ROYSTER COMPANY
OSHRC Docket No. 13331
Occupational Safety and Health Review Commission
November 30, 1977
[*1]
Before CLEARY, Chairman; BARNAKO, Commissioner
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Marshall Harris, Regional Solicitor
William E. Rachels, Jr., for the employer
OPINIONBY: BARNAKO; CLEARY
OPINION:
DECISION
BARNAKO, Commissioner:
On December 15, 1975, Administrative Law Judge William E. Brennan found that Respondent (Royster) failed to comply with the safety standard published at 29 C.F.R. 1926.451(a)(4), n1 but that the violation was not willful as alleged by the Secretary. He assessed a penalty of $800. The issue is whether Royster's violation of the standard was willful. I would affirm the Judge's decision and Chairman Cleary, for the reasons stated in his separate opinion, would remand the case. In order to resolve the impasse, we agree to affirm the Judge's decision. See Life Science Products Co., No. 14910 (Nov. 11, 1977).
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n1 The standard states in pertinent part:
Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor . . . .
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On April 22, 1975, Royster's maintenance foreman Whitley told maintenance employees Landers and Rogers to weld six joints of black iron pipe that had been mounted about twenty feet above ground on the exterior wall of one of Royster's storage buildings. After hearing that the welding was to be accomplished from a platform consisting of wooden pallets nailed together and placed on the tongues of a forklift, Landers refused to perform the work. Landers testified that he told Whitley that working on top of the forklift was unsafe and that the iron pipe was mounted in rotten windowsills and might fall and strike an employee. Whitley then sought his supervisor, Flowers, to whom Landers repeated his concern. Landers was offered a ladder from which to work, n2 but he refused, stating that the welding was a two man job. Flowers then sent Landers home for the day, at which time Landers left and called OSHA's Norfolk district office.
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n2 Royster's witnesses Whitley and Flowers testified that Landers did not specify that the forklift platform was unsafe but rather directed his complaints toward the use of a ladder. Judge Brennan did not resolve the conflict in the evidence and determine whose testimony was credible. Rather, the Judge found that, even if Landers' testimony is accepted as true, Royster's violation was not willful since it did not have sufficient notice that it had violated a standard.
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The same day OSHA Compliance Officer Whilson visited Royster's worksite. He observed one of Royater's forklift trucks, with its forks raised to their limit, upon which nine wooden pallets were stacked. The pallets were pressed against the side of the storage shed, and a welder was working atop the pallets. The working surface was eighteen feet seven inches above the ground. The top pallet was not equipped with guardrails or toeboards.
Judge Brennan found that the welder observed by the compliance officer was not an employee of Royster, but rather was an employee of an independent contractor who supplied Royster with welding services pursuant either to a written contract or a verbal agreement. However, Whitley also testified that he and Rogers worked atop the fork lift for 30 minutes under conditions similar to those observed by the compliance officer. Using Whitley's testimony to establish that Royster's employees had access to the hazard, n3 Judge Brennan found that Royster violated the cited standard.
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n3 Royster contends that the Judge erred in relying on this evidence. It argues that the Secretary did not indicate prior to the hearing that the violation lay in the use of the platform by Whitley and Rogers. The citation and complaint, however, alleged that Rovster failed to provide protection "for an employee under his direct supervision who was working from an open-sided platform." This allegation is sufficient to encompass the use of the platform by Whitley and Rogers. Furthermore, since the pleadings did not identify the employee alleged to be exposed, Royster could not have reasonably relied in preparing for the hearing on the assumption that the violation lay solely in the exposure of the welder's employee. Thus, Royster's technical argument that the proof did not conform to the pleadings is rejected.
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While investigating its plant, Whitson spoke to Royster's safety officer Scott about its safety program. Scott informed Whitson that he had attended an OSHA record keeping seminar, and that he conducted regular safety inspections and periodic training sessions with employees. Royster's OSHA records appeared to be in order. During a subsequent visit to Royster's plant, Whitson evaluated the following factors of its safety program, assigning the highest rating of "effective" to each: "Employer responsibility; Employee participation; Employee training; Protective equipment; and Housekeeping and first aid."
Judge Brennan, in holding that the violation was not willful, noted that Landers did not inform Whitley or Flowers that the platform was in violation of the Act or any standard, but merely said it was unsafe. He declined to infer that Royster should have known it was violating a standard simply because Landers complained of a possible unsafe working condition. He added that, even if the hazard presented by the unguarded platform was "obvious," it was not obvious that the condition of the platform [*5] was contrary to a particular standard. Finally, the Judge concluded that Royster's safety program showed that it had not demonstrated plain indifference to the requirements of the Act.
I agree with Judge Brennan's finding that Royster did not intentionally disregard the Act or demonstrate plain indifference to its requirements. Kent Nowlin Construction, Inc., 77 OSAHRC 22/A2, 5 BNA OSHC 1051, 1977-78 CCH OSHD para. 21,550 (No. 9522, 1977); Intercounty Construction Company v. OSHRC, 522 F.2d 777 (4th Cir. 1975). An employer need not accept an employee's opinion that a hazard exists, but may in good faith reach a different conclusion. Cf. C.N. Flagg & Co., 75 OSAHRC 32/C6, 2 BNA OSHC 1539, 1974-75 CCH OSHD para. 19,251 (No. 1409, 1975). In this case, there is no reason to conclude that Royster acted in bad faith. Even accepting Landers' testimony as accurate, his complaint was framed in general terms and he was ambiguous concerning the nature of the hazard. n4 Nor was the hazard so obvious that Landers' complaint should have put Royster on notice that it was violating a standard n5 or acting in reckless disregard of a known hazard. Simply because a standard assumes [*6] that a hazard exists if certain precautions are not taken n6 does not mean that the hazard is therefore obvious to employers. If that were the case, every violation of a standard requiring use of guardrails would have to be considered willful if the absence of guardrails is known to the employer.
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n4 Since Judge Brennan did not determine whether Landers' testimony was credible, see note 2 supra, his testimony cannot be fully credited to the extent that a conflict in the evidence exists. Evansville Materials, Inc., 3 BNA OSHC 1741, 1975-76 CCH OSHD para. 20,187 (No. 3444, 1975). However, I note that Landers' alleged complaint to Whitley and Flowers, if accepted as true, did not state in any detail why the platform was unsafe or mention that a standard might have been violated. Indeed, much of Landers' complaint centered upon the possibility of an iron pipe falling from its mountings, a condition for which Royster did not receive a citation.
n5 I also note that although Royster was cited for violating a construction standard, it is arguable that Royster was engaged in maintenance and repair work rather than construction.
n6 See Dic-Underhill, A Joint Venture, 76 OSAHRC 41/A2, 4 BNA OSHC 1051 1975-76 CCH OSHD para. 20,563 (No. 3257, 1976); Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864 (10th Cir. 1975).
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Royster contends that the Judge's penalty assessment is excessive. I conclude that the assessment of $800 is appropriate for the reasons the Judge assigned, and Chairman Cleary concludes that a penalty of at least that amount should be assessed. Royster's contention is therefore rejected.
Accordingly, the Judge's decision is affirmed, and is accorded the precedential value of an unreviewed Judge's decision. Life Science Products Co., supra.
CLEARY, Chairman, SEPARATE OPINION:
I would expressly reject the Judge's conclusion that an employer must be aware that it is violating a specific provision of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (hereinafter "the Act") or a specific safety standard before a willful violation is established. In Georgia Electric Co., 77 OSAHRC 30/A2, 5 BNA OSHC 1112, 1977-78 CCH OSHD para. 21,613 (No. 9339, 1977), petition for review docketed, No. 77-1916 (5th Cir., May 3, 1977), the employer's project manager, job superintendent, and foreman were all unaware of OSHA requirements. The violations were held to be willful, [*8] however, because of the foreman's actual knowledge of the hazard associated with erecting light poles in proximity to energized power lines and his careless disregard of that hazard. Here, an inference of an awareness of the hazard posed by the absence of guardrails may be drawn because guardrails had been installed on a steel pallet that could have been used instead of the makeshift platform. n7
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n7 Supervisor Flowers testified that a "steel pallet with handrails on it" was available for use with the forklift.
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Therefore, although Royster's foreman and supervisor may have been unaware of specific OSHA standards requiring guardrails, this does not necessarily mean there is no willful violation. Because of the Judge's error, findings of fact should be made concerning Landers's conversations with his supervisors. In Able Contractors, Inc., 12931 (October 13, 1977), the Commission remanded the case to the Judge for findings of fact, including credibility findings, concerning the willfulness of the violation.
Here, [*9] in light of the erroneous basis upon which the Judge concluded that the violation is not willful, along with the absence of credibility findings regarding conflicting testimony relevant to the willfulness of the violation, the case should similarly be remanded for findings by the Judge.
In addition, I note that the makeshift platform consisted of nine wooden pallets placed on the forks of a forklift raised to a height of approximately 18 feet. I also note the Judge's findings that the makeshift platform was "obviously hazardous" and that "the falling hazard presented by such rig [was] obvious." Royster's indifference to the obvious falling hazard should be compared with Williams Enterprises, Inc., 4 BNA OSHC 1663, 1976-77 CCH OSHD para. 21,071 (No. 4533, 1976). In Williams, the Commission found that the existence of a recognized hazard n8 at an employer's worksite was not a willful violation of the Act because:
Respondent, on the facts before us, was not indifferent to the hazard. It did not choose to ignore completely the precarious situation. Instead, respondent made an attempt, albeit inadequate, to steady the large counterweight on the inclined street surface. We [*10] conclude that this effort removes respondent's action from the pale of willful activity. . . .
Here, the extent to which Landers discussed the hazard with his supervisors may be determinative as to whether respondent willfully disregarded the hazard.
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n8 Under section 5(a)(1) of the Act, the "general duty clause," an employer has a duty to furnish his employees a place of employment free from recognized hazards likely to cause death or serious physical harm. An employer is subject to this duty when no promulgated standards apply. See National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1261 (D.C Cir. 1973).
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