WILLAMETTE IRON AND STEEL COMPANY

OSHRC Docket No. 12516

Occupational Safety and Health Review Commission

May 13, 1977

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Robert Friel, Assoc. Regional Solicitor

James C. Ingwersen, Willamette Iron & Steel Co., for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A decision of Review Commission Judge Garl Watkins, dated January 6, 1975, is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision vacated a citation which charged respondent with a violation of 29 U.S.C. 654(a)(2) for failure to comply with an occupational safety standard codified at 29 C.F.R. 1915.51(a). For reasons which follow, we affirm the Judge's decision, which is attached hereto as Appendix A. n1

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n1 Chairman Barnako does not agree to this attachment.

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Respondent, a corporation engaged in ship repairing, contracted with the United States Navy to refurbish the U.S.S. Point Defiance. At the time of the alleged violation, respondent had approximately 200 employees using equipment such as welding leads, hoses, etc., doing electrical, [*2] repair, and painting work during the day and swing shifts. There were approximately 400 Navy personnel, not under any supervision or control of respondent, doing similar work and using the same or similar equipment. Although the Navy personnel worked primarily the swing and graveyard (night) shifts, some of them worked during the day shift in the same areas of the vessel as respondent's employees and dressed like respondent's employees. It is not disputed that the equipment was not kept clear of walkways, aisles, or passageways. Respondent contends that these conditions were caused by the Navy personnel. Respondent complained to the Navy about this during "weekly conferences as well as daily." Each time there was a complaint the Navy would correct the situation, but shortly thereafter the poor housekeeping conditions continually reoccurred.

Following an inspection of the vessel on February 7, 1975, respondent was cited for failure to maintain good housekeeping in contravention of 29 C.F.R. 1915.51(a). n2 The manager of respondent's marine division explained the conditions that existed at the time of the inspection as follows:

"In February, the Navy notified us that they were [*3] very anxious to get that vessel, because it had to be deployed on a problem of the Navy's defense program. They asked us to accelerate our program, which we did by going into a 7-day a week program. They also accelerated their own work and went into 7 days. I think as a result of that, trying to comply with their wishes and the work that would have to be accomplished, is one of the reasons we arrived at the situation that [the inspector] found. And this, as far as the Navy personnel was concerned, we felt was an uncontrollable situation, although we did make an attempt to control it." (Emphasis added.)

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n2 That standard provides that:

"Good housekeeping conditions shall be maintained at all times. Adequate aisles and passageways shall be maintained in all work areas. All staging platforms, ramps, stairways, walkways, aisles, and passageways on vessels or dry docks shall be kept clear of all tools, materials, and equipment except that which is in use, and all debris such as welding rod tips, bolts, nuts, and similar material. Hose and electric conductors shall be elevated over or placed under the walkway or working surfaces or covered by adequate crossover planks."

[*4]

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The Judge found that it could be inferred from the evidence that the poor housekeeping conditions were caused by Navy personnel. Evaluating respondent's conduct "in light of the actual conditions facing it at the time" of the inspection, the Judge in vacating the citation found that:

"Respondent used every means reasonably available to it in an unsuccessful attempt to obtain compliance by the Navy and its personnel with the housekeeping standard in question."

The Judge reached the above conclusions after observing the demeanor of the witnesses, evaluating their credibility, and weighing the evidence accordingly. Since his findings are supported by the evidence, it cannot be said that he erred, and under the prevailing circumstances it would be inappropriate for us to reweigh the evidence on review and substitute our own view thereof because a contrary factual finding is also possible. Accordingly, we adopt the Judge's factual findings. See Secretary v. Okland Construction Co., OSAHRC Docket No. 3395, February 20, 1976.

Moreover, the Judge's decision comports with the law as previously [*5] set forth by the Commission in Secretary v. Engineers Construction, Inc., 20 OSAHRC 348 (1975). In that decision, we pointed out that the Act does not make employers the insurers of employee safety. We also stated that:

"Since Congress intended to require elimination only of preventable hazards, an employer is not responsible for unpreventable instances of hazardous conduct by his employees. Simply stated, the employer's duty is qualified by the requirement that it be achievable rather than a mere vehicle for strict liability."

20 OSAHRC at 349 - 350. Therefore, in view of the Judge's factual findings, there was no error in his vacation of the citation.

On review, complainant contends that respondent should have asked for assistance from the Occupational Safety and Health Administration, applied for a variance, hired additional personnel to maintain good housekeeping, withdrew the use of its equipment which it rented and supplied to the Navy, and been more persistent in seeking Navy cooperation. We do not find that any of these contentions have merit. The Navy is not under the jurisdiction of the Occupational Safety and Health Administration n3 and there is no reason to [*6] believe that it could achieve any greater cooperation than respondent was obtaining by its own efforts. Because of this cooperation, it is clear that respondent would not be relieved on a variance application from continuing its efforts to have the Navy take corrective action. See 29 U.S.C. 655(d). Furthermore, respondent should not be required to hire personnel to cleanup a mess made by the ship's crew on their own vessel, and a withdrawal of equipment would result in a work stoppage or slowdown which is not only generally inapproprite, but could have had adverse effects on the Navy's defense program in this particular instance. See Anning-Johnson Co. v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975). Finally, we find it ludicrous for complainant to contend that the daily attempts by respondent to obtain the cooperation of the Navy were not sufficiently persistent.

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n3 29 U.S.C. 652(5).

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Accordingly, the Judge's decision is affirmed.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

I dissent. My colleagues consider [*7] it inappropriate to reweigh the evidence in this case, even though the Commission is clearly empowered to do so under 5 U.S.C. 557 and required to do so under our rule published at 29 CFR 2200.91a(b)(1), 41 Fed. Reg. 53015 (1976). While the majority is free to accept or reject the findings of the Administrative Law Judge, it must at least weigh the evidence, and apply a "preponderance" test. Armor Elevator Co., 1 BNA 1409; 1973-74 CCH OSHD para. 16,958 (Nos. 425 & 426, 1973). We are not a reviewing court applying a "substantial evidence" test. Certainly an Administrative Law Judge's findings are entitled to great weight and may rest upon credibility findings, but they may be rejected by the agency when different and more persuasive inferences may be drawn from the evidence. Adolph Coors Co. v. F.T.C., 34 Ad. L. 2d 174 (10th Cir. 1974).

In this case, the Judge erred in assigning little probative value to crucial testimony by the compliance officer. This is explained below.

It is undisputed that respondent's employees were exposed to tripping hazards created by conditions aboard the U.S.S. Point Defiance that were not maintained in the manner contemplated by [*8] 29 CFR 1915.51(a). The Administrative Law Judge vacated the citation, however, on the ground that respondent was unable to comply with the standard after using every means reasonably available in an attempt to comply. The majority defers to the Judge's decision. My review of the evidence indicates that respondent did not establish that compliance was impossible. Therefore, I dissent from the disposition of this case.

The Judge Found that there was

. . . insufficient evidence to determine whether the materials, equipment and tools claimed by the Secretary to constitute a violation of the standard in question were placed where they were by Respondent's employees . . .; or by Navy personnel. . . . (J.D. n4 18-19)

A contrary finding, however, is supported by a preponderance of the evidence.

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n4 "J.D." refers to the Judge's decision.

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On direct examination, the compliance officer testified that, while he could not be certain as to all items, he had observed certain items -- welding leads and hoses, light and electric [*9] cords, and burning hoses -- being used and improperly left in work areas by respondent's employees. The Judge did not find this unrebutted testimony probative because the employees observed were not identified by name and a few Naval crewmen were working at the time of inspection wearing clothing identical to that worn by respondent's employees and using tools and equipment indistinguishable from that used by respondent's employees. The compliance officer was not impeached in any way. n5 Moreover, there is no evidence indicating that the officer's ability to observe the employees was impaired. The officer had inspected respondent's Portland worksite, the location of the instant inspection, 25 to 35 times during the ten years prior to the instant inspection. He was, therefore, well acquainted with respondent's work practices and employees. Most importantly, however, respondent's marine division manager, who was responsible for the work and conduct of respondent's employees assigned to the Point Defiance, admitted at the hearing that some of the hoses n6 cluttering work areas were used and improperly left by respondent's employees. Fed. Rules Evid. Rule 801(d)(2).

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n5 The Commission generally will not disturb a Judge's credibility finding. Evansville Materials, Inc., 3 BNA OSHC 1740, 1975-76 CCH OSHD para. 20,187 (No. 3444, 1975). As the Judge's rationale indicates, his refusal to accord probative value to the compliance officer's testimony was not a credibility finding, but rests on the reliability of the compliance officer's observation. See generally Fed. R. Evid. 602; McCormick, Evidence 10 (2d ed. E. W. Cleary, et al. 1972). Therefore, no special deference to the Judge's refusal is required.

n6 The uncontradicted evidence establishes that the hoses were used primarily in painting and that the Navy made a special effort to restrict painting by crewmen to the swing and graveyard shifts. In this regard, it is important to note that the instant inspection did not begin until sometime after 9:00 A.M., more than one hour after the day shift began.

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I would hold, therefore, that respondent is at least partially responsible for the creation of the hazardous [*11] conditions. Whether respondent may or may not have been able to obtain the cooperation of the Navy, respondent plainly had a duty to control its own employees.

I would reject respondent's defense of impossibility of compliance for one additional reason. An employer may avoid responsibility for the exposure of its employees to noncomplying conditions if compliance is impossible during the performance of required work. Buckeye Industries, Inc., 3 BNA OSHC 1837, 1975-76 CCH OSHD para. 20,239 (No. 8454, 1975); Robert Setterlin & Sons Co., 4 BNA OSHC 1214, 1975-76 CCH OSHD para. 20,682 (No. 7377, 1976). It is undisputed that respondent did not assign any of its employees to maintain work areas. There is no evidence that maintenance was impossible to perform. Indeed, respondent's employees could have been assigned the task of "cleaning up" work areas before beginning work on the day shift. The task would not make their ship repair work impossible. The fact that this new task might have increased respondent's costs does not make compliance impossible. Taylor Building Associates, 5 BNA OSHC 1083, 1977-78 CCH OSHD para. 21,592 (No. 3735, 1977); Diebold, Inc., 3 BNA [*12] OSHC 1897, 1975-76 CCH OSHD para. 20,333 (No. 6767 etc., 1976). The majority's refusal to require respondent's employees to clean work areas cluttered by equipment and tools used and left by the Navy simply ignores the Commission precedent cited above.