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Modern Drop Forge Co. v. Secretary of Labor

decided: July 26, 1982.


Petition for Review of an Order of the Occupational Safety and Health Review Commission.

Wood, Circuit Judge, Fairchild, Senior Circuit Judge, and Stanley J. Roszkowski,*fn* District Judge.

Author: Wood

WOOD, Circuit Judge.

This is an appeal of a decision and order of the United States Occupational Safety and Health Review Commission (the "Commission"). The Commission found that appellant, Modern Drop Forge Company ("Modern Drop Forge" or the "Company"), committed a "serious"*fn1 violation of Section 5(a) (2) of the Occupational Safety and Health Act ("OSHA" or the "Act"), 29 U.S.C. § 654(a) (2), since it failed "to comply with occupational safety and health standards promulgated under [the] Act."*fn2 We affirm.


Modern Drop Forge is a corporation engaged in forging operations. At issue in this appeal are three forging hammers which are activated by foot-operated devices. The hammers are used to shape metal by means of a ram. When an operator presses either a treadle or pedal with his foot, compressed air raises the ram; the ram is then allowed to fall, striking a piece of metal held by an operator using tongs. The ram shapes the metal in a set of dies. With all three hammers, a single depression of the treadle or pedal will cause the ram to rise and then fall.

In 1975, Modern Drop Forge wrote to the Commission requesting a clarification of the Company's duty to protect its foot-operated devices. The letter also attempted to request a variance from the requirements of OSHA's standard regulating these devices. In the letter, Modern Drop Forge acknowledged "that many methods for guarding against the [hazard of unintended operation] are feasible" and that the trend is to use "some form of physical guarding on the pedal itself." Nonetheless, the Company sought OSHA approval of a system combining a mechanical treadle with a microswitch. OSHA responded to Modern Drop Forge's letter by suggesting that the Company's proposed system could be improved by use of a circuit interrupter to reduce the possibility of unintended operation. Moreover, OSHA wrote:

It appears from the content of your request that you are seeking approval of a device and not requesting a variance. OSHA does not approve proprietary articles such as your control device. Therefore, no further action will be taken on your application.

Subsequent to its letter to OSHA, Modern Drop Forge installed physical guards over the foot devices of two of the hammers in question.*fn3 The machine operators objected to the guards since they restricted mobility and, in some cases, hurt the legs of the operators when they moved suddenly. The Company ultimately abandoned all efforts to protect against unintended operation.

In response to an employee complaint to the Occupational Safety and Health Administration, an OSHA compliance officer conducted an inspection of the Company's Blue Island, Illinois plant in September, 1979. Finding that the machines were not protected from unintended operation, the Secretary of Labor (the "Secretary") issued a citation*fn4 alleging, inter alia, that the Company had violated Section 5(a) (2) of the Act, 29 U.S.C. § 654(a) (2), which requires each employer to "comply with occupational safety and health standards."*fn5 Specifically, the basis for the violation, characterized as "serious," was 29 C.F.R. § 1910.218(b) (2), which provides:

Forging machines

(b) Hammers, general

(2) Foot operated devices

All foot operated devices (i.e., treadles, pedals, bars, valves, and switches) shall be substantially and effectively protected from unintended operation.

The Secretary ordered abatement of the hazard by December, 1979, and proposed a penalty of $640 for the violation.*fn6

Modern Drop Forge contested the citation and proposed penalty. 29 U.S.C. § 659(c). The Secretary filed a formal complaint with the Commission, and the employer filed an answer. An administrative law judge ("ALJ") of the Commission held a hearing. During these proceedings, the Secretary argued that the Company's failure to protect the foot-operated devices from unintended operation was a serious violation of the Act. Unprotected, these hammers could be accidentally activated by an employee who stumbled or otherwise inadvertently stepped or fell onto a treadle or pedal, or by a heavy object that was dropped or knocked onto the device. Such unintended operation would subject hammer operators, maintenance personnel, and employees changing dies on the hammers to a serious hazard of amputation of arms, or even death, if part of an employee's body was in the path of the hammer's ram. The Secretary also contended that there were various feasible measures the Company could have taken to provide the protection required by the standard. Modern Drop Forge responded that the cited standard was invalidly promulgated, and thus unenforceable, and that the Secretary had failed to prove a feasible means of protecting the forging hammers.

The ALJ affirmed the Secretary's citation as a serious violation of 29 C.F.R. § 1910.218(b) (2) and assessed a penalty of $640. The ALJ found that the Secretary "established with clarity that each of the three hammers failed to comply with the requirements of the standard." Moreover, he recognized that despite prior employee disapproval of physical guards covering the device, the Secretary had established the feasibility of installing some form of protection. Finally, the ALJ found that the Company was fully aware of the requirements of the standard and had knowledge of the violative conditions.

Modern Drop Forge petitioned for review by the full Commission. 29 U.S.C. § 661(i). Since no Commission member directed review, the ALJ's report became the final order of the Commission. 29 U.S.C.§ 661(i); Secretary of Labor v. Modern Drop Forge Company, OSHRC Docket No. 79-6331 (April 9, 1981). The Company appealed to this court for review.


The Act's remedial purpose, broad scope, and expedited operation in enforcement contexts has been examined elsewhere and need not be repeated here. See, e.g., Whirlpool Corp. v. Marshall, 445 U.S. 1, 63 L. Ed. 2d 154, 100 S. Ct. 883 (1980); Atlas Roofing Co. v. OSHRC, 430 U.S. 442, 51 L. Ed. 2d 464, 97 S. Ct. 1261 (1977); Allis-Chalmers Corp. v. OSHRC, 542 F.2d 27 (7th Cir. 1976); Brennan v. Butler Lime and Cement Co., 520 F.2d 1011 (7th Cir. 1975). On appeal, the Company argues, five major points: (1) that the cited regulation is unenforceable under the Act; (2) that the evidence does not support the Commission's finding that the Company violated the regulations; (3) that the Secretary failed to prove the feasibility ...

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