SECRETARY OF LABOR,
Complainant,

v.

TODD SHIPYARDS CORPORATION,
Respondent.

OSHRC Docket No. 77-1598

DECISION

Before:  CLEARY and BUCKLEY, Commissioners.

CLEARY, Commissioner:

The Secretary of Labor alleges that Todd Shipyards (hereinafter "Todd") committed serious violations of OSHA shipyard standards by failing to guard certain deck openings and by permitting employees to enter an inadequately illuminated area.  The citations were issued following a fatal accident in which a Todd employee fell into an unguarded hatch on a ship undergoing repair work at Todd's Alameda, California shipyard.  Administrative Law Judge Jerry W. Mitchell found that the violative conditions occurred as alleged, but vacated the citations upon finding that Todd did not and could not, with reasonable diligence, know that employees would be in the area where the conditions existed.  The case is before the Commission for review pursuant to section 10(c), 29 U.S.C. 659(c), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678.  We reverse the judge's decision, affirm the citations, and assess a penalty of $1500.

I
The vessel on which the alleged violations occurred was a cargo ship, the S.S. Pioneer Contractor.  Below the ship's main deck were cargo holds, which were divided into levels by other decks.  On May 2, 1977, Todd was doing scaling work in the wing tanks on the upper tween deck level of cargo hold #3.  The upper tween deck level is the level immediately below the main deck.  Access to the upper tween deck level of cargo hold #3 could be gained by either fore or aft ladders leading from manhole openings on the main deck.  Todd had begun working in cargo hold #3 about one week before May 2, 1977.

The upper tween deck level of cargo hold #3 was approximately 65 feet long.   It contained six hatches, three in the forward end of the hold and three in the aft end.  The forward hatches were closed, but the aft hatches were open.  The forward end of the compartment was adequately illuminated, but the aft end was dark.   The entrance to the wing tanks in which the work was being done was near the forward ladder.  Thus, employees entering the wing tanks by descending to the upper tween deck by means of the forward ladder would not be exposed to open hatches and would have adequate illumination.  However, if employees used the aft ladder for access to the upper tween deck, they would have to walk past the open hatches in the unlighted aft end of the hold to reach the wing tanks.  The walkways between and around the open hatches were approximately 3 to 5 feet wide.  Prior to May 2, the aft manhole cover providing access to the aft ladder leading to the open aft hatches had been closed and bolted shut.

Todd had two shifts of workers on the S.S. Pioneer Contractor:  a day shift and an evening, or swing, shift.  Each crew of several workers was directed by a leadman.  A day-shift crew under the direction of leadman McClure was assigned to perform the scaling work in the cargo hold #3 wing tanks.  McClure had been instructed by Ball, an assistant superintendent, to use the forward entrance to cargo hold #3, and McClure and his crew complied with that instruction.  Following the day shift on May 2, 1977, a swing shift crew headed by leadman Terrell prepared to continue the scaling work.  Terrell had been with Todd for 25 years.  This crew had not previously worked in cargo hold #3.  The record does not reflect that Terrell was instructed to enter the hold only by the forward ladder, as McClure had been.

At the start of the swing shift on May 2, 1977, the manhole cover to the forward ladder was open.  The aft manhole cover was closed and bolted shut when the day shift superintendent inspected it at the end of the day shift.  The record is silent as to when, by whom, and why the aft manhole cover was unbolted and opened.   In any event, Terrell led his crew to the upper tween deck level of cargo hold #3 by way of the aft ladder.  In order to reach the wing tanks from the base of the ladder, the crew had to climb through wooden cargo shoring at the aft end of the hold and walk past the unguarded hatches.  Having gained access to the wing tanks by this route, the crew commenced work.  Terrell shortly thereafter left the cargo hold by way of the forward ladder.  While Terrell was gone, a quarterman, Chatman, instructed the members of the crew to work in another area.  The crew members then left the cargo hold by climbing the forward ladder.

After their lunch break, the crew, including Terrell, prepared to resume work.  They assembled on the main deck near the aft ladder at about 9:00 p.m., again descended that ladder, and proceeded toward the forward end by walking past the unguarded hatches. Terrell had a flashlight, but the other crew members did not.  After proceeding a few feet along one of the walkways between two of the open hatches, Terrell fell into one of the openings.  He fell a distance of 30 feet and suffered fatal injuries.

Three members of Terrell's crew, Johnson, Ward, and Cockerham, testified that they had not received instructions on how to enter or exit cargo hold #3.  Ward recalled being advised in safety meetings not to enter inadequately lighted areas, but Johnson and Cockerham stated that they had not received similar instructions.  All three employees testified that they had not been warned to avoid walking past unguarded openings that presented a falling hazard.  Johnson testified that the day of the accident was the first time he had been on the ship's upper tween deck level, and that he did not know there was a forward ladder to enter hold #3 before they had entered the wing tank.  Johnson further testified that Terrell would always check out an area in which the crew was to work to be sure the area was safe.

Todd had a safety program consisting of safety training for all employees as well as daily inspections of all jobs at the Alameda shipyard by a safety coordinator.   All new employees received an initial safety indoctrination.  Safety meetings for employees in each craft were held weekly, and there was a monthly meeting for all foremen and department heads.  At these monthly meetings, various safety issues were reviewed, and foremen were encouraged to keep stressing safety on the job.  Monthly safety meetings of management representatives with the shop stewards of the unions representing Todd employees were also held.  Todd gave each new employee an information handbook containing both safety rules and general employment policies.   Among the safety rules were instructions to arrange for more lighting if working in an inadequately lighted area, and to guard all openings into which persons could fall.

The employee information handbook also spelled out the role of the leadman in the company's safety program:

The Leadman, because he is the primary group leader, is the key man in preventing accidents.  He must be sure that every person in his crew thoroughly understands how to work safely.  Whenever a new man is added to his crew the Leadman must instruct the worker on the proper type of personal Safety equipment to be worn, safe methods and safe practices in doing the work.  The Leadman is responsible for hazardous conditions in his work area, particularly those that are created by his own crew.  He is to see that hoses, leads, loose materials, tools, etc., are not left in passageways or walk ways, that openings are roped off or covered over, staging kept clear of litter and in general be certain that there are no unnoticed hazards that could cause an accident.

If it is apparent that an existing hazard was caused by or must be corrected by another Craft, then the Leadman will contact this Craft in order to get it corrected.  If he is unable to get the necessary action in having the hazard removed, he is to report the hazard to his Foreman as soon as possible.  The Foreman will carry on from there, but in the event he is also unable to obtain cooperation from the responsible Craft, he is to turn the problem over to the Safety Department for proper action.

Leadman McClure testified that he supervised ten or twelve laborers, who were divided into several crews.  He would constantly make rounds to check on the different crews.  He would work with a particular crew if a job had to be completed right away. McClure usually spent two or three hours a day working with the crews, and the remainder of the shift making his rounds.

II
The citations alleged that Todd violated 29 C.F.R. 1915.43(c) and 1915.52(a) and (e).   These standards provide:[[1]]

1915.43 Guarding of deck openings and edges.

* * *
(c) When employees are exposed to unguarded edges of decks, platforms, flats, and similar flat surfaces, more than 5 feet above a solid surface, the edges shall be guarded by adequate guardrails meeting the requirements of 1915.41(i)(1) and (2), unless the nature of the work in progress or the physical conditions prohibit the use or installation of such guardrails.

1915.52 Illumination.
(a) All means of access and walkways leading to working areas as well as the working areas themselves shall be adequately illuminated.
* * *
(e) Employees shall not be permitted to enter dark spaces without a suitable portable light.  The use of matches and open flame lights is prohibited.

Todd did not dispute that the means of access to the wing tanks used by Terrell's crew violated these standards, but argued to the judge that the company did not and could not, with reasonable diligence, know its employees would use that means of access.  Todd pointed out that, prior to the swing shift on May 2, 1977, all employees entering the upper tween deck of cargo hold #3 had used the forward entrance, which complied with the standards.  It argued that Terrell was not a supervisor, and that no Todd supervisor knew or could have anticipated that employees would use the aft entrance to the hold, particularly since access to the hold from the aft ladder was blocked by cargo shoring.  Todd contended that it exercised reasonable diligence in inspecting the ship for safety hazards and that it should not be held responsible for the unforeseeable series of events that culminated in the accident. Judge Mitchell agreed with Todd's arguments and vacated the citations.  In reaching his decision, the judge specifically found that Terrell was not a supervisor whose actions and knowledge should be imputed to his employer.

On review, the Secretary takes exception to the judge's finding that Terrell was not a supervisor.  The Secretary argues that prior Commission decisions have found employees with authority similar to Terrell's to be supervisors whose actions and knowledge are imputed to their employers.  The Secretary points out that Terrell exercised substantial control over work assignments and in instructing workers in the proper manner of completing those assignments.  According to the Secretary, the manner in which the leadman carries out his duties directly affects the safety and health of workers, and workers must depend on the leadman to protect them from unsafe working conditions.  Therefore, the Secretary argues, the leadman must be considered a supervisor for purposes of the Act.  Todd, on review, renews the arguments it made before the judge and urges that the judge's decision be upheld.

III
In order to prove that an employer violated the Act, the Secretary must show, among other things, that the employer knew or could have known of the noncomplying condition with the exercise of reasonable diligence.[[2]]  Prestressed Systems, Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD 25,358 (No. 16147, 1981).  Because corporate employers can only obtain knowledge through their agents, the actions and knowledge of supervisory personnel are generally imputed to their employers, and the Secretary can make a prima facie showing of knowledge by proving that a supervisory employee knew of or was responsible for the violation.  H.E. Wiese, Inc., 82 OSAHRC 18/A2, 10 BNA OSHC 1499, 1505, 1982 CCH OSHD 25,985 at p. 32,614 (No. 78-204, 1982), aff'd, 705 F.2d 449 (5th Cir. 1983).  The employer, however, can rebut this showing by demonstrating that the supervisory employee's misconduct could not have been prevented.   Id.  In general, the employer must show that it had implemented an effective safety program designed to detect and prevent violations of the type allegedly committed.  Id.

I agree with the Secretary's argument that Terrell was a supervisory employee of Todd.  The record shows that leadmen such as Terrell exercised substantial authority over the manner in which Todd's work was performed.  As leadman McClure testified, he was the first-line supervisor for several work crews and spent a large part of his time checking that his crews were performing their assignments properly.   Todd's leadmen also possessed supervisory authority in matters of safety.  The description of the leadman's responsibilities in Todd's employee information handbook states that the leadman is responsible for instructing his crew members in how to perform their work safely and in what protective equipment to use.  The handbook explicitly states:  "The Leadman . . . is the key man in preventing accidents.  He must be sure that every person in his crew thoroughly understands how to work safely." The handbook further provides that the leadman is responsible for assuring safe conditions in work areas.  This documentary evidence of the leadman's role in safety was supported by the testimony of Johnson, a member of Terrell's crew, who stated that Terrell would always check on an area in which the crew was to work to make sure it was safe.  Since Todd relied on its leadmen to provide safe working conditions, the leadmen must be considered supervisors for purposes of the Act.  Iowa Southern Utilities Co., 77 OSAHRC 32/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD 21,612 (No. 9295, 1977).

Because Terrell was a supervisor, his knowledge of the violations is imputed to Todd unless the company has shown that Terrell's actions were unpreventable.  To establish that Terrell's conduct was unpreventable, Todd would have to show either that Terrell acted in contravention of effectively implemented work rules[[3]] or that Terrell's actions were so idiosyncratic that an employer would not take the possibility of such actions into account in establishing a safety program.[[4]]  I conclude that Todd has not made either showing.

Todd relies on the evidence concerning its safety program in arguing that Terrell's conduct was unpreventable.  The record shows that, despite his knowledge of the conditions in the aft end of the hold, Terrell led the crew in a second time, in disregard of the hazard.  However, the record also shows that Todd's program was not adequately implemented with respect to the hazards that occurred in this case.   Todd's employee information handbook contains rules against leaving deck openings unguarded and cautioning against working in areas that are not adequately lighted.   Each employee is given a copy of this handbook when first hired.  There, is however, no evidence that Todd took any ongoing steps to implement these rules.   Although all Todd employees attended periodic safety meetings, the company's safety director stated that no specific instructions would be given at these meetings about entering inadequately lighted areas because that subject is covered in the handbook.[[5]]   Similarly, there is no evidence that the rule requiring guarding of deck openings was discussed at safety meetings, or that employees were instructed to avoid areas containing deck openings.  While written rules are an important component of a safety program, an employer cannot reasonably assume that rules given to employees when first hired but not thereafter mentioned will be consistently followed.

Even if I were to conclude that Terrell was not a supervisor, I would find that knowledge of the hazardous condition was imputed to Todd through Ball and Chatman.   Both were supervisors.  Moreover, the fact that Todd supervisors instructed the day shift laborers to enter the hold by the forward ladder demonstrates the foreseeability that, without such instructions, employees might use the aft entrance.   Todd should have given the same instruction to the swing shift laborers it gave to the day shift.

IV
The Secretary alleged that the violations were serious in nature and proposed penalties of $1000 for each violation.  In view of the potential fall distance of 30 feet, we conclude that the violations gave rise to a substantial probability of death or serious harm and are therefore properly classified as serious.[[6]]  In assessing penalties, we must consider the gravity of the violations, the good faith of the employer, and the employer's size and history of prior violations.[[7]]

Todd provided an alternative means of access to cargo hold #3 that complied with the cited standards, and its safety program evidenced some concern for the safety of its employees.   However, Todd is a relatively large employer, with approximately 650 employees at the Alameda shipyard at the time of the violations.  The record contains a number of citations Todd's Alameda facility received prior to the violations in this case.  The violations in this case were of high gravity in that the bad lighting conditions coupled with the open hatches exposed four employees to a potentially fatal fall.  On balance, we consider a penalty of $1000 for the violation of section 1915.43(c) and $500 for the violation of sections 1915.52(a) and (e) to be appropriate.

Accordingly, the judge's decision is reversed.  The citations are affirmed and a penalty of $1500 is assessed.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  AUG 3 1984

BUCKLEY, Commissioner, concurring:

I concur in affirming the citations in this case, but for different reasons.   Section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2), requires that each employer "shall comply with occupational safety and health standards promulgated under this Act" and, pursuant to authority, the Secretary has promulgated standards which impose upon employers the primary duty for compliance.[[1/]]  The standards cited in this case are examples.  They require shipyard employers such as Todd Shipyards to install guardrails around deck openings (29 C.F.R. 1915.43(c), now 29 C.F.R. 1915.73(d)), adequately illuminate all means of access and walkways leading to work areas (29 C.F.R. 1915.52(a), now 29 C.F.R. 1915.92(a)), and provide a suitable portable light to employees in dark spaces (29 C.F.R. 1915.52(e), now 29 C.F.R. 1915.92(e)).

The purpose of these and other occupational safety standards is to improve safety conditions by telling employers as exactly as possible what they must do to reduce or eliminate hazards to employees.  See Dravo Corp. v. OSHRC 613 F.2d 1227 (3rd Cir. 1980), and cases cited therein.  The rationale for imposing compliance duties such as these on the employers is that they generally control the workplace, and therefore can exert significant control over the physical conditions or environment in which their employees work and over the equipment available to the employees for performing the work.  See Teal v. E. I. DuPont de Nemours and Co., 728 F.2d 799 (6th Cir. 1984); Central of Georgia Railroad Co. v. OSHRC, 576 F.2d 620 (5th. Cir. 1978); Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541 (3rd Cir. 1976), aff'g 75 OSAHRC 47/A2, 3 BNA OSHC 1003, 1974-75 CCH OSHD 19,526 (No. 2818, 1975); Anning-Johnson Co. v. OSHRC, 516 F.2d 108 (7th Cir. 1975); National Realty and Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).  Employers can take steps to assure that the workplace is inspected for noncomplying conditions and equipment, and can take the necessary measures for compliance.   Employers can also take significant measures to control where their employees work and where they will go to gain access to their work areas.  Accordingly, to comply with certain standards applicable to their workplaces, it may be appropriate for employers to decide to either correct the conditions or limit employee access to them.

Section 1915.43(c), cited in this case, explicitly requires guardrails around deck openings only "[w]hen employees are exposed" to unguarded openings.   Sections 1915.52(a) and (e) have the same, implicit qualification.  Section 1915.52(a) requires illumination for "[a]ll means of access and walkways leading to working areas," indicating that those means of access and walkways not leading to working areas do not have to be illuminated.  Section 1915.52(e) requires suitable portable lights for employees "permitted to enter dark spaces."  In each ease the standards require the employer to consider the reasonably predictable movements of employees in their work and related activities to determine whether to take steps needed to comply with the standard.

The lead opinion discusses the issue of Terrell's status as a foreman in order to decide whether Terrell's knowledge can be imputed to Todd Shipyards.  In applying this analysis, the decision that Terrell is a foreman disposes of the case, since Terrell obviously "knew" that hatches were unguarded to which employees were "exposed;" that means of access and walkways to a work area were unlit; and that suitable portable lights were not provided in dark spaces.  However, Todd Shipyards' knowledge about the lack of guardrails, illumination and portable lights does not establish a violation.  If this were so there would be no need to discuss the status of Terrell or imputation of knowledge because it is apparent that Todd Shipyards knew that these conditions existed in certain areas of the ship.  The lead opinion goes one step further and imputes Terrell's knowledge that employees were exposed to these hazards to Todd Shipyards, based on Terrell's actions in leading employees through the hatch.

In my view, that analysis is inappropriate in this case.  The gravamen of the violations alleged here consists of acts of omission in a circumstance where employee exposure to hazards resulting from those acts of omission was reasonably predictable or foreseeable. To establish that an employer failed to comply with the standards cited in this case, the Secretary must establish not only knowledge that a noncomplying condition existed at the workplace to which employees were actually exposed, but also that access to the noncomplying condition was reasonably predictable or foreseeable by the employer in light of such things as the employees' assigned work duties or their normal means of ingress to or egress from their work areas.[[2/]]  Terrell's actions are not dispositive on this question, although relevant on the issue of foreseeability.  See Pennsylvania Power & Light Co. v. OSHRC, No. 83-3263, slip op. at 16 (3rd Cir. June 15, 1984) (the participation of a supervisor in a violation is evidence of, but does not end the inquiry into, foreseeability).

There is no serious dispute that Todd Shipyards was aware of the noncomplying conditions.  Todd Shipyards should have foreseen that access to the work area in the wing tanks could be gained through the aft end of the cargo hold and knew that this area was inadequately lighted and contained open hatches.  The record demonstrates that prior to the day of the accident, Todd Shipyards had closed the three forward hatches and had illuminated the forward end of the cargo hold for the safety of the employees as they used the forward ladder.  However, because Todd Shipyards intended the employees to use only the forward ladder, the company did not close the aft hatches or illuminate the aft end of the cargo hold.

During the day before Terrell led his crew through the aft hatch, Todd Shipyards' assistant superintendent instructed the day shift laborers to enter the hold by the forward ladder demonstrating that Todd Shipyards foresaw that, absent some affirmative steps, employees could be expected to use the aft entrance.  The record shows that the aft ladder was left open at times prior to the day of the accident.  It also shows that the swing shift employees used the aft ladder more than once, immediately before the accident, when it was again open.  On this record the Secretary has established that employees could reasonably be predicted to use the aft hatch.  I therefore concur in affirming the citations in this case and I join in assessing a total penalty of $1,500 for the reasons given in part IV of the lead opinion.


The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).


FOOTNOTES:

[[1]] Since this case arose, the shipyard standards have been recodified.   The cited standards are now codified at 29 C.F.R. 1915.73(d) and 1915.92(a) and (e) respectively.

[[2]] In order to prove that an employer violated an occupational safety or health standard, the Secretary must also show that the standard applies to the facts, that there was noncompliance with the standard, and that employees had access to the hazard.   See Astra Pharmaceutical Prods., 81 OSAHRC 79/D9, 9 BNA OSHC 2126, 2129, 1981 CCH OSHD 25,578 at pp. 31,899-900 (No. 78-6247, 1981), aff'd, 681 F.2d 69 (1st Cir. 1982).  Those elements of the Secretary's case are not in dispute here.

[[3]] H.E. Wiese, Inc., supra; Merritt Electric Co., 81 OSAHRC 75/D4, 9 BNA OSHC 2088, 1981 CCH OSHD 25,556 (No. 77-3772, 1981).

[[4]] National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1266 (D.C. Cir. 1973).

[[5]] Of the three members of Terrell's crew who testified, one remembered being warned against entering inadequately lighted areas while the other two said they had not received any such instructions.  In view of the statement by Todd's safety director that this subject would not be covered in safety meetings, the preponderance of the evidence indicates that the prohibition against entering inadequately lighted areas was not effectively communicated at safety meetings.

[[6]] Section 17(k) of the Act, 29 U.S.C. 666(j).

[[7]] Section 17(j) of the Act, 29 U.S.C. 666(i).

[[1/]] The Act imposes an obligation on employees as well to comply, 29 U.S.C. 654(b), but does not place on them any responsibility for noncompliance.

[[2/]] Cf. Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD 20,448 (No. 504, 1976) (The Secretary must show the reasonable predictability of employee access to the zone of danger to establish a violation of a standard in a multiple employer worksite), cited in Clement Food Company, OSHRC Docket No. 80-607 (July 17, 1984), and Carpenter Contracting Corp., 84 OSAHRC __, 11 BNA OSHC 2027, 1984 CCH OSHD 26,950 (No. 81-838, 1984).