Docket No. 88-0310

SECRETARY OF LABOR,

Complainant,

STONE CONTAINER CORPORATION,

Respondent.

UNITED PAPERWORKERS INTERNATIONAL
UNION, HELLGATE LOCAL NO. 885,

Authorized Employee
Representative.

OSHRC Docket No. 88-0310

DECISION

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

BY THE COMMISSION:

At issue in this case is whether Stone Container Corporation ("Stone Container") violated 29 C.F.R. ї 1910.180(h)(3)(v) by not complying with the terms of a settlement agreement it had previously entered into with the Secretary and whether that violation was repeated under section 17(a), 29 U.S.C. ї 666(a), of the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-678 ("the Act"). The settlement agreement implicitly required Stone Container to conduct test lifts before lifting employees in manbaskets ["personnel baskets"] that were suspended from cranes. Former Review Commission Administrative Law Judge William R. Mullins held that Stone Container violated the settlement agreement and committed a repeated violation of the standard. He assessed a $1,200 penalty. Stone Container argues that the violation was not repeated, claiming that (1) a repeated violation cannot be based on the violation of a settlement agreement, (2) 29 C.F.R. ї 1910.180(h)(3)(v), the standard Stone Container allegedly violated, does not require test lifts, and (3) the unbiased evidence does not establish that test lifts were not made.[[1/]] We affirm the Judge's decision.

I. BACKGROUND

A. The Prior Citation and Settlement Agreement

On January 30, 1987, the Secretary issued a citation to Stone Container alleging that it had failed to comply with section 1910.180(h)(3)(v) [[2/]] at its Frenchtown, Montana facility. The citation alleged that Stone Container had used a truck crane to hoist employees on a work platform above the floor level so that the employees could perform certain work duties. Stone Container's contest of that citation was resolved in a Stipulation and Settlement Agreement that became a final order of the Commission on November 16, 1987. In the settlement agreement, Stone Container withdrew its notice of contest to the amended citation and proposed penalty, represented that abatement had been accomplished, and agreed that the final abatement date was to be the date of the final order.

The method of abatement was not described in the settlement agreement, but the parties understood that Stone Container would not be cited for continuing to use a crane to hoist employees in the manner alleged in the citation as long as it complied with OSHA Instruction STD 1-11.2B ("the Instruction"). The Instruction states that it clarifies section 29 CFR 1926.550(b)(2) [the construction industry equivalent of cited section 1910.180(h)(3)(v)] and the ANSI referenced requirement [ANSI B30.5-1968] that the operator shall not hoist, lower, swing or travel the crane while anyone is on the load, or hook, as related to the use of working platforms suspended from cranes."[[3/]]

The Instruction provides that employers will not be cited for violating section 1926.550(b) (2) by using cranes "to hoist and suspend employees on a work platform ... when such action results in the least hazardous exposure to employees"--if a number of criteria are met. The criteria most important to this case require that:

A full-cycle operational test lift shall be made prior to lifting of employees. The platform shall carry twice the intended load during the test lift.

Conversely, the Instruction further provides that, if the employer fails to meet any of the criteria set forth in the Instruction, the employer will be cited for a violation of the governing standard, section 1926.550(b)(2).

Stone Container expressed its intention on several occasions of complying with the Instruction, and it does not dispute that it was obligated to conduct weight testing under the terms of the settlement agreement.

B. The Citation on Review

On December 8 and 9, 1987, the Secretary conducted another inspection of Stone Container's Frenchtown facility and later issued a citation alleging that Stone Container committed a repeated violation of section 1910.180(h)(3)(v) in that:

Employees were lifted in a manbasket suspended from a crane hook. Test lifts with twice the intended load were not conducted prior to hoisting the men.

The violations were alleged to have occurred on four separate dates between November 16 and December 10, 1987.

C. Test Lifting at the Facility

Stone Container began developing a procedure that would be consistent with the Instruction before it even entered into the settlement agreement with the Secretary. Roy Johnson, the Stone Container employee in charge of formulating the program, testified that it included (1) the manufacture of new personnel baskets with test weights, (2) a requirement that test lifts be conducted before employers were lifted, and (3) the development of a certification form to be used in conjunction with weight test lifts. The form was entitled "USE OF MANBASKET - Decision, Pre-lift test, Documentation-FORM" and was required to be completed and signed by those conducting test lifts.

Johnson testified that in April of 1987, Stone Container's crane operators were provided with a training course on the new program and procedures he had developed. Although he had been told by the personnel department and others in the company that Stone Container would not have to comply with the test lifting requirements of the Instruction until its contest of the January 1987 citation was resolved, Johnson testified that he believed it was his responsibility to "get into compliance" with the Instruction without regard to when the contest of the citation might finally be resolved. He testified that the test lift procedures he developed therefore were in place as of the November-December 1987 dates that are alleged in the repeat citation.

However, three different crane operators testified that, throughout the time period in question, they failed to conduct test lifts with twice the intended load prior to hoisting employees. They also testified that they had not been instructed to conduct weight test lifts prior to lifting employees in personnel baskets until after the OSHA inspections of December 8 and 9, 1987. The crane operators stated that they either performed test lifts without the required weights and filled out the forms as if they had.

Furthermore, crane operator Felstet noted on the form he completed on December 10, 1987, that he could not test lift because there were no weights to use for the test. He also testified, however, that he had conducted some test lifts using improvised weights before the Secretary's December 1987 inspections. Mr. Felstet maintains he conducted the test lifts even though it was not required, because he knew it was going to be required at some point in the future, and because he believed that it was safer to test lift than not to do so. Mr. Felstet was not always able to test lift before the December 1987 inspections because the improvised weights he was using for test lifts--chains in a barrel--were not always available for use.

The crane operators were supervised by Stone Container's building maintenance foreman, Thomas O'Connor, who was also responsible for reviewing their test lift forms. Mr. O'Connor--like the crane operators he supervised--testified that he did not know that test lifting was mandatory on the dates alleged in the repeat citation. Although he knew that the crane operators would not be required to conduct test lifts until after the initial, January 1987 citation was resolved by settlement agreement, he did not learn that that case had been settled until after the repeat citation was issued. Mr. O'Connor testified that he did not discipline crane operators who failed to test lift before the January 1987 case was settled because "circumstances ... made it very difficult to perform" the test lifts. He did not explain what the circumstances were.

At the hearing, Mr. O'Connor reviewed the forms that the Secretary alleges document the crane operators' failures to test lift. Although he testified that he had not reviewed the forms when they were first completed, he still testified to a belief that the lifts described on the forms had indeed been conducted. He attributed the omission of certain entries in the forms to a lack of familiarity with the forms on the part of the crane operators. He denied crane operator Felstet's assertions that test weights were not always available but was unable to state when the weights did become available.

Roy Johnson, the employee in charge of implementing the test lift procedure, testified that employee allegations of any failures to test lift were part of a "game" being played by the employees, who were involved in a labor-management dispute with Stone Container. Mr. Johnson stated that he believed that the crane operators actually did conduct the test lifts they claimed they had not conducted, because the employees were too safety-conscious not to conduct them. Mr. Johnson admitted, however, that he was not present during the allegedly deficient test lifts cited by the Secretary and did not review the test lift forms completed by the employees.

II. RESOLUTION OF THE ISSUES

A. Whether Stone Container Violated the Standard by Failing to Comply with the Settlement Agreement

Stone Container argues that section 1910.180(h)(3)(v) does not require weight test lifts. Of course, Stone Container is literally correct. Stone Container's initial obligation is to comply with the standard's requirements. However, an employer who does not comply with the terms of a standard has violated that standard--except when the employer is legally excused from compliance. A legal excuse may take several forms: a variance granted by the Secretary under section 6(b)(6)(A) of the Occupational Safety and Health Act, 29 U.S.C. ї 655(b)(6)(A); a judicially-created defense, such as that of infeasibility, see Dun-Par Engineered Form Co., 12 BNA OSHC 1949, 1958-59, 1986 CCH OSHD І 27,650, pp. 36,026-7 (No. 79-2553, 1986), rev'd on other grounds, 843 F.2d 1135 (8th Cir. 1988); or, as is the case here, a settlement agreement that excuses strict legal compliance with the terms of a standard, but imposes a requirement for alternative protective measures. Thus, when an employer is excused from compliance with the terms of a standard, that employer is still required to provide alternative means of protection for its employees. See Dun-Par Engineered Form Co.; ITT Grinnell Corp. v. Donovan, 744 F.2d 344, 349-350 (3d Cir. 1984). If the employer fails to provide these alternative protections, then OSHA is justified in citing it for failure to comply with the governing standard, as it did in this case.

The record contains abundant evidence that Stone Container did not comply with the terms of the cited standard. Stone Container does not dispute that it knew its crane operators used crane hooks to hoist employees in personnel baskets up to where they could perform their work duties. Normally, this would be sufficient to establish a violation of section 1910.180 (h)(3)(v). However, under the terms of the settlement agreement, the parties understood that Stone Container would not be cited for violating section 1910.180(h)(3)(v) if it conducted the pre-lift weight tests required by the Instruction before it used cranes to move employees in a personnel basket.[[4/]]

Therefore, to establish that Stone Container did not comply with section 1910.180(h)(3)(v), the Secretary must show that (1) Stone Container failed to comply with the terms of the standard, (2) the weight test lifts agreed to by the parties were not made, and (3) Stone Container knew, or with the exercise of reasonable diligence could have known, that the test lifts were not made. See Astra Pharmaceutical Products, Inc., 9 BNA OSHC 2126, 1981 CCH OSHD І 25,578 (No. 78-6247, 1981).

Stone Container contends that the only evidence of its alleged failure to conduct test lifts comes from "disputed employee testimony [arising out of] ... a hostile [labor] environment". Although the Administrative Law Judge considered the testimony regarding Stone Container's test lift practices to be "somewhat contradictory", he nevertheless found that "the weight of the evidence establishes that ї 1910.180 (h)(3)(v) was violated...."

The Judge's finding that Stone Container failed to test lift is supported by the evidence. Stone Container's crane operators testified that they were not instructed to perform pre-lift testing before the Secretary's December 1987 inspections were conducted. They testified that they were told to fill out the employer-developed "Use of Manbasket" forms requiring them to certify successful performance of prelift testing on a "practice" basis until the day the equipment approved for such testing arrived. Their partially filled out forms corroborate their testimony that test lifts were made without the required weights. Further, Stone Container foreman O'Connor, who supervised the aforementioned crane operators and was responsible for reviewing their test lift forms, testified that he did not know that test lifting had become mandatory prior to the issuance of the citation resulting from the Secretary's December 1987 inspections. Mr. O'Connor also testified that he did not think that weight test lifting had to be implemented on a mandatory basis until after the earlier, January 1987 citation had been settled, and that he did not learn that that citation had been settled until after the current, January 1988 citation had been issued. Stone Container's contention that the testimony of its employees is tainted because of a labor-management dispute is therefore not persuasive. The testimony of its crane operators that they were not told that weight test lifting was mandatory until after the Secretary's inspections was supported by the testimony of foreman O'Connor, who also was not told until after the December 1987 inspections.

Stone Container also contends that it did not know that weight test lifting was not being conducted, and that it did everything in its power to assure that it was being conducted. The Judge disagreed and found that Stone Container supervisory personnel were aware or should have been aware of the violation. He placed particular reliance on evidence that Stone Container's foreman O'Connor was made aware of two instances of failures to test lift and still took no action.

The evidence, however, does not establish that Stone Container had actual knowledge of the failures to test lift. Mr. O'Connor did not testify that he failed to act after learning that test lifts had not been conducted on two occasions. Instead, he testified as to what he would have done had he learned two test lifts had not been conducted. Mr. O'Connor testified that if he had seen forms that suggested test lifts had not been made, he would have concluded that the test lifts had been made, but that some of the necessary numbers had not been entered on the forms. Mr. O'Connor also testified that if he had seen the December 10, 1987 form completed by crane operator Felstet noting that it was not possible to perform test lifts because test weights were not available, he would have dismissed the notation because a certified personnel basket was in fact then present at the worksite.

The Commission finds, however, that the evidence demonstrates that Stone Container, with the exercise of reasonable diligence, could have known of the failures to weight test lift. Stone Container made substantial efforts to set up the test lifting procedures required by the Instruction. These included the fabrication of new personnel baskets, the development of the "Use of Manbasket" certification forms to be filled out for each lift, and the introduction of a new training course for its crane operators. However, these efforts went for naught because Stone Container failed to communicate to the three crane operators and to Mr. O'Connor, their foreman, that test lifts were mandatory when the Stipulation and Settlement Agreement became a final order of the Commission on November 16, 1987. See Combustion Engineering, Inc., 5 BNA OSHC 1943, 1977-78 CCH OSHD І 22,241 (No. 76-2210, 1977). The cited instances of noncompliance all occurred on or after the date on which test lifting became mandatory under the settlement agreement. If Stone Container had been reasonably diligent, the crane operators and their supervisor would have known when the test lifting procedures became mandatory. Although the settlement agreement had been posted at the worksite, it did not state either what abatement was required or when it was required.

B. Whether the Violation was Repeated

We next examine whether the violation was repeated within the meaning of section 17(a) of the Act. Under Commission precedent:

A violation is repeated... if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation.

Potlatch, 7 BNA OSHC at 1063, 1979 CCH OSHD at p. 28,171. Under Potlatch, the Secretary establishes a prima facie case of similarity by showing that both violations are of the same standard. The employer then has the burden of rebutting the evidence of similarity.

The Judge found that the Secretary established a prima facie showing of similarity and that Stone Container failed to "introduce any evidence regarding the nature of the original alleged violation" in rebuttal. He affirmed the citation as repeated. Stone Container argues that it did not attempt to show that the violations were dissimilar and not repeated because there was no prior violation of the same standard. It claims that the Secretary's only evidence that the violations were similar concerned the methods of abatement agreed to in the settlement.

Although the abatement required by the two citations differs, the principal factor to be considered in determining whether a violation is repeated is whether the prior and instant violations resulted in substantially similar hazards. See Austin Road Co., 8 BNA OSHC 1916, 1918, 1980 CCH OSHD І 24,688, p. 30,301 (No. 77-2752, 1980). Here, both the prior and the present violations resulted in employee exposure to very similar or identical fall hazards. The hazards occurred in the same workplace and involved the same types of cranes. That the possible fall distances may have varied somewhat is not significant. See Automatic Sprinkler Corp. of America, 7 BNA OSHC 1957, 1979 CCH OSHD І 24,077 (No. 76-5371, 1979). Since the evidence establishes that the citations involved the same standard and applied to similar conditions, the Secretary has proven a repeated violation of section 1910.180(h)(3)(v) under Potlatch.

Stone Container contends that its failure to conduct test lifting was not a repeated violation of the same standard, but rather a failure to abate according to the terms of the settlement agreement. It also contends that the settlement agreement indicates that it had devised a way to make personnel hoisting safe without following the standard, not that it had violated the standard. We reject Stone Container's contentions.

Although the settlement agreement does not explicitly state that section 1910.180(h)(3)(v), the standard involved in the earlier citation, had been violated, this does not prevent the Secretary from relying on the earlier violation as the basis for a repeated violation under Potlatch. The fact that the earlier citation became a final order as a result of the withdrawal of the notice of contest does not affect the finality of the order. The withdrawal of a notice of contest is an "agreement to the affirmance" of a citation. Weldship Corporation, 8 BNA OSHC 2044, 2045 n.5, 1980 CCH OSHD І 24,750, p. 30,480 n.5 (No. 77-3769, 1980). A Judge's order approving a settlement agreement in which an employer withdrew its notice of contest to a citation establishes the existence of a violation of the cited standard. See Dic-Underhill, A Joint Venture, 8 BNA OSHC 2223, 2227, 1980 CCH OSHD І 24,959, pp. 30,799-30,800 (No. 10798, 1980). Stone Container claims that neither of the parties believed that the settled citation would ever form the basis for a repeated citation, but it points to nothing in the settlement agreement or elsewhere to suggest this. The Secretary does not share this view, since she has attempted to use the earlier citation for just that purpose. Stone Container may not have realized that withdrawing its notice of contest left it open to a repeated citation in the future, but that cannot constitute a defense to a repeated allegation. Stone Container is presumed to have knowledge of the Act, which has provided for repeated citations since its effective date.

Stone Container also contends that it did not violate the standard for a second time but merely failed to abate according to the settlement agreement. Stone Container is estopped from making such an argument, however, because in the settlement agreement reached with the Secretary resolving the original section 1910.180(h)(3)(v) citation, Stone Container represented "[t]hat the abatement of both items of serious citation 3 [including the section 1910.180(h)(3)(v) allegation upon which the instant repeated violation is based] has been accomplished..." See MWS Wire Industries, Inc. v. California Fine Wire Co., 797 F.2d 799, 803 (9th Cir. 1986), citing Beer Nuts, Inc. v. King Nut Co., 477 F.2d 326, 329 (6th Cir. 1973) (person should be held to own undertakings and is estopped from taking position contrary to that taken in earlier settlement agreement). Also see Farmers Export Co., 8 BNA OSHC 1655, 1662, 1980 CCH OSHD І 24,569, p. 30,086 (No. 78-1708, 1980) (Barnako, concurring: Secretary would be estopped from using prior settlement agreement in manner contrary to its terms). On the basis of that statement, and others appearing in the settlement agreement, the Secretary agreed to settle the case. That case is now a final order. Therefore, Stone container may not successfully contradict the representation in the settlement agreement and contend here that it failed to abate its prior violation of the cited standard.

We would also note that from one standpoint at least, Stone Container is benefited by the fact that it is here defending against a repeated allegation and not a failure to abate. Had this been a failure to abate case, Stone Container could have been subjected to a higher penalty assessment than the penalty we assess here. An employer may only be assessed a civil penalty of not more than $10,000 for a repeated violation, but a penalty as high as $1,000 per day is possible for a failure to abate. See Sections 17(a) and (d) of the Act, 29 U.S.C. ї 666(a) and (d). As of the Secretary's initial inspection date here, Stone Container could have been subjected to a possible penalty of $18,000 for a failure to abate, not just the possible $10,000 penalty involved in this case. We therefore reject Stone Container's argument.

III. ORDER

The Judge assessed a $1,200 penalty for the repeated violation. After consideration of the penalty factors enumerated in section 17(j) of the Act, 29 U.S.C. ї 666(j), we conclude that the assessed penalty is appropriate.

Accordingly, the Judge's decision is affirmed. Item 1 of repeat citation 8 is affirmed as a repeated violation, and a penalty of $1,200 is assessed.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

DATED: August 29, 1990

SECRETARY OF LABOR,

Complainant,

STONE CONTAINER CORPORATION,

Respondent,

UNITED PAPERWORKS INTERNATIONAL
UNION HELLGATE LOCAL NO. 885,

Authorized Employee
Representative.

OSHRC DOCUMENT NO. 88-0310

APPEARANCES:

For the Complainant:
Tobias B. Fritz, Esq., Office of the Solicitor
U.S. Department of Labor, Kansas City, MO

For the Respondent:
Kenneth Sovereign, Esq., Lake Elmo, MN

For the Employees:
Robert L. Culp, UPIU, Hellgate Local 885, Missoula, MT

DECISION AND ORDER

Mullins, Judge:
This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section 651 et seq.; hereafter called the "Act").

As the result of an employee complaint, the Occupational Health and Safety Administration (OSHA) inspected the workplace of respondent, Stone Container Corporation, a manufacturer of paper goods, on December 8-9, 1987. Of the citations that were issued as a result of the inspection, respondent timely contested Serious citation 7, Repeat citation 8 and Other than serious citation 9.

A hearing was held in Missoula, Montana on October 18, 1988 and the parties have both filed briefs in the matter. Based on the following, Serious citation 7 is vacated. Repeat citation 8 is affirmed and a penalty of $1200.00 is assessed. Other than serious citation 9 is affirmed without penalty.

Issues

Jurisdiction is not at issue as, in its answer, respondent stipulated to coverage by the Act and to the Commission's jurisdiction.

1) Whether the Secretary's inspection was reasonable under ї 8(f) and (g) of the Act.

2) Whether the Secretary demonstrated, by a preponderance of the evidence, a violation of ї 1920.24(b).

3) Whether the Secretary demonstrated, by a preponderance of the evidence, a violation of ї1910.180(h)(3)(v).

a) Whether the alleged violation of ї 1910.180(h)(3)(v) was shown to be a "repeat" violation.

4) Whether the Secretary demonstrated, by a preponderance of the evidence a violation of 1910.132(a).

Reasonableness of Inspection

Section 8(f) and (g) requires the Secretary to make a special inspection if, upon receipt of an employee complaint, she determines that there are reasonable grounds to believe a violation or a dangerous condition exists.

Respondent initially relies on legislative history of the Act which indicates that legislators opposed requiring compulsory inspections whenever an employee lodged a complaint. Respondent argues that to effectuate that intent the Commission should require discussion of the employee complaint with the employer before a determination of reasonableness is made.

Upon review of the legislative history, the undersigned is satisfied that the portions referred to were intended solely to preserve the Secretary's limited resources and not to provide any substantive rights to employers or to in any way limit the Secretary's prosecutorial discretion. See e.g., LEGISLATIVE HISTORY OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 (S. 2193, P.L. 91-596), p. 300).

. . .it is contemplated that the Secretary would, of course, give full consideration to employee complaints of safety and health violations, and he would conduct necessary inspections. . . However, under existing safety laws the Secretary is not required to respond to every complaint. And rightly so, because of the limited resources at his disposal.

Id.

If respondent felt that there was no reasonable basis for an inspection, its remedy was to require a warrant at the time inspection was requested. The Secretary would then have been required to make a showing of reasonable suspicion. No relief is available at this stage of the proceedings.

Finally, Respondent errs in relying on a provision in its collective bargaining agreement requiring employees to notify management of hazardous conditions. The Commission has no jurisdiction to either consider or enforce the terms of respondent's labor agreement with its employees. The Secretary, moreover, is not bound by that labor agreement.

In this proceeding, the employee/management hostility at respondent's workplace bears solely on credibility of the witnesses to be determined by the trier of fact.

Serious citation 7

Section 1920.24(b) states:

Where fixed stairs are required. . . Fixed stairs shall also be provided where access to elevations is daily or at each shift for such purposes as gauging, inspection, regular maintenance, etc. where such work may expose employees to acids, caustics, gases, or other harmful substances, or for which purposes the carrying of tools or equipment by hand is normally required. . .

Facts:

Mr. Ronald Ritter, a millwright with respondent for the last 6-1/2 years, testified that he frequently observed employees being raised in the bucket of the bobcat loader for the purpose of "reroping the chives," or replacing ropes which had jumped the wheels of the paper machine pulley system (Tr. 86-87; Ex. C-1a to 1e, C-1g). Mr. Ritter stated that reroping was normally done by hand but that a pole with a hook was sometimes used. He testified that some of the wheels are 10 feet off the ground and that reroping could be required several times a week (Tr. 87).

Mr. Craig Hoylo, a back tender on the #1 paper machine testified that when he began to work for respondent he was responsible for cleaning out paper out from underneath the dryers with broom or shovel handles and reroping the chives with rope hooks, as well as opening valves, and cleaning out trim shoots (Tr. 106). Mr. Hoylo stated that he was lifted on a payloader or fork truck, up to 12-15 feet above the ground in order to perform these tasks, sometimes daily, although at times a week would go by where no maintenance was required (Tr. 106-107, 113).

Mr. Frank Jensen, utility man on the #2 paper machine, testified that a "spare hand" is elevated in the bobcat every day to take paper off the pipes, to put "felts" on the press section and to rerope the chives, sometimes using sticks and hooks (Tr. 122-124).

All of the Secretary's witnesses felt that the practice of lifting employees in the bucket of the bobcat was dangerous and all had at sometime in the past complained to management about it (Tr. 91, 114, 125). Mr. Hoylo testified that the bucket was subject to tipping and was slippery, often filled with debris such as oil, starch, and old paper stock (Tr. 110, 116). Mr. Hoylo had actually fallen from the bucket in the past but was unhurt (Tr. 110-111).

Discussion:

In order to prove a violation of section 5(a)(2) of the Act, the Secretary must prove 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) that the cited employer either knew or could have known of the condition with the exercise of reasonable diligence."

Astra Pharmaceutical Products, Inc., 9 BNA OSHC 2126, 2127 (No. 78-6247, 1981).

Although it is clear from the evidence that the respondent's practice of using the bobcat bucket for lifting employees is unsafe, the Secretary failed to demonstrate the first element of her prima facie case.

The Secretary apparently contends that since "elevation" was approximately daily, the requirements of the standard are fulfilled. Under the Secretary's reading of the standard an employer would be required to install fixed stairways to each elevated work station if access to all elevated locations, no matter how widely spread, is five or more times a week.

The undersigned is satisfied that ї 1910.24(b) does not impose such an onerous requirement and that fixed stairways must be provided only where employees' duties require daily access to the same elevated workstation.

It is clear that there were a wide variation of elevated tasks requiring respondent's employees' attention, involving completely separate machinery: presses, dryers, pulleys, etc.

Evidence was adduced regarding the possible placement of stairs at the bottom of the column pictured in Exhibit C-1d (Tr. 94-95); however, the record discloses neither whether different columns (and pulleys requiring service) are pictured in Exhibits C-1a, 1b and 1g nor where the tasks not associated with reroping the pulleys were performed. In the absence of any evidence as to job frequency in a single proximity, respondent cannot be found in violation of ї 1910.24(b).

Serious citation 7 is therefore vacated.

Repeat citation 8

Section 1910.180(h)(3)(v) requires that ''[n]o hoisting, lowering, swinging or traveling shall be done while anyone is on the load or hook." However, OSHA Instruction STD 1-11.2B (Ex. C-3) allows the use of crane mounted manbaskets if they are used in compliance with guidelines contained therein and in ANSI standard B30.5-1968. Guideline F(2)(b)(2), included in STD 1- 11.2B, requires:

"A full-cycle operational test lift shall be made prior to lifting of employees. The platform shall carry twice the intended load during the test lift."

Facts:

The parties agree that as a result of a previous inspection, respondent was cited for a violation of ї 180(h)(3)(v). An agreement was reached with the Secretary, and Respondent withdrew its contest to the citation. The settlement agreement was entered into the record on October 6, 1987 and became a final order on November 16, 1987 (Tr. 21; Response to Secretary's First Request for Admissions 8a and 8b). As part of its settlement agreement, respondent represented that the alleged violation had been abated in accordance with STD 1- 11.2B as of September 21, 1987 (Secretary's First Request for Admissions, Appendix B and C).

Following the initial citation, respondent developed a form which was to assure compliance with OSHA regulations (Tr. 141, 164). One of the sections of the form required operators to sign off certifying successful performance of prelift tests required by Guideline F(2)(b)(2) (Ex. C-2, R-1).

Dick Grimes, and Duane Felstet, crane operators with respondent, testified that until December, 1987, however, they were not aware that respondent owned a "certified float with weight" with which to perform pre-lift tests (Tr. 134, 140, 159).

All three of respondent's crane operators testifying, Mr. Grimes; Herb Meagher; and Duane Felstet, stated that they were not instructed to perform pre-lift tests but were told that they were supposed to fill out the forms as "practice" for that day when approved equipment arrived (Tr. 134-35, 146-148, 157-161).

Mr. Meagher and Mr. Felstet testified that they occasionally performed practice pre-lifts with an empty basket or with a barrel of chains. They stated that the barrel did not fit in the 2 man basket, manbasket #2, and was not always available (Tr. 147-149, 167-171).

Mr. Grimes testified that on November 23, 1987, he did not perform a pre-lift test on manbasket #1 prior to hoisting employees in the manbasket, though he signed off on the form (Tr. 134; Ex; C-2a). Mr. Meagher testified that on November 23 and 24, 1987 he failed to perform a pre- lift test on the same basket prior to hoisting employees in the manbasket (Tr. 146, 150; Ex. C-2b, C- 2c). Mr. Felstet specifically noted on the manbasket forms for manbasket #1 on November 16, 1987, and for manbasket #2 on December 10, 1987, that no prelift tests were performed (Tr. 158, C-2d, C- 2e).

Mr. Roy Johnson, who was employed in February, 1987 to train the crane operators, testified that he personally instructed the operators in the pre-lift requirement (Tr. 240, 270-271; Ex. R-3, R- 4). He also stated that the new "certified" four man manbasket, equipped with its own weights, arrived early to mid November (Tr. 255, 263; See also Mr. O'Connor's testimony, Tr. 299-300). Mr. Johnson stated that the four man manbasket was designated #1 and the old #1 basket was scrapped (Tr. 256, 266). Mr. Johnson recalled that the basket was given to someone who wanted to take it home (Tr. 279). Mr. Johnson felt that there was no problem test-lifting the old baskets with barrel of chains; however, he had never seen the test barrel himself (280).

Mr. Tom O'Connor, respondent's foreman, was in charge of compliance with the form's requirements (Tr. 154, 176, 253). Mr. O'Connor stated that he would assume that pre-lift testing had been performed if a signed form were submitted to him and stated that since the #1 basket came with weights he discounted Mr. Felstet's comments on the forms (Tr. 299-300). However, Mr. O'Connor admitted that though he had been told that testing was required pursuant to the new form, he was not under the impression the tests were "mandatory" until after the second citation was issued (Tr. 301-303). Mr. O'Connor stated that he knew that pre-lift test were not being performed prior to that time. He stated that no discipline was in order because of the "circumstances" (Tr. 309-313).

Mr. Johnson stated that he would have become suspicious at forms coming back incomplete and would have questioned the undocumented lift (Tr. 276). Manbasket forms, however, did not go any higher in the chain of command (Tr. 279).

Neither Mr. Johnson nor Mr. O'Connor witnessed any of the operations here at issue (Tr. 281-282, 305).

Discussion:

Respondent argues initially that ї 180(h)(3)(v) is not applicable as employees were not "riding on the load", but were themselves the load.

Respondents' argument has been addressed by the Commission in Alfred S. Austin Construction Company, 4 BNA OSHC 1166 (No. 4809, 1976). The Commission there considered an alleged violation of ї 1926.550(b)(2), which incorporates an ANSI section directed towards crawler, locomotive and truck cranes which is virtually identical to ї 1910.180(h)(3)(v). In Alfred S. Austin, the Commission found that employees riding within a material box suspended from the hook did so in violation of the standard because:

"Viewing the regulation in [the] light [suggested by respondent] would require that the employees being transported always be included as part of the load. If employees are always part of the load, then it follows that they could never be on the load. Therefore, this interpretation would render the standard meaningless.

The undersigned finds Alfred S. Austin to be controlling here and ї 1910.180(h)(3)(v) to be applicable.

Respondent's other arguments are also without merit. While the testimony was somewhat contradictory, the weight of the evidence establishes that ї 1910.180(h)(3)(v) was violated and that respondent's supervisory personnel was or should have been aware of the violation.

It is clear that respondent failed to adequately instruct its crane operators and their foreman that pre-lift testing was mandatory or to assure that adequate testing equipment was provided for all manbaskets from October, 6 1987 on. As a result, crane operators did not perform test-lifts, apparently despite the availability of certified equipment in some cases. Even though in at least two cases, respondent's foreman was specifically informed of this failure, he failed to follow up. Both the actual and constructive knowledge of a foreman regarding violative conduct is imputable to a corporate employer for the purpose of establishing employer knowledge. MCC of Florida, Inc., 9 BNA OSHC 1895, 1988 (No. 15757, 1981).

Classification as Repeated

The Commission has held that:

"A violation is repeated under section 17(a) of the Act if, at the time of the alleged repeated violation, there was a final order against the same employer for a substantially similar violation.

Potlatch Corporation, 7 BNA OSHC 1061, 1063 (16183, 1979). In that case the Commission went on to state that:

The entry into the record of a prior citation issued to respondent alleging a violation of the same standard, combined with respondent's further concessions that the prior citation was not contested and had become a final order prior to the date of the inspection giving rise to the present citation was sufficient to complete the Secretary's prima facie case."

Id. at 1065. Once the Secretary makes out a prima facie case, the burden of demonstrating the dissimilarity of the violation is shifted to the Respondent. Respondent here failed to introduce any evidence regarding the nature of the original alleged violation. The citation will therefore be affirmed as a Repeat violation.

Respondent is a very large corporation with 40,000 employees (Answer, #2). The gravity of the violation is high; a fall from the working heights of 30 to 110 feet identified on the manbasket forms would certainly result in serious injury or death. The violation is a repeat one and therefore the Secretary's proposed penalty of $1,200.00 is affirmed.

Other than serious citation #9

Section 1910.132(a) states that:

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.

Discussion:

Respondent admits that safety belts were not worn by its employees (Respondent's Brief, p. 27), but argues that belts are not required by the standard.

The Commission has held that the language of ї 1910.132(a) is broad enough to encompass falling hazards requiring protective equipment, specifically, safety belts and lanyards. Bethlehem Steel Corp., 10 BNA OSHC 1470 (No. 79-310, 1982).

The remaining issue is whether the factual circumstances surrounding the allegedly hazardous condition would provide a reasonable person with actual or constructive notice of a hazard warranting the use of personal protective equipment. Lukins Steel Company, 10 BNA OSHC 1115, 1123 (No. 76-1053, 1981). Owens Corning Fiberglass Corp., 7 BNA OSHC 1291 (No. 76-4990, 1979).

Mr. Will Wooden, loss prevention manager for respondent, testified that he researched the OSHA and ANSI standards to ascertain respondent's compliance with OSHA requirements for manbasket use. Mr. Wooden found that the ANSI Standard B30.5 1968 referred to in OSHA instruction STD 1-11.2B made no reference to safety belts (Ex. C-3, p. 2). Mr. Wooden noted that the 1982 ANSI standard B30.5-3.2.2(a)(11) required that "Employees on the platform shall wear safety belts with lanyards attached, preferably above the hook or shackle" (Tr. 322, 335; Ex. C-4). Mr. Wooden's research should have alerted him, and respondent, to industry recognition of the existence of a hazard related to the hoisting of employees in a manbasket without a safety belt. Under ї 1910.132(a) respondent must protect against such a recognized hazard regardless of the fact that the particular standard which alerted it was not directly applicable under OSHA instructions because of a later publication date.

Other than serious citation 9 is affirmed without penalty.

Findings of Fact and Conclusions of Law

All findings of fact and conclusions of law relevant and necessary to the termination of the contested issues have been found specially and appear in the decision above. See Rule 52(a) of the Federal Rules of Civil Procedure. Proposed findings of fact and conclusions of law that are inconsistent with this decision are denied.

ORDER

Based on the findings of fact, conclusions of law and the entire record, it is ORDERED:

1. Serious Citation 7 is VACATED.

2. Repeat Citation 8 is AFFIRMED and a penalty of $1200.00 is ASSESSED.

3. Other-than-serious Citation 9 is AFFIRMED without penalty.

William R. Mullins
Judge, OSHRC
Dated: February 24, 1989

FOOTNOTES:

[[1/]] These issues were not mentioned in the direction for review. The only issue specified in the direction for review was whether the Commission should reexamine its test for a repeated violation first enunciated in Potlatch Corp., 7 BNA OSHC 1061, 1979 CCH OSHD І 23,294 (No. 16183, 1979). We see no compelling reason to reexamine that precedent. Neither party has expressed an interest in overturning Potlatch, and the courts of appeals that have considered Potlatch have generally approved of the Commission's determination that classifying a violation as repeated may be appropriate after finding a single prior violation. See J.L. Foti Construction Co. v. OSHRC, 687 F. 2d 853 (6th Cir. 1982); Willamette Iron & Steel Co. v. Secretary of Labor, 10 BNA OSHC 1477 (9th Cir. 1982) (unpublished); Dun-Par Engineered Form Co. v. Marshall, 676 F.2d 1333 (10th Cir. 1982); Communications, Inc. v. Marshall, 672 F.2d 893 (D.C. Cir. 1981).

However, because the entire judge's decision is before the Commission in cases directed for review, see Commission Rule 92(a), 29 C.F.R. ї 2200.92 (a), and Hamilton Die Cast, Inc, 12 BNA OSHC 1797, 1986-87 CCH OSHD І 27,576 (No. 83-308, 1986), the Commission will rule on the issues raised by Stone Container and briefed by both Stone Container and the Secretary, even though those issues were not directed for review.

[[2/]] Section 1910.180(h)(3)(v) provides:

ї 1910.180 Crawler locomotive and truck cranes.

(h) Handling the load

(3) Moving the load.

(v) No hoisting, lowering, swinging, or traveling shall be done while anyone is on the load or hook.

[[3/]] Section 1926.550(b)(2) requires all crawler, locomotive, and truck cranes to comply with ANSI B30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes. Section 1910.180 derives from this same ANSI standard. See 29 C.F.R. ї 1910.189. On August 2, 1988, section 1926.550 was modified by the addition of a paragraph (g), which codifies OSHA Instruction STD 1-11.2B. 53 Fed. Reg. 29116 (1988). Section 1910.180 (h)(3)(v) has not been modified in this fashion.

[[4/]] We note that by agreeing to treat any Stone Container violations of section 1910.180(h)(3)(v) as de minimis--if Stone Container complied with the terms of the Instruction--the Secretary was permitting Stone Container to follow an easier course at its fixed, industrial worksite than an employer working at a temporary construction site is now required to follow. The counterpart construction standard governing cranes at section 1926.550, subsection (g), encompasses the terms of the Instruction within its requirements, but also goes much further and includes many other detailed requirements intended to increase safety for construction site employees traveling on personnel platforms attached to crane hooks.