BUTLER LIME AND CEMENT COMPANY

OSHRC Docket No. 855

Occupational Safety and Health Review Commission

May 2, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor

Russell M. Ware, for the employer

OPINION:

ORDER

BY THE COMMISSION:

This matter is before the Commission pursuant to 29 U.S.C. 661(i) on an order directing review of Administrative Law Judge Robert P. Weil's decision rendered after we remanded this matter to him. We remanded with the explicit instruction that he make finding of facts on the adequacy of Respondent's safety training program with respect to the possibility that electricity could arc from wires to the boom of the crane being operated by Respondent's employee. Butler Lime and Cement Company, No. 855, 3 OSHC 1849, 1975-76 OSHD para. 20,252 (RC, Dec. 23, 1975). Our order in turn was predicated on a remand decision by the United States Court of Appeals for the Seventh Circuit which held that the necessary factual finding or findings on this question had not been made. Among other things, the court noted that the testimony as to the adequacy of Respondent's safety program was sharply split. Brennan v. Butler Lime and Cement Company, 520 F.2d 1011, 1015-16 (7th Cir. 1975), [*2] reversing and remanding 11 OSAHRC 819, 2 OSHC 1209, 1974-75 OSHD para. 18,704 (R.C. 1974).

Upon review of Judge Well's decision we conclude that he has failed to make the findings we instructed him to make. Moreover, his decision expressly states that he is unable to do so. Nevertheless, and in apparent contradiction, he appended as attachments to his decision the parties' proposed findings of fact and conclusions of law with his handwritten notations thereon designating some findings and conclusions as accepted and some as rejected. According to the notations, Judge Weil apparently intended to reject Respondent's proposed findings to the effect that its training, instructions, and warnings to employees were adequate. However, we cannot conclude that he specifically found them inadequate because he did expressly incorporate them as part of his decision.

In these circumstances it is plain that Judge Weil has not complied with our order of remand. In any event, he has not complied because contrary to the Administrative Procedure Act, 5 U.S.C. 557(c), he has not supplied reasons or bases for his findings and conclusions, if that was what he intended by his handwritten notations [*3] to constitute. Specific reasons are particularly necessary in this case inasmuch as the evidence is in conflict and credibility determinations may be necessary. See Paul L. Heath Contracting Company, 20 OSAHRC 297, 3 OSHC 1550, 1975-76 OSHD para. 20,006 (1975).

For the reasons stated, this matter is again remanded to the judge for a specific factual finding on the present record on the adequacy of Respondent's safety program in light of the possibility of arcing. Such findings shall be supported by the appropriate reasons. The judge's decision is to be entered no later than 20 days following receipt of this order.

So ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

It is both unnecessary and improper in my opinion, to remand this case to Judge Weil with directions for him to make, on the basis of the present record, "a specific factual finding . . . on the adequacy of respondent's safety program in light of the possibility of arcing." Judge Weil specifically stated in his decision following the Commission's first remand that he was unable to make such a finding. It is, therefore, patently wrong to remand the case again and force him to make a specific finding of fact which [*4] he feels cannot be made on the present record.

On the other hand, since all three Commission members disagree with the Judge and have concluded that the evidence is sufficient to make the necessary finding of fact, n1 such a finding should be made by the Commission members n2 and the case decided on the merits, rather than further delaying the final adjudication of this case which was initiated more than 5 years ago. n3 Accordingly, I would vacate the citation on the ground that complainant has failed to prove by a preponderance of evidence n4 that respondent knew or, with the exercise of reasonable diligence, could have known of the violative act by its employee.

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n1 In remanding the case to Judge Weil the first time, the Commission specifically ordered him to make the appropriate findings on the record as it then existed. Subsequently, we unanimously rejected a request by respondent for an additional hearing on the ground that the evidence of record was already sufficient to make the appropriate findings.

n2 See Accu-Namics, Inc. v. OSAHRC, 515 F.2d 828, 834 (5th Cir. 1975).

n3 The citation was issued to respondent for the alleged violation on April 20, 1972.

n4 Olin Construction Co. v. OSAHRC, 525 F.2d 464 (2d Cir. 1975); Secretary v. Both Brothers Construction Co., Inc., OSAHRC Docket No. 7184, December 1, 1976; Secretary v. Armor Elevator Co., 5 OSAHRC 260 (1973).

[*5]

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Respondent is a corporation engaged in the business of selling building materials in the metropolitan area of Milwaukee. On the day of the alleged violation, one of respondent's employees, Douglas Kapperman, was delivering a truckload of mortar and lime from one of respondent's yards to a construction site in Milwaukee. The truck used by the employees, known as a brion truck, was equipped with a 20-foot crane boom. When he arrived at the site, Kapperman parked the truck directly beneath a series of 4,800 volt power lines. Two employees of another company were operating a cement mixer nearby. When one of them asked Kapperman whether "he wasn't awful close to the wires," Kapperman just looked at him and continued to unlimber and boon. The two workers immediately went to the other side of one of the unfinished buildings because "[i]f he touches those wires maybe we could get it too." When the men returned 10 minutes later, Kapperman was lying dead beside his truck. As a result of this accident, respondent was issued a citation for permitting an employee to operate a crane within 10 feet of the overhead [*6] power line, in contravention of 29 C.F.R. 1910.180(j).

The evidence at the hearing establishes that Kapperman had been approved by respondent as a relief driver of a brick truck 4 years prior to the accident. At that time, Kapperman was given instructions regarding the use of the truck. In the course of these instructions, he was specifically told to "be careful of the electrical wires," and he was warned of "the danger involved of operating too close" to them. In December of 1971, Kapperman was approved as a regular brick truck driver. At this time he was again warned not to operate too close to overhead power lines. Thereafter, he operated the truck without incident until the accident.

For 6 months previous to the accident, respondent had displayed a safety poster on a bulletin board near the time clock where drivers punched in and out of work. The poster, 17 inches by 22 inches, contained a number of safety rules in bold type, with headings in red. One of the rules read: "Crane Boom, under no circumstances, shall be operated within 10' of power lines."

The evidence further establishes that rather than place the sole emphasis on the 10-foot requirement, respondent's [*7] company policy was for employees to "keep well away" from overhead lines and to call in for advice or assistance if they were in a doubtful situation.

On the basis of the foregoing, Judge Weil vacated the citation, and the Commission affirmed, on the ground that respondent did not possess the requisite knowledge of the alleged violation. Secretary v. Butler Lime and Cement Co., 11 OSAHRC 819 (1974). The United States Circuit Court of Appeals for the Seventh Circuit thereafter remanded the case to the Commission for a finding as to the adequacy of respondent's safety program in light of the possibility of electricity being transmitted from the power lines to the boom by arcing. Brennan v. Butler Lime and Cement Co., 520 F.2d 1011 (7th Cir. 1975). Whereupon, we remanded to the Judge for such a finding, and he stated that such a finding was not, in his opinion, possible on the basis of the present evidence.

Knowledge of the existence of a violation, either actual or constructive, is an essential element of any violation of the Act. Dunlop v. Rockwell International, 540 F.2d 1283 (6th Cir. 1976); Horne Plumbing and Heating Co. v. OSAHRC, 528 F.2d 564 (5th Cir. 1976); [*8] Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975); Secretary v. Mountain States Telephone and Telegraph Company, 2 OSAHRC 168 (1973). Complainant therefore has the burden of establishing that the respondent knew or, with the exercise of reasonable diligence, could have known of the existence of the condition or practice upon which the violation is based.

Under the circumstances of this case, complainant has failed to carry its burden. The respondent had trained the deceased employee and in so doing, had warned him several times not to get too close to overhead power lines. Additionally, respondent had prominently posted for 6 months prior to the accident a rule specifying that employees maintain a minimum clearance of 10 feet from such lines. On the other hand, complainant has failed to establish what else respondent could have done to ensure compliance with the standard. See General Electric Co. v. OSAHRC, 540 F.2d 67, 69 (2d Cir. 1976).

If there is any doubt that this accident was a result of Kapperman's total disregard for his own safety, rather than any deficiency in respondent's safety program, that doubt must [*9] dissolve because of Kapperman's complete lack of response to the warnings of the two workers on the nearby cement truck. His failure to head their warnings indicates a totally reckless and almost suicidal tendency on his part. Certainly, no one could reasonably conclude that more frequent or more specific warnings by respondent would have prevented this tragic occurrence.

In remanding this case to the Commission the Circuit Court placed "substantial significance" on the possibility of the electricity arcing from the power lines to the boom. Brennan v. butler Lime and Cement Co., supra at 1018. The court indicated that the issue of whether respondent adequately instructed its employees on the possibility of arcing must be resolved before a disposition on the merits of the case was possible. Subsequent information indicates, however, that the Court misapprehended the importance of the effects of arcing. In a subsequent pleading submitted to the Judge after the Commission's initial remand, complainant conceded that a 4,800 volt power line would arc a "significantly lesser distance" than .668 of an inch, the maximum arcing distance for a 50,000 volt power line under standard [*10] atmospheric conditions. Such small arcing distances makes it clear that the purpose of the safety distance factor specified in complainant's safety regulation is to protect against inadvertent error in manipulating the boom, rather than the possibility of arcing.

Considering the 10-foot distance requirement in conjunction with the small arcing distances discussed above, it must be concluded that the value of warning an employee of the possibility of "arcing" is clearly so miniscule as to be worthless. The record evidence demonstrates that respondent's safety program was adequate. The citation should be vacated because the evidence does not establish that respondent had either actual or constructive knowledge of the employee's dangerous actions.

In view of my colleagues' unwarranted remarks concerning the legal adequacy of Judge Weil's decision, his decision is attached as Appendix A so that it may be judged on its own merits.

Appendix A

ON REMAND

William J. Kilberg, Solicitor of Labor, Herman Grant, Regional Solicitor, William C. Posternack and Edward J. Moran, for complainant

Clifford C. Kasdorf and Russell M. Ware, for respondent

Weil, Judge:

The decision of the Court [*11] of Appeals herein constitutes a new rule for the Seventh Circuit in an important group of cases under the Occupational Safety and Health Act, 84 Stat. 1590, 29 USC 651 et seq. This decision on remand must; of course, and does conform to the law of the case as so established. But because the Seventh Circuit decision is contrary to principles which prevail in the District of Columbia Circuit and in the First, Third, and Ninth Circuits, and because, while consistent with fifteen decisions by this Commission and its judges, it reverses the Commission decision herein and is inconsistent with fourteen other decisions of the Commission and its judges, n1 this determination on remand is presented in a setting broad enough to mark out the real boundaries of the Seventh Circuit decision as a part of the aggregate of the case law on the point in question.

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n1 The Court of Appeals decisions indicating a circuit rule inconsistent with the Seventh Circuit decision herein are as follows:

District of Columbia Circuit: National Realty & Construction Co. v. OSAHRC, 489 F. 2d 1257 (1973)

First Circuit: Case and Vineyard Division v. OSAHRC, 512 F. 2d 1148 (1975)

Third Circuit: Brennan v. Hanovia Lamp Division, 502 F. 2d 946 (1974); Atlantic & Gulf Stevedores, Inc. v. OSAHRC,    F. 2d    (No. 75-1584, March 26, 1976)

Ninth Circuit: Brennan v. Alsea Lumber Co., 511 F. 2d 1139 (1974)

The Seventh Circuit decision herein, Brennan v. Butler Lime & Cement Co., 520 F.2d 1011 (1975), reversed the Commission decision reported in 11 OSAHRC 819 (1974) and is inconsistent with the following decisions of the Commission and its judges in cases other than those reviewed by the Courts of Appeals.

Special duty clauses cases

Clements Paper Co., 1 OSAHRC 574, 581, 583, 585-6

Ira Holliday Logging Co., Inc., 2 OSAHRC 1415, 1417 (1973)

Winslow Crane Service, Inc., 3 OSAHRC 1023, 1024-5 (1973)

Moser Lumber Co., 4 OSAHRC 265, 269-70 (1973)

Richard Block, Inc. 6 OSAHRC 180, 181 (1974)

Katy Engineering Co., 10 OSAHRC 714, 717 (1974)

Abdo S. Allen Co., 14 OSAHRC 481, 482 (1974)

A.L. Amiral & Sons Construction Co., Inc., 19 OSAHRC 588, 596 (1975)

M.W. Kellogg Co., 19 OSAHRC 627, 628, 639 (1975)

Steel Erectors, Inc., 20 OSAHRC 287, 288 (1975)

Engineers Construction, Inc., 20 OSAHRC 348, 350 (1975)

Sawnee Electric Membership Corp., No. 10277 (1975), pp. 12, 17

Bethlehem Steel Corp., No. 2633 (1976), judge's opinion, pp. 12-13

General duty clauses case

Hansen Brothers Logging, 1 OSAHRC 869, 871-2 (1972)

The Seventh Circuit decision is consistent with the following decisions of the Commission and its judges in cases other than those reviewed by the Courts of Appeals.

Standard Glass Co., Inc., 1 OSAHRC 595, 600-1 (1972)

Lebanon Lumber Co., 2 OSAHRC 924 (1973)

Mississippi Valley Erection Co., 5 OSAHRC 483, 486 (1973)

High Voltage Systems, Inc., 7 OSAHRC 282, 290-1 (1974)

Murphy Pacific Marine Salvage Co., 15 OSAHRC 1 (1975)

Enfield's Tree Service, No. 9118 (1975) pp. 5-6

Otis Electric Co., No. 1184 (1975)

Ocean Electric Corp. No. 5811 (1975), pp. 4-6

Leone Construction Co., No. 4090 (1976), p. 8

Lidstrom, Inc., No. 3433 (1976) pp. 6-7

A.J. McNulty & Co., Inc., No. 2295 (1976), p. 8

Sun Ray Lighting Co., No. 14580 (1976), pp. 8-9

B-G Maintenance Management, Inc., No. 4713 (1976), pp. 2-3

Weatherhead Co., No. 8862 (1976), p. 4

Candler-Rusche, Inc., No. 4675, (1976) pp. 4-5

[*12]

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In many cases under the Act the violation results from the employer's failure to provide a safe work environment, e.g., improperly guarded tools and other machines. Since in these cases employer control over the violative condition is not in issue, the Secretary makes out his prima facie case by proving the condition. Where however the violative condition involves employee misconduct, i.e., conduct which the employer has expressly forbidden by his work rules or which is contrary to settled safety practice in the industry, or which is precluded by both, the four circuits above contioned require the Secretary, as part of his case, to prove a nexus between the violative employee conduct and the employer; and that requirement, in cases under the general and special duty clauses, they express in principles which may be summarized as follows. (1) The Act imposes on employers an obligation to suppress hazardous employee conduct which is predictable and therefore feasibly preventable. It does not impose strict liability, e.g., it does not impose liability for failure to prevent employee conduct which [*13] is "idiosyncritic," or "implausible in motive." (2) Violation does not equate with accident or injury. This civil legislation, enacted in the exercise of the commerce power, is regulatory, i.e., preventive, not punitive or compensatory. Thus on the one hand violation may exist without injury or accident or even hazardous conduct, since a safety program's feasibly curable inadequacies may sometimes be demonstrated before employees have acted dangerously, while on the other hand, actual occurence of hazardous conduct is not, by itself, sufficient evidence of violation, even where the conduct has led to injury: the record must additionally show that demonstrably feasible measures would have materially reduced the likelihood that such misconduct occurred. (3) The employer's implied obligation to suppress preventable employee hazard can take on the quality of a legal duty if formulated in terms of what a reasonably prudent employer would do in the premises, as proved by competent evidence such as the testimony of experts. (4) The burden is on the Secretary to prove this "reasonable man" standard of employer conduct; and in the absence of such evidence the citation must be dismissed [*14] even where, it may seem, the employee misconduct was probably feasibly preventable. (5) This must be so because otherwise the employer would be deprived of notice of the nature of the breach of duty with which he is charged, and the right to cross-examine the witnesses against him and to offer rebuttal evidence; and because otherwise a decision could be entered against him based on sheer speculation by the Commission or the Commission judge, instead of being based on findings of fact, supported, in turn, by substantial evidence, after a hearing.

Under the Seventh Circuit rule, the Secretary, even in an employee misconduct case, need only prove the violative condition. From this the Seventh Circuit seems to raise a presumption of violation by the employer; and the employer may be obliged to pay a substantial penalty and suffer other serious sanctions unless he somehow negates the presumed breach of duty, the very corpus of the alleged violation. Furthermore instead of proving an objective, "reasonable man" standard as basis for evaluating the employer's performance, the Secretary need offer no evidence on the point: based on sheer conjecture the Commission may hold the employer's [*15] recruiting, training, supervision or sanctioning insufficient and affirm the citation and penalty. Thus the Government can issue a citation and go to trial in an employee misconduct case without a shred of evidence as to breach of duty by the employer; and it can be awarded judgment against the employer based on a comparison between the employer's performance and a standard of employee control of which the employer has received no notice in the standard, the pleadings or the evidence, and for which there is no basis save the Secretary's fiat; indeed, he can be held in violation on an issue never litigated and raised only on post-trial brief or appellate argument.

This is no far-fetched hypothesis. In substance this is what happened in the case at bar. With no evidence in the record as to what safety instruction in general a prudent employer in Milwaukee County in 1972 would have given to the driver of a crane-mounted truck over and above what Butler gave, and in particular, no evidence as to what instruction a prudent employer would have given as to the propensity of electricity to arc, under certain conditions, from high tension wires to a crane boom, the Court of Appeals deprived [*16] Butler of the judgment in its favor herein unless it could point to evidence which would justify a finding that it had given Kapperman "adequate safety instructions", including instruction as to arcing, n2 a requirement not mentioned in the standard, or in the citation, or in the pleadings or in prior decisions. And the rule was given further emphasis when, despite the remand on this new ground, the Commission refused to permit a hearing for the taking of evidence as to what instruction ought to have been given.

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n2 520 F. 2d p. 1018.

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Under the law of the case at bar the Secretary made out a prima facie case by proving that Butler's crane, operated by Butler's employee, intruded within the ten-foot zone defined in 29 CFR 1910.180(j). I have heard Butler's evidence as to what instruction it gave Kapperman but no evidence as to what further instruction a reasonably prudent employer would have given. And because I am not a safety expert qualified to pass on a program of OSHA-oriented education for those who [*17] operated crane-boom trucks in Milwaukee County in 1972, the record does not afford me the basis for an opinion as to whether or not Butler gave Kapperman adequate safety instructions; I could only engage in "speculating" n3 about what Butler should have done. Hence due to Butler's failure to prove itself not in violation, and compelled by the law of the case, I affirm the citation and penalty notice. But with great respect I submit that the Seventh Circuit rule herein is contrary to Butler's rights under the Occupational Safety and Health Act, the Administrative Procedure Act, the Commission's rules, and general principles of fairness sometimes collectively referred to as the due process clause of the Fifth Amendment, under which the respondent in a civil proceeding, like the defendant in a criminal case, is not held liable until the liability alleged against him by the Federal Government is proved, which principles have been given direct application in decisions referred to above and discussed infra. Also, I submit with great respect, in requiring that the citation be affirmed because of Butler's failure to instruct as to arcing, a proposition injected into the case at some [*18] point after the close of the trial, the decision further violates statutory or constitutional requirements as to notice and an opportunity to be heard.

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n3 National Realty & Construction Co. v. OSAHRC, 489 F. 1257, 1267 (CA DC, 1973).

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I

The standard, 29 CFR 1910.180, promulgated pursuant to 6 of the Act, 29 U.S.C. 655, forbids the operation of a wheel-mounted crane within ten feet of wires carrying current up to 50 kilovolts. 5(a)(2) of the Act, 29 USC 654(a)(2), read with 3(5), 29 USC 652(5), directs that every employer engaged in a business which affects interestate commerce comply with the standard. In 17(k), 29 USC 666(j), the Act provides that a violation shall be deemed "serious," and subject to appropriate penalties as such, if the "condition" or "practices" complained of could result in "death or serious physical harm" and if the employer knew of the presence of the violation or could have known thereof "with the exercise of reasonable diligence."

In purporting to notify Butler [*19] of the prima facie case against it, the Secretary alleged in Paragraph IV(a) of his complaint that at 78th and Sheridan Streets, Milwaukee, Butler "[f]ailed to provide that a wheel-mounted crane not be operated . . . near power lines rated 50 KV or below unless the minimum clearance between the lines and any part of the crane or load be 10 feet." And in Paragraph IV(b), he alleged that the violation set forth in IV(a) was a "serious violation" because death or serious physical harm could result therefrom, and because, in the language of 17(k) of the Act, 29 USC 666(j), "respondent knew, or with the exercise of reasonable diligence, could have known, of the presence of the violation." The answer denies Paragraphs IV(a) and IV(b). Yet without proof of these vital allegations, the decision of the Court of Appeals requires judgment for the Secretary.

At the trial it was established that the wheel-mounted crane was a flat-bed delivery truck equipped with an unloading boom 20 feet long, with a capacity of 2,000 pounds. It belonged to Butler; and at about 10 a.m. on March 15, 1972, under the control of Douglas Kapperman, an employee of Butler, it was being used to deliver [*20] Butler's goods to one of Butler's customers, Commercial Builders Corporation, the mason subcontractor on the job in progress at the above-mentioned location. The site was bordered on at least one side by overhead high-tension wires; but this was a commonplace of the scene in Milwaukee County in March 1972, of which Butler was aware.

Kapperman had driven dump trucks and cement trucks for Butler since 1961 and his safety record was good. From 1968 through March 1972, Butler had two brick trucks, its only vehicles to which the standard regarding wheel-mounted cranes applied. In 1968 Kapperman, then a cement truck driver, was asked by Butler to qualify also as a relief driver on brick trucks. Wisconsin had a ten-foot rule as to wires, but years before, Butler had had an experience in which electricity had seemed to arc an unexpectedly long distance. Mislang, Butler's assistant manager, coached Kapperman in the operation of the boom and instructed him in Butler's policy as to wires: Stay well away from wires. In a situation open to question, stop; call the office; and wait for a supervisor. Neither ten feet nor any other specific distance was mentioned; and no attempt was made to [*21] demonstrate with the boom the distance of ten feet from wires. n4 After the coaching session, Kapperman was rated qualified on brick trucks and Mislang never had to discipline him for a brick-truck delivery improperly made.

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n4 See 11 OSAHRC 819, 828, 836-7 (1973).

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But before the end of 1971, when Butler qualified Kapperman as a brick truck driver, the ten-foot rule as an OSHA standard to be complied with by him was brought home to Kapperman by Butler, with emphasis. On August 21, 1971, the OSHA Regulations took effect; and shortly after the latter date the Milwaukee County Construction Industry Safety Council issued a large poster and an employee booklet highlighting certain safety standards which concerned its members. The ten-foot rule was No. 16 of 22 items on the poster; and in the booklet employees were informed that "all posted rules shall be obeyed. . ." The poster was prominently displayed by Butler for at least six months before the accident; and the booklet was distributed to all employees in November [*22] 1971, each copy being inscribed with the name of the recipient. In December 1971, there was an opening with Butler for one of the two regular brick-truck driver positions. Kapperman "bid" for the job successfully; and Tews, Butler's manager, took Kapperman into his office and discussed with him the new assignment, repeating in substance what Mislang had told Kapperman three years before. n5 Kapperman was an employee of ten years standing, who was getting his wished-for assignment. For months, every time he passed the dispatcher's office, he had been exposed to the poster which said:

"CRANE BOOM, under no circumstances, shall be operated within 10' of power lines."

And as aforesaid, the booklet with his name on it stated to him that this rule "shall be obeyed." Coupled with the poster and the booklet, Tews' admonition to Kapperman to stay away from wires may well have meant to Kapperman: Obey the posted rule. Stay away ten feet or more. And it may well be that this was the very training which a safety expert or prudent owner of brick-trucks would have deemed feasible and adequate in the premises. To a layman, it would seem that Butler had used effective means to convey the simple [*23] message of the standard, and that the Secretary, demanding more, should have produced, if he could, the informed opinion of an expert in safety education as to what additional instruction was required in the premises. But the Secretary offered no such evidence -- no proof as to what steps Butler should have taken but did not take.

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n5 See, id., pp. 837-8.

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To be sure, Cornell, Butler's only other "wheel-mounted crane" driver may have received, prior to Kapperman's accident, no safety instruction from Butler as to high-tension wires. But there was no claim that Kapperman had been trained with Cornell; hence if Cornell's lack of training is to be weighed in the balance at all, it negated, rather than sustained, the Secretary's argument that Butler's instruction of Kapperman made it predictable that Kapperman would violate the standard. Thus in the six months preceeding the accident Butler had made at least 45 deliveries to the site, all without any special warning or instruction as to the wires at that particular [*24] location and all without incident, including three deliveries by Cornell who, without any training, just stayed away from the wires in the exercise of common sense, n6 and three by Kapperman, equally unevontful before the fatal day.

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n6 See id., p. 843.

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Likewise the circumstances surrounding the accident tend to negate, rather than to sustain, the Secretary's argument. As aforesaid, overhead high-tension wires ran along one of the streets bordering the site. The construction site was large, with plenty of room for Kapperman to unload safely and conveniently. Yet he positioned the truck directly under the wires so that they crossed the cargo at right angles to the fore-and-aft axis of the truck. Lewis, a laborer employed by Commercial Builders Corporation, had the duty of mixing "mud" with a portable mixer for the masons; and it was his job to indicate where Commercial wished the cement to be unloaded. There is no suggestion that Lewis had received any instruction from anybody in respect of compliance with [*25] the crane boom standard. Yet when Lewis saw where Kapperman had stopped, he pointed out to Kapperman the danger from the wires and asked him to move to a safer location; but Kapperman refused, although respondent's instruction to Kapperman had been the poster, the booklet and the admonition to keep away from all wires. When this warning failed of effect, Lewis, and Lund, the man working with him, took shelter behind a nearby building because they were afraid that if they remained where they were and Kapperman's boom touched the wires they too might somehow be electrocuted. Presumably there was no witness to what occurred. But ten minutes later Lewis took a cautious look; and this is what he saw. One pallet had actually been unloaded. The crane's cable was attached to a second pallet which was still on the truck. The boom was above and upon or very close to the wires and the boom and the wires showed burn marks. And Kapperman lay dead on the ground beside the truck, his hand clutching the control box. Thus Kapperman must have raised the boom from the "saddle" in which it rested while the truck was enroute, swivelled the boom around 90 degrees so that it was behind and parallel [*26] with the wires, swivelled it back over the truck bed, and proceeded to try to unload. He succeeded with the first pallet; but when the strain of the second pallet came on the boom, the boom must have been forced down far enough to produce the result described. As above indicated, on this record I could speculate, but not make a finding of fact, as to whether Butler fully performed its duty to instruct Kapperman.

II

The plain language of the Occupational Safety and Health Act supports the majority rule in the Courts of Appeals, not the Seventh Circuit rule. Thus Section 10(c), 29 USC 659(c), tells us that when the Secretary advises the Commission that a notice of contest has been filed, "the Commission shall afford an opportunity for a hearing (in accordance with 554 of Article 5, United States Code. . .)." And

"The Commission shall thereafter issue an order, based on findings of fact. . . ."

5 USC 554 is, of course, 5 of the Administrative Procedure Act, P.L. 404, June 11, 1946, c. 324. And so the hearing is to be conducted pursuant to 7(c), 5 USC 556, which provides, that

"Except as statutes otherwise provide, the proponent of a rule or order shall have the burden [*27] of proof."

12(g) of the Occupational Safety and Health Act, 29 USC 661(f), authorizes the Commission to make rules of practice; and pursuant thereto it has adopted Rule 73(a), 29 CFR 2200.73(a), which provides that

"In all proceedings commenced by the filing of a notice of contest, the burden of proof shall rest with the Secretary."

And decisions of the Courts of Appeals for the District of Columbia, and for the First, Third, and Ninth Circuits have made it clear that the Occupational Safety and Health Act is not a statute which, within the meaning of 7 of the Administrative Procedure Act, shifts the burden of proof from the Government to the defendent. On the contrary, Commission Rule 73 has been approved in the context of the decisions just referred to. n7

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n7 National Realty & Construction Co., Inc. v. Secretary of Labor, 489 F. 2d 1257, 1263 (CA DC, 1973); Brennan v. Alsea Lumber Co., 511 F. 2d 1139, 1143 (CA 9, 1975).

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To be sure, the first three employee misconduct cases in which the [*28] burden of proof as to the adequacy of employer instruction and supervision was determined were general, not special duty clause cases, i.e., enforcement proceedings under Paragraph 1 of 5(a) of the Act, not Paragraph 2, 29 USC 654(a)(1) and (2). National Realty & Construction Co. v. OSAHRC, 489 F. 2d 1257 (CA DC, 1973); Brennan v. Republic Creosoting Co., 501 F. 2d 1196 (CA 7, 1974); Brennan v. Hanovia Lamp Division, 502 F. 2d 946 (CA 3, 1974). But the rationale as to the burden of proof did not derive from the special feature which differentiates the two clauses: While in these general duty clause cases the hammer was, expectably, the general duty clause formulation that "Each employer . . . shall furnish . . . employment . . . free from recognized hazards . . . likely to cause . . . serious physical harm to his employees", the anvil on which the burden of proof rule was forged was the language, equally applicable to special duty clause proceedings, in which Congress stated "its purpose and policy," i.e., "to assure so far as possible . . . safe . . . working conditions. . . ." Act 2(b), 29 USC 651(b), (emphasis added). From these elements, [*29] it was determined in National Realty, "Congress intended to require the elimination only of preventable hazards," a criterion which, in functioning as a rule of law must, the Court held, draw its content from "the informed judgment of safety experts."

"Hazardous conduct,"

the Court continued,

"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 in feasible. All preventable forms and instances of hazardous conduct must, however, be entirely excluded from the workplace. To establish a violation of the general duty clause, hazardous conduct need not actually have occurred, for a safety program's feasibly curable inadequacies may sometimes be demonstrated before employees have acted dangerously" (489 F. 2d pp. 1266-7; footnote omitted).

The Court then went on to lay down its rule as to the burden [*30] of proof:

"At the same time, however, actual occurence of hazardous conduct is not, by itself, sufficient evidence of 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 p. 1267). n8

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n8 The same proposition had been earlier announced by the Commission. See, e.g., Hanovia Lamp Division, 2 OSAHRC 55, 57 (1972):

"As we have often stated, just as each violation need not result in an accident, neither does the mere fact that an accident occurred indicate that there was a violation."

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In National Realty, the employer had been cited under the general duty clause in effect for failing in its duty to prevent equipment riding on a construction site by employees other than the one operating the machine. As in the case at bar the employee conduct on which the claim of violation was based was contrary to the employer's work rule and without its actual [*31] knowledge; and the Secretary offered no evidence as to additional demonstrably feasible measures which would have materially reduced the likelihood that such misconduct would have occurred. But whereas in the case at bar the Seventh Circuit would oblige the Commission to make a finding without comparison with a standard established by evidence of record, the District of Columbia Circuit rejected just such a Commission determination in National Realty:

"The Commission sought to cure these deficiencies sua sponte by speculating about what National Realty could have done to upgrade its safety program. These suggestions, while not unattractive, came too late in the proceedings."

Pointing out how judgment for the Secretary based on such speculation would have deprived the employer of a fair hearing, the Court continued:

"An employer is unfairly deprived of an opportunity to cross-examine or to prevent rebuttal evidence and testimony when it learns the exact nature of its alleged violation only after the hearing. * * * To merit judicial deference, the Commission's expertise must operate upon, not seek to replace, record evidence" (489 F. 2d p. 1267; footnotes omitted). [*32]

Although to the Court it seemed "quite unlikely that these [present and prior examples of equipment riding by employees] were unpreventable instances of hazardous conduct", the Court deemed decisive the circumstances that

". . . the hearing record is barren of evidence describing, and demonstrating the feasibility and likely utility of, the particular measures which National Realty should have taken to improve its safety policy. Having the burden of proof, the Secretary must be charged with these evidentiary deficiencies."

The Court held that:

". . . the Secretary must be constrained to specify the particular steps a cited employer should have taken to avoid citation, and to demonstrate the feasibility and likely utility of those measures.

Because the Secretary did not shoulder his burden of proof, the record lacks substantial evidence of a violation, and the Commission's decision and order are, therefore,

"Reversed" (489 F. 2d pp. 1267-8).

To be sure the Court, in a footnote to its definition of preventable hazard quoted above, pointed out, inter alia, that

". . . an instance of hazardous employee conduct may be considered preventable even if no employer could have [*33] detected the conduct, or its hazardous character, at the moment of its occurence. Conceivably, such conduct might have been precluded through feasible precautions concerning the hiring, training, and sanctioning of employees" (footnote 37, 489 F. 2d. p. 1266).

Especially in the context of the entire opinion it is clear that the Court was not, in this footnote, negating the main thrust of its holding, i.e., that in an employee misconduct case the Secretary must establish by evidence the reasonable man standard of employee control by which the employer's performance is to be tested. On the contrary the footnote comment was in amplification of the Court's formulation of the legal parameters within which the Secretary could have offered, but did not offer, evidence to define the employer's duty. In Butler there is no suggestion that such evidence would not have been admitted if offered.

In the other two general duty clause cases, National Realty was cited with approval and its rationale applied. In Republic Creosoting, the Secretary claimed that Republic was in violation because of its failure to train one Davis, a new employee, in a safe technique for unloading railroad [*34] ties. Republic had a yard at which it purchased, unloaded, stacked and seasoned ties. Davis was told to watch an unloading operation but to stay away from trucks being unloaded. Contrary to instructions Davis darted to a truck and without proper precautions, cut a steel band holding a bundle of ties, which fell on him and killed him. The Commission vacated the citation and the Court affirmed on two grounds: (1) that it had not been shown that Republic had a substantive duty to train Davis in the safe performance of an operation which he had been ordered to keep away from; and (2) because "The Secretary other than by bald statement does not indicate how this act [by Davis] could have been foreseen." After citing National Realty with approval, the Court found the Commission's decision to be "within the scope of its discretion in interpreting the statute which it has special responsibility to enforce. Further," the Court concluded, "we agree with Judge Wright that 'Congress intended to require elimination only of preventable hazards.'" 501 F. 2d p. 1200. Nothing in that rationale would have been inconsistent with an affirmance in Butler. To be sure, the Seventh Circuit [*35] pointed out in Butler, by way of distinguishing that case from Republic Creosoting, that the employer's duty to instruct depends on the facts as to the nature of the employee's duties and the extent his prior experience; and that Kapperman was in sole charge, whereas Davis was told not to participate. But these considerations affect the employer's substantive duty to instruct; they do not determine the Secretary's burden to prove a standard of prudent employer safety training by which to measure the actual training which Butler gave Kapperman. n9

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n9 Quaere as to whether Republic Creosoting has overruled for the Seventh Circuit the rule of Sun Shipbuilding & Drydock Co., 4 OSAHRC 1020 (1973) and Advance Air Conditioning, Inc., 7 OSAHRC 736 (1974), that hazardous conduct may not be proceeded against under the general duty clause where there is an applicable standard. See, e.g., 29 CFR 1910.265(d)(1)(i)(b) and Ira Holliday Logging Co., Inc., 2 OSAHRC 1415 (1973), and Moser Lumber Co., 4 OSAHRC 265 (1973).

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In Hanovia Lamp, the employee misconduct was by one Gallagher who, like Kapperman, was an experienced technician with a long record of safe, satisfactory service, who, working alone and without the knowledge of the employer, defied established canons of safety, whereby he electrocuted himself. Unlike the case at bar, however, what Gallagher did was not proscribed by express employer work rule; and again unlike the case at bar, the Secretary there did offer evidence in support of the proposition that in two respects Hanovia Lamp could have effectively improved its safety procedures: (1) it could have manned an operation of the type being carried out by Gallagher with a team of two instead of permitting Gallagher to proceed alone; and (2) it could have provided more frequent supervision. The Third Circuit summarized National Realty as follows:

"In National Realty the District of Columbia Circuit reversed the Commission's decision and order finding a serious violation in equipment riding on a construction site because the Secretary had not established by evidence what additional feasible safety steps the employer might have taken, and the record, therefore, [*37] lacked substantial evidence of the violation. Thus the court interpreted the general duty clause, as a matter of law, as imposing the duty of adopting demonstrably feasible measures for materially reducing the likelihood of a particular employee misconduct. It then reviewed the record for substantial evidence that there wer such measures, and found none. Since the Secretary had not carried his burden the Commission order was reversed" (502 F. 2d p. 952).

The Commission had vacated the citation against Hanovia Lamp. Applying the National Realty rationale, the Court found substantial evidence in the record to sustain the Commission's decision rejecting the necessity for increased supervision alleged by the Secretary. But the Court reversed and remanded for consistent proceedings on the question as to the need for a two-man team, where the Commission had rejected the Secretary's evidence without any finding as to what proof preponderated against it. In the Court's words,

"The Commission opinion does not deal with the suggestion by the Secretary's expert that Galligher should not have been left to work alone. If this suggestion were made without any testimony supporting its [*38] feasibility we would be inclined to hold, as did Judge Wright in National Realty, that the Secretary simply had not met his burden. But there is direct [supporting] testimony by the [Secretary's] expert. . . . This, we think, is some evidence that the two-person requirement for high voltage testing is a feasible measure for materially reducing the likelihood of employee disregard of recognized electrical hazards. The Commission, unfortunately, did not deal with this phase of the case at all, and we think that in the first instance, the question of whether the Secretary has met his burden should be answered by the Commission" (502 F. 2d p. 952).

Thus as to the burden of proof, Hanovia Lamp was the opposite of the case at bar. In Hanovia Lamp the Court reversed and remanded for further proceedings because the Commission had vacated the citation in the face of evidence supporting the Secretary's case, and without a finding as to what employer evidence was more pursuasive. n10 In the case at bar, on the contrary, the Court reversed and remanded for further proceedings where the Commission had vacated a citation for employee violation where there was no evidence at all [*39] as to how the employer's instruction and supervision could have been improved.

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n10 The last chapter on Hanovia was written when, on remand, the Commission found that the Secretary had "failed to establish that the use of the team system was feasible under the particular circumstances of this case" and vacated the citation in a brief decision which, beside the remand decision of the Third Circuit in that case, cited only Republic Creosoting. See 18 OSAHRC 154, 155 (1975).

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In 1975 and 1976 the Courts of Appeals for the First, Third, and Ninth Circuits applied the National Realty rule as to the burden of proof regarding employee control in the special duty clause cases which came before them. In Brennan v. Alsea Lumber Co., 511 F. 2d 1139 (CA 9, 1974), and Cape and Vineyard Division v. OSAHRC, 512 F. 2d 1148 (CA 1, 1975), as in the case at bar, the employee misconduct was without the employer's knowledge, while in Atlantic & Gulf Stevedores, Inc. v. OSAHRC,    F. 2d    (CA 3, No. [*40] 75-1584, March 26, 1976), the employee misconduct was in open defiance of the employer's work rule.

In Alsea Lumber, the Company had been cited for "serious" and "non-serious" violations because of employee failure to operate machinery and wear protective equipment as required by OSHA standards and the employer's work rules. The Commission judge vacated the citations on the ground that as to both, the Secretary was obliged to prove employer knowledge of the employee misconduct or facts from which a diligent employer would have had knowledge, which burden the Secretary failed to meet. 2 OSAHRC 1005, 1022, 1024 (1973). Seeking reversal, the Secretary treated the issue as to the burden of proof regarding the sufficiency of employee control as a question to be solved under the provisions of the Act with respect to employer knowledge. While, as in the case at bar, the Secretary had pleaded scienter in the employer as to the serious violation, the Secretary nevertheless contended that 17(k) of the Act, 29 USC 666(j), placed the burden on the employer to prove absence of scienter, while as to the nonserious violation, the Secretary claimed that scienter is not an [*41] element of the violation at all. Thus according to the Secretary, he need only prove violative employee conduct: in the case of a serious violation, absence of scienter would be an affirmative defense, while as to a nonserious violation, scienter would be immaterial. The Court of Appeals overruled both of these propositions, holding that employer scienter is an element of violation, serious and nonserious, and that as such it must be proved by the Secretary.

As to serious violation, the Court reached this result as a matter of the proper construction of 17(k), as the Commission had consistently held in the application of its Rule 73(a). The Court summed up the record as follows.

"There is no evidence in the record tending to show that the employer had any knowledge respecting these instances of employee disobedience of its established instructions. No effort was made to establish that the instructions were a mere sham or that the employer had any on-going practice of permitting its instructions to be disregarded by its employees with impunity. The Secretary alleged employer knowledge and Alsea denied it. As the case reaches us, the absence of employer knowledge [*42] must be considered one of the established facts" (511 F. 2d p. 1141).

In its rationale with respect to nonserious violation, the Court commenced with a construction of the whole of 666 of 29 USC:

". . . the statute decribes no element of a nonserious violation and provides no guidelines for specifically determining a violation 'not to be of a serious nature.' We find unpersuasive, therefore, the argument of the Secretary to the effect that the presence of an employer knowledge requirement in Section (j) and its absence from Section (c) impels a finding of Congressional intent to delete employer knowledge as an element of a non-serious violation. We find no more warrant for deleting employer knowledge than we do for the deletion of any of the other elements set forth in Section (j) (probability of harm; conditions existing; practices adopted or in use; occurence in place of employment), all of which are equally absent from Section (c)."

"Considering, as we must, the statute as a whole and 29 USC, 666 in its entirety, we are convinced that Congress intended the same meaning for the word 'violation' wherever it appears. Section (c), containing the only reference to non-serious [*43] violations, must be read in conjunction with Section (b). Both relate to employers who have merely 'recieved a citation.' Niether defines a violation. The sole difference between sections (b) and (c) lies in the mandatory assessment of a penalty for serious violations and the permissive assessment for non-serious violations."

"We note also, the use of 'willfully' and 'knowingly' in those sections of 29 U.S.C. 666 which refer to persons who 'violate.' Willfulness, with which knowledge is necessarily equated, does not appear where the prohibited act is impossible without knowledge of the actor (failure to correct; giving advance notice; failure to post), or in sections (b) and (c) which are concerned only with assessment upon citation. Whether the assessment be mandatory or permissive is made to turn soley on the nature of the violation, not on the presence or absence of employer knowledge" (511 F. 2d p. 1144; footnotes omitted).

Emphasizing its central proposition, the distinction between employee violative conduct and employer violation, and the necessity for a relationship between the two as a condition for a finding of violation by the employer, and emphasizing that under [*44] National Realty, the statute imposes, not strict liability, but a duty which is achievable, the Court concluded:

"We find the Commission's requirement of proof by the Secretary of employer knowledge as an element of a non-serious violation to be both reasonable and in accord with the statute under which the Commission functions. The whole tone of the statute and its legislative history is directed toward increased safety of working conditions through the cooperative efforts of employers and employees. The legislative purpose, stated in 29 U.S.C. 651(b), includes:

(2) by providing that employers and employees have separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions."

"The Secretary's citations herein are directed to Alsea and include the statement, 'On the basis of the inspection it is alleged that you violated the Occupational Safety and Health Act of 1970 * * * (emphasis ours). It appears unquestionable that the employees involved herein violated the Act."

The Court held:

"The legislative history of the Act indicates an intent not to relieve the employer of the general responsibility of assuring [*45] compliance by his employees. Nothing in the Act, however, makes an employer an insurer or guarantor of employee compliance therewith at all times. The employer's duty, even under the general duty clause, must be one which is achievable. See National Realty, supra. We fail to see wherein charging an employer with a nonserious violation because of an individual, single act of an employee, of which the employer had no knowledge and which was contrary to the employer's instructions, contributes to achievement of the cooperation sought by the Congress. Fundamental fairness would require that one charged with and penalized for violation be shown to have caused, or at least to have knowlingly acquiesced in, that violation. Under our legal system, to date at least, no man is held accountable, or subject to fine, for the totally independent act of another. A conspiracy to violate the Act is neither alleged nor reflected in the record before us."

"The Commission's insistence on some nexus between the employer and the alleged violation confirms the wisdom of the Congress in establishing the Commission. Not requiring the Secretary to establish that an employer knew or should have [*46] known of the existence of an employee violation would in effect make the employer strictly and absolutely liable for all violations and would render meaningless the statutory requirement for employee compliance, 29 U.S.C. 654(b)."

"To revive the citation for non-serious violation No. 5 herein would be to subject an employer to a standard of strict liability, under the special duty clause, for deliberate employee misconduct. We do not find that result to be within the intent of the Congress."

"The final order of the Commission was in accordance with law and must be affirmed." (511 F. 2d pp. 1144-5; footnotes omitted).

In the general duty clause cases of employee misconduct discussed above, it was held that the implied-in-law obligation of the employer to protect his employees through instruction, supervision and sanctioning had to be fleshed out and particularized by reference to a standard of conduct imputed to a reasonably prudent employer in order that employers might have fair notice of their substantive duty and in order that the Commission judge might have established in the record a standard of legally acceptable conduct with which to compare the evidence of what the [*47] respondent employer actually did. In Cape and Vineyard Division the alleged obligation of the employer arose under the special duty clause coupled with 29 CFR 1910.132(a), a standard which obliges the employer to provide and to cause his employees to use personal protective equipment "wherever it is necessary by reason of hazards . . . encountered in a manner capable of causing injury. . . ." And like the employer's obligation under the general duty clause, the First Circuit held that the employer's obligation under 1910.132(a) would have to be spelled out by the evidence of experts as to what a reasonably prudent employer would do. Predictably, in so holding, the Court followed National Realty.

Thayer, a lineman, had covered with insulating blankets some but not all of the live wires an a pole on which he was working. When asked by Fulcher, his "buddy," who was nearby in a truck bucket, "Thayer said he didn't need any more protection. A few moments later, when Fulcher's attention was engaged elsewhere, Thayer, like Kapperman in the case at bar, somehow left his safe position and electrocuted himself. Lacking evidence that Thayer's move into the danger area without [*48] covering the rest of the wires was contrary to what a reasonably prudent employer would have permitted, and was therefore to be deemed reasonably foreseeable by Cape and Vineyard, the Commission judge affirmed the citation on the basis of his own experience and reasoning -- that the accident could have been prevented by the use of additional protective rubber; and that Cape and Vineyard ought to have known this because a lineman's work is "inherently" dangerous. Functioning as it had in National Realty, and as the Seventh Circuit seems to require in the case at bar, the Commission affirmed. But quoting from National Realty, the First Circuit held that the employer's duty under the Act is limited to a program reasonably calculated to suppress violative conduct by employees which is non-idiosyncratic and non-implausible and hence preventable. "An employer cannot be held to guard against hazards created by employee conduct which is not reasonably foreseeable" (512 F. 2d p. 1152). Precisely the unsupported, subjective type of determination which the Seventh Circuit seems here to require, the First Circuit criticized as follows:

"The administrative judge reasoned that a lineman's [*49] work on the pole inherently involved the possibility of error, slips, and unusual occurrences. While this statement seems sensible -- indeed, on first impression it might even seem to a layman that Thayer's hazardous conduct might have been predictable -- the judge's position is not supported in the record. No witness familiar with linework testified as to the likelihood of such error in Thayer's circumstances, and the judge did not allow the expert to express his opinion as to whether contact such as Thayer's was reasonably foreseeable. In the absence of such testimony, the judge's determination as to the foreseeability of the hazard was speculation rather than a conclusion derived from record evidence. * * * Without any support whatever from knowledgeable witnesses experienced in this technical activity, we do not see how the agency can be satisfied that the hazard was 'reasonably foreseeable,' or that skilled men of ordinary prudence would have thought it 'necessary' for the company to impose additional protective equipment requirements upon Thayer" (512 F. 2d p. 1153).

In Atlantic & Gulf Stevedores, the employer had been held in violation of the special duty clause and [*50] the longshoring hardhat standard, 29 CFR 1918.105(a). Instead of the usual picture of employee violation without the employer's knowledge, this case showed that the stevedoring firms in the Port of Philadelphia had taken a long list of measures to bring about employee compliance; that despite these efforts almost all the longshoremen refused to wear hardhats; and that under existing employment arrangements, firing the dissenters would result in strikes. In support of their appeal the employers argued that under Hanovia Lamp, they should not be held in violation without proof by the Secretary of feasible measures which a prudent employer would have adopted which would have materially suppressed the violative conduct. The Secretary argued that this, the general duty clause rule of Hanovia Lamp, was inapplicable in special duty clause cases. The Court expressly rejected the Secretary's argument that "employers are to be held to a higher standard of care under the specific regulations than under the general duty clause."

"We decline,"

held the Court,

"to bifurcate the statute in such a manner, and attach no significance to the proffered distinction. As the First Circuit [*51] observed in Cape & Vineland [sic] Division of New Bedford v. OSHRC, 512 F. 2d 1143 (1st Cir. 1975), the employer's task of guarding against the aberational action of specific employees who violate specific salary standards is essentially no less difficult than under the general duty clause. Cf. Brennan v. Butler Lime & Cement Co., 520 F. 2d 1011, 1017 (7th Cir. 1975). Thus the Hanovia Lamp standard governing employer responsibility applies, in our view, to 29 C.F.R. 1918.105(a) to the same extent as to the general duty clause" (slip opinion, pp. 8-9).

Reference must now be made to decisions in the Fifth and Eighth Circuits. Reversing what had been the sequence of development elsewhere, in the Fifth Circuit the first case arose under the special duty clause and the second under the general duty clause. In the first case, Horne Plumbing & Heating Co. v. Dunlop, 528 F. 2d 564 (1976), two experienced men, with good safety records, and in the face of instructions which were part of an extensive program of employee control, entered, without this employer's knowledge, a portion of a trench which, under the applicable standard, 29 CFR 1926.652(b), should have [*52] been shored. Like Kapperman, they ignored the warnings of others on the spot to whom the danger was obvious. The trench collapsed and they were killed. The Commission judge deemed that employee control had been good enough so that this employee misconduct would not have been attributable to Horne except for the circumstance that one of the men was his job foreman -- management's representative on the spot. The foreman's knowledge, the judge held, must as a matter of law be attributed to the employer, with the result that the employee misconduct became the employer's violation. The Commission affirmed; but the Court reversed.

The Fifth Circuit expressly adopted, as dispositive of the case, the rationale of the Ninth Circuit in Alsea Lumber. It held that in the absence of proof by the Secretary of facts showing that the employee misconduct was foreseeable by the employer, the Secretary had failed to prove violation by the employer and that accordingly, the citation must be vacated. In the words of the Court,

"The Ninth Circuit recently affirmed a Commission decision holding that employer knowledge is an element of proof of both serious violations under section 17(k) and [*53] non-serious violations, and that the burden is on the Secretary to prove the existence of that element, rather than on the respondent to prove its absence. * * * We adopt the reasoning of the Ninth Circuit and hold that, on the facts of this case, it was error to find Horne liable on an imputation theory for the unforeseeable, implausible, and therefore unpreventable acts of his employees. A contrary holding would not further the policies of the Act, and it would result in the imposition of the standard virtually indistinguishable from one of strict or absolute liability, which Congress, through section 17(k), specifically eschewed" (528 F. 2d pp. 570-1). n11

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n11 To be sure, the Court also cited the Seventh Circuit decisions in Republic Creosoting and Butler Lime & Cement. But in discussing those cases it referred only to their substantive law holding that whether employee misconduct is "foreseeable", i.e., is to be equated with employer violation, depends on the existence of an adequate program of employee control. 528 F. 2d. 568-9. That proposition is not inconsistent with affirmance here, or with the rationale of the "majority" Circuit Court decisions, to which the Fifth Circuit stated its adherence.

[*54]

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The second case was Getty Oil Co. v. Dunlop, 530 F. 2d 1143 (1976), reh. den. June 16, 1976. Underlying, there was a somewhat different factual pattern. Instead of the single, service-type operation carried on at the premises of the employer's customer, endangering only the employee guilty of misconduct, in Getty the employee misconduct occurred in the course of the reconstruction by the employer of a portion of its permanent oil and gas distribution system, the work place for other employees. Getty had a transmission facility in Matagorda County, Texas, which it determined to improve by increasing the pressure in the pipeline through the installation of a pressure vessel. King, the Area Engineer, directed Robison, a man of thirty years' experience, who had previously installed two other pressure vessels under King's supervision, to acquire the vessel from an outside supplier and install it. King instructed Robison that this vessel, like the other two, must be tested before being put in operation. Disregarding these instructions, Robison, without the knowledge of King or of any other Getty [*55] personnel superior to Robison, installed the vessel and put it into operation without testing. It immediately blew up, killing Robison and injuring another Getty employee. The Commission held Getty in violation of the general duty clause and the Court affirmed. Although Getty came before the Court only a few months after Horne Plumbing, the earlier decision was not mentioned in the rather brief opinion of the majority. n12 The majority cited National Realty and observed as to the general duty clause, 29 USC 654(a)(1), that

"The section is intended neither to impose liability on the employer for an employee's negligence on a respondent superior basis, nor to create a standard of absolute liability. The clause instead requires employers to discover and exclude from the workplace '[a]ll [feasibly] preventable forms and instances of hazardous conduct,' id. at 1267 & nn. 34-37 (emphasis added)."

However, without any evidence as to the standard which a reasonably prudent oil company would have applied in determining the extent to which Getty should have supervised Robison, the majority determined that Getty had failed in its legal obligation to protect its [*56] employees because, when Robison telephoned King early in the morning of the day on which he took delivery of the pressure vessel, King easily could have, but did not, ask him if he had tested, or would test the vessel, and because other Getty employees, not superior to Robison but present when the vessel was installed, could have but did not ask the same question. In dissent, Judge Gee argued vigorously that the case came under the rule of Horne Plumbing and Alsea Lumber and that the decision below should have been reversed. Of course Getty Oil is a general duty clause case, not a special duty clause case like Horne Plumbing, Alsea Lumber, and the case at bar. Yet apparently the Getty majority was not really pursuaded that the issue as to employee control is as formulated in National Realty. As indicated above, the proposition of the District of Columbia Circuit and of the First, Third and Ninth Circuits is that neither the general nor the special duty clause nor the standards under enforcement in the cases cited sets forth a standard of adequate employee control; that the right to notice and an opportunity to be heard require that the very, very broad, [*57] legally implied employer duty to suppress foreseeable hazardous employee conduct be given limitation and therefore content and statutory and due process validity by comparing what the employer did with a "reasonable man" -- "prudent employer" standard of control, which must be evidentially established by the Secretary. Stated another way, adequate employee control is a mixed question of fact and law, partially within the discipline of the study of industrial safety, not a pure question of law, to be speculated about, without evidence, by the judge and the Commission, and not a matter of defense, to be weighed against the Secretary's post-trial brief and the judge's subjective impressions. Again with great respect, it suggested that those of the opinions discussed above which do not treat the adequacy of employer control as a question containing an important factual element, to be established as such by the Secretary, including the Seventh Circuit opinion in the case at bar, reach this conclusion without addressing the statutory or constitutional question as to the necessity for such treatment, not after canvassing the question and supplying a reasoned answer.

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n12 The Getty Oil panel included no judge who had heard Horne Plumbing.

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The Eighth Circuit case, Ames Crane & Rental Service, Inc. v. Dunlop, 532 F. 2d 123 (1976), is not an employee misconduct case. There, where an Ames crane intruded into the danger zone surrounding high tension wires, a member of the Ames management who saw the crane "parked close to the positioning of its ultimate use -- near the power lines" deliberately refrained from inquiring whether the crane would be operated from that location because he wished to avoid offending the general contractor who, it was feared, would resent the question. 18 OSAHRC 441, 443 (1975). To be sure, in overruling the contention, expressed in the opinion of Commissioner (then Chairman) Moran that the case was ruled by Alsea Lumber, the Court pointed out by way of distinction that in Ames the operator had received inadequate instruction in operating the crane in the manner required by the standard. But with respect, it is submitted, that is not the basic ground [*59] on which Ames Crane is distinguishable from Alsea Lumber. The basic distinction, suggested above, is that Alsea Lumber was a true employee misconduct case, in which the violative conduct was forbidden by the employer's work rules and unknown to the employer, whereas in Ames Crane the violative conduct was at least tacitly the conduct of management, deliberately undertaken for business reasons.

III

On the question of due notice and an opportunity to be heard, referred to above, additional considerations must be taken into account. The Court of Appeals held that not only must Butler show that it had given Kapperman adequate safety instructions as to keeping the boom of his truck at least ten feet from high tension power lines as the standard requires, but also that Butler should have given him instruction regarding one of the reasons for the rule, namely that "electricity could be transmitted from the wires into the boom by arcing. . ." (520 F. 2d p. 1018). Yet there is not a word in the standard or in the complaint about arcing; and there was nothing in the litigation of the case calculated to give notice to Butler that the Secretary would contend and that the Court [*60] of Appeals would hold that Butler was in violation of 29 CFR 1910.180(j) because it had not instructed Kapperman regarding arcing. n13 The Court of Appeals remanded for consistent proceedings; and the Commission further remanded to me, "for appropriate action after reaching a finding of fact as to the adequacy of the respondent's safety training program in view of 'the possibility that electricity could be transmitted from the wires into the boom by arcing.'" n14 On January 8, 1976, I made an order directing that a further hearing be held in Milwaukee on February 4, 1976, to afford the parties an opportunity to offer evidence and argument on the following issues:

"(1) What instruction as to the hazards dealt with in 29 C.F.R. 1910.180(j) in general and the hazard of arcing in particular does 29 C.F.R. 1910.180(j) oblige the operator of brick trucks such as those operated by respondent in March 1972, to give to its drivers?"

"(2) Did respondent furnish the obligatory instruction to such drivers?"

On January 22, 1976, the Secretary mailed to me a motion for reconsideration of my order of January 8th, the purport of which was that no further hearing should be held; and that [*61] on the existing record, interpreted in accordance with the law of the case as established by the Court of Appeals, the Secretary was entitled to judgment. In a telephone conference with both counsel on January 23, 1976, I pursuaded Butler to accept short notice of the Secretary's motion; and both sides agreed to final submission on the motion by mail on January 28, 1976. In their respective briefs, Butler argued in support of my order of January 8, 1976, while the Secretary contended that a further hearing was unnecessary, largely because "the Seventh Circuit . . . gave more weight to the possibility of arcing than it truly deserves. * * * If a power line carrying 50,000 (50 KV) volts can arc only .668 inch, then a line carrying 4,800 (4.8KV) volts, less than 1/10 the volts of a 50 KV line, would arc a significantly lessen distance." n15 On January 30, 1976, while I was reading the briefs, the Commission notified me by telephone that it had withdrawn its remand order for clarification. On February 4, 1976, the Commission issued a second order, expressingly limiting the remand to the making of findings on the record "as of December 23, 1974." Thus especially as implemented by Commission's [*62] clarified remand order, the Seventh Circuit decision gives rise to two aspects, not discussed above, of the basic problem as to whether Butler has received a fair hearing.

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n13 Only in the following four instances was arcing even mentioned in the evidence. (1) At the time of the trial Ross Prange was in charge of safety for Butler. Twenty years before, Prange, for North Milwaukee Lime & Cement Company, had been the operator of a clamshell-type crane mounted on crawler tracks. High tension wires ran along one side of the yard. On a day when the air and the ground were moist, current arced what seemed to Prange to be an unexpectedly long distance from the wires to the crane. No one was hurt but the crane was immediately moved to another yard. (2) About five years before the trial, when Prange was Yard Manager for West Allis Lime & Cement Company, a "cement truck" was pouring mortar through its shute into a bucket attached to a crane at a customer's site. While the shute was in contact with the bucket the crane touched or closely approached high tension wires; and the hands of the truck driver were severly burned. (3) Tews, Butler's Yard Manager at the time of the trial, was cross-examined in part as follows:

"Q. Did you ever specifically warn Mr. Kapperman that there was a danger from high tension wires and that this danger existed without actual physical contact with the wires? A. Did I ever say to him, Doug, it can arc, you mean?"

"Q. Yes. A. You are talking about an arc?"

"Q. Did you ever explain to him the nature of electricity, the nature of arcing? A. No, I don't understand it myself."

"Q. Do you know if anybody did explain this to him? A. I wouldn't know."

(4) Mislang, Tews' assistant, was cross-examined in part as follows:

"Q. Did you ever tell Mr. Kapperman at the time of the demonstration, this initial demonstration or subsequent to the demonstration that there was a possibility of him getting electrocuted if the crane came within a certain distance of high tension wires and that it was not necessary for the crane to physically touch the tension wires? A. I mentioned the danger involved of operating too close to electrical wires. Now, the complete text of what I had said four years ago is pretty hard to remember."

"Q. Do you recall having mentioned that to him subsequent to four years ago? A. What would the danger be if he were not to get electrocuted, if he were to get near electrical wires?"

"Q. The question I am asking you is, did you mention to him or demonstrate to him -- did you tell him there was a danger of coming too close to the wires without having to actually come too close to the wires?"

"Mr. Kasdorf: I think he answered that, and he says yes, twice."

"Mr. Posternack: I don't belive he said yes."

"A. I told him there was the danger of unloading with an overhead boom near electrical wires. I explained this to him. I explained this and many other things with the situation being what it was, between buildings, and the danger in swinging the boom and hitting a building or an overhang. I believe there was a fence, I believe -- you are asking me about something of four years ago, something, the exact text of what we exactly explained. I don't remember. I don't remember it word for word. But it is something -- we are talking wires. We are talking about this at Butler Lime and Cement. I feel we have a continuous thing there, and you had asked me about on that particular load. We don't -- not that I know of. When I am relieving, which I do do, when these fellows are on vacation, I remind these fellows at times about the safety but I don't -- I can't honestly say that I tell them on every load, no, I don't."

"Judge Weil: What do you mean when you relieve? When some of these fellows are on vacation? A. Dispatching. I mean giving them their tickets and sending them to their destinations."

"Judge Weil: You relieve the dispatcher? A. That is correct."

"Judge Weil: Not the driver? A. That is true."

Prange's testimony is summarized as above, indicated at 11 OSAHRC pp. 832-3; Tews' testimony appears at page 219 of the minutes; and Mislang's at pp. 168-170.

n14 Commission order of December 23, 1975.

n15 Secretary's brief, pp. 6-8. The Secretary's motion and the briefs on both sides are part of the record transmitted to the Commission herewith.

[*63]

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The first aspect grows out of the circumstance that the rule as to the duty to instruct the operators of crane-equipped delivery trucks with respect to the propensity of electricity to arc was made retroactive, through the medium of the ad hoc decision herein against Butler, instead of prospective, through the exercise of the Secretary's power to promulgate substantive, legislative-type safety standards in implementation of the purposes of the Act (Act, 6(b), 29 USC 655(b)), which power is plenary if exercised in accordance with requirements for notice to interested parties and an opportunity to be heard. Choice of the ad hoc route opened the retroactive effect of the rule to challenge on the ground that the public interest in such retroactive effect did not outweigh the burden which it placed on Butler. Securities and Exchange Commission v. Chenery Corp., 332 U.S. 194, 201-4 (1947), reh. den. 332 U.S. 747. n16 To the same effect, see also Mr. Justice Frankfurter concurring in Woods v. Stone, 33 US 472, 478, 479 (1948).

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n16 At page 202 the Court gave the following broad hint that a maker of administrative rules should, in the absence of demonstrable public need for retroactive action, promulgate its new rules as such, on notice, with prospective effect, rather than by ad hoc adjudication:

"Since the Commission, unlike a court, does have the ability to make new law prospectively through the exercise of its rule-making powers, it has less reason to rely upon ad hoc adjudication to formulate new standards of conduct within the framework of the Holding Company Act. The function of filling in the interstices of the Act should be performed, as much as possible, through this quasi-legislative promulgation of rules to be applied in the future" (332 U.S. p. 202).

If indeed in his informed judgment the Secretary has determined that the safety of the operators of crane-mounted trucks which Congress intended to provide through the Act requires elaboration of his present standard, then fairness would seem to require amendment of 29 CFR 180(j) by rule, proposed under 6(b) of the Occupational Safety and Health Act, 29 USC 655(b) and 4 of the Administrative Procedure Act, 5 USC 553, with notice to interested parties and prospective effect. The haphazard nature of the Secretary's policy-formulating process herein is highlighted by the circumstance that after apparently urging upon the Seventh Circuit the necessity of instruction in arcing, the Secretary reversed himself when it was ordered that instruction in arcing be made the subject of scrutiny by experts at a hearing. See page 33, supra.

[*65]

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Furthermore, assuming the requisite balance in favor of retroactive effect, the second aspect remains. 5(a) of the Administrative Procedure Act, 5 USC 554(b), requires that "Persons entitled", as was Butler here, "to notice of any agency hearing shall be duly informed of . . . the matters of fact and law asserted." To be sure, the pleadings in administrative proceedings will not be narrowly construed and may be easily amended. But where, as here, the pleadings were not amended, and judgment is rendered on a new theory not pleaded or litigated, then perhaps Butler has been denied that fair hearing which the Fifth Amendment require the Administrative Procedure Act to provide. National Labor Relations Board v. Majestic Weaving Co., 355 F. 2d 854, 861-2 (CA 2, 1966); National Labor Relations Board v. E & B Brewing Co., 276 F. 2d 594, 598-9 (CA 6, 1960); Rodale Press, Inc. v. Federal Trade Commission, 407 F. 2d 1252, 1256 (CA DC, 1968); Northeastern Indiana Building & Construction Trades Council v. National Labor Relations Board, 352 F. 2d 696, 699-700 (CA DC, 1965); [*66] L.G. Balfour Co. v. Federal Trade Commission, 442 F. 2d 1, 17, 26 (CA 7, 1971); National Labor Relations Board v. Johnson, 322 F. 2d 216, 219 (CA 6, 1963). See also the Commission's decisions on Mobil Oil Co., No. 2128 (1976), p. 2; D. Federico Co., Inc., No. 4395 (1976), pp. 2-5; Leone Construction Co., No. 4090 (1976), p. 6; Martin & Nettrour Contracting Co., No. 2287 (1976), pp. 2-3; Kaiser Aluminum & Chemical Corp., No. 3685 (1976), p. 10; P & M Sales Inc., No. 3445 (1976), p. 5.

ROBERT P. WEIL, Judge, OSHRC