SECRETARY OF LABOR,
Complainant,

v.

CERRO METAL PRODUCTS DIVISION,
MARMON GROUP, INC.,
Respondent.

UNITED AUTOMOBILE WORKERS OF
AMERICA, LOCAL 1282,

Authorized Employee Representative.

OSHRC Docket No. 78-5159

DECISION

Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.
BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. 659(c).

Following an accident, the Secretary conducted an inspection in the Bellefonte, Pennsylvania plant where Cerro Metal Products Division of the Marmon Group, Inc. ("Cerro") manufactured brass, bronze and other fabricated parts. The accident occurred while two Cerro mechanics, Stover and Wenrick, were standing in the bed of an energized, 300- to 350-foot, 5500-ton brass extrusion press. The mechanics were attempting to repair a loader (an automated part of the press) when the loader unexpectedly retracted and one of the mechanics, Wenrick, was fatally crushed. On the morning of the accident Stover had properly deenergized the press, but later reenergize the press and kept it energized during the particular repairs leading to the accident. As a result of the inspection, the Secretary issued a citation to Cerro alleging a willful violation of the general duty clause (section 5(a)(1)) of the Act[[1]] for permitting employees to perform maintenance and repairs on the press without deenergizing it, thereby exposing them to inadvertent activation of the press.

Administrative Law Judge William E. Brennan affirmed the citation on the basis that Cerro was required to establish that it adequately enforced a rule requiring the press to be deenergized before any repairs were made, and that Cerro failed to establish this. The judge concluded that Cerro's enforcement of the rule was inadequate because employees had violated the rule prior to the accident. He emphasized that Stover was permitted to work largely without close supervision. The judge did not address himself to the extensive evidence showing Cerro's enforcement efforts, the training and experience level of employees, or Cerro's lack of awareness of any prior violations of the rule.

Cerro has petitioned the Commission for review of the decision. The basic issue to be addressed is whether the Secretary established that Cerro's safety program prohibiting employees from working in the bed of the extrusion press when it was energized was inadequate to prevent employee exposure to crushing hazards. For the following reasons, we reverse the judge's decision and vacate the citation.

In order to establish a violation of section 5(a)(1) of the Act, the Secretary must prove that the cited employer failed to free the workplace of a hazard that was recognized by the cited employer or generally by the employer's industry, that was causing or likely to cause death or serious physical harm and that could have been materially reduced or eliminated by a feasible means of abatement. E.g., Phillips Petroleum Co., 84 OSAHRC 2/E7, 11 BNA OSHC 1776, 1779, 1983-84 CCH OSHD 26,783, p. 34,254 (No. 78-1816, 1984). aff'd, No. 84-1425 (10th Cir. Sept. 10, 1985). In this case, the record indicates that Cerro recognized the hazard of working in the bed of the energized press and that the hazard was likely to cause serious physical harm or death. However, the question is whether the Secretary established that Cerro's abatement methods were inadequate or that there was a more effective means by which Cerro could have freed the workplace of the hazard.

The Secretary has the burden of proving all elements of a 5(a)(1) violation including the existence of a feasible means of materially reducing or eliminating the likelihood of death or serious physical harm to employees. If an employer has a safety program designed to eliminate a recognized hazard, the burden is on the Secretary to "specify the [additional] steps a cited employer should have taken to avoid citation, and to demonstrate the feasibility and likely utility of those measures." National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1267-68 & n.40 (D.C. Cir. 1973).

The evidence presented by the parties in this case established that Cerro had a safety rule requiring that the press be deenergized before making any repairs. The Secretary's proposed means of abatement was to more effectively communicate and enforce a workrule like the one Cerro had. The burden of proof on abatement cannot be met by simply prescribing the very methods already undertaken by the employer. There must be evidence showing how the cited employer's safety practices were inadequate and how the safety policies could have been improved to prevent an accident. Id. In National Realty, the court reviewed the legislative history of Section 5(a)(1) and concluded that Congress did not intend to make employers liable for unpreventable hazards, or unpreventable instances of hazards even though the hazard itself is generally recognized. The court emphasized that Congress intended the employer's duty under section 5(a)(1) to be achievable--Congress did not intend this provision of the Act to be "a mere vehicle for strict liability." Id. at 1266 n.36. The National Realty court was considering a case in which, as in this case, the failure of an employee to follow an employer work rule led to the employee's death. The court held that "[a]ctual occurrence of hazardous conduct is not, by itself, sufficient evidence of a violation, even when the conduct has led to injury. The record must additionally indicate that demonstrably feasible measures would have materially reduced the likelihood that such misconduct would have occurred." 489 F.2d at 1267.

Further the Secretary must not only describe specific, feasible measures for reducing the hazard, but must present evidence that knowledgeable persons familiar with the industry would regard the steps as necessary and valuable for a sound safety program in the particular circumstances existing at the employer's worksite. The National Realty court stated:

Hazardous conduct is not preventable if it is so idiosyncratic and implausible in motive or means that conscientious experts, familiar with the industry, would not take it into account in prescribing a safety program. Nor is misconduct preventable if its elimination would require methods of hiring, training, monitoring, or sanctioning workers which are either so untested or so expensive that safety experts would substantially concur in thinking the methods infeasible.

489 F.2d at 1266. Cf. Voegele Co. v. OSHRC, 625 F.2d 1075 (3d Cir. 1980) (holding that the Secretary has the burden to demonstrate the feasibility and likely utility of particular measures under the general personal protective equipment standard for construction, and noting that "[t]he appropriate weight to be accorded to industry practice of whether [suggested methods of abatement] were feasible and whether a reasonable person would have utilized them . . . is best summarized" in National Realty).

Thus, in this case, the judge's suggestion that the burden is on the employer to show the adequacy of its safety program is incorrect. As stated above, the burden is on the Secretary to show that Cerro's safety program was inadequate. E.g. Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160, 1164 (3d Cir. 1980) (the Secretary must demonstrate that feasible measures can be taken to reduce materially the risk of harm); Champlin Petroleum Co. v. OSHRC, 593 F.2d 637, 640 (5th Cir. 1979)(same); Davey Tree Expert Co., 84 OSAHRC 11/D11, 11 BNA OSHC 1898, 1899-1900, 1983-84 CCH OSHD 26,852, p. 34,400 (No. 77-2350, 1984) (the Secretary must demonstrate how particular measures could improve a safety program to reduce or eliminate a hazard); Jones & Laughlin Steel Corp., 82 OSAHRC 34/A2, 10 BNA OSHC 1778, 1781- 83, 1982 CCH OSHD 26,128, pp. 32,886-88 (No. 76-2636, 1982) (same). We conclude from our examination of the record that the Secretary failed to establish any preventable inadequacy in Cerro's communication or enforcement of its workrule.

It is clear from the record that Cerro had a work rule requiring deenergization of the press before repairs were made and that had this rule been followed the accident would not have occurred. The record also establishes that the rule was included in a safety manual given to all employees. In addition, documents referring to the rule were posted at the press and in the repair office where the maintenance employees reported and received their daily assignments. The Secretary argues, however, that the rule was not effectively communicated to either Stover, the employee most directly involved with maintenance on the press on the day of the accident, or Hines, a mechanic apprentice assigned to assist Stover in the repair of the press. We cannot agree.

Contrary to the Secretary's assertion, Stover testified that he knew of the rule and had specifically seen a memo from superintendent of maintenance Bixel regarding deenergization.[[2]] He had also seen the start-up and shut- down procedures posted around the press prior to the accident. Further, several months before the accident, Stover and Wenrick attended a safety meeting at which the rule was discussed. Stover's conversation with Vice President Alexander several weeks after the accident also establishes that he knew the rule. In those meetings, as reflected in Alexander's notes and confirmed by Stover under questioning from the Judge, Stover stated that the normal way of doing repairs is to shut down, drain and deenergize the system. Stover testified that "we all do some things we shouldn't. I can't believe we did not cut the system off and secure the cylinder."[[3]] It is therefore clear that Cerro's safety rule concerning deenergization was adequately communicated to Stover.

In asserting that the company did not adequately communicate its safety rule to the other employee Hines, the Secretary relies upon Hines' statements that he was not given any safety instructions prior to assisting Stover and Wenrick on the press and that company policy did not require the press to be deenergized at all times. We note, however, that Hines also testified he received a copy of the safety manual. From this manual and the posted documents referring to the safety rule, Hines had the opportunity to learn the requirement to deenergize. Moreover, as an apprentice, Hines was not responsible for deenergization of the press. At the time of the accident, he was working with Stover, an experienced first class mechanic with no history of accidents, who testified that he trained other people in safety requirements. Based on these factors, we are unable to say that the company failed to adequately communicate its rule to Hines.

The Secretary argues that even if Cerro's rule was adequately communicated to its employees, Cerro failed to effectively enforce the rule. The Secretary bases this argument on the testimony of Stover and Hines that short repairs of 15 to 20 minutes had been done without deenergizing the press and that no employee has ever been disciplined for a violation of the rule.

However, there was no credible evidence that supervising personnel were aware of such violations of the workrule. Rather, on the basis of the record as a whole, we find Cerro had made considerable efforts to supervise compliance with the rule. Shift foreman Ickes testified that in general he had spent about one-third of his time during the previous four years supervising maintenance and repairs on the press. In all of that time, he had never seen maintenance or repair work performed while the press was energized. Bixel testified that he had frequently observed Stover at work on the press and did not know of any violations of the rule. Indeed, on the morning of the accident maintenance superintendent Bixel watched while Stover deenergized the press and had no reason to suspect that Stover would reenergize the press before the repairs were completed. The vice president of manufacturing, Alexander, also testified that he was not aware of any violations of the rule requiring deenergization and that, as the manager in charge of overseeing operations on the press, he believed that the supervision of the maintenance employees working on the press was satisfactory. Thus, even if Cerro's rule previously had been violated for short repairs, supervisors uniformly testified that they were not aware of any violations. There was no reliable evidence that an employee had reported a violation of the rule to a supervisor or that any supervisor knew that the rule was sometimes violated.[[4]]

Moreover, there had been no previous accidents or injuries to indicate non-compliance. Stover and Wenrick both had perfect safety records, meaning no previous accidents at Cerro. Stover had been permanently assigned to the 5,500-ton press for about nine years and Wenrick had worked on the press for two years.

The fact that Stover was supervised did not mean that the supervisors constantly watched him perform the repairs. They justifiably placed a great deal of reliance in him due to his extensive training, long experience and fine work record. Stover's training included an 8,000-hour apprenticeship before becoming a first-class mechanic. The classroom portion included, among other things, hydraulics, the reading of prints, machine structure, and assembling and moving machinery. Cerro sent Stover to a two-week course on hydraulics in Detroit (apparently the Vickers Hydraulics School). Stover also had taken a premanagement course over a 26-week period. He was considered completely knowledgeable about what had to be done on the 5,500-ton press. Maintenance superintendent Bixel had observed Stover to be "a key man on the job," "tops as far as I'm concerned." Bixel also testified that Stover "had demonstrated to me that he has always worked safely . . . ." In fact, both Stover and Wenrick were considered by their supervisors to be careful and capable workers.

As to Cerro's disciplinary program, Alexander testified that if a violation of the deenergization rule had been discovered, the rule would have been enforced with termination of the employee. He testified that Cerro had disciplined maintenance personnel when it learned of violations of other safety rules. The Secretary offered no evidence as to additional feasible supervisory measures that would have materially reduced the hazard.

The record does not establish that supervisory personnel could have foreseen the need for additional precautions at the time of the accident. Around the time of the accident, there were several Cerro supervisors in the vicinity of the press, but they were not aware that it was energized. Alexander arrived at the press only shortly before the accident. Bixel, maintenance manager Heaman, and shift foreman Thompson were in the general area earlier than Alexander, but, according to their testimony, they were preoccupied with other duties. Bixel--who had earlier seen Stover deenergize the press--additionally testified that he "felt [that] everything was off." Thus, they were not observing the repairs or controls of the press at the time. The control panel lights of the press, which would indicate whether it was deenergized, could not be seen from the press bed, and the sound of the power supply, if the press were energized, would be drowned out by surrounding plant noise. The plant itself was very large--the building in which the press was located was nearly a quarter of a mile long--and there were other presses and equipment in the building.

It is clear from this record detailing the oral and written communication of the rule to the employees that all of the employees had been instructed in Cerro's workrule. It is plain from Stover's testimony that he knew the rule. Because Stover was a very experienced first class mechanic with no history of accidents in his 11 years at Cerro, the company could reasonably place a great deal of reliance on him. In view of this, the evidence in the record as a whole does not show any specific, feasible additional step that Cerro should have taken to improve communication of the workrule. It is impermissible to speculate in the face an empty record about what more an employer could have done to abate recognized hazards. National Realty, 489 F.2d at 1267.

The supervisors' testimony is unrebutted that none of them ever saw an employee in the press bed when they knew it was energized, and that they would have enforced the rule if they had discovered a violation. The evidence does not establish that there was inadequate supervision on Cerro's part. See Jones & Laughlin; see also Brennan v. OSHRC (Alsea Lumber Co.), 511 F.2d 1139, 1141, 1144-45 (9th Cir. 1975)(absent evidence that the employer's instructions were a sham or that the employer had an on-going practice of permitting employees to disregard instructions, knowledge was not established and the employee disobedience was unpreventable).

In conclusion, we hold that the Secretary has failed to show what further, feasible measures Cerro could have taken to render its workplace free of the cited hazard under section 5(a)(1). Accordingly, the judge's decision is reversed and the citation is vacated.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: MAY 7 1986


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FOOTNOTES:

[[1]] 29 U.S.C. 654(a)(1). The section provides:

Each employer...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]] Bixel had previously sent notices to various press and service personnel requiring that the press be deenergized and requesting supervisors to assure this is done. He also posted the memo in the maintenance department and at the press. In addition, a memo detailing the start-up and shut-down procedures for the 5,500-ton press was posted.

[[3]] Stover also stated to Alexander shortly after the accident that he did not know why he did not block and cut off the system. This seems to us to be a clear admission of employee misconduct. At the hearing Stover for the first time explained that he reenergized the press in order to prevent the container from creeping into the loader. Assuming this "surprise" explanation of the reason Stover reenergized the press is credible, it does not evidence a lack of awareness by Stover of the company's policy concerning deenergization. We note further that the record establishes that the creep problem could have been eliminated by means other than leaving the press energized and that Stover knew this. Therefore, we conclude that the creep problem did not prevent deenergization far loader repair and that Cerro could not have foreseen Stover's disregard for its workrule.

[[4]] Another employee witness, Kauffman, who was assigned to production work involving furnaces, in the vicinity of the press, testified that supervisors Thompson and Ickes had worked in the press bed while the press was energized. He also asserted that he "probably" complained to foremen about work on the energized press. However, he later contradicted himself in response to questions by the Judge, affirming that he had not complained because he did not want to slow down production and lose bonus pay. For this reason, he had not complained to any management employees, had never filed a complaint with OSHA, and, although he was once a member of the union grievance committee, had not filed a grievance. As noted previously, the supervisors all testified that so far as they knew, the workrule was adhered to and they were not aware of any violations.