International Union, United Automobiles, Aerospace & Agricultural Implement Workers Of America, UAW v. Osh

938 F.2d 1310 (D.C. Cir. 1991)

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Nature of the Case

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Facts

Representatives of labor and industry challenged a regulation of OSHA (D). The regulation deals with the effects of ordinary industrial equipment that may suddenly move and cut or crush or otherwise injure a worker. Lockout is the placement of a lock on an 'energy isolating device,' such as a circuit breaker, so that equipment cannot start up until the lock is removed. Tagout is the similar placement of a plastic tag to alert employees that the tagged equipment 'may not be operated' until the tag is removed. The present rule extends lockout/tagout to virtually all equipment in almost all industries and requires employers to use lockout procedures during servicing and maintenance unless the employer can show that tagout will provide the same level of safety. The National Association of Manufacturers (P) claims that Congress has given so little guidance for rules issued under Sec. 6(b) but not covered by Sec. 6(b)(5) that as to such rules the Act invalidly delegates legislative authority. Section 6(b)(5) of the Act limits the Secretary's discretion when he is promulgating standards that deal with 'toxic materials or harmful physical agents.' He must adopt 'the standard which most adequately assures, to the extent feasible, ... that no employee will suffer material impairment of health or functional capacity.' The Supreme Court has interpreted this language to require that the proposed standard be both technologically and economically 'feasible.' OSHA interprets Sec. 6(b)(5) as applicable only to 'health' standards. Ps argue that Sec. 6(b)(5) applies to this case.