Miami Industries, Inc.

Plain-English summary

Miami Industries used hinged barrier guards around tube-mill rollers after an OSHA compliance officer approved the design following an earlier citation. OSHA also used Miami's blueprints as a model for other employers and conducted later inspections for almost ten years without citing the guards. The Commission held that this conduct denied Miami fair notice and amounted to affirmative misconduct supporting estoppel against the government. It vacated allegations that the approved guards needed to be secured, interlocked, or reconfigured, and required an opportunity for Miami to be heard before future enforcement against that design. It still affirmed violations for operating the mill with guards partly open and for leaving the first set of rollers entirely unguarded, assessing a total penalty of $100.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.212(a)(1); 29 C.F.R. § 1910.22(a)(1)
• Outcome: Parts of the machine-guarding item were vacated, other parts were affirmed, and the penalty was reduced to $100.
• Key point: OSHA may be estopped from reversing an expressly approved compliance method when its repeated representations reasonably induced the employer's reliance.

Full text (OSHRC public release)

Docket No. 88-0671

SECRETARY OF LABOR,

Complainant,

v.

MIAMI INDUSTRIES, INC.,

Respondent.

OSHRC Docket No. 88-671

DECISION

BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:

The primary issue in this case is whether statements and
actions by agents of the Occupational Safety and Health Administration ("OSHA")
justify vacating a portion of a citation alleging that Miami Industries, Inc.
("Miami") violated the Secretary of Labor's machine guarding standard, 29 C.F.R.
� 1910.212(a)(1), [[1/]] by failing to protect its employees from the hazards of
inrunning nip points on a series of rollers that form and shape steel in Miami's plant. We
find that OSHA misled Miami into believing that a hinged and removable panel guard that it
had installed following an earlier citation was sufficient to comply with the terms of the
standard. Accordingly, we conclude that Miami was denied fair notice that the Secretary
considered its existing panel guards to be inadequate. In addition, we conclude that the
factors necessary to establish estoppel against the Government are also present here. For
reasons of both lack of fair notice and estoppel, we vacate that portion of the citation
which alleges that Miami's existing guards failed to provide proper protection to its
employees. We affirm the other allegations of the citation.

FACTS

A. Background

The facts are largely uncontroverted. Miami manufactures welded
steel tubing out of coils of flat steel. After the flat steel is slit into various widths
depending on the size of the tubing to be made, it then passes through a series of
rollers, known as a "tube mill," that gradually form it into a round shape. In
order to maintain its high level of product quality, Miami's employees must regularly and
frequently remove small bits of metal and other debris, known as "pickups," from
the rollers. Approximately 50 pickups occur in an average workday. To remove them,
employees hold an emery board, sandpaper, or a file against the roller while it is
spinning. Employees will also feel for the location of a pickup by pressing their fingers
directly on the rotating surface of the roller. There is no dispute that this essential
maintenance procedure can only be conducted effectively and efficiently when the rollers
are operating. Although mill operators are highly trained employees and are instructed to
remove pickups from the outgoing side of the roller and to place their thumbs on a fixture
so that their hands will not slip, it is uncontroverted that these employees are exposed
to the hazard of getting caught in and injured by an inrunning nip point when they reach
into the area of the rollers in order to clean them.

B. Prior Citation

The facts relating to the fair notice and estoppel issues,
arise out of a previous inspection of Miami's tube mills on May 4, 1978. Following that
inspection, OSHA issued a citation alleging that the ingoing nip points at the
"forming rolls and guide rolls" were not guarded as required by 29 C.F.R. �
1910.212(a)(1). Miami did not contest this citation but rather sought to devise a method
of abating the violation. Ronald R. Fox, Miami's industrial relations manager, testified
that Charles Barrett, the compliance officer who conducted the 1978 inspection, was not
concerned with any hazard that may have been presented to the mill operator during routine
operations but rather was only concerned that the mill be guarded to protect someone from
slipping and falling against the rollers. Fox described his conversation with Barrett
regarding a means of accomplishing this objective:

Q. When Mr. Barrett was there in May of 1978, was there a
discussion with respect to interlocked barrier guards or secured barrier guards?

And, please explain to the Judge those discussions.

A. Yes. There was a discussion that the OSHA standard would
require either a secured barrier guard or an interlocked barrier guard.

I informed him at the time that we couldn't put interlocked
barrier guards in because we couldn't get in to polish the rolls and take the pickups off
the rolls which is necessary for us, again, to perform if we're going to produce the
quality of tubing that we do.

With respect to fixed barrier guards, he said that if we could
put something up, again, to keep someone from falling into that, that would be
satisfactory.

According to Fox, Barrett also mentioned four tubing
manufacturers in Miami's area who had guards, so that Miami could see for itself how
guards could be installed. Fox made arrangements to visit one of the four, Armco Steel. An
attorney for one of the other companies informed Fox that that company in fact did not
provide guarding for its mills. Fox did not pursue the other two.

The May 1978 citation required that the violation be abated by
June 26, 1978. Because it was unable to have access to the Armco facility until June 16,
1978, and for other reasons, including the effect of summer vacations on its work
schedule, Miami filed a petition for modification (extension) of the abatement date
("PMA"). On June 20, Ronald J. McCann, the area director for the Cincinnati area
office which had issued that citation, granted the PMA. McCann's letter stated, in
pertinent part, as follows:

Please note that if you use movable barrier guards, they must
be either secured by fasteners that are not readily removable, or they must be used in
conjunction with electrically interlocked devices. Electrically interlocked devices must
be installed so that when a barrier guard is removed or opened, the machine will shut
down.

McCann's letter also advised Fox, ''[i]f there are any further
questions concerning this matter, please contact William Murphy at this office."

Upon his visit to the Armco plant, Fox discovered that Armco
had guards only at the reels which unwind steel coil at the end of the mill and not for
the rollers themselves. Therefore, even though Barrett was the one who suggested Armco as
a model, the Armco guarding method would not have satisfied the compliance officer's
concerns. Lacking any specific guarding model to follow, Miami had its engineering staff
design a guarding method. As a result, Miami installed a set of four vertical metal
barriers along the walkway in front of the mill where the machine operators worked. These
barriers consisted of an upper and lower section, each hinged so that it could be swung
open to allow access to the rollers for the performance of maintenance work. These
barriers commenced at a point just past the first set of rollers, such that the first set
would be exposed regardless of whether the barrier guards were in their closed position.
The record does not explain why the guard was not installed so as to enclose the first set
of rollers.

Fox regarded the hinged guard as a secured guard within the
meaning of McCann's letter, and therefore acceptable to OSHA, because it could not be
knocked down accidentally and could only be opened by lifting the hinged section up and
off its pins. In Fox's view, the guard was not readily removable because the only time it
would be taken down is when pickups occurred, and he considered the guard effective
because reaching into a roller is a conscious act, whereas the guard would protect the
operator or anyone in the area from accidental contact. Fox also testified that Barrett
subsequently gave express approval to the hinged panel guard device:

Again, I communicated with Mr. Barrett the type of hinging
mechanism which we were going to put on the bottom of the guard which we considered and he
considered a fixed guard because you have to pick it up and slide it over; and it cannot
be knocked down.

Q. This is the design of the hinge?

A. The hinges of the guard, that's correct.

Q. And you described that to Mr. Barrett?

A. Yes.

Q. And he said it was satisfactory?

A. Yes.

Fox also testified that Barrett asked if he could give the
blueprints for Miami's guarding design to another company with which OSHA was working and
that OSHA later referred a second company to Miami for its guard design. Barrett did not
conduct any reinspection of Miami's facility after it installed this guard, and Fox did
not make any inquiries of Murphy, whose name was mentioned in the McCann letter of June

20. Although Murphy at the time was a supervisor in the area office, McCann's letter did
    not indicate Murphy's identity, and Fox testified that lie did not know who Murphy was.

C. Present Citation

Almost ten years after these events, on January 4, 1988, Dennis
Collins, another OSHA compliance officer, conducted an inspection of Miami's plant.
Collins' inspection, which resulted in the citation that is before us now, was in response
to a complaint that employees were required to reach over the existing guards and into the
equipment in order to clean the rollers. While investigating this complaint at the
worksite, Collins noticed that there was no guard in place around the first set of rollers
at the beginning of the mill. He further observed that the hinged guards were open, thus
fully exposing the rollers. Fox testified that the guards had been lowered to enable the
operators to set up or adjust the rollers in preparation for the production operation. Fox
conceded that when the operators had begun to run the mill, they had replaced only the
bottom half and not the top half of the guard. Fox also admitted that Miami had difficulty
keeping track of the pins used to hold the guards in place. Shortly after Collins
mentioned that the guards were partly opened, Miami's superintendent got some pins from
the machine shop and secured the guards in place.

Fox conceded that with the top half down, the guards offered
only "some" and "not total" protection for employees working or
walking along the walkway, but he opined that when the guards are fully closed, they would
be completely effective for that purpose. Collins, however, testified that the guards were
inadequate because they could be easily opened. In Collins' opinion, the guards should
have been held in place by fasteners "that are not readily removable by the
operator" or interlocked so that opening the guard would cause the machinery to shut
off. Fox, in turn, testified that Collins' view was contrary to the position previously
taken by OSHA, in which OSHA had agreed that it was necessary for Miami's employees to
reach into the machinery in order to clean the rollers while the mill was operating.

OSHA conducted seven inspections in Miami's plant between the
Barrett inspection in 1978 and the Collins inspection approximately ten years later. Until
the Collins inspection, however, OSHA had not cited any deficiencies in the guards
installed following the 1978 inspection. Fox expressly testified that "it [the
guarding] has never been questioned until December of 1987, so that certainly led us to
believe that everything was satisfactory." Fox, who had been employed with Miami for
twenty-one years, also stated that the only known injury from a nip point at Miami's
workplace occurred in November 1987, when an employee was removing a coolant residue from
a roller by using the finger of a glove to wipe the roller. The employee's finger became
caught in the roller when he tried to remove the glove. Using a glove in this manner was
contrary to Miami's instructions.

ISSUES BEFORE THE COMMISSION

The Secretary's citation consists of two separate items
comprising essentially four different allegations. Item 1(a) of the citation, which
alleges in part that "the existing guards were not secured in place or interlocked to
ensure their use," sets forth the primary focus of the citation: Miami's work
practice whereby its employees knowingly reach into the area of the rollers to clean them
while the mill was operating. However, the Secretary also was concerned with the exposure
of employees to a hazard at other times when they were not performing these cleaning
operations. Thus, item 1(a) contains a further allegation that employees could come into
contact with the rollers because the guards remained partially open while the mill was
operating.

The third allegation before us is item 1(b), which states that
the first set of rollers had no guard whatever to prevent access to the inrunning nip
point.[[2/]] In that portion of his decision addressing the two latter allegations, Judge
Burroughs found that the first set of rollers was completely unguarded and that the
existing guarding was not fully in place during the inspection. He also found that the
mill was operating while the guards were partly open. Thus, he concluded that employees
were not protected against accidentally falling into the ingoing nip points. Since the
preponderance of the evidence fully supports these findings, and Miami does not dispute
them, we affirm these portions of the judge's decision.

In that portion of his decision that is vigorously disputed on
review, Judge Burroughs further found that the existing guards were not adequate to
protect employees during the cleaning process because they would not preclude employees
from having access to the nip points while the rollers are operating. He concluded that
there were methods available which would give Miami's employees access to the moving
rollers for cleaning purposes while protecting them from exposure to the inrunning nip
point itself. However, the judge did not rule on Miami's contention that the Secretary is
estopped from requiring any type or method of guarding other than the existing panel
guards.[[3/]]

For the reasons stated herein, we conclude that OSHA's
enforcement actions deprived Miami of fair notice that OSHA considered its existing
guarding device to be inadequate and further find that, under the circumstances in this
case, the Secretary is estopped from enforcing the citation to the extent the citation
alleges that the hinged panel guards were not capable of protecting the employees.
Accordingly, we reverse the judge's decision in part, and we vacate the allegation of item
1(a) that Miami should have provided a secured or interlocked guard.[[4/]]

DISCUSSION AND ANALYSIS

A. Fair Notice

Generally speaking, an employer cannot be held in violation of
the Act if it fails to receive prior fair notice of the conduct required of it. E.g. ,
Cardinal Industries , 14 BNA OSHC 1008, 1011, 1987-90 CCH OSHD � 28,510, p. 37,801
(No. 82-427, 1989). The Commission has previously held that because the standard at issue,
� 1910.212(a)(1), is a general provision that by its terms applies to a number of
different hazards on all types of machinery, statements by OSHA personnel can affect the
employer's notice of its obligations under this standard:

In view of the general nature of the cited standard and the
lack of any express language specifically addressing die casting machines, [the employer]
cannot reasonably be said to have been on notice of a requirement to guard during core
pull operations once the Secretary had informed [the employer ] that guarding was not
needed at such times.

Hamilton Die Cast, Inc. , 11 BNA OSHC 2169, 2172, 1984-85
CCH OSHD � 26,983 at p. 34,690 (No. 79-1686, 1984).  See Diebold, Inc. v. Marshall,
585 F.2d 1327, 1336-37 (6th Cir. 1978) (holding that employer did not have adequate notice
that � 1910.212 required guarding of its press breaks).

In this case, however, the Secretary contends that Barrett's
statements did not deprive Miami of notice that OSHA considered its panel guards to be
inadequate.  In the Secretary's view, Fox's testimony concerning out-of-court
statements by Barrett should not be given dispositive weight because of the possibility
that those statements are "exaggerated, incomplete, taken out of context, or even
false, "citing Morrison-Knudsen, Inc., 13 BNA OSHC 1121, 1124, 1986-87 CCH OSHD �
27,869, p. 36,540 (no. 80-345, 1987).  The Secretary further argues that Miami could
not have reasonably relied on Barrett's statements because Barrett did not
"officially" approve the guard panels in writing an because McCann's letter took
precedence over any contrary statements Barrett may have made indicating approval of the
hinged guard.  For the reasons set forth below, we reject these contentions.

1. Use of Barrett's Statements

We first address the threshold question of whether Barrett's
oral statements are entitled to probative value. We emphasize at the outset that no issue
of credibility is presented. That is, there is nothing in the record to indicate, nor does
secretary contend, that Fox was not a credible witness. Accordingly, we conclude, in the
absence of any showing or even suggestion to the contrary, that Barrett in fact made the
statements Fox attributed to him. See Hamilton Die-Cast , 11 BNA OSHC at 2172 n.2,
1984-85 CCH OSHD at p. 34,689 n.2 (employer's unrebutted testimony of representations by
the Secretary's agents is sufficient to establish that those statements were made). We
further note that no issue of hearsay is presented. Barrett's statements were properly
introduced into evidence as admissions by an opposing party through its agent. Stanbest,
Inc. , 11 BNA OSHC 1222, 1227, 1983-84 CCH OSHD � 26,455, p. 33,621 (No. 76-4355,
1983). In any event, the Secretary does not challenge their admissibility; nor, for that
matter, did the Secretary ever request that Barrett be afforded an opportunity to testify.
The only question before us is the weight to be assigned to Fox's testimony of Barrett's
statements.

Although Morrison-Knudsen , on which the Secretary
relies, observed that an out-of-court declaration "inherently has less probative
value" than the testimony of the declarant himself, that decision deals with an
out-of-court statement "offered to prove the truth of the matter it contains."
13 BNA OSHC at 1123, 1986-87 CCH OSHD at p. 36,540. That decision is therefore inapposite
here because the question in this case is not whether in fact Barrett was being truthful
when he indicated that the panel guard would be acceptable to OSHA, but rather whether
Barrett's statements caused Miami to act in a certain manner.[[5/]] As we indicated in
Hamilton Die Cast, an employer's undisputed testimony of statements by OSHA personnel is
entitled to weight on the issue of notice to the employer. See L.R. Willson
& Son, Inc. v. Donovan , 685 F.2d 664, 676 (D.C. Cir. 1982) (statements by
compliance officers, while not binding, are relevant to whether an employer has adequate
notice of the conduct required under a standard using broad terminology subject to
differing interpretations). Accordingly, we reject the Secretary's contention that
Barrett's out-of-court statements do not have probative value on the issue of Miami's
notice of its obligations under the standard.

The Secretary, however, also argues that in the circumstances
presented here, Fox did not act reasonably in relying on Barrett's statements. We now turn
to that question.

2. Reliance

The facts show that Miami relied not only on Barrett's oral
statements to Fox, but also on the actions and conduct of the area office. In addition to
his discussions with Fox, in which he told Fox that a particular method of abatement was
acceptable, Barrett asked for Miami's blueprints so that OSHA could use Miami's guarding
design as a model for another company. Furthermore, the OSHA area office referred still
another company to Miami.

Furthermore, contrary to the Secretary's contention, Barrett's
statements are corroborated, rather than contradicted, by area director McCann's letter.
Fox specifically informed Barrett of his concern that Miami not be precluded from
conducting its maintenance operation, which required that the rollers be in motion.
Barrett first replied that either a secured guard or interlocked guard was required and
thereafter advised Fox that the panel guards were considered a fixed guard because they
could not be removed inadvertently. The first sentence of area director McCann's letter
plainly states, consistent with Barrett's declarations to Fox, that movable barrier guards
must either be secured so that they are not readily removable or they must be
interlocked. The second sentence states the purpose of an electrically interlocked device.
While the letter is somewhat ambiguous, reading both sentences in context Fox could
reasonably have concluded that: (1) McCann also considered the hinged panel guard to be an
acceptable alternative to an interlocked guard because it was not readily removable and
(2) McCann would have required an interlock to shut off power only if the panels
could have been removed or lowered inadvertently. Since there is nothing in McCann's
letter inconsistent with Barrett's statements to Fox, we cannot conclude that Fox should
have construed McCann's letter as rescinding Barrett's explicit approval of the hinged
guard device. The congruity between McCann's letter and Barrett's statements is further
corroborated by OSHA's actions in using Miami's guard design as a model for other
employers.

In view of the consistent pattern of conduct by the OSHA area
office, we conclude that Miami was entitled to rely on the statements and actions by the
OSHA personnel.[[6/]] Indeed, because � 1910.212(a)(1) is a broad standard covering all
hazards presented by the moving parts of industrial machinery in general, Miami's reliance
on OSHA's conduct was not only reasonable but necessary in order for Miami to have
appropriate guidance on how to protect its operators from the hazard of inrunning nip
points. The situation here is identical to that in Hamilton Die Cast , in which the
employer similarly sought the Secretary's assistance in ascertaining its obligations under
the standard, and the Commission concluded that the Secretary's response misled the
employer into believing that the secretary considered its guarding device to be
sufficient.

The circumstances here are also analogous to the facts in a
case recently decided by the Eighth Circuit, Ryan Heating Co. v. NLRB , Daily Lab.
Rep. (BNA) No. 170 (8th Cir. Aug. 26, 1991). There an administrative law judge dismissed
an unfair labor practice charge based on the existing precedent of the National Labor
Relations Board ("Board"). Subsequently, the Board decided another case in which
it reversed the precedent on which the judge in Ryan had relied. On review of the judge's
decision, the Board applied its new precedent and ruled that the employer had committed an
unfair labor practice. On appeal, the Eighth Circuit declined to enforce the Board's
order, holding that the employer could not have foreseen the change in the case law and
that its reliance on the prior Board precedent was reasonable:

As we have said in the past, the essential demands of fairness
require that parties like Ryan--who rely on the Board's rulings when conducting their
affairs--not "be left subject to entrapment and branding as the perpetrator of an
unfair labor practice" merely because the Board later departs from its earlier
position.

Id. at D-2 (quoting NLRB v. International Bhd. of
Teamsters,Local 41 , 225 F.2d 343, 348 ((8th Cir. 1955)).

Accordingly, while the Commission precedent in Hamilton Die
Cast is controlling in the circumstances here, the principle of Ryan Heating
also supports our holding that OSHA did not give Miami fair notice of any inadequacy in
its guard design.

B. Estoppel

1. In General

The principle that a party's actions or conduct may preclude it
from asserting a right or claim to which it would otherwise be entitled is known as
equitable estoppel. This doctrine is intended to ensure that parties deal with each other
in a manner that reflects a fundamental "consideration of justice and good
conscience." United States v. Georgia-Pacific Co. , 421 F.2d 92, 95 (9th Cir.
1970). As an affirmative defense, equitable estoppel requires a showing that the party to
be estopped intends that its conduct will be acted upon by the other party or acts in such
a manner that the other party reasonably believes that the first party intends that its
actions or conduct be relied on. Id. at 96; Watkins v. United States Army , 875 F.2d
699, 709 (9th Cir. 1989) (en banc), cert. denied , 111 S. Ct. 384 (1990); Che-Li-Shen
v. INS , 749 F.2d 1469 (10th Cir. 1984). A party's reliance on the actions or conduct
of another is reasonable if the party claiming estoppel did not know nor should have known
that the other party's conduct was misleading. As the Supreme Court held in Heckler v.
Community Health Serv.of Crawford County, Inc. , 467 U.S. 51 (1984),

"The truth concerning these material facts must be unknown
to the other party claiming the benefit of the estoppel, not only at the time of the
conduct which amounts to a representation or concealment, but also at the time when that
conduct is acted upon by him. If, at the time when he acted, such party had knowledge of
the truth, or had the means by which with reasonable diligence he could acquire the
knowledge so that it would be negligence on his part to remain ignorant by not using those
means, he cannot claim to have been misled by relying on the representation or
concealment."

467 U.S. at 59 n.10 (quoting Restatement (Second) of Torts �
810 at 219 (1979)). In determining whether a party's reliance on the actions of the other
party is reasonable under the Supreme Court's decision in Heckler , we must consider
"the objective reasonableness of the reliance." Richmond v. OPM , 862 F.2d
294, 300 (Fed. Cir. 1988), rev'd on other grounds , 110 S.Ct. 2465 (1990).

As we have stated above, Miami acted reasonably in relying on
OSHA's conduct at the time the 1978 citation was issued. In addition to relying on the
statements and actions by OSHA personnel regarding the 1978 citation, Miami also relied on
the fact that OSHA issued no citations for machine guarding violations over the succeeding
10-year period, during which OSHA conducted a number of inspections of Miami's facility.
In our view, this reliance was reasonable because Miami could understandably have
concluded that the lack of citations for violation of the machine guarding standard over
an extensive period of time following the 1978 citation corroborated the statements and
actions by the area office at the time the 1978 citation was issued. We in no way retreat
from our position that simple failure to issue a citation alleging a violation of a
particular standard does not in itself establish that OSHA considers the employer to be in
compliance with that standard. Seibel Modern Mfg. & Welding Corp. , 14 BNA OSHC
1218, 1223-24 (No. 83-821, 1991); Colombian Art Works, Inc. , 10 BNA OSHC 1132, 1981
CCH OSHD � 25,737 (No. 78-29, 1981). Here, however, the absence of further citations
corroborated and was fully consistent with Miami's prior understanding that the area
office regarded its hinged panel guards as sufficient to comply with the standard. See
Cardinal industries , 14 BNA OSHC at 1012, 1987-90 CCH OSHD at p. 37,802 (lack of fair
notice of any deficiency in abatement measures found where employer adopted abatement
method suggested by compliance officer and thereafter on reinspection the Secretary failed
to allege a violation).

In our view, the facts clearly demonstrate a regular and
consistent pattern of conduct over a 10-year period, between the 1978 citation and the
citation now before us, from which Miami was plainly justified in believing that OSHA
regarded its panel guards to be an appropriate means of abatement. Since there had never
been any injuries attributable to the guarding, no other circumstances were present that
would have put Miami on notice of a defect in its guards. Accordingly, reasonable reliance
on the actions and conduct of another party required to establish estoppel has been shown
in this case.

2. Estoppel Against the Government

The issue here, however, is not estoppel between two private
parties but rather a claim of estoppel by a private party against the Government. It is
well-established that for purposes of estoppel, the Government is not equivalent to a
private party. As the Supreme Court has explained,

When the Government is unable to enforce the law because the
conduct of its agents has given rise to an estoppel, the interest of the citizenry as a
whole in obedience to the rule of law is undermined. It is for this reason that it is
well-settled that the Government may not be estopped on the same terms as any other
litigant.

Heckler , 467 U.S. at 60. Because it concluded that the
"traditional elements of an estoppel" applicable to private parties were not
satisfied in that case, the Court declined to decide whether the Government could ever be
estopped under any circumstances. However, a number of courts of appeals, including the
Sixth Circuit where this case arises, have held that the Government may be estopped, but
only if an additional element of "affirmative misconduct" on the part of
Government agents is shown. E.g. , United States v. River Coal Co. , 748 F.2d
1103 (6th Cir. 1984); Portmann v. United States , 674 F.2d 1155 (7th Cir. 1982); Corniel

• Rodriguez v. INS , 532 F.2d 301 (2d Cir. 1976); United States v. Wharton , 514
  F.2d 406 (9th Cir. 1975). See INS v. Miranda , 459 U.S. 14 (1982) (lower court acted
  correctly in considering whether the evidence showed affirmative misconduct but erred in
  concluding that it did).

Actions by Government agents, however, even if reasonably
relied on, cannot be given an effect that would result in waiving or altering the
employer's legal obligations under the Act. E.g., Emery Mining Corp. v. Secretary of
Labor , 744 F.2d 1411, 1416 (10th Cir. 1984) (where an employer instituted an employee
training program which failed to meet the requirements of the Federal Mine Safety and
Health Act, the fact that the Mine Safety and Health Administration had approved the
employer's program did not estop the agency from subsequently alleging a violation of the
statute, because allowing estoppel would free the employer from an obligation expressly
imposed by law).

The Secretary asserts that because the standard at issue in
this case requires that inrunning nip points be guarded, finding an estoppel here on the
basis of the conduct of the OSHA area office would contravene the principle that actions
by Government agents may not be given an effect that would be contrary to the requirements
of the law. The Secretary further contends that "affirmative misconduct" has not
been shown here. For the reasons set forth below, we reject both arguments.

Unlike the Emery case, we are not confronted here with a
statutory or regulatory provision that specifically or explicitly prohibits employees from
reaching into the area of moving rollers on a tube mill during a cleaning or maintenance
operation. Rather, as previously indicated, � 1910.212(a)(1) is a standard that is
general in nature. As we stated in Hamilton Die Cast , "the standard requires
that the employer exercise a certain degree of judgment in evaluating whether its
machinery is in compliance with the standard and what types of guarding methods would be
appropriate to achieve compliance." 11 BNA OSHC at 2171, 1984-85 CCH OSHD at p.
34,689 (citing cases). While the standard is not so broad as to be vague, an employer may
appropriately look to extrinsic factors, such as common understanding and practice, as
well as "administrative interpretations which clarify obscurities or resolve
ambiguities," as guidance in defining the meaning and application of the standard in
a particular situation. Diebold,585 F.2d at 1336, 1338. Accordingly, there is not even an
issue of waiver presented here. OSHA's actions indicating approval of the hinged guard do
not modify or alter the requirements of � 1910.212(a)(1); rather, they define the
scope of Miami 's duty under the standard.

Furthermore, contrary to the Secretary's contention, an
employer is not necessarily obligated under the Act to correct all hazardous conditions
that come within the literal terms of the standard. Miami's contention that the nature of
its work operations precluded the use of an interlocked guard or a guard that is not
readily removable is an argument that Miami could also have raised through the recognized
affirmative defense of infeasibility of compliance. Seibel , slip op. at 23; Williams
Enterprises , 13 BNA OSHC 1249, 1253, 1986-87 CCH OSHD � 27,893, p. 36,585 (No.
85-355, 1987). On a sufficient factual showing, Miami would have been entitled to an order
vacating the citation allegation in question on the ground that it could not feasibly have
taken any further measures to protect its employees from the hazard of inrunning nip
points. Seibel, slip op. at 26-27; Dun-Par Engineered Form Co. , 12 BNA OSHC 1949,
1986-87 CCH OSHD � 27,650 (No. 79-2553, 1986), rev'd & remanded on other grounds ,
843 F.2d 1135 (8th Cir. 1988). While we do not now decide whether the merits of the
infeasibility defense have been established, [[7/]] we note that our holding of estoppel
based on actions by OSHA indicating approval of Miami's panel guards has the same effect
as would a Commission order sustaining the affirmative defense of infeasibility of
compliance. Both the infeasibility and estoppel defenses permit Miami to comply with the
standard by partially but not necessarily fully protecting its employees from the hazard
of inrunning nip points. Accordingly, allowing estoppel in these circumstances does not
waive or alter the requirements of the law applicable to Miami.

The final issue before us concerns the additional element of
"affirmative misconduct" essential. to establish an estoppel against the
Government. Between private parties, estoppel may exist where one party is simply silent
if the other party relies to its detriment on that silence. American Sec. & Trust
Co. v. Fletcher , 490 F.2d 481, 486 n.3 (4th Cir.), cert. denied , 419 U.S. 900
(1974). However, mere acquiescence by the Government in the actions by the private party
or the failure of Government agents to act or to respond to the private party will not
create an estoppel on the part of the Government. Wharton , 514 F.2d at 412.
Conversely, affirmative misconduct does not necessarily require that the Government
actually intend to mislead the other party; an active misrepresentation or concealment of
a material fact is sufficient. Kriegresmann v. Barry-Wehmiller Co. , 739 F.2d 357
(8th Cir. 1984), cert. denied , 469 U.S. 1036 (1984); United States v. Ruby Co. ,
588 F.2d 697, 703-04 (9th Cir. 1978), cert. denied, 442 U.S. 917 (1979). Furthermore,
there is no single test for judging affirmative misconduct; each case turns on its own
particular facts. Watkins, 875 F.2d at 707; Lavin v. Marsh , 644 F.2d 1378, 1382 n.6
(9th Cir. 1981). Generally speaking, though, estoppel against the Government may be
permitted where the Government's wrongful conduct will result in an injustice to the party
claiming estoppel, and imposition of estoppel would not unduly damage the public interest.
Watkins , 875 F.2d at 708; City of Long Beach v. DOE , 754 F.2d 379, 388
(Temp. Em. Ct, App. 1985); Morris v. Andrus , 593 F.2d 851, 854 (9th Cir. 1978), cert.
denied , 444 U.S. 863 (1979).

The facts here clearly establish that in response to specific
concerns raised by Miami, the Secretary's agent, Barrett, expressly informed Miami that a
hinged guard device would provide sufficient protection for its employees. Thereafter,
OSHA engaged in conduct which plainly demonstrated to Miami that OSHA regarded its
guarding device as a model for other employers. Even at that point, however, the Secretary
still could have made it clear to Miami that something more than the hinged panel guard
was required. Area Director McCann's letter in response to Miami's PMA gave OSHA a clear
opportunity to state explicitly and unequivocally that it did not consider the hinged
guards to be acceptable. Instead, McCann wrote a letter which was at best ambiguous and
which, when read in the context of Barrett's statements and OSHA's other actions, simply
reinforced Miami's understanding that OSHA accepted its panel guards.  Assuming for
the sake of argument that the panel guards in fact do not comply with � 1910.212 (a) (l),
as now argued by the Secretary, we conclude that OSHA's prior overt
conduct--Barrett's statements, OSHA's use of Miami's design as a model, and McCann's
corroborating letter--rise to the level of affirmative misconduct.  See Watkins,
875 F.2d at 707-08 (repeated misrepresentations as a basis of affirmative misconduct).
  Compare Richmond , 862 F.2d at 299 (sufficient misconduct for estoppel
existed where Navy personnel gave a disability annuitant erroneous information regarding
the period of time for computing the annuitant's outside income) with Chien-Shih
Wang v. Attorney General , 823 F.2d 1273 (8th Cir. 1987) (failure of Immigration and
Naturalization Service to advise immigrant that his application was incomplete and failure
to approve completed application in a timely fashion do not rise to the level of
affirmative misconduct).

Fox's testimony also establishes that Miami trains and
instructs its operators to clean the rollers in a manner that reduces the risk of injury.
  Although the removal of "pickups" is a frequent and regular occurrence,
no injuries had resulted from this maintenance operation over a period of twenty-one
years.  In the circumstances here, we conclude that the public interest in the
effectuation of the Act's purpose to ensure safe working conditions is outweighed by the
unacceptable unfairness to Miami that would result from holding it in violation of the Act
for using a guarding design that had clearly and unequivocally been approved by OSHA. See
Sun Il Yoo v. INS , 534 F.2d 1325, 1329 (9th Cir. 1976) (sense of "justice or
fair play" warrants estoppel against the Government); United States v. Fox Lake
State Bank , 366 F.2d 962 (7th Cir. 1966). As the Court recognized in Heckler ,
467 U.S. at 60-61, the public interest in ensuring that the Government can enforce the law
free from estoppel may in appropriate circumstances "be outweighed by the
countervailing interest of citizens in some minimum standard of decency, honor, and
reliability in their dealings with their Government."

EFFECT OF THE COMMISSION'S DECISION

We have decided this case on the grounds of both fair notice
and estoppel because Miami's reasonable reliance on misrepresentations of the Secretary
necessary to establish estoppel also shows that Miami was denied fair notice of the
standard's requirements as applied to the cited working conditions. We emphasize, however,
that there is a significant difference between vacating the citation allegation in
question for lack of fair notice and vacating it on the ground that the Secretary is
estopped from enforcing the standard.

Generally speaking, the question of whether an employer has
received constitutionally sufficient notice of its obligations depends upon the extent of
its notice at the time the citation was issued. An originally inadequate notice may be
cured by subsequent administrative or judicial determinations. Corbesco. Inc. v. Dole, 926
F.2d 422, 428 (5th Cir. 1991); Diebold, 585 F.2d at 1338. The Secretary's position in this
litigation clearly places Miami on notice that the Secretary considers the hinged guarding
device to be inadequate. Accordingly, if we vacated the citation allegation before us here
[[8/]] solely under the principles governing fair notice, Miami would ordinarily be
subject to a reinspection and issuance of a subsequent citation if it failed to make
appropriate modifications to its guarding device.

This case, however, raises more than simply the issue of
whether Miami was entitled to rely on the statements of a compliance officer until such
time as Miami received notice to the contrary. Rather, the affirmative defense of estoppel
involves the question of whether OSHA's actions in effect constituted a formal approval of
Miami's guarding device such that Miami cannot be held in violation of the Act for failing
to implement a different means of protecting its employees. See Stone Container
Corp. , 14 BNA OSHC 1757, 1761, 1987-1990 CCH OSHD � 29,064, p. 38,817 (No. 88-310,
1990) (discussion of circumstances under which an employer may be legally excused from
compliance). We are not suggesting that the Secretary is permanently precluded from
requiring that Miami install an interlocked or more secure guarding device. In our view,
however, the Secretary may not enforce such a requirement merely by issuing another
citation. Our finding of estoppel here is analogous to OSHA's granting of a permanent
variance from the requirements of a standard, which may be done if the Secretary finds,
after conducting a hearing, that:

the conditions, practices, means, methods, operations, or
processes used or proposed to be used by an employer will provide employment and places of
employment to his employees which are as safe and as healthful as those which would
prevail if he complied with the standard.

29 U.S.C. � 655(d). Under this provision, the Secretary must
also conduct a hearing before she may revoke such a variance: "Such a rule or order
may be modified or revoked . . . by the Secretary on (her) own motion, in the manner
prescribed for its issuance. . . . " The Secretary has implemented this provision
through regulations affording the employer the right to a hearing before an administrative
law judge and the right to administrative and judicial review of an adverse decision by
the judge. 29 C.F.R. �� 1905.13(a)(2), 1905.20-.30, 1905.51. While we need not decide
what further remedies are now available to the Secretary as a result of our decision in
this case, we conclude, consistent with 29 U.S.C. � 655(d) and the Secretary's
regulations, that Miami is entitled to an opportunity to be heard before the Secretary may
initiate any future enforcement proceedings pertaining to the guarding device at issue
here.

ORDER

Accordingly, we vacate those portions of item 1(a) of the
citation alleging that the existing guards were not secured in place or interlocked and
were not of such a height or configuration to prevent access from above. We affirm the
portion of item 1(a) alleging that the mill was being operated with the hinged guards not
fully in place and item 1(b), which alleges that there was no guard at the first set of
rollers.

The Secretary proposed a penalty of $360 for the entirety of
item 1. The testimony of compliance officer Collins establishes that the only hazard to
employees, other than to the operators themselves when removing pickups, is that an
employee walking by might be injured if he slipped and fell into the rollers. We conclude
that the gravity of the affirmed violation, as modified herein, is low and that a total
penalty of $100 is appropriate.

Edwin G.Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Dated: September 13, 1991

SECRETARY OF LABOR,

Complainant,

v.

MIAMI INDUSTRIES,

Respondent.

OSHRC Docket No. 88-671

APPEARANCES:

Christopher J. Carney, Esquire, Office of the Solicitor, U. S.
Department of Labor, Cleveland, Ohio, on behalf of complainant

John M. Kunst Jr., Esquire, Cincinnati, Ohio, on behalf of
respondent

DECISION AND ORDER

Burroughs, Judge: Miami Industries ("Miami"), a
manufacturer of welded steel tubing, contests an alleged serious violation of 29 C.F.R. �
1910.212(a)(1) for failing to provide protection to operators and other employees from
hazards created by ingoing nip points on forming rolls in its mill number three. [[1]] The
alleged violation emanated from an inspection held on January 4, 1988, at Miami's Piqua,
Ohio, plant. The Piqua, Ohio, facility has 16 tube mills. The inspection resulted from a
formal complaint and was limited to tube mill number three.

Miami manufactures tubing from a quarter inch to four inches in
diameter. Ninety-five percent of its products are made pursuant to customer orders. It
purchases steel in large coils in widths of 36 or 45 inches. The coils are slit into
various widths that are needed to produce the diameter of tubing ordered by the customer.
The slit coils of steel are sent to the tube mills where they are formed and welded into
lengths of various-sized tubing. Miami manufactures hundreds of different sizes and shapes
of tubes.

Seventy-five percent of Miami's product is cold rolled steel
and ends up in some kind of plated and/or painted end use application by the customer.
Surface quality of tubing being plated and/or painted is of prime importance. Miami has
established a reputation for manufacturing high quality tubing and attracts that part of
the market which seeks a quality product. It guarantees its customers that the product
will be shipped in a condition that is acceptable for plating. It is important to Miami's
economic future that surface qualify of its product be free from imperfections. There are
117 major tubing manufacturers east of the Mississippi and 22 in the State of Ohio. During
the last three or four years, at least two competitors have achieved the same quality of
product offered by Miami (Tr. 120-121).

Mill number three is composed of a line of vertical and
horizontal dies or rolls configured in a manner that allows the flat strip steel to be
gradually formed into round metal tubing as it passes through the mill (Tr. 188). The
large coils of steel are mounted on an "uncoiler" at the beginning of the mill.
The flat steel reels off the coil and passes through the "shear and end welder."
The welder is used to weld the starting end of a new steel coil to the end of the
preceding coil. This allows the tubing to be produced on a continuing basis. The steel
next passes through an "edge scarf unit" which cleans and trims the edges of the
steel in order to present a true edge for welding after the flat steel has been formed
into a tubular shape (Tr. 190).

After the edges of the steel have been prepared for subsequent
welding, the steel passes through the first of a series of power-driven rolls referred to
as "forming passes." These rolls are mounted on vertical supports and commence
to bend the flat steel around a gradually reducing radius. As the steel passes through the
"forming passes," it is slightly curved. It then passes through a series of
additional dies known as "cluster passes." The cluster passes continue to curve
and narrow the radius of the steel so that it appears as a piece of tubing. The tubing
next passes through a series of four dies referred to as "fin passes." The
purpose of these dies is to align the outer edges of the steel so that they will pass
immediately beneath the welding electrode. When the two edges pass beneath the electrode,
the tubing is squeezed together and the seam is welded. After the weld is either crushed
or scarred to make the welded surface imperceptible to touch or sight, the tubing passes
through eight separate dies, alternately mounted either vertically or horizontally and
referred to as "sizing passes." The vertical mounted dies are power-driven. The
"sizing passes" are designed to further reduce the diameter of the welded tube.
After the sizing passes, the tubing passes through vertically mounted
"turkshead" rolls which assures that the tubing leaving the mill is straight.
The turkshead rolls are power-driven. The last step in the manufacturing process of the
tubing is the cutoff machine which cuts the tubing into predetermined shipping lengths.

The dies used in the mill are made of very high grade, hardened
steel. They are circular in shape. As steel passes through each pair of forming dies, a
nip point is created on the ingoing side. As the steel passes through the power-driven
pairs of dies, minute particles of steel break away from the edges or welded seam and
frequently become imbedded in the surface of the dies. In order to achieve the quality
sought by Miami, it is important that the tube mill operators and their assistants remove
the "pickups." The "pickups" have in the past been removed while the
mill is operating and the dies are rotating. It is more efficient from the standpoint of
production to remove the "pickups" while the dies are rotating.

The "pickups" are located by touch. The operator or
assistant lightly presses a finger into the outgoing surface of the die. Once a
"pickup" is located, it is most often removed by merely pressing a piece of
emery cloth into the groove of the die until the pickup disappears. "Pickups" in
awkward locations are removed with emery cloth wrapped around the end of a stick, rod or
some similar extension. The stick allows the operator's hands to be some distance from
rotating parts and the ingoing nip points. There is a need for employees to have access to
the dies in order to remove the "pickups."

Alleged Violation of 29 C.F.R. � 1910.212(a)(1)

The serious citation alleges that Miami violated 29 C.F.R. �
1910.212(a)(1) by failing to guard tube mill number three in a manner designed to protect
operators and other employees from hazards created by ingoing nip points. Specific
allegations set forth in the citation were as follows:

(a) Mill #3 was being operated with its mill roll guards out of
place fully exposing the inrunning rolls. In addition, the existing guards were not
secured in place or interlocked to ensure their use nor were they of such a height or
configuration that they would prevent access to the inrunning rolls from above the guards.

(b) Mill #3 had no guarding to prevent access to the inrunning
nip point created by the first set of rolls past the welder.

The allegations make clear that no attempt had been made to
guard the ingoing nip points created by the first set of rolls past the welder and that
barrier guards utilized at other points along the line failed to adequately protect
employees from the hazards of the ingoing nip points. Employees could reach into the
ingoing nip points with the guard in place. The height and location of the barrier guards
were not sufficient to preclude contact (Tr. 28).

The Secretary alleges that employees are exposed to ingoing nip
points while cleaning away the "pickups." Miami's manager of industrial
relations, Ronald Fox, conceded that there is a hazard on the ingoing side of the dies and
rolls (Tr. 167). According to him, Miami recognized the hazard and, for that reason,
operators are instructed to remove pickups from the outgoing side of the rolls or dies
(Tr. 167-168). He further conceded that while an employee is removing "pickups,"
he is close to the ingoing side of the rolls (Tr. 168). In some cases the employee would
be only a few inches from the ingoing nip points (Tr. 168).

Miami points out that all 16 of its tube mills were inspected
in 1978 by Compliance officer Charles Barrett. As a result of the. inspection, a citation
was issued to Miami on May 25, 1978, alleging a violation of 29 C.F.R. � 1910.212(a)(1)
for failure to guard ingoing nip points on forming and guide rolls on the 16-tube mills
(Ex. R-3). As a result of that citation, Miami developed a hinged barrier guard which acts
as a shield between the tube mill components and persons who might otherwise pass in front
of the mill. The hinged guards are held in the "up" position by pins.

Compliance officer Dennis Collins determined the hinged guards,
even when in place, [[2]] were inadequate to protect employees because the height and
location were not sufficient to preclude contact with the ingoing nip points. The guards
were designed and installed in such a way as to allow access to the rolls (Tr. 92.). Miami
concedes that operators could reach over the barrier guards into the rolls to clean them
of any "pickups" that could damage the product being run through the line (Tr.
32). Miami insists that operators have to have easy access to the rolls to clean them of
"pickups." If the barrier guards were made higher, they would preclude employee
access to the rolls (Tr. 27-31). Cleaning of the "pickups" takes place while the
tube mill is running since this has been determined to be the fastest and most effective
means of removing "pickups."

The cited standard, 29 C.F.R. � 1910.212 (a) (l), [[3]]
requires that machine guarding be provided to protect the operator and other employees in
the machine area from hazards created, among other things, by ingoing nip points.  
Examples of guarding methods to be utilized include barrier guards, two-hand tripping
devices and electronic safety devises.  There is no dispute over the fact that
ingoing nip points are created by the rolls as they rotate.  There is also no dispute
over the fact that employees are exposed to ingoing nip points during the operation of the
mill.  This is especially true while removing "pickups."

The facts unequivocally establish that Miami was in violation
of 29 C.F.R. � 1910.212 (a) (l) at the time of the inspection.  There was no type of
guarding utilized for the first set of rolls past the welder (Ex. C-1; Tr. 23).  
Anyone walking in close proximity to the rolls would have been exposed to ingoing nip
points.  There was a walkway.  These employees included setup operators,
assistant operators and operators (Tr. 124). Even if the remaining barrier guards had been
in compliance, the top halves of the guards were not in an "up" position at the
time of the inspection (Tr. 165-166) and provided no protection against someone
accidentally falling into the ingoing nip points (Tr. 165-166). The Secretary has
established that the ingoing nip points were unguarded and that the method of operation of
the mill exposed employees to injury. These facts are sufficient to establish a violation
of 29 C.F.R. � 1910.212(a)(1). The next dispute centers on how the condition can be
abated.

The barrier guards in use were an inadequate means of
abatement. A barrier guard to be effective has to be high enough to preclude entry into
the ingoing nip point. It also must be secured so it is not readily removable. If it can
be removed, then it should be interlocked so that the equipment cannot be operated while
the guard is not in place (Tr. 28). Miami insists that access must be available to the
rolls while they are rotating to efficiently remove "pickups." It asserts that
electronically interlocking barrier guards that would shut down the mill every time an
employee cleans "pickups" from the rolls would be economically infeasible. It
submitted evidence to show "pickups" are a continual problem and that the use of
interlocking barrier guards would result in severe production loss. The loss in production
would raise the cost of the product and result in undermining Miami's competitive status
within the industry. Miami has adequately demonstrated that interlocking barrier guards
would destroy its competitive advantage and bring economic ruin to its business
operations. However, this is not the only means of compliance with 29 C.F.R. �
1910.212(a)(1).

The Secretary does not contend that interlocked barrier guards
are the only means of abating the violation. Barrier guards had previously been erected by
respondent and the citation description merely set out why the erected guards were not
adequate for abatement purposes. The barrier guards in place were the means by which Miami
sought to abate the previous citation issued in 1978. Compliance Officer Collins suggested
other methods of abatement. He suggested that individual guards be placed on the ingoing
portions of the rolls. This would give the person cleaning the "pickups" access
to the outgoing portion of the rolls without endangering them to ingoing nip points (Tr.
58). Collins also suggested a panic bar stop device across the front of the machinery (Tr.
87). A panic bar devise would have to be located at such a height and distance that the
operator, if caught in the equipment, could shut the machinery off without being required
to make a concerted effort. Collins further suggested developing a hand tool to be used in
conjunction with slotted barrier guards to allow access of the hand tool into the danger
area without allowing the hand into the danger area (Tr. 96).

Aside from the barrier guards, Miami has not attempted to
implement any abatement measures to comply with the standard (Tr. 180-181). It has simply
taken the position that no other means of abatement is possible and considers any other
suggestions by Compliance Officer Collins to be "fruitless experimentation" (Tr.
182).

In Brock v. Dun-Par Engineered Form Co., 843 F.2d 1135, 1139
(8th Cir. 1988), the court stated:

• • The employer bears the initial responsibility to comply
    with the standards promulgated by the Secretary. Where the employer determines that the
    specified means of compliance is infeasible, it must affirmatively investigate alternative
    measures of preventing the hazard, and actually implement such alternative measures, to
    the extent feasible. * * An employer experienced in performing this duty adequately
    should possess knowledge of the alternative means of compliance existing in the industry.
    To the extent that the employer requires further assistance in discovering alternative
    means of protecting its employees, it may look to the OSHA standards themselves.

The court goes on to state that "[t]he Act imposes an
obligation on employers to become aware of, and to actually implement, alternative means
of compliance where feasible." 843 F.2d at 1139. In concluding that the employer
bears the burden in proving infeasibility of alternative methods of compliance, the court
recognized that "the placement of the burden of proof may often be outcome
determinative." 843 F.2d at 1140. While interlocking barrier guards may be
economically infeasible, there has not been an adequate showing by Miami to establish that
compliance with other suggested abatement methods are not feasible. The violation has been
established.

Nature of Violation

The Secretary alleges that the violation was serious within the
meaning of section 17(k) of the Act. [[4]] "To establish that a violation is
'serious' it must be shown that there is a substantial probability that death or serious
physical harm could result from the violative condition and that the employer knew or with
the exercise of reasonable diligence could have known of the presence of the
violation." Wisconsin Electric Power Co. , 76 OSAHRC 134/B2, 4 BNA OSHC 1783,
1787, 1976-77 CCH OSHD 21,234 at p. 25,532 (No. 5209, 1976), aff'd , 567 F.2d 735
(7th Cir. 1977). The Secretary does not have to establish the likelihood of an accident
before a violation can be classified as serious. He "need only show that an accident
is possible and that such an accident will most likely result in serious injury." Communications,
Inc ., 79 OSAHRC 61/A2, 7 BNA OSHC 1598, 1602, 1979 CCH OSHD � 23,759, at p. 28,813
(No. 76-1924), aff'd in an unpublished opinion, No. 79-2148 (D.C. Cir. 1981).

Miami was aware of the conditions that constitute the hazard in
this case. Employees were encouraged to clean "Pickups" from the rolls by using
their hands. Compliance officer Collins expressed the view that the ingoing nip points
could cause lacerations, crushing injuries to the fingers or hands or broken bones (Tr.
32-33). This is sufficient to categorize the hazard as being serious within the meaning of
section 17(k) of the Act.

Penalty Determination

The Commission is the final arbiter of penalties in all
contested cases. Secretary v. OSAHRC and Interstate Glass Co. , 487 F.2d 438 (8th
Cir. 1973). Under section 17(j) [[5]] of the Act, the Commission is required to find and
give "due consideration" to the size of the employer's business, the gravity of
the violation, the good faith of the employer, and the history of previous violations in
determining the assessment of an appropriate penalty. The gravity of the offense is the
principal factor to be considered. Nacirema Operating Co., Inc. , 72 OSAHRC 1/B10, 1
BNA OSHC 1001, 1971-73 CCH OSHD � 15,032 (No. 4, 1972).

The operator and assistant operator of the tube mill reach into
the outgoing side of the rolls to clean the rolls of accumulated debris, referred to as
"pickups." The removal of "pickups" is a constant problem. During this
removal procedure, the employees are close to the ingoing nip points and exposed to
potential lacerations or crushing injuries. The speed of the rolls are approximately 60
r.p.m. (Tr. 34). There was no evidence of any nip point injuries to Miami's employees over
the last 20 years (Tr. 73-74). A citation was issued in 1978 covering the same condition.
Miami cooperated during the inspection. A penalty of $300 is assessed for the violation.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The findings of fact and conclusions of law contained in this
opinion are incorporated herein in accordance with Rule 52 of the Federal Rules of Civil
Procedure.

ORDER

In view of the foregoing, good cause appearing therefor, it is
ORDERED: (1) That the "other" citation issued to Miami on January 19, 1988, is
affirmed; and

(2) That the serious citation issued to Miami on January 19, 1988, is affirmed and a
penalty of $300 assessed for the violation.

JAMES D. BURROUGHS

Judge

Date: February 27,1989

FOOTNOTES:

[[1]]The standard provides as follows:

� 1910.212 General requirements for all machines.

(a) Machine guarding (1) Types of guarding. One or more methods of machine guarding shall
be provided to protect the operator and other employees in the machine area from hazards
such as those created by point of operation, ingoing nip points, rotating parts, flying
chips and sparks. Examples of guarding methods are-barrier guards, two-hand tripping
devices, electronic safety devices, etc.

[[2/]] The fourth allegation is summarily dismissed in note 4,
infra.

[[3/]] Miami raised estoppel as an affirmative defense in its
answer. It did not explicitly argue before the judge that the citation should also be
vacated on fair notice grounds alone. Nevertheless, review was directed on whether OSHA's
prior enforcement actions deprived Miami of fair notice of the requirements of �
1910.212(a)(1), along with several other issues. In their review briefs, the parties
address both the fair notice and estoppel questions.

[[4/]] This portion of item 1(a) also alleges that the existing
guards were not "of such a height or configuration that they would prevent access to
the inrunning rolls from above the guards." In support of this allegation, Collins
testified that even with the top half of the guards in the closed position, the guard
panels would not prevent contact with the rollers. In his opinion, the height and
"location" of the panels was not adequate to keep employees away from the
rollers. The judge did not specifically rule on this allegation but noted Collins'
testimony in his decision.

We conclude, however, that contrary to compliance officer
Collins' opinion, the entirety of the record clearly demonstrates that the existing guards
did extend high enough above the rollers to protect Miami's employees. Fox stated that the
guards were equipped with hinged and removable sections precisely because employees could
not gain access to the rollers simply by reaching over the guards. Fox's testimony is
consistent with Collins' own measurements, which showed that the top section of the guard
was 52 inches above the floor and the rollers 21 inches below the top of the guard. It is
apparent that with the guard in the fully closed position, employees would be exposed to
the nip points only if they deliberately bent over the top of the guard and extended their
hands into the rollers. Accordingly, we conclude that the hinged guards were sufficient to
protect employees except during the maintenance operation, when employees lowered the
guard in order to have access to the rollers for cleaning purposes.

[[5/]] Judge Burroughs so ruled at the hearing. The Secretary's
counsel objected that Fox's testimony of statements Barrett made to him was inadmissible
hearsay. In response to an inquiry from the judge, Miami's counsel explained that he was
trying to establish that Barrett's statements induced Miami to take a certain course of
action, rather than that Barrett's statements were truthful. The judge ruled, without
objection or exception by either counsel, that the testimony was admissible to show the
actions Miami took but did not necessarily establish the truth of Barrett's statements.

[[6/]] We reject the Secretary's related contention that Miami
could not have reasonably relied on Barrett's statements because Barrett did not actually
observe the panel guards after they had been installed and because McCann's letter stated
that Fox should contact William Murphy. Fox testified that he fully described the proposed
panel guards to Barrett and that Barrett did not request any further details. Fox was
justified in concluding that Barrett had all of the information he required, particularly
after Barrett asked for copies of Miami's blueprints. By the same token, McCann's letter
did not require Fox to contact Murphy; rather, the letter merely advised Fox that any
questions should be directed to Murphy. The letter did not indicate Murphy's position or
title, and nothing in the letter suggests that Barrett was not authorized to deal with
Miami regarding abatement of the violation.

[7/]] Under Seibel, an infeasibility defense is established
where the employer demonstrates that compliance with the terms of the standard would not
be feasible and that there were no alternative means of protecting its employees. Here,
Judge Burroughs found that it was necessary for the rollers to be cleaned while running
and that a guard not readily removable or an interlocked guard to cut off power to the
rollers if removed would effectively prevent Miami from conducting its cleaning operation.
However, the judge noted that compliance officer Collins had testified about other means
Miami could have taken to safeguard its employees, and he concluded that Miami had not
adduced evidence to show that implementing these other means would have been infeasible.
In view of our disposition, we do not decide whether the elements of the infeasibility
defense have been proven.

[[8/]]In Martin v. OSHRC (CF&I Steel Corp.), 111 S. Ct.
1171, 1179 (1991), the Court held that issuance of a citation alone may afford appropriate
notice to an employer of its obligations under a standard susceptible of more than one
interpretation. The issue in CF&I, however, was whether the Secretary's interpretation
of the standard was entitled to deference. The Court did not decide the question presented
here: whether a consistent and ongoing pattern of conduct by the Secretary's agents denied
the employer fair notice of the requirements of the standard. We further note that the
Court did not necessarily consider issuance of a citation to be conclusive. As the Court
stated, "the decision to use a citation as the initial means for announcing a
particular interpretation may bear on the adequacy of notice to regulated parties"
and that "other factors relevant to the reasonableness of the Secretary's exercise of
delegated lawmaking powers" are also to be taken into consideration. Id. at 1180
(emphasis added). Among other things, the Court stated that "whether the Secretary
has consistently applied the interpretation embodied in the citation" will have a
bearing on the "reasonableness of the Secretary's position." Id. at 1179. In our
view, the fact that the Secretary on several occasions advised Miami that its guarding
device complied with the abatement requirements of the 1978 citation and thereafter
declined to issue citations over an extensive period of time militates against the
Secretary summarily reversing her position simply through the issuance of another
citation.

We note that the Sixth Circuit reached a similar result in
Diebold, Inc. v, Marshall, 585 F.2d 1327, 1339 (6th Cir. 1978). In Diebold, the Secretary
issued a citation alleging that the employer violated � 1910.212 by not guarding its
press brakes. The Commission affirmed the citation, rejecting the argument that the
standard was not applicable. The court. concluded that at the time the citation was
issued, the employer did not have fair notice that � 1910.212 applied to press brakes,
but that the Commission's decision gave the employer the requisite notice. Despite the
fact that the employer was now aware of its obligation under the standard, the court held
that it would not be appropriate to require the employer to implement the abatement method
specified in the citation, and it vacated the citation. Cf . Ryan Heating Co. v. NLRB ,
Daily Lab. Rep. (BNA) No. 170 (8th Cir. Aug. 26, 1991) (court declines to give retroactive
effect to a decision of the National Labor Relations Board where the employer had
reasonably relied on a prior contrary precedent of the Board and retroactive application
would have a substantial detrimental impact on the employer).

[[1]] The notice of contest also placed in issue and alleged
"other" violation of 29 C.F.R. � 1910.22(a)(l). On May 13, 1988, a withdrawal
of its notice of contest to the alleged "other" violation was received from
respondent.

[[2]] At the time of the inspection, the top half of the
barrier guards were not in the "up" position while the mill was operating (Tr.
22-23, 166). The pins had been removed. Compliance Officer Collins discovered the pins
that held the hinges had not been in use for two weeks (Tr. 165-166).

[[3]]Section 1910.212(a)(l) of 29 C.F.R. provides:

(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.

[[4]] Section 17(k) of the Act provides:

(k) For purposes of this section, a serious violation shall be
deemed to exist in a place of employment if there is a substantial probability that death
or serious physical harm could result from a condition which exists, or from one or more
practices, means, methods, operations, or processes which have been adopted or are in use,
in such place of employment unless the employer did not, and could not with the exercise
of reasonable diligence, know of the presence of the violation.

[[5]] Section 17(j) of the Act states:

(j) The Commission shall have authority to assess all civil
penalties provided in this section, giving, due consideration to the appropriateness of
the penalty with respect to the size of the business of the employer being charged, the
gravity of the violation, the good faith of the employer, and the history of previous
violations.