b, 27a,
39, 42, 43a, 45a through j, 46a through i and k, 48a, 51, 54b, 56a, 57c, 58b, c, f and h,
and 74a through c - Vacated.

Items (or subitems) 47, 50 and 53a through e -
Affirmed.

Items (or subitems) 48b, 49, 52 and 63a(a), a(b), and
a(c) - Modified to allege other than serious violations, affirmed.

B

The partial settlement agreement filed by the parties
on June 18, 1981 is approved, the motions contained therein are granted, and Respondent's
notice of contest to the items (or subitems) affirmed in accordance with said agreement is
dismissed.

Citation Number 1 (Serious)

Items 1, 4 through 8, 11, 12, 15, 18, 19, 20(h), 20(i), 20(k) through 20(n), 20(p), (23,
25(c) through 25(f), 26(a), 26(b), 28, 31, 43(b), 46(j), 54(a), 56(b) through 56(f),
57(a), 57(d) through 57(p), 58(a), 58(d), 58(e), 58(g), 59 through 61, 64 through 68,
69(c) through 69(l), 70(a), 70(b), 72, 73 and 75 - Affirmed.

Items 2, 3, 9, 10, 13, 14, 16, 20(j), 20(o), 21, 22,
24, 29, 30, 32 through 38, 40, 41, 55, 62, 63(b), 69(b) and 71 - Vacated.

Citation Number 2 (Willful)

Item 3 - Vacated.

Item 1, 2, 4 and 5 - Modified to allege

serious violations, affirmed.

Citation Number 3 (Nonserious)

Items 8 and 16 - Vacated

Items 1 through 7, 9

through 15, and 17

through 25 - Affirmed.

An aggregate penalty of $5,000 is assessed for the
items (or subitems) of Citation number 1 for serious violations affirmed as serious
violations, as provided for in both the preliminary decision and the partial settlement
agreement and for the affirmed items of Citation number 2, as modified, and for items 1,
3, 4, 6, 13 and 20 of Citation number 3 for other than serious violations, the latter two
citations as provided for in the partial settlement agreement.

Respondent will comply with the abatement provisions
of paragraphs 3 and 4 of the partial settlement agreement and the respective parties will
adhere to the agreements reached in paragraphs 5 through 10 thereof.

So ORDERED.

JOSEPH L. CHALK

Judge, OSHRC

Dated:  July 13, 1981

Hyattsville, Maryland.

FOOTNOTES:

[[1]] The issues the parties were instructed to
address in their supplemental briefs were:

If the Secretary's regulation at 29 C.F.R. � 1903.4
required notice and hearing on the warrant application, did the Secretary's conduct in
obtaining the warrant ex parte violate the employer's right to due process
of law under the Fifth Amendment?  What is the effect of the Supreme Court's holding
in Accardi v. Shaughnessy , 347 U.S. 260 (1954), on this issue?  What is the
effect of the Supreme Court's holding in United States v. Caceres , 440 U.S. 741
(1979), on this issue?

If the Secretary's conduct in obtaining the warrant ex
parte did violate 29 C.F.R. � 1903.4, what is the proper remedy under the Fifth
Amendment?

Does the "good faith" exception of United
States v. Leon , 104 S.Ct. 3405 (1984), apply to violations of due process rights under
the Fifth Amendment?

Whether the decision of the United States Court of
Appeals for the Third Circuit in Cerro Metal Products v. Marshall , 620 F.2d 964
(3rd Cir. 1980), should be applied retroactively to the warrant in this case, which was
issued on August 25, 1977?

If the Commission concludes that the Secretary's
conduct in obtaining the warrant ex parte violated the employer's right to
due process of law under the Fifth Amendment, what effect, if any, does that have on the
validity of the settlement agreement approved by the Judge on June 23, 1981?

Whether the terms of the June 23, 1981, settlement
agreement require that the agreement be voided if the Commission alters Judge Chalk's
decision.

[[2]] Before the oral argument, the parties were
instructed to concentrate their arguments on the following two questions:

(1) If the Secretary's regulation at 29 C.F.R. �
1903.4 required notice and hearing on the warrant application, did the Secretary's conduct
in obtaining the warrant ex parte violate the employer's right to due
process of law under the Fifth Amendment?  If so, does the due process violation
require vacation of the citations or suppression of the evidence resulting from the
inspection?

(2) If the Commission concludes that the Secretary's
conduct in obtaining the warrant ex parte violated the employer's right to
due process of law under the Fifth Amendment, what effect, if any, does that have on the
validity of the settlement agreement approved by the Judge on June 23, 1981?

[[3]] The questions of the validity of the inspection
and whether Penn Steel should be allowed to withdraw from the settlement agreement were
not stated in the directions for review.  On review, the Secretary argues that the
Commission therefore does not have any of these issues before it.   However, that
issues in a case were not included in a direction for review does not preclude the
Commission from considering them.  Once a case is directed for review, the Commission
may consider any issue raised by the case. Hamilton Die Cast, Inc ., 86 OSAHRC ____,
12 BNA OSHC 1797, 1986 CCH OSHD � 27,576 (No. 83-308, 1986). Concomitantly, the
Commission also has the discretion to decline review of issues tendered by the
parties.  We decline to review certain additional issues that were mentioned by Penn
Steel in its initial review brief but are not discussed in this opinion.

[[4]] As in Geupel , we find it unnecessary to
consider whether Chevron v. Huson , 404 U.S. 97, 106 (1971), which generally governs
retroactivity in civil cases, should be applied to Fourth Amendment questions.  We
find that the "clearly foreshadowed" test of Chevron would yield here the
same result as the "clear break" test of Johnson .

[[5]] Davis Metal Stamping, Inc ., 82 OSAHRC
37/A2, 10 BNA OSHC 1741, 1744, 1982 CCH OSHD � 26,134, p. 32,879 (No. 78-5775, 1982).

[[6]] That this is so is further indicated by the
fact that even after the Barlow's decision, a majority of the tribunals that
considered the question did not find that the language of Barlow's and the events
that precipitated it suggested that OSHA lacked the authority to seek warrants ex parte . 
The majority of the circuit courts have held that the Secretary had authority to obtain ex
parte warrants under section 1903.4 as originally promulgated.  Donovan v.
Red Star Marine Services, Inc ., 739 F.2d 774, 782-784 (2d Cir. 1984), cert . denied ,
105 S.Ct. 1355 (1985); Rockford Drop Forge Co. v. Donovan , 672 F.2d 626, 629-631
(7th Cir. 1982); Marshall v. Seaward International, Inc ., 644 F.2d 880 (4th Cir.
1981) (table), aff'g 510 F. Supp. 314 (W.D. Va. 1980); Stoddard Lumber
Co. v. Marshall , 627 F.2d 984, 989 (9th Cir. 1980); Marshall v. W & W Steel Co .,
604 F.2d 1322, 1324 (10th Cir. 1979). Only the Fifth Circuit in Donovan v. Huffines
Steel Co ., 645 F.2d 288 (5th Cir. 1981), has agreed with the holding of the Third
Circuit in Cerro .  In addition, the Commission has held that the Secretary was
empowered under the original version of section 1903.4 to obtain ex parte
warrants.  Davis Metal Stamping , 10 BNA OSHC at 1747, 1982 CCH OSHD at p.
32,900.

[[7]] The reasonableness of OSHA's interpretation is
also supported by the fact that it was later accepted by the Commission and a majority of
the courts of appeals that considered the issue.  See note 6 supra .

[[8]] See also his views in Equitable Shipyards,
Inc ., 85 OSAHRC _,12 BNA OSHC 1288, 1985 CCH OSHD � 27,237 (Nos. 81-1685,
81-1762 and 81-2089, 1985); Smith Steel Casting Co ., 85 OSAHRC, __, 12 BNA OSHC
1277, 1985 CCH OSHD � 27,263 (Nos. 80-2069 and 80-2322, 1985) appeal filed , No.
85-4346 (5th Cir. May 21, 1985); Thermal Reduction Corp ., 85 OSAHRC __, 12
BNA OSHC 1264, 1985 CCH OSHD � 27,248 (No. 81-2135, 1985); Davis Metal Stamping ,
12 BNA OSHC at 1261, 1985 CCH OSHD at p. 35,156; Brooks Woolen , 12 BNA OSHC at
1233, 1985 CCH OSHD at p. 35,148; Robert K. Bell Enterprises, Inc ., 85 OSAHRC _,
12 BNA OSHC 1149, 1985 CCH OSHD � 27,139 (No. 78-4332, 1984), aff'd , No. 85-1547
(10th Cir., Feb. 19, 1986); Beauty Craft Tile of the Southwest, Inc ., 85 OSAHRC
____, 12 BNA OSHC 1082, 1983-84 CCH OSHD � 27,091 (No. 80-471, 1984).

[[9]] Once the warrant has been executed and
enforcement proceedings commenced before the Review Commission, a majority of courts have
held that the district courts should refrain from considering further challenges to the
validity of the warrant.  Rather, the matter should be considered by a court of
appeals after a full factual record has been developed by the Review Commission. Babcock
& Wilcox , 610 F.2d at 1136 ("The question in this case is not whether the
issues may be heard by an Article III court, but when .").  But see
Weyerhauser Co. v. Marshall , 592 F.2d 373 (7th Cir. 1979).

The function of the Commission and its judges is to
hear employers' challenges to the Secretary's evidence in support of citations and, only
consistent with this authority, can the Commission consider claims that evidence should be
suppressed because of an invalid inspection.  See section 10(c) of the Act, 29
U.S.C. � 659(c); Babcock & Wilcox , 610 F.2d at 1136; see also Establishment
Inspection of the Metal Bank of Am., Inc ., 700 F.2d 910 (3d Cir. 1983); Baldwin
Metals , 642 F.2d at 773 n.11.

[[10]] Smith Steel Casting Co. v. Donovan , 725
F.2d 1032, 1035-1036 (5th Cir. 1984); Robert K. Bell Enterprises, Inc. v . Donovan ,
710 F.2d 673 (10th Cir. 1983), cert. denied , 464 U.S. 1041 (1984), Metal Bank ,
700 F.2d at 914; Donovan v. Sarasota Concrete Co ., 693 F.2d 1061, 1066 (11th
Cir. 1982); Babcock & Wilcox , 610 F.2d at 1136-1137; In re Inspection of
Central Mine Equipment Co ., 608 F.2d 719 (8th Cir. 1979); Bethlehem Steel
Corp. v. OSHRC , 607 F.2d 871 (3d Cir. 1979); In re Worksite Inspection of
Quality Products, Inc ., 592 F.2d 611 (1st Cir. 1979).

[[11]] Paragraph 9 of the Application for the warrant
described the Foundry NEP in the following way.

The National Emphasis Program (hereinafter
"NEP") was established in 1976 to reduce hazards in industries reporting a
higher than average rate of injuries and illnesses.  The first target industries
selected by NEP were iron and steel foundries and aluminum, bronze, brass and copper
casting and metal stamping plants.  Foundries reported a 1973 illness and injury rate
of 26.6 per 100 workers as compared to the national average of 8.8.

NEP inspections are conducted by teams of safety
officers and industrial hygienists.  NEP inspection teams are not limited to
identifying violations as during ordinary inspections, but are also required to provide
foundry operators with technical assistance by evaluating unsafe conditions and practices,
identifying abatement methods and techniques, establishing or maintaining safety and
health programs and providing a detailed evaluation of the employer's safety program.

The NEP goal is to achieve a significant reduction in
the incidence of occupational injuries and illnesses due to hazards in the foundry
industry.  NEP functions such as consultation, training and education, evaluation and
compliance monitoring are essential to the achievement of his goal.

[[12]] As our discussion indicates, Penn Steel's
statement in its initial review brief that it withdraws from the settlement agreement is
to be treated as a motion to withdraw which may be granted or denied by the Commission.
  As such, the request to withdraw should have been presented to the Commission in
the form of a motion, filed separately from the brief.  See McWilliams
Forge Co ., 84 OSAHRC, 11 BNA OSHC 2128, 2131 and n.6, 1984-85 CCH OSHD � 26,979, p.
34,671 & n.6 (No. 80-5868, 1984), citing Fed. R. Civ. P. 7(b)(1) and Fed. R.
App. R. 27(a).  At the time that Penn Steel filed its review brief with the motion
stated in it, the Commission had not yet issued McWilliams Forge disapproving the practice
of incorporating motions in briefs.

[[13]] We acknowledge that Penn Steel did not raise
the preemption issue and that we are raising section 1910.215(b)(6) in this litigation for
the first time.  We have done so because the preemption of section 1910.212(a)(1) by
section 1910.215(b)(6) became plainly evident as we reviewed the evidence as to these
items and items 53(a) and (e), which allege violations of section 1910.215(a)(2). 
Ordinarily, we would afford the parties the opportunity to brief this issue.  In this
case, however, the parties have already submitted lengthy supplemental briefs and have
argued the case orally.  In view of the age of the case, and in the interest of
judicial economy, we will dispose of this item on the existing record.

[[14]] The standard provides:

� 1910.212 Several requirements for all machines

(a) Machine Guarding

---

(3) Point of operation guarding

---

(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.

[[15]] We have considered whether section
1910.212(a)(3)(ii) is preempted by the more particular standards at 29 C.F.R. �
1910.215(b)(5), (b)(10)(iv) and (v).  See also 29 C.F.R. �
1910.211(b)(13).  However, the description of the machine cited in item 46(a) is not
sufficient for us to decide whether these more particular standards are applicable.

[[16]] The standard provides:

� 1910.215 Abrasive wheel machinery

---

(a) General requirements

---

(2) Guard design .  The safety guard shall cover the spindle end, nut, and
flange projections.  The safety guard shall be mounted so as to maintain proper
alignment with the wheel, and the strength of the fastenings shall exceed the strength of
the guard, except:

[[17]] That section provides:

� 1910.243 Guarding of portable powered tools

---

(c) Portable abrasive wheels

---

(3) Safety guards used on machines known as right angle head or vertical portable grinders
shall have a maximum exposure angle of 180�, and the guard shall be so located so as to
be between the operator and the wheel during use.  Adjustment of guard shall be such
that pieces of an accidentally broken wheel will be deflected away from the operator.

[[18]] The standard requires

� 1910.213 Woodworking machinery requirements .

(j) Jointers .

(4) Each hand-fed jointer with horizontal cutting
head shall have a guard which will cover the section of the head back of the gage or
fence.

[[19]] See footnote 15.

[[1]] Although handed down after this warrant was
issued, the holding in Barlow's must be applied retroactively.  In United
States v. Johnson , 457 U.S. 537, 549 (1982), the Supreme Court ruled that
fourth amendment cases are generally to be applied retroactively unless they are a
"clear break with the past."  Barlow's was not a clear break with
the past, but, rather, was the culmination of a long line of administrative search cases
beginning as far back as Camara v. Municipal Court , 387 U.S. 523 (1967) and See
v. City of Seattle , 387 U.S. 541 (1967).  Indeed, the holding in Barlow's
was "clearly foreshadowed."  see Chevron Oil Co. v. Huson ,
404 U.S. 97, 106 (1971), by numerous lower court decisions that relied on Camara
and See in requiring OSHA to obtain warrants to inspect.  See Stanbest,
Inc. , 83 OSAHRC 10/D6, 11 BNA OSHC 1222, 1233-34, 1983-84 CCH OSHD � 26,455 pp.
33,626-27 (No. 76-4355, 1983) (Rowland, dissenting).  Cf . Carl M. Guepel
Const. Co ., 82 OSAHRC 60/B5, 10 BNA OSHC 2097, 1982 CCH OSHD � 26,309 (Nos. 81-55
& 81-56, 1982) (retroactive application to be given to the Commission decision in Sarasota
Concrete Co. , 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1981 CCH OSHD � 25,360 (No. 78-5265,
1981), holding that evidence must be suppressed if probable cause for a warrant does not
exist).

[[2]] In this respect the present affidavit is
remarkably similar to the affidavit that was struck down in Barlow's because there
were "no facts presented that would indicate why the inspection of Barlow's
establishment was within the program."  436 U.S. at 323 n.20.

[[3]] Contrary to Commissioner Wall's analysis, Urick
Property is directly on point.  There, as here, there was "no recital of a
rational basis for the selection" of the particular foundry to be inspected under the
NEP, and it is entirely possible that the selection of Penn Steel for a general inspection
under the NEP was as arbitrary as the court found the selection of Urick to be.  
Commissioner Wall's justification of the present warrant is based on Penn Steel's previous
violations and the fact that foundries may be dangerous places to work.   This
reasoning begs the question.  If the probable cause for the warrant was Penn Steel's
previous violations, then the warrant should have been so limited.  If a broad,
wall-to-wall inspection was really due at that time under the NEP, then the warrant
application should have described how Penn Steel was selected pursuant to the NEP.  
Since the warrant application failed to describe the selection process, the warrant here
fails for precisely the same reasons as in Urick Property .

[[4]] My personal view is that if a party enters into
a settlement merely to avoid the expense of litigating factual issues because he believes
that the case is controlled by a question of law and intends to seek review on that
question of law, he should make it clear that that is the reason, or at least one reason,
for his agreement to the settlement.