PACKERLAND PACKING CO, OF TEXAS, INC.
OSHRC Docket No. 13315
Occupational Safety and Health Review Commission
November 17, 1977
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Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor
Joseph A. Hoida, for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Commissioner:
In this case Judge Robert N. Burchmore found that Respondent committed a serious violation of 29 C.F.R. 1910.252(d)(1), n1 1910.252(d)(2)(ii), n2 and 1910.252(d)(2)(xiii)(c), n3 but that Complainant failed to prove a violation of 1910.252(d)(2)(ix). n4 On review Respondent argues that it did not have knowledge of the existence of the violations within the meaning of the act. n5 For the reasons that follow we affirm Judge Burchmore's decision.
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n1 Section 1910.252(d)(1) states:
(d) Fire prevention and protection --
(1) Basic precautions. For elaboration of these basic precautions and of the special precautions of subparagraph (2) of this paragraph as well as a delineation of the fire protection and prevention responsibilities of welders and cutters, their supervisors (including outside contractors) and those in management on whose property cutting and welding is to be performed, see Standard for Fire Prevention in Use of Cutting and Welding Processes, NFPA Standard 51B, 1962. The basic precautions for fire prevention in welding or cutting work are:
(1) Fire hazards. If the object to be welded or cut cannot readily be moved, all movable fire hazards in the vicinity shall be taken to a safe place.
(ii) Guards. If the object to be welded or cut cannot be moved and if all the fire hazards cannot be removed, then guards shall be used to confine the heat, sparks, and slag, and to protect the immovable fire hazards.
(iii) Restrictions. If the requirements stated in subdivision (i) and (ii) of this subdivision cannot be followed then welding and cutting shall not be performed.
n2 Section 1910.252(b)(2)(ii) states:
(ii) Fire extinguishers. Suitable fire extinguishing equipment shall be maintained in a state of readiness for instant use. Such equipment may consist of pails of water, buckets of sand, hose or portable extinguishers depending upon the nature and quantity of the combustible material exposed.
n3 Section 1910.252(d)(2)(xiii)(c) states:
(xiii) Management. Management shall recognize its responsibility for the safe usage of cutting and welding equipment on its property and:
(c) Insist that cutters or welders and their supervisors are suitably trained in the safe operation of their equipment and the safe use of the process.
n4 Section 1910.252(d)(2)(ix) states:
(ix) Combustible walls. Where cutting or welding is done near walls, partitions, ceiling or roof of combustible construction, fire-resistant shields or guards shall be provided to prevent ignition.
n5 The Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq.
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Respondent operates a meat packing plant at Pampa, Texas. On April 15, 1975, Respondent was engaged in connecting a new cooler to an existing freezer and cooler. As part of the work it was necessary to make openings in the wall of the old cooler for the passage of a moving chain. On the night of the 15th, while Respondent was making an opening in the old wall, a flash fire occurred. As a result of this fire, Dalton, a company welder, started to run to a telephone to call the fire department. After the fire was extinguished, Dalton's body was discovered on the premises. The exact cause of his death does not appear in the record. The parties simply stipulated that he ran into a structural support and was found deceased in the building.
The wall of the old cooler consisted of an inner and outer surface of sheet metal with a four inch layer of polyurethane foam attached to the outer surface. The inner and outer surfaces were separated by 12 inch structural steel members. At the time of the fire, Dalton was using an oxy-acetylene cutting torch to make an opening in the sheet metal which had been [*3] the outer surface of the old cooler. Before attempting to cut the opening in the outer surface of sheet metal, the inner surface of sheet metal in the old cooler had been cut away with a saw, and the area of the old cooler where the opening was to be cut had been stripped of insulation by Dalton and another employee, Guerra.
On April 14th, the day before the fatality, a similar flash fire had occurred while a hole was being cut in the wall of the new cooler. The fire was quickly extinguished with wet shrouds and Sherman, the employee doing the cutting, promptly notified Respondent's lead man Hodges of the incident. n6
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n6 Hodges testified that he had thought it was only a fire in the styrofoam insulation around the cutting area, and that he did not think the matter should be reported. However, according to Sherman, Hodges had viewed the area following the first fire and observed that the styrofoam insulation had been stripped back. Sherman also testified that he saw the fire up in the polyurethane insulation on the ceiling, and that both he and Hodges saw the smoke and smelled the strong odor of the burning insulation. The Judge credited the testimony of Sherman over that of Hodges and found that Hodges knew of the first fire's exact location in the polyurethane insulation in the ceiling. The Judge's evaluation is supported by the record and we accept it. Okland Construction Co., 76 OSAHRC 30/F4, 3 BNA OSHC 2023, 1975-76 CCH OSHD para. 20,441 (No. 3395, 1976).
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Polyurethane foam of the type used as insulation in the old cooler is combustible, and will ignite at a temperature of approximately 700 degrees Farenheit. If beat is indirectly applied to the material, gases are given off which will ignite at a somewhat lower temperature. When the torch was used to cut through the wall of the old cooler, heat was indirectly applied to the polyurethane, causing gases to be given off and to accumulate near the ceiling of the old cooler. At some point, the gas was ignited and the flash fire occurred.
Dalton and the lead man, Hodges, were trained and qualified welders who had been instructed in the use of welding and cutting equipment. However, other than instructions to strip the insulation away from the opening, no specific instructions had been given to the crew regarding the safe use of the cutting torch in the area it was being used. Instead, Respondent issued general instructions to work safely and relied on its employees to apply their knowledge of safety acquired from experience. Hodges was given the overall responsibility for seeing that welding work was [*5] performed in a safe manner and his supervisors relied upon him to carry out this duty.
Respondent did not determine whether any combustible materials or hazardous areas existed in the work location where the cutting torch was being used. No one had been assigned as a firewatch at the time the cutting work was being done. The welding equipment was equipped with a small fire extinguisher which was incapable of controlling the flash fire. No other suitable fire extinguishing equipment was immediately accessible to the work crew nor was the plant equipped with any type of sprinkler system. However, Respondent did have on hand fire extinguishers at the entrance and exits of the old cooler.
None of the members of the crew were aware of either the combustible properties of polyurethane foam or that combustible gases could be produced by the indirect application of heat to such foam. Moreover, the Judge found that, at the time of the fatal fire, the combustible nature of polyurethane foam had only been recently discovered and was not a matter of common knowledge outside of the plastics industry.
Judge Burchmore ruled, however, that constructive knowledge, or lack of diligence, was [*6] shown by the fact that a fire of similar origin had occurred the day prior to the fatal fire, yet no action was taken to determine the cause or to prevent a recurrence. The Judge held that "the employer stands in the shoes of the lead man and his knowledge of the (first) fire is imputed to the employer." Supra note 6. The Judge also pointed out that Section 1910.252(d)(2)(xiv)(b) n7 requires the supervisor to determine whether any combustible materials are present before undertaking welding or cutting with a torch. In finding that Respondent had constructive knowledge of the violative conditions, he did not rely on any finding that Respondent should have attempted to learn of the combustibility of polyurethane insulation from the mere presence of the material in the cooler.
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n7 Section 1910.252(d)(2)(xiv)(b) states:
(xiv) Supervisor. The Supervisor:
(b) Shall determine the combustible materials and hazardous areas present or likely to be present in the work location.
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On review, Respondent contends that it [*7] did not know of the combustible characteristics of polyurethane or the occurrence of the fire the day prior to the fatal fire. Regarding the latter contention, Respondent maintains that the lead man, Hodges, did not represent management for the purposes of imputing knowledge. Respondent also argues that the fatal fire could have been prevented only by taking unreasonable precautions and that its employees were adequately trained. Finally, Respondent contends that the Judge erred in failing to reduce the proposed penalty since he vacated one of the four items of the citation. n8
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n8 The Judge vacated the alleged violation of 1910.252(d)(2)(ix), which requires fire-resistant shields or guards when cutting or welding is performed near walls. See fn. 4. Neither party has taken exception to the Judge's disposition of this charge, and consequently it is not before us.
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Before addressing Respondent's contentions, it is useful to summarize the relevant regal principles involved in a case of this type.
The Act does not [*8] impose strict liability; an employer is only responsible for hazards it can prevent. n9 An employer lacking either actual or constructive knowledge of a condition which contravenes a standard cannot be expected to prevent that condition, and therefore has not violated the standard. n10 Green Const. Co. & Massman Const. Co., 76 OSAHRC 134/D9, 4 BNA OSHC 1808, 1976-77 CCH OSHD para. 21,235 (No. 5356, 1976) (lead and concurring opinions). Furthermore, the Secretary has the burden of proving that an employer had either actual or constructive knowledge of a violative condition. n11 Green Const. Co., & Massman Const. Co., supra.
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n9 See Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541 (3rd Cir. 1976); Horne Plumbing & Heating Co. v. OSHRC, 528 F.2d 564 (5th Cir. 1976); National Realty & Const. Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973); Ocean Electric Corp., 75 OSAHRC 6/C14, 3 BNA OSHC 1705, 1975-76 CCH OSHD para. 20,167 (No. 5811, 1975), affirmed, No. 76-1060, 4th Cir., August 2, 1977.
n10 Constructive knowledge, as used here, is knowledge which would be gained by the exercise of reasonable diligence. Thus, if an employer does not have actual knowledge of a violative condition, it is nevertheless responsible under the Act unless it exercised reasonable diligence to discover that condition.
n11 In general, the Secretary has the burden of proving all necessary elements of a violation. 29 C.F.R. 2200.73(a); See 5 U.S.C. 556(d).
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One manner in which the Secretary can make a prima facie case of employer knowledge is to show that a supervisory employee had either actual or constructive knowledge of the violative condition. Ocean Electric Corp., supra note 9. The employer may the rebut the prima facie case by showing that it had implemented an effective safety program, including adequate training of the supervisor with knowledge of the violation, and thereby took all reasonable steps to prevent the violation. Ocean Electric Corp., supra; Horne Plumbing & Heating Co. v. OSHRC, supra note 9.
In this case, Respondent only violated the cited standards if it knew or should have known that polyurethane was combustible. As the Judge found, Respondent could only have gained such knowledge through Hodges' knowledge of the fire on the day before the fatal accident.
Respondent contends that Hodges did not represent management, and that his knowledge should therefore not be imputed to Respondent. We reject the argument. Hodges had the authority and responsibility to assure that the cutting operation was completed successfully. [*10] Respondent specifically instructed him to see that the work was done safely. Hodges is thus the type of supervisor whose knowledge is normall imputed to his employer. Iowa Southern Utilities Co., 77 OSAHRC 32/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD para. 21,612 (No. 9195, 1977). See Ocean Electric Corp., supra. By showing that Hodges knew or should have known of the first fire, the Secretary established a prima facie case that Respondent knew or should have known that the cited standards were violated.
Respondent essentially claims that it rebutted the prima facie case by showing that the fatal fire could only have been prevented by taking unreasonable precautions and that its employees were adequately trained. We do not agree. Respondent has not shown that it established any work rules concerning fire protection during welding or cutting operations, but has only shown that it gave its employees generalized instructions to work safely. That is not sufficient to establish that Respondent exercised reasonable diligence to prevent the violations. See Brennen v. Butler Lime & Cement Co., 520 F.2d 1011, (7th Cir. 1975); Ocean Electric Corp., supra.
We turn now [*11] to the assessment of an appropriate penalty. Respondent, a large employer, has a history of one prior citation and has acted in good faith. The gravity of the violations taken together is high. Although one item of the citation was vacated, the alleged violations are interrelated rather than independent charges. Thus, the gravity was not diminished by the vacation of the one item. We conclude that a penalty of $600 is appropriate. See Dreher Pickle Co., 73 OSAHRC 4/D10, 1 BNA OSHC 1132, 1971-73 CCH OSHD para. 15,470 (No. 48, 1973).
Accordingly, the Judge's decision is affirmed.
CONCURBY: CLEARY
CONCUR:
CLEARY, Chairman: CONCURRING
I concur with my colleague in affirming the Judge's decision. The Judge correctly imputed the lead man's knowledge to respondent. Iowa Southern Utilities, supra; Ocean Electric Corp., supra; Kansas Power & Light Co., 77 OSAHRC 39/A2, 5 BNA OSHC 1202, 1977-78 CCH OSHD para. 21,696 (No. 11015, 1977). Respondent's failure to comply with the involved standards was proved.
I write separately only to clarify whether respondent's evidence of its safety program is a matter of rebuttal of the Secretary's prima facie case or an affirmative defense [*12] of unpreventability. I read the cited cases as characterizing "unpreventability" as an affirmative defense in avoiding a regulatory duty. For an indication of the importance of this distinction, see Fed. Rule Evid. 301 and Wigmore On Evidence § § 2485-9 (3d ed. 1940).
Consistent with the cited Commission precedent, I conclude that respondent failed to establish the defense that it adequately trained and supervised its supervisor. Because respondent did not do all that was necessary to prevent the violation, the supervisor's knowledge is imputed to respondent and the citations are affirmed. n12
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n12 On the broader issue of which party bears the burden of proving knowledge of a violation, it is my view that the Commission should re-examine its holding in Green Constr. Co. and Massman Constr. Co., supra.
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