DocketNumber： 81-1740
Judges： Cudahy, Fair-Child, Pell
Filed Date： 9/17/1982
Status： Precedential
Modified Date： 11/4/2024
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 here petitions for review of the AU’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 eviden-tiary 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.
I.
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 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)(H) (1980).
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.
We also reject Faultless’ contention that the AU 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.
As noted above, apart from its allegation of bias, Faultless attacks the ALJ’s factual findings as lacking substantial evidentiary support in the record. According to Faultless, the ALJ’s finding that the press operators would stand at their work platforms, after activating the press closure cycle, to observe their presses close contradicts the ’unrebutted testimony of Faultless’ witnesses. Moreover, the ALJ allegedly ignored the testimony of Faultless’ witnesses who claimed that the operators realigned any misplaced rubber preforms before activating the press. These findings are crucial because Faultless argues that the operators habitually walked over to the press next in line immediately after activating the closure cycle and, thus, were not in a position to extend their hands into the closing press.
The ALJ’s findings with respect to these matters are supported by substantial evidence. Faultless does not refer us to
Likewise, we conclude that the ALJ’s finding that press operators would reach into closing presses to realign rubber preforms is supported by substantial evidence. Obviously, safety-conscious operators would, as Faultless’ witnesses testified, make every effort to realign the preforms before activating the press. Faultless’ witnesses, however, testified only that they never observed an operator place his hand inside a closing press. Obviously, Faultless does not assert that operators could not as a matter of fact place their hands inside a closing press. La Mar, on the other hand, testified that, based on over sixteen years of day to day experience working with these machines and their operators, he personally observed operators place their hands inside a press as it closed.
Finally, we note that substantial evidence, considering the whole record, supports the ALJ’s conclusion that Faultless committed a serious violation of the machine guarding regulation. The Secretary’s regulation requires that “[t]he point of operation of machines whose operation exposes an employee to injury, shall be guarded.” 29 C.F.R. § 1910.212(a)(3)(ii) (1980). It is undisputed that Faultless’ hydraulic rubber molding presses were unguarded. Nor does Faultless contend that an operator’s hand or arm would not be crushed or amputated if the press ram closed on it or that an operator is physically incapable of reaching into a closing press.
III.
Faultless contends that the Secretary’s application of the machine guarding standard to it violated due process because the standard’s requirements are impermissibly vague. We believe that Faultless misunderstands the law.
First, Faultless premises its vagueness argument on its characterization of the machine guarding standard as a “performance” rather than a “specification” standard. According to Faultless, the courts and the Commission have struck down performance standards as unconstitutionally vague unless the standard’s scope is limited by extrinsic norms, including industry eus-toms and practices. Because, in the rubber industry, hydraulic rubber molding presses are not customarily guarded, Faultless asserts that application of the machine guarding standard does not provide it with sufficient and fair warning. Second, Faultless argues that the regulation is vague because other regulations specifically exempt its presses from any guarding requirements.
When considering remedial legislation such as the OSH Act and its implementing regulations, the purported vagueness of a standard is judged not on its face but rather in the light of its application to the facts of the case. PBR, Inc. v. Secretary of Labor, 643 F.2d 890, 897 (1st Cir. 1981); McLean Trucking Co. v. OSHRC, 503 F.2d 8, 10-11 (4th Cir. 1974). Moreover, the regulations will pass constitutional muster ■even though they are not drafted with the utmost precision; all that due process requires is a fair and reasonable warning. Allis-Chalmers Corp. v. OSHRC, 542 F.2d 27, 30 (7th Cir. 1976). The constitution does not demand that the employer be actually aware that the regulation is applicable to his conduct or that a hazardous condition exists.
In construing the regulation before us, we decline Faultless’ invitation in effect to characterize the provision as “very general,” “unclear,” or a “performance standard” in order to lay the predicate for considering evidence of industry custom and practice. Faultless correctly notes that some courts have considered evidence of industry practice when construing very general or unclear regulations. Indeed, we note that industry practice may be relevant in limited situations to avoid prejudicing a party by the application of a generalized statute or regulation of unfocused import. Prejudice might arise when the regulatory impact resulted in a complex and costly compliance program in cases where there was no reasonable expectation that the regulation was applicable to the questioned conduct. The instant case, however, does not require or permit consideration of industry practice for the purpose of defining machine guarding requirements since we are confronted with a clearly applicable, unarguable and specific regulation on the subject in question. In general, courts have considered industry practice. evidence only when a specific standard of expected employer conduct is proposed to be derived from a very general statutory or regulatory
The regulation here, on the other hand, unlike regulations relating, for example, to noise or to personal protective equipment, or to the general duty clause regulations, is sufficiently specific as to the machines affected and as to the methods of compliance to reasonably apprise Faultless in clear terms that its presses must be guarded. The machine-guarding regulation applies to all machines, defines the areas that must be guarded, states what an effective guarding device must achieve and even provides several examples of guarding devices. Neither the noise regulation standard nor the personal protective equipment standard nor the general duty clause are comparably specific. We agree with the holding of A. E. Burgess Leather Co. v. OSHRC, 576 F.2d 948 (1st Cir. 1978), that industry practice ■should not be considered when construing the regulation before us because the standard for employer conduct is quite specific and essentially requires no such construction.
Our position follows without question from the stated purposes of the OSH Act. On the other hand, carried to its logical conclusion, Faultless’ argument for reliance on industry practice would permit employers to avoid compliance with specific safety mandates by relying on the (perhaps equally objectionable) practices of their peers. Cf. Voegele Co. v. OSHRC, 625 F.2d 1075, 1078-79 (3rd Cir. 1980) (even those courts that consider industry custom and practice do not ignore reasonable person test because to do so would allow entire industries to avoid liability for unsafe conditions). Nothing in the OSH Act or its legislative history requires or permits the Secretary to await an industry consensus about unsafe conditions before moving to enforce. See Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717 (4th Cir. 1979).
The OSH Act regulations expressly provide that exclusion under certain specific regulatory commands does not preclude application of the slightly more generalized, albeit explicitly comprehensive, command of another regulation. See 29 C.F.R. § 1910.5(c)(2) (1980). The courts that have considered the relationship between section 1910.217 and section 1910.212 have unanimously concluded that a machine exempted under section 1910.217 continues to be covered under 1910.212. Diebold, Inc. v. Marshall, 585 F.2d 1327, 1334 (6th Cir. 1978);
Faultless’ final contention is that the ALJ improperly imposed upon it the burden of proving the infeasibility of the Secretary’s compliance order. In addition, and regardless of any applicable burden of proof, Faultless argues that the ALJ erred in holding that the evidence Faultless presented on the feasibility issue was insufficient. We shall consider each contention separately.
As to the first, courts have placed the burden of demonstrating the feasibility of a proposed compliance order on the Secretary in only two situations. First, the Secretary must demonstrate the feasibility of any remedial administrative or engineering controls ordered under 29 C.F.R. § 1910.-95(b)(1) (1980) (the noise regulation standard). See Diversified Industries Division, Independent Stave Co. v. OSHRC, 618 F.2d 30 (8th Cir. 1980); RMI Co. v. Secretary of Labor, 594 F.2d 566 (6th Cir. 1979); Turner Co. Division of Olin Corp. v. Secretary of Labor, 561 F.2d 82 (7th Cir. 1977). The justification for placing the burden on the Secretary in noise regulation cases is that the Secretary is explicitly required by the regulation to consider feasibility before issuing a compliance order. Second, the Secretary must demonstrate the feasibility of a compliance order issued under a regulation that does not, on its face, expressly provide for any particular means of compliance. See Donovan v. Royal Logging Co., 645 F.2d 822, 829 (9th Cir. 1981) (general duty clause); Ray Evers Welding Co. v. OSHRC, 625 F.2d 726, 733 (6th Cir. 1980) (personal protective equipment regulation); Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717, 723-24 (4th Cir. 1979) (personal protective equipment regulation); General Electric Co. v. OSHRC, 540 F.2d 67, 69-70 (2d Cir. 1976) (eye protection regulation); National Realty and Construction Co. v. OSHRC, 489 F.2d 1257, 1268 (D.C.Cir.1973) (general duty clause). It is indeed appropriate for the Secretary to carry the burden in such cases when the compliance remedy is based upon a very general statutory or regulatory command that does not describe for the employer any specific methods for compliance.
Unlike the regulations involved in the above cited cases, the machine-guarding regulation does specify several ways for an employer to comply with its standards. Three specific guarding techniques — “barrier guards, two-hand tripping devices [and] electronic safety devices” are set out in the regulation. 29 C.F.R. § 1910.212(a)(1) (1980); see Ace Sheeting & Repair Co. v. OSHRC, 555 F.2d 439 (5th Cir. 1977). Applying a like analysis to particularized standards, the First Circuit in A. E. Burgess Leather Co. v. OSHRC, 576 F.2d 948, 952 (1978) held that the employer, not the Secretary, must carry the burden of establishing infeasibility when the compliance order is issued under the “specific” standards in 29 C.F.R. § 1910.212(a)(3)(ii). Accord, PBR, Inc. v. Secretary of Labor, 643 F.2d 890, 897 (1st Cir. 1981). Thus, we conclude that the ALJ properly placed the burden of demonstrating infeasibility upon Faultless.
On the question of sufficiency of the evidence of infeasibility, after reviewing the evidence presented by Faultless on these issues, we conclude that the ALJ properly held that Faultless failed to demonstrate the infeasibility of complying with the Secretary’s order. Feasibility, in the context of safety regulations, refers not only to technical feasibility but also to economic feasibility. See International Harvester Co. v. OSHRC, 628 F.2d 982, 987-89 (7th Cir. 1980); A. E. Burgess Leather Co. v. OSHRC, 576 F.2d 948, 951 n.2 (1st Cir. 1978); Turner Co. Division of Olin Corp. v. Secretary of Labor, 561 F.2d 82, 85-86 (7th
A successful economic feasibility argument must demonstrate both that it is extremely costly for the employer to comply with the Secretary’s order and that the employer cannot absorb this cost. Faultless claims that two-hand controls would increase its yearly operating costs by $116,000 (lost production time and capacity); in addition, Faultless has alleged that it would expend $82,000 for new presses to make up for lost production time generated by the use of two-hand controls together with $34,-000 to install the two-hand controls. This evidence alone, however, does not demonstrate economic infeasibility. Faultless has not alleged or demonstrated that it cannot absorb or pass on in the price of the product this added expense. Although the expense of installing two-hand controls may be somewhat burdensome, economic infeasibility is established only when the employer’s existence as an entity is financially imperiled by compliance. See Arkansas-Best Freight Systems, Inc. v. OSHRC, 529 F.2d 649, 654 (8th Cir. 1976); cf. Industrial Union Department, AFL-CIO v. Hodgson, 499 F.2d 467, 478 (D.C.Cir.1974) (OSH Act contemplates demise of employers who cannot comply with safety standards); National Realty and Construction Co. v. OSHRC, 489 F.2d 1257, 1266 n.37 (D.C.Cir.1973) (if cost to implement precautionary measure threatens employer’s economic vitality, this precaution should be proposed by regulation and not by compliance order). With respect to the economic burdens what ideally occurs is that costs which may otherwise be imposed on employees are internalized by compliance orders in the cost of the product to consumers. The economic heart of OSHA is the internalization of certain external costs of unsafe or unhealthy conditions otherwise imposed, at least in part, on innocent employees.
Moreover, we agree with the ALJ’s conclusion that Faultless’ cost computations were inflated and conjectural. Faultless failed to explain various discrepancies in the figures it used to determine the number of new presses required to compensate for the alleged lost production time generated by two-hand controls. We also question the accuracy of Faultless’ computations of lost production time. According to Faultless, much of this lost production time will be caused by operators standing at their presses for seven to ten seconds as they, hold down the two-hand tripping control to activate the closing cycle. The AU found, however, that operators stand at their machines during this interval even though they now use only a one-hand start button. Further, we are puzzled by Faultless’ assertion that 21 to 30 seconds per hour (three closures per hour — Faultless’ most liberal estimate) translate into a loss of production time requiring Faultless to expand its production capacity by two presses — or more than 11%. Faultless’ most egregious error, however, has been to double count, at least in part, the cost of lost production time and capacity ($116,000) and the cost of new presses ($82,000) when the new presses are intended to compensate for the loss of capacity. Thus, we find that Faultless failed to demonstrate the infeasibility of the Secretary’s order.
Petition for review denied.
. Consolidated with this petition for review was Faultless’ motion to stay the Commissioner’s order pending appellate review. On September 23, 1981, we issued an order staying enforcement of the Commission’s order. Because we now deny Faultless’ petition on the merits, our prior order staying enforcement is hereby dissolved. The Commission shall, upon the Secretary’s motion, establish a new date by which Faultless must correct the defective condition.
. The regulation 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, rotat-' ing parts, flying chips and sparks. Examples of guarding methods are — barrier guards, two-hand tripping devices, electronic safety devices, etc.
******
(3) Point of operation guarding, (i) Point of operation is the area on a machine where work is actually performed upon the material being processed.
(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.
29 C.F.R. §§ 1910.212(a)(1), (3) (1980).
. A serious violation occurs when “there is a substantial probability that death or serious physical harm could result from a condition which exists ... unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.” 29 U.S.C. § 666(j) (1976).
. Mr. Magan [Counsel for Petitioner]: Okay. Let’s show you now, we have here a video tape which I’ll show you.
Judge Dixon [ALJ]: Will it bust it up if we shut it off? Will it break your continuity? It don’t bother me because I’ve seen it before.
Mr. Magan: Not really. I think we can kind of move through the thing. Well, I hope that you’re going to look carefully at this. This may not be—
Judge Dixon: There’s an old expression, “I’ve been there”, Mr. Magan.
Mr. Magan: Not one of these presses is guarded in the whole industry, as far as I know, of this type. Can you see all right, counsel? At this time we’re going to show a video tape.
Transcript at 72-73.
. Contrary to Faultless’ claim in its brief, the ALJ in the instant case did not decide either of the cases he relied upon in denying the motion to dismiss. Nor did the ALJ claim during the hearing that the precedents he relied upon for denying the motion were cases that he had previously heard and decided. See Caterpillar Tractor Co., 1980 Occ.Saf. Health Dec. ¶ 24,708 (ALJ); Richardson Co., 1979 Occ.Saf. Health Dec. ' 23,721 (ALJ).
. Faultless employed La Mar for I6V2 years until he was terminated for unsatisfactory work performance in October, 1979. It is undisputed that the OSHA inspection leading to this compliance order was precipitated by La Mar’s complaint filed at a local OSHA office.
. Moreover, we do not believe that the ALJ would, in this case, be forced to choose as representing the only acceptable truth either the testimony of La Mar or of the Faultless witnesses. Given the existing plant rule prohibiting operators from placing their hands inside the presses, it is reasonable to assume that operators might carefully avoid violating this rule in the presence of Faultless’ personnel and production supervisors but be less careful in the presence of a line foreman (La Mar), with whom they dealt every day.
. Faultless’ reliance on Medline Industries, Inc. v. NLRB, 593 F.2d 788 (7th Cir. 1979), is misplaced. The Medline court did not overturn the ALJ’s credibility findings because of any alleged bias attributable to the ALJ. Rather, the court noted that bias could have been an issue in that case because the ALJ had uniformly declined to believe every employer witness. But the court did not reach the issue of bias, since it held that the ALJ’s factual determination could not stand when uncontroverted testimony was rejected solely on the grounds of disbelief. The instant case is, however, quite distinguishable because the ALJ did not flatly reject any uncontradicted evidence.
. The existence of these conditions is sufficient to support a finding that the violation is serious. See Shaw Construction, Inc. v. OSHRC, 534 F.2d 1183 (5th Cir. 1976). A serious violation requires only the showing of a “substantial probability that death or serious physical harm could result” from the condition. 29 U.S.C. § 666(j) (1976). There is no need to show that the condition has actually caused any injury. Bethlehem Steel Corp. v. OSHRC, 607 F.2d 1069 (3d Cir. 1979).
. Faultless’ manager of industrial relations testified at the hearing that since 1970, there had been no accidents or injuries attributable to these presses, notwithstanding over 900,000 hours of use and an estimated 1.8 to 2.7 million closures. The ALJ, however, credited Faultless for only 15 months of accident-free use without explaining why he rejected Faultless’ evidence. We must reject this finding of the ALJ as lacking substantial evidentiary support and accept Faultless’ version of the facts. This does not, however, require a different result because, as explained above, freedom from accidents is only one factor the ALJ should consider, and we believe that the record as a whole clearly supports the finding of a violation.
. Although it apparently accepts our formulation of the due process standard as to notice, see post at 1190-1191, the dissent seems to require something more pointed — or even subjective — than the mere provision of a fair and reasonable warning. Thus, the dissent concludes that the “regulatory language . .. has failed to provide actual notice that the activity is subject to the provision.” Post at 1192 (emphasis supplied). Moreover, the dissent argues that consideration of industry practice is necessary to provide Faultless with “actual notice.” Post at 1193; see post at 1193. This analysis seems to import an individualized or subjective quality into the fair notice standard. Cf. Pratt & Whitney Aircraft, Division of United Technologies Corp. v. Secretary of Labor, 649 F.2d 96, 100-01 (2d Cir. 1981) (even if hazard must be “recognized” as required by general duty clause, this comports with objective standard).
The dissent also contends, citing judicial interpretations of the general duty clause, that Faultless must be on notice of a hazard connected with molding presses. To the extent that any proof of hazard is required here, we think such a requirement is governed by 29 C.F.R. § 1910.212(a)(3)(ii) (1980) and not by rules applicable to the general duty clause. See notes 14, 17 infra. And we believe the dissent is incorrect in suggesting that Faultless must have “actual notice” of the hazard. See S & H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273, 1278 (5th Cir. 1981).
Thus, the dissent mischaracterizes the Fourth Circuit’s decision in McLean Trucking Co. v. OSHRC, 503 F.2d 8 (1974) as “mak[ing] clear that when the due process issue is whether an employer had notice that a hazard existed, the inquiry is the same as that necessitated by the ‘recognized hazard’ language of [the general duty clause].” Post at 1194 (emphasis supplied). The language from McLean quoted by the dissent, post at 1194, makes clear that the hazard need not be known “necessarily by each and every individual employer.” McLean, 503 F.2d at 11 n.5 (quoting 116 Cong. Rec. 38377 (remarks of Rep. Daniels)). Moreover, the Fourth Circuit concludes that “the totality of the foregoing elements was sufficient to convey to McLean a reasonable understanding of the conduct required of it.” McLean, 503 F.2d at 11 (emphasis supplied). Accord, Donovan v. Royal Logging Co., 645 F.2d 822, 829 (9th Cir. 1981) (“An employer need not be aware of [the hazard].”).
. More detailed guarding requirements for some Specified types of machines are listed in the regulations immediately following the regulation in question. See 29 C.F.R. §§ 1910.-213-.219 (1980).
. See National Safety Council, Accident Prevention Manual For Industrial Operations, ch. 29 (7th ed. 1974).
. The dissent chides us for interpreting “section 1910.212 as though any machine falling within the technical definition of a power press must have point of operation guards.” Post at 1191-1192 (emphasis in original). But, of course, this section applies only to machines which expose employees to injury. And the record before us adequately demonstrates that the “operation [of Faultless’ presses] exposes an employee to injury.” 29 C.F.R. § 1910.-212(a)(3)(ii) (1980). The farther one comes— physically and procedurally — from the factory floor, the simpler it seems to perceive an accident-free history and a slow closing speed as rendering “safe” these powerful (and potentially bone-crushing) presses. Exposure to injury is a determination far better left to the ALJ and the Commission, to be reversed only if unsupported by substantial evidence.
. Our recent decision in Kropp Forge Co. v. Secretary of Labor, 657 F.2d 119 (7th Cir. 1981) is distinguishable. In that case, the panel found that the general noise regulation (29 C.F.R. § 1910.95(b)(3) (1980)) was used by the Secretary as the basis of a detailed compliance order. None of the elements of the compliance order were explicitly provided in the regulation and the regulation itself was not as specific as the regulation at issue here.
. But see Voegele Co. v. OSHRC, 625 F.2d 1075, 1078-79 (3rd Cir. 1980) (criticizing B & B’s excessive reliance on industry practice and custom and noting that other courts consider such evidence as one aspect of the reasonable person standard).
. The dissent apparently argues that due process requires us to consider industry practice and custom when interpreting section 1910.212. But the cases cited to support this proposition—Royal Logging, Sanders, and McLean Trucking Co. v. OSHRC, 503 F.2d 8 (4th Cir. 1974)—all involve violations of the general duty clause. To establish a violation of the general duty clause, the Secretary of Labor must prove, as one element of his prima facie case, that a recognized hazard exists. Royal Logging, 645 F.2d at 829; Sanders, 620 F.2d at 99; McLean, 503 F.2d at 10. In these circumstances it makes sense that whether a hazard is recognized may well depend in part on industry practice. On the other hand, there is no requirement to establish a recognized hazard as part of the Secretary’s case under section 1910.212. All that this regulation demands is that the machine must “expose[ ] an employee to injury.” 29 C.F.R. § 1910.212(a)(3)(ii) (1980). We believe (and the cases support us) that due process does not require an examination of industry practice to establish this lesser and different standard of exposure to injury.
. Indeed, unwarranted reliance on industry practice and custom may reduce government regulation under the OSH Act to unintended
. Although the Diebold court held that section 1910.212 was applicable to machines arguably exempted by section 1910.217, the court ultimately concluded that section 1910.212, as applied to the facts of that case, violated due process. We think Diebold is distinguishable and, in any event, should not govern the instant case. No other court is in accord with Die-bold’s constitutional holding. See PBR, Inc. v. Secretary of Labor, 643 F.2d 890, 897 (1st Cir. 1981); Irvington Moore, Division of U. S. Natural Resources, Inc. v. OSHRC, 556 F.2d 431, 436 (9th Cir. 1977); Long Manufacturing Co., N. C. Inc. v. OSHRC, 554 F.2d 903, 908 (8th Cir. 1977). Moreover, the Diebold court relied on three specific findings, which we find inapplicable to the instant case, to support its holding.
First, even though the Diebold court held that section 1910.217 was inapplicable, it believed that inartful drafting of that regulation could have misled the employer and thus contributed to the alleged vagueness of section 1910.212. We do not understand this logic and find it . inappropriate to apply to the instant case. Second, the Diebold court, to support its constitutional holding, relied on industry practice evidence, which we have discussed supra and found to be irrelevant to the instant case. Third, in Diebold there was a pattern of disparate administrative enforcement, which we also find absent in the instant case, see note 20 infra.
. We also reject Faultless’ claim that the Commission and the courts have inconsistently interpreted sections 1910.212 and 1910.217. The only apparently inconsistent decision cited by Faultless—Main Tubular Products, Inc., 1980 Occ.Saf. Health Dec. ¶ 24,668—was an ALJ decision, unreviewed by the Commission. Cf. Leone Construction Co., 1975-76 Occ.Saf. Health Dec. ¶ 20,387 (1975) (Rev. Comm’n) (unreviewed ALJ decision does not bind Commission as precedent). Main Tubular relied on the combination of factors cited in Diebold, which we find inapplicable to this case. See note 19 supra.
. Faultless’ argument that the regulation is vague because it fails to disclose how to com