STRUCTURAL STEEL ERECTORS, INC., d/b/a PECOSTEEL -- ARIZONA
OSHRC Docket No. 1930
Occupational Safety and Health Review Commission
January 22, 1975
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter presents the question whether the hearing judge committed reversible error by finding that Respondent did not, and could not with the exercise of reasonable diligence, know that its managing foreman would leave a skylight opening unprotected contrary to the requirements of 29 C.F.R. 1926.500(b)(4) n1 and of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ). The matter arose out of the following facts.
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n1 The standard provides as follows:
(b) Guarding of floor openings and floor holes. (4) Wherever there is a danger of falling through a skylight opening, it shall be guarded by a fixed standard railing on all exposed sides or a cover capable of sustaining the weight of a 200-pound person.
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Respondent had been engaged to install a roof on a water tank in Tombstone, Arizona. The tank measured 92 1/2 feet across and 22 1/2 feet deep. It was to be roofed [*2] over with corrugated metal sheets capable of supporting the weight of a 200-pound man. It was to be provided with four skylights each measuring 4 by 16 feet. The skylights were to be covered with plastic sheets, and the sheets were incapable of supporting a 200-pound man.
Respondent's vice-president and general manager met with other company personnel before commencement of construction. At the meeting it was recognized that the plastic sheets would constitute a safety hazard and various precautions were discussed. However, no decision regarding safety precautions was made.
Rather, job foreman Bill Manners was assigned to supervise the job, and he was given the authority to determine safety precautions. Manners had complete responsibility for the job, but he was not in attendance at the meeting.
Manners determined that once a plastic sheet was installed it was to be covered by metal sheeting and the metal sheets were temporarily secured by screws. This practice was followed. However, on November 15, 1972, thirteen metal sheets necessary for completion of the job were not delivered. Manners therefore decided to remove the metal sheets then covering the skylights [*3] and place them elsewhere. Manners and an employee performed the job. They returned the next morning and, as was their custom, warned each other of the skylight hazard. A short while later Manners fell through a skylight and was killed. n2
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n2 The dissenting member predicates his opinion upon his own idle speculation. There are no facts of record to support his implied conclusion that Manners was "demented, suicidal or willfully reckless."
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On these facts Complainant issued a citation for an alleged serious violation of the above-noted standard. Respondent contested, and the matter went to hearing. The hearing judge determined that Manners unquestionably committed a serious violation, but he also determined to vacate because the record "does not establish that Respondent's supervisory personnel had actual knowledge of the foreman's actions."
One week later the same hearing judge, in a case having strikingly similar facts, n3 said as follows:
A corporate employer can only operate through its agents and therefore, [*4] its absolute and continuing duty to "comply with occupational safety and health standards, promulgated under this Act" (Section 5(a)(2) of the Act) necessarily has to be delegated to supervisory personnel. This delegation, however, cannot be permitted to relieve the corporate employer of its duty to comply with a particular standard; otherwise, the effectiveness of safety standards would be nullified and the manifest legislative intent to the Act defeated. If a corporate employer entrusts supervisory personnel with the performance of activities which involve compliance with safety and health standards, the employer continues to be responsible for the failure of its supervisors to comply with the standards. This principle is clearly consistent with the Congressional intent to impose on employers "final responsibility" for compliance with the Act (See S. Report No. 91-1282, 91st Cong. 2d Session, pp. 10-11).
The Respondent had assigned the task of setting the two heavy steel beams which required the use of a crane to its foreman. Thereafter, whatever action the foreman took in furtherance of carrying out this work assignment, even action resulting in violation of the [*5] crane standard, must be deemed to have been done within the scope of his employment and imputed to the Respondent. Also just as the foreman's actions on October 2, 1972 must be attributed to the Respondent, so must the foreman's knowledge be imputed to the Respondent.
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n3 Martin Iron Works, Inc., Dkt. No. 1690, currently under review. In Martin Iron, a steel erection foreman had complete responsibility for the job. He overloaded a crane, and the Respondent defended saying it had no knowledge.
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We think his statements are entirely appropriate for resolving this case. Manners was the supervisor in charge and had been so assigned by Respondent. Accordingly, his actions as well as his knowledge must be imputed to this Respondent. C.N. Flagg Company, Inc., No. 1734, BNA 2 O.S.H.C. 1195, CCH E.S.H.G. para. 18,686 (Rev. Com'n., 1974), pet. for review filed No. 74-2362 (2d Cir., October 21, 1974). We will therefore affirm the citation.
Turning now to the matter of an appropriate penalty we note that Respondent [*6] is small in size (its annual gross is $340,000); it has no prior history; and, it appears to have acted in good faith. We find the gravity of the violation to be moderate in that two employees were briefly exposed to the hazard but the consequences were severe. The proposed penalty of $550 is appropriate.
Accordingly, the citation for a serious violation of 29 C.F.R. 1926.500(b)(4) an amended is affirmed, and a penalty of $550 is assessed therefore. The hearing judge's decision to the contrary is reversed. It is so ORDERED.
DISSENTBY: MORAN
DISSENT:
MORAN, CHAIRMAN, dissenting: Judge Cronin decided this case correctly and his decision should be affirmed.
It is not true, as the Commission's decision states, that a foreman's "actions as well as his knowledge" must in all cases be imputed to his employer. n4 A demented, suicidal, or willfully reckless foreman may on occasion circumvent the best conceived and most vigorously enforced safety regime. To hold his employer liable in such instances is to make the employer a victim of liability without fault -- a principle totally inconsistent with the remedial nature and purpose of this Act -- but one which, nevertheless, this Commission [*7] seems to espouse.
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n4 Secretary v. C.N. Flagg & Co., 11 OSAHR 632 (1974), cannot be cited for that proposition since in that case respondent "conceded that the foreman's actions are imputable to Respondent." Footnote 4 of Commissioner Van Namee's opinion in the Flagg case.
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The Commission opinion in this case is consistent with the same author's concurring opinion in Secretary v. National Realty and Construction Company, Inc., 1 OSAHRC 731, at 742-743. In that case he concluded that the employer was in violation because, inter alia, the action the Commission member thought to be wrong was committed by a foreman. This opinion went on to say:
I might have been sympathetic to respondent's defense had the violation been a single infraction of policy by a non-management employee [emphasis added].
The decision in that case was subsequently appealed and reversed. National Realty and Construction Company, Inc. v. OSAHRC, 489 F.2d. 1257 (D.C. Cir., 1973).
[The Judge's decision referred to herein [*8] follows]
CRONIN, JUDGE: This is a proceeding under section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter called the Act) contesting a Citation for Serious Violation and Notification of Proposed Penalty issued by the Complainant on November 28, 1972 against the Respondent under the authority of section 9(a) and 10(a) of the Act.
The citation was issued as a result of an investigation conducted on November 17 at a Respondent workplace at Tombstone, Arizona and alleges that Respondent committed a "serious" violation of 29 CFR § 1926.500(b)(4). The Respondent contests both the alleged violation and the proposed penalty of $550.00.
The alleged violation of 1926.500(b)(4) to be abated "Upon receipt of citation" was described in the citation as follows:
The employer failed to protect, by means of a standard railing or substantial cover, a skylight opening, which exposed employees to the danger of falling through.
The standard as promulgated by the Secretary provides:
(b) Guarding of floor openings and floor holes. (4) Wherever there is a danger of falling through a skylight opening, it shall be guarded by a fixed standard railing [*9] on all exposed sides or a cover capable of sustaining the weight of a 200-pound person.
Pursuant to due notice, this case was heard at Tucson, Arizona on April 24, 1973. Subsequently, both parties filed briefs.
JURISDICTION AND ISSUES
Respondent does not contest Commission jurisdiction of this matter and admits that it is an employer engaged in a business affecting commerce within the meaning of section 3(3), (5) and (6) of the Act.
At the outset of the hearing the complaint was amended to allege that the alleged violation of 29 CFR 1926.500(b)(4) took place on November 16, 1972.
The Complainant called three witnesses to testify: Leon Firestone, a Respondent journeyman ironworker; Raymond Kelley, Respondent's field superintendent; and Robert R. Allen, a compliance officer for the U.S. Department of Labor. Following their direct testimony, Respondent's counsel made a demand for, and the presiding judge ordered, the production of all prior statements made by these witnesses relating to their direct testimony then in the possession of the Department of Labor. The Secretary's counsel respectfully declined on the grounds that whatever witness statements did exist, they would be [*10] in the investigative file and Department of Labor policy prevented him from producing that file even for the review by the judge in camera. Respondent's counsel subsequently made motions to strike the testimony of these three witnesses and the presiding judge reserved decision on these motions. The Secretary concedes in his brief, that trial counsel erred in refusing the judge's in camera inspection of the investigative file and that the Secretary does not oppose Respondent's motions to strike the testimony of witnesses Firestone, Kelly and compliance officer Allen. Respondent's motions to strike, therefore, are granted without objection.
The Respondent in its answer denies all allegations of violation and therefore, the issues to be resolved and determined are:
1. Did the Respondent commit a serious violation as alleged?
2. If the Respondent did, is the proposed penalty of $550.00 appropriate? n1
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n1 Parties stipulated that assessment of a $550.00 penalty would be reasonable in the event a serious violation was found.
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FINDINGS OF FACT
The entire record has been considered and evaluated in its entirety. The facts set forth below are specifically found in resolving the issues in this case.
The Respondent is a commercial steel fabricator and erector in the construction industry.
From October 24 to November 30, 1972 Respondent was engaged in the installation of a corrugated metal roof on the Tombstone, Arizona water tank. At four locations in the roof "skylights" consisting of corrugated translucent plastic panels were installed. These panels would not hold the weight of a 200-pound man.
Before work commenced at the water tank job site a meeting was held in the office of John Willis, Respondent's Vice President and General Manager, attended by various company personnel. It was recognized that the installed corrugated plastic panels would constitute a hazard if a worker stepped on one and Vice-President Willis stated "We're going to have to protect these panels to prevent an accident. Various methods of safety precautions were discussed with no definite decision reached as to the appropriate method.
Job Foreman, William Manners, who was not present at the aforementioned [*12] meeting, was assigned supervision of the work and determined that the following safety procedure would be followed: once a corrugated plastic skylight was put in place it would be immediately covered by two corrugated metal panels which would be temporarily screwed down over the plastic. This procedure would enable employees to safely walk on top of the skylights.
The plastic panels were covered by corrugated metal sheets up until the close of the work day on November 15, 1972. At that point, foreman Manners and employee Firestone, the only Respondent employees at the worksite, had run out of corrugated metal sheets and were exactly 13 sheets short of the amount necessary to complete the roof.
Foreman Manners ordered the removal of the eight metal sheets from the skylight and their installation on the roof. This work assignment took approximately 15 minutes and concluded work on November 15, 1972.
Early on the morning of November 16, 1972, foreman Manners and Mr. Firestone commenced stringing electrical cords across the roof. After Mr. Firestone left the roof to start the electrical generator, Mr. Manners fell to his death through a roof opening of the water tank. [*13] The roof level was 22 feet, 6 1/2 inches from the bottom of the tank.
Each morning prior to commencing work at the water tank foreman Manners would have the work crew remind each other of the necessity to be careful around the skylights. At least several times during each work day foreman Manners would caution each of the crew concerning the skylights.
Foreman Manners was a very stable and safety-conscious individual and had been a Respondent foreman for two years. Respondent's field foremen are responsible for safety and administrative construction procedures.
Vice-President Willis asked and was informed during construction that the skylights were covered and was never informed that they had been left unguarded. It was the Vice-President's intention that the metal skylight covers were to remain in place until the job was completed.
DISCUSSION
On this record, Respondent's foreman unquestionably committed a "serious" violation of 29 CFR 1926.500(b)(4). Under his supervision, four roof skylights, incapable of sustaining the weight of a 200-pound employee, were uncovered and completely unguarded during the late afternoon of November 15 and the early morning of November 16, [*14] 1972. The foreman and one other Respondent employee were exposed to the hazard of falling through these unprotected openings and tragically, the foreman fell to his death.
The more difficult question to be resolved is whether these same facts require a finding that Respondent also was in serious violation of the same safety standard. The answer, of course, depends on whether Respondent knew or could have known with the exercise of reasonable diligence of the foreman's failure to guard the skylights.
This standard places on an employer the burden of guarding skylight openings and this burden can be discharged only if he takes every reasonable precaution to assure their guarding. See, Secretary of Labor v. The Mountain states Telephone & Telegraph Company, This limited and rather meager record does not establish that Respondent's supervisory personnel had actual knowledge of the foreman's actions which violated the standard and created the hazard. Respondent's Vice-President issued orders which resulted in the protection of the skylights and made a later inquiry to determine whether his orders had been executed. The foreman who had been [*15] assigned the construction and safety responsibilities for the Tombstone project was experienced, a "safety-conscious individual" with an excellent safety record. To require that an employer constantly scrutinize work processes under such circumstances would impose a burden not contemplated by the Act. See, Secretary of Labor v. Ira Holliday Logging Company, Inc., On these undisputed facts, it cannot be concluded that Respondent should have anticipated the foreman's actions and exercised a greater degree of supervision. See, Secretary of Labor v. Hanovia Lamp Division,
We find that, because the Respondent employed reasonable diligence in this case and was unaware that the skylights were unguarded, Respondent was not in violation of 29 CFR 1926.500(b)(4) on November 15 and 16, 1972.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commercial steel fabrication, a business affecting commerce within the meaning of section 3(5), and obliged to comply with those standards promulgated under Part 1926, Title 29, of the Code of Federal Regulations.
2. On November 15 and 16, 1972, the Respondent was [*16] not in violation of 29 CFR § 1926.500(b)(4).
ORDER
Based on the foregoing findings, conclusions of law and the entire record, it is ORDERED that:
1. The Citation for Serious Violation, as amended, issued November 23, 1972, and the proposed penalty based thereon, is hereby VACATED.