SECRETARY OF LABOR,

Complainant,

v.

ORMET CORPORATION,

Respondent.

UNITED STEELWORKERS OF AMERICA,

AFL-CIO-CLC, LOCAL UNION 5724,

DISTRICT 23,

Authorized Employee
Representative.

OSHRC Docket No. 85-0531

DECISION

Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.

BY THE COMMISSION:

Ormet Corporation operated an aluminum smelter in Hannibal, Ohio, where it made cast aluminum cylinders called billets. Each billet weighed 1594 pounds and was approximately 17 feet long and 10 inches in diameter. Following an accident in which one of these billets fell on an Ormet employee and killed him, the Occupational Safety and Health Administration (OSHA) investigated the fatality and issued a citation alleging that Ormet had violated four OSHA safety standards.

Ormet contested the citation, and a hearing was held before an administrative law judge of this Commission. The judge found that Ormet had committed a serious violation of one of the cited standards. That decision was directed for review and is now before the Commission pursuant to 29 U.S.C. § 661(j) , section 12(j) of the Occupational Safety and Health Act of 1970 ("the Act"). For the reasons that follow, we affirm the judge's decision.

I. BACKGROUND

The billets were made in the cast house of Ormet's smelter, in a direct chill casting pit. After the molten aluminum solidified, two or three of the billets were encircled by a choker sling attached to an overhead crane. The crane then lifted the billets and moved them approximately 90 to 100 feet to the inspection area, where they were lowered onto an "inspection table," which consisted of two parallel rails about 30 inches high and 10 feet apart. There the billets were stacked and inspected for defects, both visually and with an oscilloscope.

The accident that triggered OSHA's inspection occurred when the crane operator lowered a load of billets so that the end of one of the billets hit one of the rails comprising the inspection table. The tension on the choker sling was released, and the billets fell. One of them struck and killed an employee, a molten metal operator, who was standing between five and eight feet away from a corner of the inspection table.

The citation item before us alleges that Ormet violated the standard at 29 C.F.R. § 1910.179(n)(3)(xi), which provides: "When starting the bridge [of an overhead or gantry crane) and when the load or hook approaches near or over personnel, the warning signal shall be sounded."

The judge found, and the evidence shows, that, prior to the fatality described above, the warning signal was not sounded when the crane bridge started. It is clear, therefore, that there was a violation at that time. However, that was not the basis of the violation charged by the Secretary. The citation alleged that the crane operator did not sound the alarm as he approached Ormet's employees with the suspended load. This is the only allegation before the Commission for adjudication.

In order to prove that an employer violated a standard, the Secretary must show that: (1) the standard applies to the cited condition; (2) the terms of the standard were violated; (3) one or more of the employer's employees had access to the cited conditions; and (4) the employer knew, or with the exercise of reasonable diligence, could have known of the violative conditions. North Berry Concrete Corp., 13 BNA OSHC 2055, 2056, 1989 CCH OSHD ¶ 28,444, p. 37,643 (No. 86-163, 1989). We find that each of these elements has been proved. Once the Secretary has presented enough evidence on each element to establish a prima facie case, the employer has the burden of either rebutting the Secretary's evidence or proving one of the affirmative defenses recognized by the Commission. York Heel of Maine, Inc., 9 BNA OSHC 1803, 1807, 1981 CCH OSHD ¶ 25,351A, p. 31,474 (No.78-5920, 1981).

Ormet makes essentially four arguments in support of its claim that the judge erred in finding that Ormet had violated the standard:

(1) Because the standard fails to define or explain the meaning of the term "near," it does not give adequate notice of what it requires, and therefore denies employers due process of law.

(2) The standard was not violated, because the load did not approach over or near employees.

(3) Ormet had no knowledge of the violation.

(4) The purpose of the standard had been accomplished, because employees heard the crane approach and moved away.

Having considered these arguments, we conclude that the Secretary has proved the four elements of a violation and that Ormet has failed to establish an affirmative defense.

A.THE VAGUENESS OF THE STANDARD

Ormet argues that the word "near" in the standard is so vague that the standard deprives it of fair notice, in violation of the due process clause of the Fifth Amendment of the U.S. Constitution. In determining whether a standard is unconstitutionally vague, the Commission must apply established principles. One of these principles is that the words of a standard are to be viewed in context, not in isolation. Cleveland Consolidated. Inc., 13 BNA OSHC 1114, 1116, 1986-87 CCH OSHD ¶ 27,829, p. 36,428 (No. 84-696, 1987). Another principle is that the purported vagueness of a standard is not judged from the face of the standard; it is determined in light of the application of the standard to the facts of the case. Faultless Div., Bliss & Laughlin Indus. v. Secretary, 674 F.2d 1177, 1185 (7th Cir. 1982); PBR, Inc. v, Secretary, 643 F.2d 890, 897 (1st Cir. 1981;) Brennan v, OSHRC (Santa Fe Trail Transp. Co.), 505 F.2d 869, 872 (10th Cir. 1974). Applying those principles to the case before us, we conclude that section 1910.179(n)(3)(xi) is not unconstitutionally vague.

We first note that the due process clause does not impose drafting requirements of mathematical precision or impossible specificity. Diebold, lnc. v. Marshall, 585 F.2d 1327, 1336 (6th Cir. 1978). Furthermore, it is clear that the use of the word "near" in a statute or standard does not, in and of itself, render the statute or standard unconstitutionally vague. For example, in Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476 (1965), the Supreme Court upheld a state statute that prohibited picketing or parading "in or near" a courthouse. The Court in Cox indicated that "near," as it was used in that statute, could cover activity within the sight and hearing of those in the courthouse. 379 U.S. at 568, 85 S.Ct. at 483.

That definition, however, is too broad to be appropriate in this context. We must therefore ascertain whether the meaning of the word "near," as it is used in the cited standard, can reasonably be determined based on the language and purpose of the standard and the physical conditions to which it applies. Given the purpose of the standard, that is, to warn employees on whom a load might fall, we conclude that, as used in the cited standard, the word "near" means close enough to the path of travel that it is reasonably foreseeable that they could be hit by the load if the load should fall.

We recognize that this is not a precise definition and that, in applying it, the results will vary depending on numerous factors, including the height of the load above the employees, the size of the load, the shape of the load, the speed at which the load is traveling, the method by which the load is fastened to the crane, the customary patterns of and physical restrictions on employee movement, and other considerations. That imprecision, however, does not make the standard unenforceably vague. Dravo Corp., 7 BNA OSHC 2095, 2098, 1980 CCH OSHD ¶ 24,158, p. 29,367 (No. 16317, 1980), pet. den., 639 F.2d 772 (3d Cir. 1980); See also, Sun Ship, Inc. 11 BNA OSHC 1028, 1036 n.19, 1983-84 CCH OSHD ¶ 26,353, p. 33,425 n.19 (No. 16118, 1982), and cases cited therein. It merely means that the distance will depend on the circumstances existing in each case and that the crane operator must exercise judgment. We therefore conclude that the standard gave Ormet fair notice of the conduct required under the circumstances existing at Ormet's plant.

B. DID THE LOAD APPROACH OVER OR NEAR ORMET'S EMPLOYEES?

The next question is whether the evidence establishes that Ormet's employees were close enough to the billets' path of travel that it was reasonably foreseeable that they could be hit if the billets fell. Hindsight suggests that the employee was "near" the billets' path of travel, since he was struck. That approach is too simplistic, however. The crane operator did not have the benefit of hindsight when he failed to sound the alarm. We therefore examine the facts of this case to determine whether the crane operator should have known that the load was approaching near Ormet's employee.

The standard speaks in terms of a load "approaching near" employees. That means that the crane operator must take action before the load is in a position where it actually endangers employees. He must sound the alarm when the load is approaching -- that is, before it actually reaches -- that point. Once the load is close enough that an employee could be hit, the crane operator has waited too long.

The evidence establishes that, at the time of the alleged violation, the crane was carrying five billets, two in one sling and three in the other. The billets were choked near the end, not towards the middle, so that they hung down nearly vertically, with their ends about a foot off the floor. The crane operator intended to take his load to the east side of the inspection table and to lay it against the east rail. Then he would lower the billet onto the west rail.

Two employees, Hunt, a molten metal operator, and Pefferman, a cast house laborer, were working at the inspection table when the crane approached. Pefferman testified that he heard the crane approach and moved northwest of the inspection table, 17 to 20 feet from the load. Hunt also walked away. He stopped approximately 5 to 8 feet to the northeast of the table, and about 16 - 17 feet from the load. As the crane operator lowered the two slings, the end of one of the billets in the sling holding two billets hit the east rail of the inspection table, which released the pressure on the choker sling, allowing both billets to fall. One of them struck and killed Hunt, who was walking away from the load.

It is apparent that both employees were in an area where it was reasonably foreseeable that they could be injured by a billet. Specifically, if the load fell, either employee could have been hit by the falling load, as happened, or could have been struck and injured by a rolling or bouncing billet. Under these facts, we find that the load did approach near employees, so that the warning alarm should have been sounded as the load approached.

C. DID ORMET HAVE KNOWLEDGE OF THE CONDITIONS?

Ormet claims that the Secretary has failed to prove the fourth element of the Secretary's burden of proof, that is, that Ormet had either actual or constructive knowledge that the crane operator did not sound the alarm when the load approached near the employees. We disagree. The record shows that the crane operator's conduct in this regard on the night in question was consistent with the standard practice in Ormet's plant. Ormet's employees, including supervisors and management personnel, often stood at the inspection table when loads were being lowered onto the table, and the crane operators usually did not sound the alarm. The former chairman of the union's safety committee, who operated the same crane on a different shift, testified that, while he was operating the crane, employees had touched the load, turning it so that it would land properly on the inspection table, and that Ormet's supervisors did not seem to notice or care unless someone complained. This witness had complained to Ormet's supervisors on numerous occasions about the situation. The testimony indicates that, although the supervisor might respond to such complaints by telling the employees to get away from the load, any remedial effect was only temporary. Within a few days, the same employees and supervisors would be standing in the fall radius of the load, and the crane operators would fail to sound the warning alarm.

These facts establish that Ormet's supervisory personnel had notice of the conditions in its workplace. The knowledge, actual or constructive, of an employer's supervisory personnel will be imputed to the employer, unless the employer establishes substantial grounds for not imputing that knowledge. Donovan v. Capital City Excavating Co, 712 F.2d 1008, 1010 (6th Cir. 1983). We therefore find that Ormet's supervisors had knowledge of the situation existing in its cast house and did not correct it. The fact that Ormet may not have known of the specific instance of violative conduct at the time it occurred does not mean that that conduct was unpreventable. Ormet might have prevented the violative conduct by taking feasible precautions in hiring, training, and disciplining employees. Brock v. L.E. Myers Co., 818 F.2d 1270, 1277 (6th Cir. 1987), cert.denied, 484 U.S. 989, 108 S.Ct. 479 (1987) (quoting National Realty and Construction Co. v. OSHRC, 489 F. 2d 1257, 1266-67 n.37 (D.C. Cir. 1973)).

Ormet makes other arguments in support of its claim that it did not have knowledge of the cited conditions. Ormet asserts that: the Secretary must prove that the employer knew or should have known that the conditions created a hazard; the accident was unforeseeable because there had been no previous similar accidents at Ormet; and the accident resulted from an isolated employee mistake.

In arguing that the Secretary must prove that the company had actual or constructive knowledge of the presence of a hazard, Ormet relies on Kelly Springfield Tire Co. v. Donovan, 729 F.2d 317 (5th Cir. 1984), Cape & Vineyard Div. of New Bedford Gas and Edison Light Co. v. OSHRC, 512 F.2d 1148 (1st Cir. 1975), and a number of decisions by Commission administrative law judges[[1/]]. The cases cited by Ormet are inapplicable here, because they deal with citations alleging violations of the general duty clause of the Act, 29 U.S.C. § 654(a)(1)[[2/]], or with standards that set forth conditional requirements for the use of personal protective equipment, applicable only when an employee is exposed to a hazard.

In order to prove a violation of the general duty clause, the Secretary must, as the case cited by Ormet states, prove that there is a hazard recognized by the employer or its industry present in the employer's workplace. Because Ormet was not cited for violating the general duty clause, no such showing is required here. Also inapplicable here is the case law defining the Secretary's burden of proof when a general standard like 29 C.F.R. §1910.132(a) is cited. In order to prove a violation of section 1910.132(a), the Secretary must demonstrate either that the employer had actual knowledge of a hazard requiring the use of personal protective equipment or that a reasonable person familiar with the situation, including any facts unique to the particular industry, would recognize a hazard warranting the use of protective equipment.  Armour Food Co., 14 BNA OSHC 1817, 1820, 1990 CCH OSHD ¶ 29,088, p. 38,881 (No. 86-247, 1990).[[3/]]

The duty to comply with section 1910.179(n)(3)(xi) arises before a hazardous situation occurs. Because the standard anticipates the possibility that the load will fall, the focus is on the likely results of a fall, not on whether it is likely to fall. The Secretary does not have to prove that there is a hazard of the load's falling. The alarm is to be sounded before the load comes near enough to employees that, if it fell, it is reasonably foreseeable that they could be hit and injured.

Ormet also argues that section 17(k) of the Act, 29 U.S.C. § 666(k)[[4/]], requires the Secretary to prove that the employer had knowledge of the hazardous condition. Ormet misinterprets that provision. Section 17(k) does not say that the employer must have knowledge, actual or constructive, of a hazardous condition. Rather, the section requires that the employer must have knowledge of the physical conditions constituting a violation. Shaw Construction, Inc., 6 BNA OSHC 1341, 1342-43, 1978 CCH OSHD ¶ 22,524, p. 27,177 (No. 3324, 1978); Southwestern Acoustics & Specialty, Inc., 5 BNA OSHC 1091, 1092, 1977-78 CCH OSHD ¶ 21,582, p. 25,896 (No. 12,174, 1977). Based on the facts set out above, we conclude that Ormet had either actual or constructive knowledge of those conditions.

Moreover, we find that, contrary to Ormet's assertion, the fact that no accident similar to the one in this case had ever occurred does not establish that the possibility of an accident was not reasonably foreseeable. Section 1910.179(n)(3)(xi) is written in such a way that it contemplates that the load will fall. In order to comply with its requirements, the crane operator must anticipate that the load will fall and determine whether any employees are near enough to the path of travel that there is a reasonable possibility that the load could fall, bounce, or roll onto or into them.

Because it was the accident that caused the Secretary to inspect Ormet's facility, Ormet focuses on the facts of the accident. This emphasis is misdirected. The specific facts of this accident are not determinative of whether there was a violation. A violation still would have been committed when the crane operator failed to warn the employees of the approaching load even if there had been no accident. The frequent presence of employees near the path of travel of the load, where they could be injured, and the failure of its crane operators to give warning to those employees gave Ormet knowledge of conditions in its facility that should have been corrected.

Ormet further argues that it has established the affirmative defense of unpreventable employee misconduct. To prove that defense, an employer must establish that it had work rules that were intended to prevent the violation, that those rules were adequately communicated to its employees, and that the rules were effectively enforced. E.g., H.E. Wiese. Inc., 10 BNA OSHC 1499, 1505, 1982 CCH OSHD ¶ 25,985, p. 32,614 (Nos. 78-204 & 78-205, 1982), aff'd per curiam, 705 F.2d 449 (5th Cir. 1983); see Brock v. L.E. Myers Co., 818 F. 2d at 1277.

Ormet introduced into evidence copies of its safety rules and its crane operator's handbook in an effort to show that it did try to prevent the cited conditions. Although these exhibits indicate that Ormet had a work rule instructing crane operators to warn anyone in the path of an approaching load, we find that Ormet did not enforce this rule. The unrefuted testimony of some of the employees who worked in the cast house indicates that they were not familiar with Ormet's written safety rules. Other employees testified that the warning alarm was rarely sounded and that Ormet's supervisors did not discipline crane operators for failing to warn employees of the approaching load. This failure by Ormet to enforce its rules precludes us from relieving the company of responsibility for the conditions it allowed to exist. See Towne Construction Co. v. OSHRC, 847 F. 2d 1187, 1190-91 (6th Cir. 1988) Brock. v. L.E. Myers Co., supra.

Furthermore, the act of "misconduct" that Ormet cites is the crane operator's act of hitting the railing with the end of the billet, and the work rule Ormet relies on deals with proper procedures for lowering the billets. Ormet's argument is misdirected, because Ormet was cited for failing to warn employees of the approaching load, not for improperly lowering the load or letting the load fall. Because the work rule Ormet relies on does not require warnings when employees are in the vicinity of an approaching load, adherence to the rule would not have prevented the violation. By the time the load fell, the violation had already been committed. Consequently, we find that Ormet has not carried its burden of proving this affirmative defense. Id.

D. WAS IT UNNECESSARY TO SOUND THE ALARM?

Ormet argues that, because the employees heard the crane and moved away from the inspection table, the objective of the standard had been accomplished, and that it was therefore unnecessary to sound the alarm. Because we find that neither employee had yet left the immediate vicinity, we do not accept Ormet's assertion that the purpose of the standard had been accomplished.

Ormet complains that the administrative law judge indulged in speculation that, if the horn had been sounded, the employees might have been more aware of the danger and moved further away. While we agree that it is improper to predicate a violation on speculation, we cannot dismiss the judge's observations so lightly.

Both employees were facing away from the load, apparently still in the process of leaving the area, when the load fell. Pefferman testified that he heard the load start to fall, turned around, saw what was happening, and called out a warning to Hunt. If the warning alarm had been sounded, the employees might have become aware of the approaching load sooner than they did and had more time to get out of the immediate vicinity of the approaching load. It is also possible that, if a warning alarm had been sounded, both employees might have taken the situation more seriously and moved more quickly, allowing them to get further away. An alarm might have directed Hunt's attention to the approaching load, so that he would have been looking toward the load. Had he seen it begin to fall in his direction, he might have had enough warning to dodge the falling billet or jump back a few feet.[[5/]]

The employees almost certainly would have had more time to get out of the zone of danger and might well have been impressed with a greater sense of urgency if the alarm had been given as the crane approached. Consequently, we find that, contrary to Ormet's assertion, the purpose of the standard had not been accomplished at the time the violation occurred.

Even if we did agree with Ormet that the two employees had been afforded adequate warning of the approach of the load, we would still not vacate the citation. The standard unequivocally requires a certain course of conduct. It does not permit alternative methods of compliance. By failing to sound the alarm as the load approached the inspection table where the two employees were working, the crane operator violated the standard. The fact that the employees may have sensed the load's approach -- too late to get clear, as it turned out -- does not offset the violation.

II. THE DEGREE OF THE VIOLATION AND THE PENALTY

Section 17(k) of the Act, 29 U.S.C. § 666(k), provides that a violation is serious if there is "a substantial probability that death or serious physical harm could result" from the violation. The billets weighed almost 1600 pounds each. They were 17 feet long and were round. Even if an employee were not struck directly, as happened here, a billet that fell and rolled into an employee could crush his feet or legs. It is apparent that death or serious physical harm could result from a violation. We therefore find that this violation was serious.

In assessing a penalty for a violation of the Act, the Commission must give due consideration to the size of Ormet's business, the gravity of the violation, Ormet's good faith, and its history of previous violations. Section 17(j) of the Act, 29 U.S.C. § 666(j) .We have considered the evidence relating to those factors as it is set out in the record, and we consider the penalty of $900 proposed by the Secretary to be appropriate.

We therefore affirm the finding of the administrative law judge that Ormet committed a serious violation of 29 C.F.R. § 1910.179(n)(3)(xi). We assess a penalty of $900.00.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: March 6, 1991


SECRETARY OF LABOR,

Complainant,

v.

ORMET CORPORATION,

Respondent,

and

UNITED STEELWORKERS OF AMERICA,

DISTRICT 23, LOCAL UNION NO. 5724,

Authorized Employee
Representative.

OSHRC Docket No. 85-0531

APPEARANCES:

Bruce C. Heslop, Esquire, Office of the Solicitor, U. S. Department of Labor, Cleveland, Ohio, on behalf of complainant.

John C. Artz, Esquire, and Deborah M. Brodsky, Esquire, Eckert, Seamans, Cherin and Mellott, Pittsburgh, Pennsylvania, on behalf of respondent.

Frank L. Price, Chairman, Safety and Health Committee, United Steelworkers of America, Local 5724, Clarington, Ohio, on behalf of authorized employee representative.

DECISION AND ORDER

SPARKS, Judge: Respondent, Ormet Corporation, produces aluminum at its facility located on State Route 7 North, Hannibal, Ohio.

On April 16, 1985, the overhead crane lifted five or six "billets" of aluminum, each approximately 17 feet long and weighing 1,594 pounds, to transport them from the pit area to the inspection tables. The employees working at the inspection tables heard the crane and moved several feet away from the table. Billets in one of the slings struck the table causing the sling to release. The billets momentarily stood on end, then fell, striking Roy Hunt (Tr. 49). Following the investigation of the fatal accident, respondent was issued a citation for a serious violation containing four items. Items one and three were vacated at the hearing.

I

THE WARNING SIGNAL

Item two charges respondent with a violation of 29 C.F.R. § 1910.179(n)(3)(xi)[[1/]] under the following circumstances:

29 CFR 1910.179(n)(3)(xi): The warning signal was not sounded whenever the bridge was started or when the load or hook approached near or over personnel:

a) Cast House, the north east overhead crane was used to move two slings, each containing three 10' diameter aluminum billets weighing approximately 1,594 pounds each. As the crane operator approached personnel with the suspended load, he did not sound a warning on or about 2:10 a.m., April 16, 1985.

It is not disputed that the crane operator failed to sound the warning horn when the crane lifted the load from the pit area and when it approached the employees working at the inspection table (Tr. 30, 41-42). Operator Gordon was asked the specific question as follows:

Q. Let me ask you this:

At any time from the time you pulled the billets from the pit to the time you brought them over and started to lay them down on the inspection table, did you sound the warning signal?

A. No, I didn't.

Q. Was the crane equipped with a warning signal?

A. Yes, it was.

The evidence further established that it was not customary or general practice for the crane operator to sound the alarm when making lifts (Tr. 50, 64, 88-89, 108-110, 194). One operator testified he sounded the horn most of the time (Tr. 151-153). Others blew the horn if someone was perceived to be in danger, especially if an employee was in the path or seemed unaware of the approaching crane (Tr. 118, 133, 180, 194). Respondent's safety and health analyst and supervisors testified that they would not have expected the crane operator to have used the warning device because there was no danger to personnel as a result of the load being moved (Tr. 234, 306, 313-314, 330).

The foregoing indicates that respondent did not expect compliance with the OSHA regulation but substituted an expectation that the warning horn was to be used when employees were perceived to be in danger. A prima facie violation has been established as alleged in item two.

Respondent contends that a violation was not established because the accident was not foreseeable. In support of its position, respondent points out that there had never been a prior similar accident and the accident was the result of employee mistake. In support it cites Cape & Vinyard  Division of the New Bedford Gas and Edison Light Co. v. OSHRC, 512 F.2d 1148 (1st Cir. 1975); Chrysler Corp. v. Kokomo Casting Plant, 80 OSAHRC 90/E4, 8 BNA OSHC 2243, 1980 CCH OSHD ¶ 24,830 (No. 79-5324, 1980); and Louis C. Allegrone, Inc., 79 OSAHRC 48/D11, 7 BNA OSHC 1663, 1979 CCH OSHD ¶ 23,673 (No. 78-4698, 1979); and other cases.

Although an accident precipitated the investigation and provided the factual circumstances for the alleged violation, the proceeding before the Review Commission does not attempt to establish the cause of the accident. The occurrence of an accident does not prove a violation nor the lack of an accident establish the absence of a violation.

In Astra Pharmaceutical Products, Inc., 81 OSAHRC 79/D9, 9 BNA OSHC 2126, 1981 CCH OSHD ¶ 25,578 (No. 78-6247, 1979), the Review Commission stated that the following elements are necessary to establish a violation of OSHA standards:

In order to prove a violation of section 5(a)(2) of the Act, 29 U.S.C. §654(a)(2), the Secretary must show by a preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to comply with the cited standard, (3) employees had access to the violative condition, and (4) the cited employer either knew or could have known of the condition with the exercise of reasonable diligence. Daniel International Corp., Wansley Project, OSHRC Docket No. 76-181 (June 30, 1981).

Unlike cases which arise under the general duty clause of section 5(a)(1), citations for alleged violations of OSHA standards under section 5(a)(2) do not require proof of a recognized hazard. It is enough that the Secretary establish conditions which do not comply with the standards. That is clearly proved in the record. The record also shows that the condition was known or should have been known by the employer as the general practice and custom was not to sound the alarm under the conditions prescribed by the standard. Management did not expect it to be sounded unless employees were perceived to be in danger (Tr. 234, 306, 313-314, 330). Employees working the the area and especially those working near the inspection tables were exposed to the hazard of being hit by the load (Tr. 31, 65, 83, 90-91, 122-213, 154, 158-159, 198-200) The lack of prior accidents [[2/]] is not a defense to noncomplying conditions of which the employer is aware as the scheme of the Act is to prevent the first. accident. As respondent did not comply with the specific requirement of the standard, it is not a defense to it that Ormet could not foresee that the result of such noncompliance would be a fatal accident.

Respondent also states that the term "near or over personnel" does not provide adequate warning of what is required. Webster's Third New International Dictionary, defines near as "a short distance" or "close to." As commonly understood, the suspended load of billets came "near" Hunt who was standing five to eight feet from the inspection table where the billets were to be placed (Tr. 83). The standard requires that the warning alarm be sounded under such circumstances. It is not sufficient to contend that the employees were not exposed to a hazard because they heard the noise of the crane and began moving away (Tr. 77). If the horn had been sounded, perhaps their awareness of the danger would have been heightened so that they would have moved farther from the hazard. There are indications that Hunt was not paying attention to the movement of the suspended load (Tr. 49, 79-80). A warning sound would likely have gotten his attention and may have given him time to flee the falling billets.

Respondent further contends the accident was the result of unforeseeable employee mistake. The evidence establishes that the accident was due to billets striking the top or side of the inspection table. Crane Operator Gordon acknowledged that the event was the result of his misjudgment (Tr. 134, 339). The citation, however, does not charge respondent with a violation of the OSHA regulations by permitting the billets to strike the table or the result of such occurrence. Rather the alleged violation is the failure to sound a warning alarm. By not sounding the alarm, Gordon was merely following general practice. Although respondent held safety meetings, not all employees attended. Safety training was especially deficient for crane operators (Tr. 91-93, 122-124, 145-150, 178, 189, 250). The evidence does not establish unpreventable employee misconduct or any other affirmative defense. H. B. Zachry Co., 80 OSAHRC 9/D8, 7 BNA OSHC 2202, 1980 CCH OSHD ¶ 24,196 (No. 76-1393, 1980).

The evidence proves a violation of 29 C.F.R. § 1910.179(n)(3)(xi) as alleged in item two of the citation. As death or serious injury would be the likely result in case of an accident, the violation is serious.

The Secretary proposed a penalty of $900 for violation of item two (Tr. 32-35). The evidence shows the gravity of the conditions is high. Six employees who were around the inspection tables were exposed. The proposed penalty of $900 is reasonable and appropriate.

II

Item four of the citation alleges that respondent violated 29 C.F.R. § 1910.184(c)(9) [[3/]] under the following conditions:

29 CFR 1910.184(c)(9). Employee(s) were not kept clear of load(s) suspended, or about to be lifted by sling(s):

a) Cast House, an employee working near the inspection table was struck by an aluminum billet which fell from a suspended load, causing his death on or about 2:10 a.m., April 16, 1985.

The Secretary does not alleged that the crane transported loads over the heads of employees. He contends, however, that the term in the standard " . . . shall be kept clear of... suspended loads" means that employees shall not be permitted within the "falling radius" of a suspended load (Comp. brief p. 5; Tr. 55). Unquestionably the deceased was within the "falling radius" of the suspended load at the time of the accident. His co-worker, James R. Pefferman, testified Hunt had moved approximately five to eight feet away from the inspection table at the time he was struck (Ex. C-6, R-1, R-2, R-9, R-11; Tr. 83-84). Pefferman was about 17 to 20 feet north of the inspection table (Tr. 78, 105).

The general practice was the employees would move away from the suspended load to an area where they felt secure (Tr. 89, 130). Some were within five feet of the inspection table when the load was brought in while others moved 42 to 50 feet away (Tr. 90, 121, 197-198) . At times some were close to the table (Tr. 91, 154 154 158) . Some employees even grabbed the billets while they were in the process of being placed on the table (Tr. 159). Employees and management were often within the fall radius of the loads (Tr. 154-155, 159).

There was a work rule that employees were to remain "clear" of the load (Tr. 91). The rule was regularly violated by employees and management personnel (Tr. 153-160). Although employees were sporadically instructed to stay out of the way of loads and a few "stop" cards were issued, the rule was not effectively enforced and was disregarded by supervisors (Tr. 159-160).

Respondent contends the language of the standard is vague and fails to provide adequate guidance to the employer. The Secretary asserts that the term "kept clear of loads" means to keep out of the falling radius. That is a reasonable interpretation designed to promote safety and may well be what the Secretary intended to require. The term, however, is not defined in the standards and is not susceptible of precise definition. Webster's Third New International Dictionary demonstrates that the word "clear" has many meanings. As used in the standard it does not adequately advise the employer of what is expected. It is well settled that the employer does not become an absolute insurer of safety under the Act.

The citation asserts the violation occurred during the accident which killed Roy Hunt. The facts of record show that Hunt had moved five to eight feet away from the inspection table as the crane approached with its load of suspended billets. His co-worker, Pefferman, moved about 17 to 20 feet away in another direction. Hunt did not pay attention to the incoming load of billets which probably indicated his belief that he had moved to an area of safety (Tr. 49, 78-80, 104-106, 235). The crane operator did not think Hunt or Pefferman was in danger (Tr. 130). It is noteworthy that there had been no previous accidents of this type whereby respondent could learn of the hazard posed by falling billets. An inference can be drawn from the evidence that, because Hunt had moved several feet away from the point where the billets were to be deposited, he felt he had "kept clear" of the load. The language of the standard does not provide further guidance of the conduct to be expected. There was no evidence of industry custom or practice. In the absence of more specific requirements, a reasonable interpretation of the standard, based on prior experience, would indicate that Hunt, by moving away from the table, had "kept clear" of the load. Since the tragic accident, respondent now requires employees to remain beyond the "falling radius" of the load. Although hindsight affords a harsh lesson of the precautions needed, the evidence of record does not establish that the employer knew or should have known that Hunt's actions were hazardous or in violation of the standard. To define "kept clear of the load" to require that employees move whatever distance is necessary so that under no condition could one be struck by a falling load would in effect make the employer an insurer of their safety. Applying a reasonable man test to the evidence of record, it cannot be said that Hunt's actions were unreasonable under the circumstances.

The Secretary has, therefore, failed to prove that the conditions violated the standard at 29 C.F.R. § 1910.184(c)(9) as alleged in item four. Pennsylvania Power & Light Co. v. OSHRC, 737 F.2d 350 (3d Cir. 1984); Cape & Vinyard Division of New Bedford Gas and Edison Light Co. v. OSHRC, 512 F.2d 1148 (1st Cir. 1975).

FINDINGS OF FACT

1. Respondent, Ormet Corporation, is an employer engaged in a business affecting commerce and has employees as defined by the Act.

2. In its facility in Hannibal, Ohio, respondent moved aluminum billets from the pit area to the inspection tables by means of an overhead crane.

3. On April 16, 1985, the crane operator lifted and moved two slings each containing three billets without sounding a warning at anytime.

4. It was general practice for crane operators not to sound an alarm unless the operator perceived employees to be in danger. Management would not have expected the crane operator to have sounded the alarm while making the lift on April 16, 1985.

5. The failure to sound the alarm creates a hazardous condition which would likely result in death or serious injury should an accident occur.

6. As the crane approached the inspection table, two employees Pefferman and Hunt, heard the crane and moved away from the table. Hunt moved five to eight feet in one direction, Pefferman moved about 17 to 20 feet in another direction.

7. Three billets struck the top or side of the table and came loose from the sling. One of the billets struck Hunt, fatally injuring him.

8. At the time of the accident, respondent had not experienced any prior similar accident.

9. Employees often remained close to the table when billets were being deposited.

10. Respondent sporadically cautioned employees not to get too close to suspended loads, but enforcement of the rule was not consistent and was sometimes violated by management personnel.

11. The general practice was for each employee to move away from a suspended load such distance as he felt safe. Based upon his prior experience and knowledge, Hunt's actions were reasonable under the circumstances.

12. Respondent had various work rules relating to the safe operation of cranes, but the rules were not effectively communicated or consistently enforced.

13. A penalty of $900 is warranted and appropriate for the violation of item one.

CONCLUSIONS OF LAW

1. Respondent is an employer subject to the Act and this proceeding.

2. Respondent violated 29 C.F.R. §1910.179(n)(3)(xi) under conditions constituting a serious violation.

3. Respondent did not violate 29 C.F.R. §1910.184(c)(9).

4. A penalty of $900 is reasonable and appropriate.

ORDER

1. Item two of the citation for serious violation is affirmed.

2. Items one, three and four are vacated.

3. A penalty of $900 is assessed. Dated this 27th day of March, 1986.

JOE D. SPARKS
Judge


FOOTNOTES:

[[1/]] Unreviewed decisions of the Commission's administrative law judges have no precedential value binding on the Commission. Leone Construction Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD ¶ 20,387 (No. 4090, 1976); RMI Co v.Secretary, 594 F.2d 566, 571 n. 13 (6th Cir. 1979).

[[2/]] The general duty clause requires an employer to "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."

[[3/]] The basis of this holding is the language and, especially, the broad scope of this particular standard. Section 1910.132(a) provides:

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.

We conclude that the standard cited in this case is not analogous to § 1910.132(a), either in its language or its scope.

[[4/]] That section provides:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

[[5/]] Pefferman testified that the section of the billet that struck Hunt was about a foot and a half from the end of the billet.


[[1/]] Section 1910.179(n)(3)(xi) of 29 C.F.R. states as follows:

(xi) When starting the bridge and when the load or hook approaches near or over personnel, the warning signal shall be sounded.

[[2/]] There was conflicting evidence of prior accidents. On the shift immediately prior to the one during which the fatality occurred, a sling became unhooked while making a lift in the pit area permitting the billets to fall a short distance (Tr. 27-28, 51, 53, 128, 168-169). No one was injured. There were suggestions of other accidents in the pit area and rumors of an accident a long time ago in which billets fell from a sling at an inspection table (Tr. 56, 317). The record was devoid of substantial evidence of any previous accidents similar to the one which occurred on April 16, 1985 (Tr. 301-302, 330).

[[3/]] Section 1910.184(c)(9) of 29 C.F.R. provides as follows:

(9) All employees shall be kept clear of loads about to be lifted and of suspended loads.