OSHRC Docket No. 79-0407


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


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 Occupational Safety and Health Administration of the Department of Labor.  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).  The issue on review is whether Administrative Law Judge William. B. Brennan erred in holding that Haysite, Division of Synthane-Taylor Corp. ("Haysite"), did not violate 29 C.F.R. 1910.132(a)[[1]] by failing to require the use of safety shoes at its plant.

In Marshall v. Haysite, Division of Synthane-Taylor Corp., 636 F.2d 1209 (3d Cir. 1980), the United States Court of Appeals for the Third Circuit remanded this case to the Commission for reconsideration in light of its decision in Voegele Co. v. OSHRC, 625 F.2d 1075 (3d Cir. 1980).  In Voegele, the Third Circuit held that in order for the Secretary to establish a violation of a standard such as 29 C.F.R. 1910.132(a), he must demonstrate that a reasonable person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts unique to the particular industry, would recognize a hazard warranting the use of personal protective equipment.  Judge Brennan applied the Voegele test and vacated the item on review.  We affirm his decision.

The facts are well summarized in the judge's decision.  As part of its manufacturing process, Haysite's employees handle small parts and fiberglass sheets that weigh from 4 or 5 pounds up to 180 pounds and are as large as 4 feet by 8 feet by 1/4 inch.  Haysite enforces workrules requiring that employees wear sturdy shoes, and that two or more employees together carry sheets weighing more than 50 to 60 pounds.  In attempting to establish a violation of section 1910.132(a), the Secretary primarily relied on the testimony of four of Haysite's employees to demonstrate that handling fiberglass sheets without safety shoes posed a hazard to their feet.  The work of three of the employees involved carrying the fiberglass sheets that posed the alleged hazard.  The fourth employee handled the sheets but his main duty was to inspect them.

Parker had been with Haysite for four months.  By himself he handled sheets weighing up to 25 pounds.  He had "dropped some of the smaller sheets," but he did not receive any injury, nor was he aware of any employee being injured while handling the sheets.  He testified that if a large sheet held in the vertical position were dropped, the sharp edge could "go right through his foot."  Parker followed Haysite's workrule requiring sturdy shoes but did not wear safety shoes.

Spinelli had been employed by Haysite for 10 years.  He handled sheets weighing up to 40 pounds.  Approximately 10 years ago, while helping to carry a sheet, he had dropped it but it did not strike his feet or any part of his body.  He testified that some type of safety shoe should be required but he does not wear them himself.  Instead, he wears the workshoes required by Haysite's workrule. Trained in first aid, Spinelli was called on to assist those injured at the plant.  He had never treated an injury resulting from a dropped sheet.

Bliss has also been at Haysite for 10 years.  He handles sheets that weigh up to 20 pounds and has seen perhaps two sheets fall, with no resultant injuries.  He follows Haysite's rule regarding sturdy workshoes.  Although Bliss testified that safety shoes are necessary, he also stated that he does not wear them.  He explained that he could not afford safety shoes but agreed that the hazard did not warrant the difference in cost between "normal" shoes and safety shoes.

For 8 of his 12 years at Haysite, Prova was the chief union steward.  He was also a member of the joint union-management safety committee.  The committee's function is to detect safety hazards in the plant.  The committee had never recommended the use of safety shoes anywhere in the plant, nor had Prova, as a union steward, ever voiced any concern to management over the need for safety shoes.  Prova wears normal work shoes or boots in accordance with company policy but feels that safety shoes should be worn.

In vacating the item, the judge gave little or no weight to the testimony of the four employees that the alleged hazard required the use of safety shoes.  He relied on their failure to wear safety shoes even though they claimed that such shoes were needed, and on the failure of the union, its steward, and the joint union-management safety committee to suggest that a hazard was presented by the sheets.  He also relied an the complete absence of injuries,[[2]] and on Parker's lack of experience.  Following the test set out in Voegele, the judge concluded that the evidence was not substantial or creditable enough to support a conclusion that a reasonable person familiar with the circumstances surrounding the allegedly hazardous conditions at the plant, including any facts unique to the industry, would recognize a hazard requiring the use of personal protective equipment.

The Secretary argues that the judge's reason for giving little or no weight to the testimony of Haysite's employees "ignores the well-known reluctance of employees to wear personal protective equipment."  He claims that the employees' testimony should be viewed as a virtual admission against interest because the affirmance of the citation would require them to wear safety shoes, be disciplined for not wearing them and, citing The Budd Co., 74 OSAHRC 12/A2, 1 BNA OSHC 1548, 1973-74 CCH OSHD 17,387 (Nos. 199 & 215, 1974), aff'd, 513 F.2d 201 (3d Cir. 1975), possibly to pay for the shoes.  The Secretary notes that the Commission will ordinarily accept the judge's credibility determination, but is not bound by those findings.  He urges the Commission not to accept those findings here because they were based on an inference drawn from the witnesses' testimony rather than on any evaluation of the demeanor of the witnesses.

Haysite contends that Judge Brennan did not rely only on the failure of the employee witnesses to wear safety shoes.  It points out that he also gave little weight to Parker's testimony because of his limited time with the company, and the light loads that he carried. Spinelli's testimony was also not relied on for two reasons.  First, he had dropped only one sheet in 10 years.  The dropped sheet did not touch his body.  Second, in administering first aid Spinelli had never treated anyone for an injury resulting from dropped sheets.  Bliss' testimony was also questioned because he had only dropped two sheets in 10 years.  Haysite maintains that the judge also gave little weight to Prova's claim that he dropped sheets "all the time" because Prova often neglected to wear the gloves that Haysite provided.  Haysite also emphasizes the judge's reliance on the failure of Prova as union steward, the members of the union- management safety committee, and the union itself, to bring to Haysite's attention any concern over foot hazards.

We adopt the judge's finding that the Secretary failed to establish a violation of section 1910.132(a) under the Voegele test. Contrary to the Secretary's argument, the judge properly gave little or no weight to the testimony of the employees that a hazard was present.  As the judge recognized, their failure to take any steps to bring the alleged hazard to Haysite's attention or to protect their feet from the sheets by wearing safety shoes did detract from their testimony that the sheets presented a hazard to their feet.[[ 3]] The judge also did not err in according little weight to Parker's testimony due to his lack of experience.  We additionally observe, in determining whether a reasonable man would have recognized a hazard to employees' feet, that there were no foot injuries from dropped sheets over a substantial period of time, and that Haysite required that sturdy shoes be worn and heavier sheets be carried by two or more employees.  We therefore uphold the judge's finding that there is an insufficient basis from which to conclude that a reasonable person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts unique to this particular industry, would have recognized a hazard warranting the use of personal protective equipment.[[4]]

The judge was also correct in concluding that there is no evidence from which to conclude that Haysite had actual knowledge of the alleged hazard.  No injuries had ever been reported from a dropped sheet that would have given it any indication of a hazard. Moreover, although an employer's practices regarding the use of protective equipment are relevant under Commission precedent, see Owens Corning Fiberglas Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1295, 1979 CCH OSHD 23,509, p. 28,492 (No. 76-4990, 1979), aff'd, 659 F.2d 1285 (5th Cir. 1981), Haysite's sturdy shoe requirement, standing alone, does not establish that Haysite had knowledge of the alleged hazard.   See United States Steel Corp., 82 OSAHRC 62/A2, 10 BNA 2123, 2131, 1982 CCH OSHD 26,297, p. 33,235 (No. 77-3378, 1982).  If anything, it demonstrates that the hazards had been removed.

Accordingly, the judge's decision is affirmed.


Ray H. Darling, Jr.
Executive Secretary

DATED:  MAY 25 1984

CLEARY, Commissioner, dissenting:

I dissent from the majority's affirmance of the judge's decision.  Haysite's employees handle parts and fiberglass sheets that weigh as much as 180 pounds.  The sheets are large and awkward to handle, measuring as much as eight feet by four feet by one-fourth inch.  The sheets mot be carried from the presses and piled in stacks, an operation that often requires two men.  That objects of such weight and configuration are susceptible to being dropped and, if dropped, are likely to injure protected feet should be obvious.  If it is not obvious, then I urge my colleagues to look at the American National Standards Institute specifications for safety-toe footwear, ANSI Z41.1-1967, incorporated by reference at 29 C.F.R. 1910.136.   These specifications, which represent the consensus of American manufacturing industry, require a minimum impact resistance of 30 foot-pounds. [[1]]  A reasonable person familiar with the facts of this case would have recognized a hazard warranting the use of safety shoes.  Voegele Co. v. OSHRC, 625 F.2d 1075 (3d Cir. 1980).

Haysite my consider itself fortunate that its employees have thus far managed to avoid foot injuries, but the absence of prior injuries is no basis for denying the very real potential for injury.  "The keystone of the Act. . . is preventability."  Brennan v. OSHRC (Underhill Construction Corp.), 513 F.2d 1032, 1039 (2d Cir. 1975).  "One purpose of the Act is to prevent the first accident."  Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864, 870 (10th Cir. 1975); see also Brennan v. Butler Lime and Cement Co., 520 F.2d 1011 (7th Cir. 1975).  Thus, actual injury is not a prerequisite to establishing a violation.

Moreover, an employer may not shift responsibility for employee safety onto its employees by undue reliance on their skill, prudence and caution; the employer's duty to do all it feasibly can to prevent or substantially reduce hazard includes the duty to anticipate and guard against employee error and misconduct short of the bizarre and uncontrollable.   See General Dynamics Corp., Quincy Shipbuilding Div. v. OSHRC, 599 F.2d 453 (1st Cir. 1979); National Realty and Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1974); see also General Electric Co., 82 OSHRC 56/A2, 10 BNA OSHRC 2034, 1982 CCH OSHD 26,259 (No. 79-504, 1982).  An employer who relies on employees not to drop heavy parts on their feet has not done all it can to reduce the hazard.

The majority discounts the employees' unrebutted testimony that handling sheets weighing up to 180 pounds presents a hazard requiring the wearing of safety shoes.  They reason that the employees lack credibility because they did not wear safety shoes voluntarily and did not ask their union for a safety shoe rule.  The most important evidence in this case, however, is the employees' clear descriptions of the physical conditions that endanger them.  As to this evidence, credibility is not the issue.  The employees handle sheets weighing up to 180 pounds.  Sheets this heavy are clearly capable of causing foot injury.  Whether these employees took steps to protect  themselves or failed to complain about the hazard has no bearing on these facts.

I would also draw no unfavorable inferences from the employees' failure to wear safety shoes or complain about the hazard.  This is the more disturbing aspect of the majority's ruling.  By discounting an obvious potential for injury because the employees did not take the initiative to protect themselves, the majority turns the Act on its head and shifts responsibility for safety from
the employer and the Secretary to the employees.  The Occupational Safety and Health Act is not a labor relations act in the sense that safety is meant to be achieved by the collective bargaining process, or that employees must exhaust their internal union grievance procedures or collective bargaining procedures before the government will act on their behalf in securing a safe workplace, or that the employees are responsible for bringing safety violations to the attention of employers before the employers are on notice that such violations exist.  Nor does the Act place any responsibility on employees to police their workplace or secure their own safety protection.  Rather, the responsibility is placed on employers under the Act, and the responsibility for enforcing the standards under the Act is placed on the government.  See United Steelworkers of America v. Marshall, 647 F.2d 1189, 1236 (D.C. Cir. 1980) ("In passing a massive worker health and safety statute, Congress certainly knew it was laying a basis for agency regulations that would replace or obviate worker safety provisions of many collective bargaining agreements.  Congress may well have viewed collective bargaining along with state workers' compensation laws as part of the status quo that failed to provide workers sufficient protection.")

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[[1]] Section 1910.132(a) states:

1910.132 General requirements.
(a) Application.  Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

[[2]] The Secretary claims that there was one injury, which the compliance officer discovered by examining Haysite's injury records. The judge found, however, that the compliance officer's recollection that the injury was caused by a dropped sheet was inaccurate. The judge noted that an accident referred to by Spinelli, involving a toe injury from a forklift, was probably the same injury noted by the compliance officer.

[[3]] The dissenting opinion argues that Judge Brennan's evaluation of the witnesses' testimony was wrong on this point.  The dissenting member would evidently hold as a matter of law that a finder of fact may not attach great importance to whether a witness' conduct was inconsistent with his assertions.  Such a rule would be out of harmony with Commission precedent, see General Electric Co., 80 OSAHRC 9/B9, 7 BNA OSHC 2183, 2185, 2187, 1980 CCH OSHD 24,268, pp. 29,551, 29,553 (No. 15037, 1980), and ignore the realities of human behavior.   It does not strike us as unrealistic or out of keeping with the purposes of the Act to examine testimony in light of the obvious facts of human behavior and to consider that an assertion inconsistent with conduct is entitled to be treated with skepticism.  The observations made in the dissenting opinion do not support a contrary conclusion.

[[4]] The dissenting opinion suggests that specifications for safety-toe footwear in ANSI Z41.1-1967, which section 1910.136 incorporates by reference, demonstrate the obviousness of the hazard to Haysite's employees.  This ANSI standard simply sets standards by which shoe manufacturers can classify safety shoes according to their crush resistance.  Nothing in the standard tells an employer whether a hazard requiring safety shoes exists.  For example, the fact that a classification 30 shoe must withstand 30 foot/pounds of impact pressure, i.e., the impact of a 10 pound object dropped 3 feet, does not inform an employer that carrying a 10-pound object at a 3-foot height is a hazard.  Such an analysis ignores other considerations relevant in deciding whether a hazard is present, such as the number of objects lifted, the size and shape of the objects lifted, the way in which they are lifted, the distance they are carried, and the number of injuries received.

[[1]] A foot-pound is a unit of work equal to the work done by a force of one pound acting through a distance of one foot in the direction of the force.  Thus, 50 pounds dropped three feet would equal 150 foot-pounds.  WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 885 (1971).