Docket No. 79-4802


Before: ROWLAND, Chairman; CLEARY, Commissioner.

The issue in this case is whether a pit guarding violation committed by Mobil Oil Corporation at its Paulsboro, New Jersey refinery was willful. Administrative Law Judge David G. Oringer found that Mobil Oil violated 29 C.F.R. 1910.22(c)[[1]] by leaving a six-foot gap in a wall which the company had constructed around an open pit containing refinery by-products called "wax." However, Judge Oringer declined to characterize the violation as willful. Among other things, he found that the supervisor in charge of the wax pit had taken a significant measure for the protection of the employees by initiating the project to construct the wall and that this supervisor's failure to assure that the wall was completed was "poor judgement," but not the type of disregard for employee safety which demonstrates willful conduct. For the following reasons,we affirm the judge's decision. [[2]]

To establish that a violation was willful, the Secretary of Labor must prove that the violation was committed with intentional disregard of or plain indifference to the statutory requirements for employee safety. A. Schonbek & Co. v. Donovan, 646 F.2d 799 (2d Cir. 1981); Kus-Tum Builders, Inc., 81 OSAHRC 97/B2, 10 BNA OSHC 1128, 1981 CCH OSHD 25,738 (No. 76-2644, 1981). It is not enough for the Secretary simply to show a lack of diligence or carelessness. See St. Joe Minerals Corp. v. OSHRC, 647 F.2d 840, 849 (8th Cir. 1981) (violation not willful because, although it was "clear in hindsight that some risk remained," the employer's conduct toward protecting its employees from the known hazard fell "short of plain indifference). Where the record reveals that the employer who knew of the hazardous condition took some precautions, even though not entirely effective or complete precautions, to protect the employees, the employer's conduct lacks the element of intentional disregard or plain indifference characterizing willful conduct. See St. Joe Minerals Corp. v. OSHRC, supra; Stone & Webster Engineering Corp., 80 OSAHRC 72/D11, 8 BNA OSHC 1753, 1980 CCH OSHD 24,646 (No. 15314, 1980), appeal withdrawn, No. 80-1605 (1ST Cir. Sept. 25, 1980); William Enterprises, Inc., 79 OSAHRC 24/A2, 4 BNA OSHC 1663, 1976-77 CCH OSHD 21,071 (No. 4533, 1976); see also Chesapeake Operating Co., 82 OSAHRC 36/C9, 10 BNA OSHC 1790, 1982 CCH OSHC 26,142 (No. 78- 1353, 1982) (although the employer might have taken greater precautions, such as checking an employee's work record before making him a supervisor, on the basis of the record as a whole, the employer did not intentionally disregard and was not plainly indifferent to the statutory requirements.)

The record in this case reveals that the supervisor in charge of the wax pit decided that a wall should be built around it to replace an existing, old and unsafe guardrail and to eliminate slippery conditions along the edges of the pit due to wax overflows. Therefore, this supervisor presented a request to the appropriate Mobil Oil manager for construction of the wall. The company hired a contractor who completed the wall except for the six-foot gap an one side. The gap remained because of a cost overrun. When the pit supervisor was told that the wall construction project had come to an end because of the cost overrun, the supervisor submitted another request to the appropriate Mobil Oil manager, this time for another contract to complete the wall. However, the request was denied because Mobil Oil was investigating a number of its contracts with the particular contractor, all of which involved cost overruns. When the pit supervisor learned that his second request was denied, he did not press the matter, but he took some precautions to protect employees working near the gap. Once every one or two weeks, one employee was required to go to the edge of the pit to operate a valve for pumping out the pit. The depth of the pit near the gap was about two to three feet and, when the pump valve was operated, the wax was only about 110 degrees Fahrenheit. Also, at intervals of about a week, an employee had to operate a water valve located about four or five feet from the edge of the pit near the gap in the wall. Both of these employees had to work on or walk across surfaces made slippery with wax which had overflowed from the pit through the gap in the wall. The pit supervisor instructed the employees to be careful of the wax at the gap, and he installed ropes when inexperienced summer employees were doing the work near the gap.

In view of the pit supervisor's action in initiating the project to build the wall, in requesting after construction had been halted that the wall be completed, and in taking some precautions to protect employees working near the gap, the violation was not willful. That the supervisor's measures were not as effective or complete as conceivable cannot be disputed, but they do not show indifference to employee safety, particularly since there was infrequent exposure and moderate hazard. In light of the evidence, we conclude that the Secretary failed to demonstrate that the supervisor and Mobil Oil intentionally disregarded or were plainly indifferent to employee safety. Accordingly, we affirm the judge's decision. SO ORDERED.


Ray H. Darling, JR.

DATED: OCT 28 1983

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[[1]] 29 C.F.R. 1910.22(c) pertains to walking and working surfaces and provides:

1910.22 General requirements
* * *
(c) Covers and quardrails. Covers and/or guardrails shall be provided to protect personnel from the hazards of open pits, tanks, vats, ditches, etc.

[[2]] The judge found that the violation was serious as defined by section 17(k), 29 U.S.C. 666(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678, and assessed a penalty of $1,000. On review neither party disputes the finding of a serious violation or that $1,000 is an appropriate penalty if the violation is not found to be willful.