Petition for Review of an Order of the Occupational Safety and Health Review Commission.
Before Pell, Circuit Judge, Fairchild, Senior Circuit Judge and Cudahy, Circuit Judge.
Petitioner Faultless Division, Bliss & Laughlin Industries, Inc. ("Faultless") seeks judicial review of an order of the Occupational Safety and Health Review Commission ("Commission" or "OSHRC") citing Faultless for failing to guard certain presses. On December 4 and 5, 1979, a compliance officer from the Occupational Safety and Health Administration ("OSHA") inspected Faultless' rubber molding operations. As a result of this inspection, Faultless was cited for a serious violation of 29 C.F.R. § 1910.212(a)(3)(ii) (1980), for failing to guard the point of operation on 17 hydraulic rubber molding presses. The Secretary established an abatement date and assessed a corrected penalty of $560 (later reduced to $100). Faultless contested the citation and the Commission assigned the case to an Administrative Law Judge ("ALJ"). The ALJ upheld the citation.
Faultless here petitions for review of the ALJ's decision and order, which became the Commission's final order on March 25, 1981, when no Commissioner granted Faultless' petition for discretionary review. See 29 U.S.C. § 666(i) (Supp. II 1978). In its petition, Faultless asserts that the Commission's final order lacks substantial evidentiary support, is based upon an unconstitutionally vague regulation and wrongfully imposes upon it the burden of proving infeasibility of compliance. We deny Faultless' petition and affirm the Commission's order.*fn1
Faultless manufactures small rubber caster wheels at its plant in Evansville, Indiana. As part of its manufacturing process, Faultless operates 17 hydraulic rubber molding presses. These presses employ both pressure and heat to form small rubber "preforms" into wheel-shaped casters. There are two types of presses at the plant arrayed along two separate production lines. Line A contains twelve "French-type" hydraulic rubber molding presses; Line B contains five "clam shell" hydraulic rubber molding presses. The two types of presses are similar in structure and operation except that the French-type is a two-sided press requiring two operators to simultaneously load and operate the press, while the clam shell presses need only one operator loading from one side.
Operators load the press dies while standing at the side of the press on a work platform. Line B operators pull a mold out of the clam shell press, insert the rubber preforms in the mold, and then close the mold and push it back into the press. Line A operators, however, push sheets containing the preforms directly into the French-type press. The preforms are held in place on the sheets by a jig board located on top of the sheet. After inserting the sheet and jig board, the operators pull the sheet out of the press and then shake the board to position the preforms on guiding pins. The operators then pull the jig board out of the press and the preforms drop into the molding cavities. Unlike the Line B clam shell operation, the mold used on Line A is not closed outside the press; instead, the mold remains stationary (positioned inside the press) and the die with exposed preforms is lifted upward against the stationary mold by the action of the closing press.
On both lines, after the preforms are loaded into the press, the operator activates the press by depressing a momentary-contact start button located near the press opening. (The paired Line A operators must simultaneously depress the start buttons located on the two sides of the press.) Immediately after depressing the start button (or buttons), the ram of the press in question lifts hydraulically upward, closing the gap or opening which exists at the point of operation. Depending upon the thickness of the die, the opening at the point of operation for Line B presses varies from three to seven inches in height and the time taken for the ram to close is approximately seven seconds.
The opening at the point of operation for Line A presses varies from seven to eleven inches in height and closing is completed in approximately ten seconds. After a press is closed, a curing cycle begins (during which the press remains closed). This cycle varies in duration from 10 to 45 minutes. When curing is completed, an automatic timer releases the press ram, the opening at the point of operation reappears and the finished wheel casters are ready for unloading. The press operators move from press to press, alternately loading and unloading the presses as time permits.
The OSHA compliance officer found no guarding device on the presses at the time of his inspection. The only safety device presently guarding the presses is a single emergency stop button. The activation of the stop button releases the hydraulic pressure, permitting the press ram to descend to the press base and restoring the opening at the point of operation. This button is located approximately six feet above the work platform on the upper left side of the press.
Faultless disputes the ALJ's findings of fact pertaining to the operators' behavior after they activate the presses. Based upon the testimony of a former Faultless production supervisor (La Mar), the ALJ found that press operators often reach into the press mold area during the closing cycle to realign preforms, thereby attempting to prevent the molding of imperfect caster wheels and reducing the potential for damage to the press. Given this reaching into the press mold area, if the operator should be unable to remove his hand or arm before the ram completed its closing cycle, his limb would be crushed or amputated by the powerful thrust of the press ram. The ALJ foresaw an increased possibility of such an unfortunate accident resulting from Faultless' work rule requiring operators to wear long-sleeved shirts; an operator wearing long sleeves might entangle his shirt in the numerous recessed pins and guidepins inside the press mold. La Mar also testified that an operator who entangled his left arm shirt sleeve in the mold probably could not reach the emergency stop button located on the upper left side of the press with his free right hand. The ALJ made a finding, which Faultless challenges, that press operators stand near the presses and watch the seven to ten second closing cycle before walking to the next press.
After hearing the evidence adduced by both parties, the ALJ concluded that Faultless failed to guard its hydraulic rubber molding presses as required by 29 C.F.R. § 1910.212(a)(3)(ii) (1980).*fn2 The ALJ also concluded that this failure constituted a serious violation of the Occupational Safety and Health Act (the "OSH Act").*fn3 On this petition for review, Faultless reiterates its arguments raised before the ALJ together with several new contentions. Because of the unique factual setting of this case and some apparent misconceptions about the applicable law, we shall discuss each of Faultless' contentions in detail.
Faultless contends that the ALJ's findings (which were, of course, adopted by the Commission) lack substantial evidentiary support in the whole record. As one branch of this contention, Faultless asserts that the ALJ's alleged preconception of the merits precluded him from rendering an impartial and objective decision. Moreover, Faultless claims that the ALJ improperly relied on the testimony of an admittedly biased witness and that other factual findings contradict Faultless' unrebutted testimony and evidence.
Our standard of review of the ALJ's findings of fact is provided by the OSH Act. Thus, section 11(a) of the OSH Act, 29 U.S.C. § 660(a) (1976), provides that "(t)he findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive." Although this standard does not permit or require us to rubber stamp Commission findings, we are clearly required to accept the ALJ's (and by adoption, the Commission's) reasonable and substantial findings of fact and the inferences drawn by the Commission from these findings. See International Harvester Co. v. OSHRC, 628 F.2d 982, 986-87 (7th Cir. 1980); RMI Co. v. Secretary of Labor, 594 F.2d 566 (6th Cir. 1979). Further, under the applicable standard, the ALJ's credibility determinations must be honored by the agency and by a reviewing court unless these determinations are contradicted by uncontrovertible evidence. International Harvester, 628 F.2d at 986. Finally, our review of the ALJ's findings is premised upon an understanding of the OSH Act's remedial purpose and broad scope. See 29 U.S.C. § 651 (1976); Whirlpool Corp. v. Marshall, 445 U.S. 1, 11-12, 100 S. Ct. 883, 890-91, 63 L. Ed. 2d 154 (1980); Bratton Corp. v. OSHRC, 590 F.2d 273, 276-77 (8th Cir. 1979).
In connection with its challenge to the Commission findings, Faultless directs our attention to several parts of the record which, in its opinion, demonstrate the ALJ's bias against Faultless. Thus as part of its case, Faultless offered into evidence a video tape display of a French-type hydraulic rubber molding press in operation. At the time of this offer, the ALJ told Faultless' counsel that he was familiar with the machine in question and indicated to counsel that the display was not necessary.*fn4 Faultless points out that, before the colloquy about the tape, the ALJ denied a motion by Faultless to dismiss the citation, relying on an earlier case which had allegedly been decided by the ALJ.*fn5 Additionally, Faultless asserts that the ALJ's bias is demonstrated by his crediting of the testimony of Faultless' former supervisor, La Mar. An admittedly biased witness,*fn6 La Mar testified that he personally observed press operators reach into the press to straighten misaligned parts as the ram ascended. Faultless contends that its witnesses contradicted La Mar's testimony and thus, the ALJ improperly credited biased evidence.
We are unpersuaded by Faultless' arguments. Although an ALJ's bias may be grounds for overturning factual determinations, see Medline Industries, Inc. v. NLRB, 593 F.2d 788, 795 (7th Cir. 1979) (dicta), the evidence does not in fact raise any substantial doubt about the ALJ's impartiality in this case. Mere familiarity with legal or factual issues involved in a particular case does not, in itself, evince an adjudicator's biased predisposition. See United Steelworkers of America v. Marshall, 208 U.S. App. D.C. 60, 647 F.2d 1189, 1208-09 (D.C.Cir.1980), cert denied sub nom. Lead Industries Association v. Donovan, 453 U.S. 913, 101 S. Ct. 3148, 3149, 69 L. Ed. 2d 997 (1981). Likewise, we are unpersuaded that the ALJ's denial of Faultless' motion to dismiss, relying upon previous decisions, which Faultless erroneously argued were heard and decided by the same ALJ, demonstrates an unacceptable preconception of the merits of this case. If we should accept Faultless' argument, even an unarguably even-handed administrative adjudicator could be taxed with bias merely for relying on his own prior decisions. Here we believe that the ALJ's comments about the video tape display were intended simply to avoid wasting valuable hearing time. The ALJ's attitude does not demonstrate bias against Faultless or its point of view.
We also reject Faultless' contention that the ALJ exhibited bias by crediting La Mar's testimony. The ALJ carefully considered La Mar's bias when assessing this evidence. No one directly contradicted La Mar's crucial observation that operators actually placed their hands inside the presses during the closing cycle. Faultless' witnesses (who are also at least potentially susceptible to charges of bias) merely noted that they had never personally observed an operator place his hand inside a press.*fn7 The OSHA compliance officer also testified that operators could reach into a closing press, although he did not observe any operator reach into a closing press during his compliance inspection. Finally, the ALJ carefully compared all of La Mar's testimony with the testimony ...