131310P.pdf   10/13/2015  Thomas E. Perez  v.  Loren Cook Company
   U.S. Court of Appeals Case No:  13-1310
   Petition for Review of an Order of the Occupational Safety & Health Review Commi   
   [PUBLISHED] [Shepherd, Author, for the Court En Banc] 
   Petition for Review of an Order of the Occupational Safety & Health Review 
   Commission. In this action the Secretary of Labor found the employer had 
   violated 29 C.F.R. Sec. 1910.212(a)(1) by failing to provide barrier 
   guards on a lathe; in the incident in question a twelve-pound work piece 
   rotating on a lathe broke free and struck and killed a worker; the 
   Secretary's interpretation that the Section included catastrophic failure 
   of lathes which result in ejection of a workpiece was not entitled to 
   deference for three reasons: (1) the interpretation strains a common-sense 
   reading of the regulation which covers hazards such as those created by 
   flying chips and sparks; (2) the Secretary failed to provide any evidence 
   that he had consistently interpreted the Section to cover the ejection of 
   large objects from a lathe; and (3) the interpretation created an unfair 
   surprise to the employer; as a result, this Section does not apply to the 
   conduct for which the Secretary cited the employer, and the Secretary's 
   petition for review of the Commissions order is denied. Judge Melloy, with 
   whom Judge Murphy,Bye and Kelly concur, dissenting. 
  
131310P.pdf   05/09/2014  Thomas E. Perez  v.  Loren Cook Company
   U.S. Court of Appeals Case No:  13-1310
   Petition for Review of an Order of the Occupational Safety & Health Review Commi   
   [PUBLISHED] [Melloy, Author, with Murphy and Shepherd, Circuit Judges] 
   Petition for Review - OSHA. When the Secretary of Labor and the 
   Occupational Safety & Health Review Commission advocate competing 
   reasonable interpretations of the same regulation, the Secretary's 
   interpretation merits deference pursuant to Martin v. Occupational Safety 
   & Health Review Commission, 499 U.S. 144 (1991); the Secretary's 
   interpretation of 29 C.F.R. Sec. 1910.212(a)(1) regarding machine guarding 
   was reasonable and textually supported and was entitled to deference, and 
   the ALJ and the Commission erred in rejecting it; remanded for further 
   proceedings. Judge Shepherd, dissenting.