SECRETARY OF LABOR,
Complainant,

v.

ULYSSES IRRIGATION PIPE COMPANY,
Respondent.

OSHRC Docket No. 78-0799

DECISION

Before:  ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:
Administrative Law Judge Vernon Riehl vacated a citation issued to Respondent, Ulysses Irrigation Pipe Company ("Ulysses").  The citation alleged that Ulysses violated section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act") [[1/]] by allowing an employee to operate a motor vehicle at night that was not equipped with lights or overhead protection. Judge Riehl's decision is before the Commission for review under section 12(j) of the Act, 29 U.S.C. § 661(i).   We reverse the judge's decision and affirm the citation.

I.

At approximately 11:50 p.m. on the night of January 13, 1978, Garcia, a supervisor for Ulysses, was crushed to death when he backed the tractor he was operating under a flatbed trailer parked in Ulysses' plastic pipe storage yard.  Garcia had been pulling a trailer loaded with pipe.  The tractor was equipped with neither front or rear lights nor a protective enclosure.  As a result of an investigation, the Secretary issued a citation alleging, as amended in the complaint, that:

"[Ulysses] failed to furnish a safe work area and equipment by allowing an employee to operate at night a motor vehicle without a protective enclosure or lights in a dark, non-illuminated area where obstacles were present, exposing the employee operator to collision hazards which could result in severe injuries or death..... "

Garcia and his crew generally used a forklift equipped with lights and a protective enclosure to move newly-manufactured pipe from the production facility to positions in Ulysses' storage yard. Stephens, the crew leader, was removing pipe from the production facility with this vehicle at the time of the incident.  A third vehicle assigned to Garcia's crew had been unavailable for two months. When work was running behind schedule at night, as it was on the night of the incident, or when the forklift was unavailable, Garcia and Stephens used the tractor involved in the citation.  Stephens had been instructed by Richards, the daytime foreman of the plastic pipe storage yard, to whom the tractor was assigned, not to use the tractor unless he had to, but he was not instructed never to use it.  Wilmore, Ulysses' plant manager stated that he had never forbidden the use of a tractor without lights, but Griffith, Ulysses' quality control manager, testified that he was present when Garcia was instructed "not [to] use the tractor, use the [Hyster] [a forklift truck], because it has lights on it and it is protected."  Griffith also indicated that this directive was never reduced to writing, nor did violations of the directive ever result in disciplinary action.

Other than moonlight, the plastic pipe storage yard was illuminated by whatever light emanated from the manufacturing facility and by lights at an adjacent plant.  To prevent pilferage, Ulysses had installed perimeter lighting in the area around the storage yard but it was not operating on the night of the accident.  A number of flatbed trailers were parked in the yard, and there were also posts at the entrance to each bay.  The compliance officer, testifying on the basis of his investigation, stated that the night of the accident was a clear moonless night.  He had no difficulty in seeing around the yard on the nights of the inspection but indicated that the perimeter lighting had been turned on. Stephens testified that he had no difficulty in seeing in the yard at night, but he claimed that he could see well in the dark, and that he always knew where everything was in the yard because he came to work early in order to find out.  Wilmore, who arrived at the plant just after the accident, also testified that he had no difficulty in seeing around the yard; the perimeter lights were apparently not on.  Padgett, a safety expert who testified for Ulysses, inspected the yard more than a month after the incident.  He stated that he recognized objects in the plastics storage yard from the door of the plastic plant on the night of his inspection but he did not recall whether the perimeter lighting was turned on.

II.

Judge Riehl vacated the citation.  He found that there was sufficient light in the plastics storage yard to see by, that Garcia violated one of the Ulysses' safety rules by operating the tractor at night, and that Garcia's conduct could not be imputed to Ulysses because Ulysses did not know that the tractor had been used contrary to its rule.

On review, the Secretary argues that the record establishes a violation of section 5(a)(1) of the Act.  He objects to Judge Riehl's reliance on testimony that visibility was good in the storage yard for his implicit conclusion that a recognized hazard was not present.  First, he argues that the usual reasons for deferring to a judge's credibility findings are absent because the judge who wrote the decision did not preside at the hearing. [[2/]]  Second, the Secretary questions the judge's reliance on the testimony of Stephens, who claimed that he had no difficulty seeing in the yard at night but nevertheless came to work early in order to determine the location of the various objects in the yard.  He also claims that the judge could not have properly relied on the testimony of the compliance officer and Padgett, Ulysses' safety expert, because both viewed the storage yard with the perimeter lighting turned on. Third, the Secretary contends that by instructing its employees to use the properly equipped forklift, Ulysses recognized that the use of an unlighted and unprotected tractor was hazardous.  Even though Ulysses may not have anticipated the exact sequence of events leading to the accident, the Secretary maintains that it recognized the hazard.

The Secretary also argues that there was no basis for the judge's conclusion that Garcia's use of the tractor was contrary to Ulysses' safety instructions.   According to the Secretary, the instruction not to use the tractor unless they "had to" allowed employees to use the tractor at their discretion when the work required it.  He maintains that even if Garcia had acted contrary to Ulysses' safety instructions, the ambiguity of the direction made it too general to be an effective workrule.  He also argues that Ulysses failed to demonstrate the existence of a mechanism to discover violations of its rule, or train employees to avoid this hazardous conduct.  The Secretary also alleges that Ulysses failed to take the "obvious precautions embodied in overhead lighting, protective enclosures and an uncluttered storage yard."

Ulysses contends that the judge was correct in finding that Garcia's operation of the tractor was a violation of its safety policies.  It contends that it could not have reasonably prevented the accident because Garcia, its supervisor, violated a safety rule that was directed specifically at him.  Ulysses claims that its employees who testified that Garcia had used the tractor before did not state whether it was day or night, and that a third employee could not recall Garcia having driven the tractor.  Ulysses argues that this was not a case in which the supervisor had a bad safety record or his failure to follow company safety policies was well known.  It also contends that Garcia's operation of the tractor was outside the scope of his duties as a supervisor.

Ulysses argues that the Secretary failed to prove that, assuming the hazard existed, it was "likely" to cause death or serious injury. It maintains that "likely" in section 5(a)(1) is the equivalent of "substantial probability" in section 17(k) of the Act, and that the Secretary's case was irrevocably damaged by the failure of the compliance officer to testify that more than a possibility existed that the cited hazard "was likely to cause death or serious physical harm."

III.

In order to establish a violation of section 5(a)(1) of the Act, the Secretary must prove that: (1) the employer failed to render its workplace free of a hazard, (2) the hazard was recognized either by the cited employer or generally within the employer's industry, (3) the hazard was causing or likely to cause death or serious physical harm, and (4) there was a feasible means by which the employer could have eliminated or materially reduced the hazard. Little Beaver Creek Ranches, Inc., 82 OSAHRC 36/A2, 10 BNA OSHC 1806, 1810, 1982 CCH OSHD ¶ 26,125, p. 32,878 (No. 77-2096, 1982).

In applying these principles to this case, we emphasize that although the circumstances of an accident may provide relevant evidence, our inquiry is not necessarily to find the cause of the accident or determine whether the violation caused the accident. See, e.g., Kansas City Power & Light Co., 82 OSAHRC 13/A2, 10 BNA OSHC 1417, 1422, 1982 CCH OSHD ¶ 25,957, p. 32,539 (No. 76-5255, 1982); Boeing Co., 77 OSAHRC 188/D13, 5 BNA OSHC 2014, 1977-78 CCH OSHD ¶ 22,266 (No. 12879, 1977) (whether a violation occurs does not depend on the cause of the particular accident); Concrete Construction Co., 76 OSAHRC 47/A2, 4 BNA OSHC 1133, 1135 & n.3, 1975-76 CCH OSHD ¶ 20,610, p. 24,664 & n.3 (No. 2490, 1976) (circumstances of an incident may provide relevant evidence). With this in mind, we now consider whether the record establishes the elements of a section 5(a)(1) violation.

A recognized hazard is a condition or practice in the workplace that is known to be hazardous either by the industry in general or the employer in particular.   Beaird-Poulan, A Division of Emerson Electric Co., 79 OSAHRC 21/D11, 7 BNA OSHC 1225, 1979 CCH OSHD ¶ 23,493 (No. 12600, 1979).  The judge's implicit finding that conditions in Ulysses' plastic storage yard did not present a recognized hazard was based on his finding that there was sufficient light to see.  The Commission considers the judge's findings as part of the record on review, but it is not bound by them. See Astra Pharmaceutical Products, Inc., 81 OSAHRC 79/D9, 9 BNA OSHC 2126, 2131 n.18, 1981 CCH OSHD ¶ 25,578, p. 31,901 n.18 (No. 78-6247, 1981), aff'd, 681 F.2d 69 (1st Cir. 1982). It is the Commission that is the ultimate finder of fact. See Franklin R. Lacy (Aqua View Apartments), 81 OSAHRC 71/A2, 9 BNA OSHC 1253, 1254, 1981 CCH OSHD ¶ 25,171, p. 31,073 (No. 3701, 1981).  Although there is some support in the record for the judge's finding, it is outweighed by other evidence.  Only one witness, Wilmore, the plant manager, plainly stated that he was able to see objects in the yard at night unaided.   The compliance officer viewed the yard with the perimeter lighting on. Stephens, who claimed an exceptional ability to see at night, came to work early to locate objects in the yard and usually drove a forklift equipped with headlights when moving pipe in the yard.  The record does not show that Padgett, the safety expert who testified for Ulysses, viewed the yard with the perimeter lights off.  On the other hand, the record indicates that parts of Ulysses' obstacle-filled yard were as much as eighty to ninety yards from any source of illumination.  An employee who had to pull a trailer full of pipe through the yard in a motor vehicle that was not equipped with lights or a protective enclosure was clearly exposed to a hazard.  Ulysses recognized the hazard by instructing Garcia to "use the [Hyster], because it has lights on it and is protected."  See Ted Wilkerson Inc., 81 OSAHRC 70/D8, 9 BNA OSHC 2012, 2016, 1981 CCH OSHD ¶ 25,551, p. 31,856 (No. 13390, 1981).

We also find that Ulysses failed to render its workplace free of the recognized hazard by taking feasible steps to protect its employees.  Ulysses chose to rely on a workrule to ensure that no employee drove the tractor without lights in the dark.  However, it failed to adequately implement this rule.  When an employer relies on safety rules, the employer must take all feasible steps to assure employee compliance with the rules, including establishment of a rule designed to prevent the violation at issue, effective communication of the rule to employees, efforts to discover infractions of the rule, and employer enforcement of the rules when infractions are discovered.  See K-Mart, 82 OSAHRC 49/A2, 10 BNA OSHC 2202, 2204, 1982 CCH OSHD ¶ 26,333, p. 33,344 (No. 77-270, 1982), appeal filed, No. 82-2735 (7th Cir. October 29, 1982), and cases cited therein.

The evidence establishes that Ulysses' workrule was equivocal at best.   Although Garcia was instructed not to use the unlighted, unprotected tractor at night, Stephens was instructed not to use it at night unless necessary and Wilmore, the plant manager, testified that he had never forbidden employees from using the unlighted tractor.  Not surprisingly, when work was running behind at night, both Garcia and Stephens used the tractor. Moreover, if safety rules are the means chosen to free the workplace of a recognized hazard, employees must understand that rules will be enforced.   We have recently observed that when a supervisor violates a rule, he not only endangers himself and others; he also suggests to his subordinates that safety rules are not to be taken seriously. Farthing & Weidman, Inc., 82 OSAHRC 75/A2, 11 BNA OSHC 1069, 1983 CCH OSHD ¶ 26,389 (No. 78-5366, 1982).  Here, Ulysses did not claim or show that it made any effort to discover if Garcia followed the rule or if Garcia was aware that the rule would be enforced if infractions were discovered.  See Floyd S. Pike Elec. Contractor, Inc., 78 OSAHRC 50/E1, 6 BNA OSHC 1675, 1978 CCH OSHD ¶ 22,805 (No. 3069, 1978).  Ulysses' argument that it freed the workplace of the recognized hazard by its workrule is therefore rejected.  Ulysses' argument that moving pipe was outside the scope of Garcia's duties is also without merit. There is no evidence that Garcia was prohibited from moving pipe. [[3/]]

A hazard is "likely to cause death or serious physical harm" within the meaning of section 5(a)(1) if the likely result would be serious physical harm or death in the event of an incident.  See R.L. Sanders Roofing Co., 79 OSAHRC 61/D7, 7 BNA OSHC 1566, 1569, 1979 CCH OSHD ¶ 23,756, p. 28,805 (No. 76-2690, 1979), rev'd on other grounds, 620 F.2d 97 (5th Cir. 1980). Garcia's death establishes that the likely result would be serious physical harm or death in the event of an incident.  The testimony of the compliance officer that there was only a possibility the hazard was likely to cause death or serious physical harm goes to the question of whether an accident is likely to occur, which is not the inquiry here.  Id.

Inasmuch as all the elements of a section 5(a)(1) violation have been established, we reverse the judge's decision and affirm the citation.  We must now consider the penalty to be assessed.  Ulysses has no history of violations under the Act.  It conducts safety meetings.  The size of the employer is not indicated on the record.  As to the gravity of the violation, at least two employees were exposed to the hazard.  In view of this, we conclude that the Secretary's proposed penalty of $300 is appropriate.

Accordingly, the judge's decision is reversed.  The citation is affirmed.  A penalty of $300 is assessed.

SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  MAR 24 1983

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FOOTNOTES:

[[1/]] Section 5(a)(1), 29 U.S.C. § 654(a)(1), provides:

Sec. 5(a)  Each employer--
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

[[2/]] Judge Paul Dixon presided at the hearing in this case but, because of an illness, the decision was written by Judge Riehl.

[[3/]] Because we find that an effectively communicated and enforced workrule was a feasible means of reducing the hazards and that Ulysses' workrule was inadequate, we need not determine the feasibility and likely utility of other alleged means of abatement such as the provision of lights and cab protection for the tractor involved or use of the existing perimeter lighting.  We note, however, that Ulysses must free its workplace of the hazards by any feasible means.  Accordingly, Ulysses must select and implement a measure or combination of measures that will reduce the recognized hazard to the extent feasible.  See General Electric Co., 82 OSAHRC 56/A2, 10 BNA OSHC 2034, 2040 n.6, 1982 CCH OSHD ¶ 26,259, p. 33,165 n.6 (No. 79-504, 1982).