PETITION for REVIEW of AN ORDER of the OCCUPATIONAL SAFETY and HEALTH REVIEW COMMISSION.
Adams, Higginbotham, Circuit Judges and Howard T. Markey, Chief Judge.*fn*
HIGGINBOTHAM, Circuit Judge.
The General Electric Company has petitioned this Court to review a judgment and order of the Occupational Safety and Health Review Commission (the Commission). That order affirmed a citation charging General Electric with a non-serious violation of § 5(a)(2) of the Occupational Safety and Health Act (the Act)*fn1 for violating the standard of 29 C.F.R. § 1910.22(c).*fn2 We have jurisdiction of this matter pursuant to 29 U.S.C. § 660(a). The order of the Commission will be affirmed.
On December 19, an agent of the Secretary of Labor inspected General Electric's plant in Erie, Pennsylvania. As a result of this inspection, a citation was issued alleging a violation of 29 C.F.R. § 1910.23(c)(1) pertaining to an unguarded pit in the paintroom of Building 12.*fn3
General Electric filed a Notice of Contest pursuant to 29 U.S.C. § 659(c). A hearing was held on June 3, 1974 before Administrative Law Judge William E. Brennan. At the hearing, ALJ Brennan granted the Secretary's motion to amend the citation to charge, in the alternative, non-serious violations of 29 C.F.R. § 1910.22(c) and 29 C.F.R. § 1910.23(a)(5).*fn4 ALJ Brennan found that none of the standards were applicable and that, if 29 C.F.R. § 1919.22(c) were applicable, General Electric had established that compliance with that standard "would diminish rather than enhance the safety of employees". This is referred to as the "greater hazard" defense.
The Secretary of Labor petitioned the Commission to review ALJ Brennan's order insofar as it vacated the citation for violation of § 1910.22(c). The Commission held that 29 C.F.R. § 1910.22(c) was applicable to the facts. The Commission refused to consider the "greater hazard" defense because General Electric had not sought a variance pursuant to § 6(d) of the Act, 29 U.S.C. § 655(d), and had not shown that resort to the variance procedure would be inappropriate. General Electric urges us to vacate the Commission's order because of the failure to consider the "greater hazard" defense.
The Commission has recognized that an enforcement action may be successfully defended by proving that compliance with a standard would result in a hazard to employees greater than that resulting from existing procedures. See Secretary of Labor v. Industrial Steel Erectors, Inc., 1 BNA OSHC 1497 (1974). The Commission has stated, however, that the defense is a narrow one. Besides demonstrating that a greater hazard would result from compliance, the employer must also show that "alternative means of protecting employees are unavailable" and that "a variance application under section 6(d) of the Act would be inappropriate." Secretary of Labor v. Russ Kaller, Inc., t/a Surfa Shield, 4 BNA OSHC 1758, 1759 (1976); Secretary of Labor v. Cornell & Company, Inc., 5 BNA OSHC 1018 (1977); Secretary of Labor v. George A. Hormel Co., 2 BNA OSHC 1190 (1974).*fn5
General Electric has not applied for a variance. The Commission found "no indication that resort to the variance procedure would be inappropriate." General Electric now argues that the Secretary's conduct in pursuing this enforcement action demonstrates that a variance application would be futile and, therefore, inappropriate. We do not accept this argument. The Secretary's vigorous prosecution of this case indicates only that the Secretary is convinced that the standard in question has been violated. Whether the Secretary will grant a variance cannot be known until an application is made. A finding that an exception from the standard should be allowed would not be inconsistent with a finding that the standard has not been complied with. In his thoughtful opinion, ALJ Brennan emphasized that compliance with the standard in question would result in a greater danger to employees than that presented by current practices. General Electric presented both union and management witnesses whose testimony supported this conclusion. Thus, there is no reason to believe that a variance application would be futile or inappropriate.
General Electric argues that exclusion of the "greater hazard" defense under these circumstances is contrary to the purposes of the Act.*fn6 We conclude that the purposes of the Act are furthered by the Commission's decision.
There is no question that Congress' purpose in enacting the Act was "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources . . . ." 29 U.S.C. § 651(b).
Every employer has the initial obligation to make sure that his working areas comply with all applicable standards. If there is reason to believe that compliance with certain standards may jeopardize his employees, a variance should be sought. If a "greater hazard" defense is allowed at an enforcement proceeding without requiring initial resort to the variance procedures or a showing that such resort would be inappropriate, there would be little incentive for an employer to seek a variance under these circumstances.
General Electric contends that an employer who correctly believes that his working conditions are safer than those prescribed in the standards should not be penalized for bypassing the variance procedures and taking his chances that he will not be cited or that he will prevail in an enforcement proceeding. The flaw in this argument is that some employers will believe incorrectly that their working conditions are safer than those prescribed in the standards. By removing this incentive to seek variances, the Commission would be allowing an employer to take chances not only with his money, but with the lives and limbs of his employees. This we cannot do.
The exclusion of the "greater hazard" defense at the enforcement proceeding does not force General Electric to implement procedures which increase the danger to its employees. Counsel for the Secretary made it clear to us at oral argument that General Electric can now apply for a variance.*fn7 Thus while we agree that no employee should be subjected to greater dangers because of an employer's failure to apply for a variance before a citation was issued, we rely on the Secretary's representation, through his counsel, that this will not be the result of our decision today. General Electric has been assessed a penalty of fifty-five dollars for its non-serious violation of 29 C.F.R. § 1910.22(c). Under 29 U.S.C. § 666(d), employers who fail to correct violations for which citations have issued within the period prescribed by the Commission may suffer civil penalties of up to one thousand dollars for each day during which the violation continues. The Commission order specifies no time period within which General Electric must comply with the standard here. We assume that General Electric will be given sufficient time to ...