SECRETARY OF LABOR,
Complainant.
v.
MOSSER CONSTRUCTION COMPANY,
Respondent.
INTERNATIONAL UNION OF
OPERATING ENGINEERS
LOCAL UNION 18,
Authorized Employee
Representative.

OSHRC Docket No. 89-1027

DECISION

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

BY THE COMMISSION:

At issue before us is a single citation item (citation no. 1, item 1b) alleging a serious violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678. Commission Administrative Law Judge Paul L. Brady affirmed this citation item as amended, finding that an employee of Mosser Construction Co. ("Mosser") was exposed to the hazard of moving gears on a truck crane while performing duties such as checking the fuel level and obtaining stored materials, and that Mosser violated the cited standard, 29 C.F.R. 1926.550(a)(8), by falling to guard those gears. The judge also held that Mosser's affirmative defenses of unpreventable employee misconduct and "impossibility of performance" were "without merit." For the reasons stated below, we conclude that the judge correctly decided the issues in this case, and we therefore affirm his decision and order to the extent it affirms the contested citation item. However, we modify the judge's penalty assessments.

BACKGROUND

The contested Citation item arises from an incident that occurred on January 16, 1989, while employees of Mosser, including crane operator Eric Hofstatter, were engaged in construction work at a Glidden Paint plant in Huron, Ohio. On this project, Hofstatter was the operator of a 65-ton Link-Belt truck crane that was being used in the construction of a "paint building." At this stage of the construction, the crane was being used to set up steel reinforcing bars ("rehar") so that a concrete floor could be poured. When he arrived at the worksite on the morning of January 16. however, Hofstatter learned that he had about an hour of free time before any lifts were scheduled. He therefore decided to do some maintenance work on the crane.

Although maintenance work was primarily the responsibility of another employee, referred to as "the oiler," crane operator Hofstatter, who had worked as both an oiler and an operator for 11 1/2 years, decided to do the work himself because he was "the only one there." The record reveals that this was not an unusual occurrence, that Hofstatter was fully qualified to do maintenance work on the crane, and that he still performed the work of an oiler on numerous occasions, particularly when his father, also a Mosser employee, operated the Link-Belt crane.

The maintenance operation that Eric Hofstatter performed on the morning of January 16 was tile oiling and greasing of mechanical power transmission apparatus that apparently controlled the movement of the crane's boom and hoist. This apparatus was contained within a compartment referred to as "the doghouse," that was located on the crane's rotating superstructure. Although the space inside this compartment was quite confined, it was large enough that an employee could enter into it through a hatch-like door that also served as the slanted roof of the compartment. Inside the compartment, along with the mechanical power transmission apparatus, were fuel tanks and gauges. In addition, the doghouse served as a storage area for materials, equipment and tools that were used by the oiler and the operator in their crane maintenance work.

At the hearing, crane operator Hofstatter testified as to the events that resulted in the severing of his hand. Unfortunately, this testimony is ambiguous and incomplete, and even internally inconsistent in one important respect, which is discussed below. Nevertheless, based on our reading of the testimony and related evidence, we conclude that the injury occurred in the following manner. After deciding to oil and grease the mechanical power transmission apparatus. Hotstatter followed his usual practice, which was to first disengage the master clutch before beginning this maintenance operation. By disengaging the master clutch, while standing or seated in the crane's cab, he stopped the movement of the gears that were inside the doghouse. He then went over to the doghouse and went inside, where he "greased the fittings that were open to him" and "put some lube on the crane gears." After he had "finished the greasing oiling," he returned to the crane cab and re-engaged the clutch so that the gears began to move again. He then returned to the doghouse to check the fuel levels and to pick up tools and materials "as part of the greasing operation." While he was handling a rag that he either had used or was then using to clean up oil and grease, first the rag, and then his hand, became entangled in the moving gears. As a result. Hofstatter's hand was severed.

Following an investigation of this incident and an inspection of the workplace, the Occupational Safety and Health Administration ("OSHA") of the United States Department of Labor issued a citation alleging serious violations of the Act. Item 1b of the citation alleged that Mosser violated 29 C.F.R. 1926.550 (a)(8) by failing to guard the moving gears that caused the amputation. The cited standard provides, as follows:

1926.550 Cranes and derricks.

(a) General requirements.

(8) Belts, gears, shafts, pulleys, sprockets, spindles, drums, fly wheels, chains, or other reciprocating, rotating, or other moving parts or equipment shall be guarded if such parts are exposed to contact by employees, or otherwise create a hazard. Guarding shall meet the requirements of the American National Standards Institute B 15.1-1958 Rev., Safety Code for Mechanical Power Transmission Apparatus.

The incorporated ANSI Safety Code provisions require employers to guard moving gears by installing at least one of four permissible physical guarding devices -- a complete enclosure, a standard guard, a band guard, or a disk guard and by meeting the specification requirernents that the Code establishes for whichever guard is selected. (See Rule 230--Gears).

In both her citation and her complaint, the Secretary alleged that employee exposure to these unguarded gears occurred during maintenance operations and specifically while greasing the mechanical power transmission apparatus. At the hearing in this case, however, the undisputed testimony of crane operator Hofstatter clearly established that he was not exposed to moving gears during oiling and greasing operations. Instead, his regular practice was to disengage the master clutch thereby stopping the movement of the gears, before beginning his oiling and greasing work.

On the other hand, Hofstatter also gave unrebutted testimony that he was regularly and recurringly exposed to the moving gears on other occasions specifically, while checking the fuel gauges or obtaining stored materials. As indicated above, the doghouse served multiple purposes since the mechanical power transmission apparatus, the fuel tanks and fuel gauges, and stored materials were all located inside the compartment. In particular, Hofstatter identified certain objects in photographic exhibit C-4 as containers of torque converter oil, which is used in the crane's hydraulic system and which was stored in very close proximity to the unguarded gears that are at issue. He further testified that the doghouse was also used for the storage of buckets, brackets, wedges, cable clamps, and "all kinds of stuff that pertain to the rig."

The key testimony of Hofstatter concerning the extent of his exposure and the reasons for that exposure is the following:

Q. Now, during he course of your employment with Mosser Construction, did you have occasion to go inside this ["doghouse"] door while the gears were running?
A. Yes, I was in and Out of it all the time.
Q. For what purposes were you in there?
A. That's where we store our oils and greases, in that compartment, plus you have fuel tanks located in this compartment too.

So, you're in and out of it--or I was--a lot of times, just to get stuff, rags, grease, oils.

Q. Had you checked the fuel level on this crane before [the date of the incident] while the gears were running?
A. Yes.
Q. Do you know on how many occasions besides the time of the accident you were exposed to the moving gears?
A. I can't count them, but I was in and out of the compartment numerous times.
Q. Why wouldn't the gears be shut down when you had to go into that compartment?
A. I don't know. They usually were when I was alone, but like I say, if Dad was running the crane or something and I was oiling, if I needed something, like some oil and some grease, I would go in there while the crane was being operated and grab some stuff ...

Based on this testimony, which was introduced without objection at the hearing, the Secretary in her post-hearing brief included a motion under Fed. R. Civ. P. 15(b) [[1]] to amend her pleadings to conform to the evidence: "[T]o the extent that the Complaint limited exposure to maintenance work on the crane, Complainant moves to amend the pleadings to include exposure at other times such as when checking the fuel level and obtaining stored materials while the gears were moving." It was this amended charge that was affirmed by Judge Brady, and it is this amended charge that is now before us on review. [[2]]

DISCUSSION

1. Did the Secretary prove a violation of the cited standard?

"To establish a violation of a standard, the Secretary must show by a preponderance of the evidence that: (1) the cited standard applies, (2) its terms were not met, (3) employees had access to the violative condition, and (4) the employer knew or could have known of it with the exercise of reasonable diligence." Seibel Modem Mfg. & Welding Corp., 15 BNA OSHC 1218, 1221, 1991 CCH OSHD 29,442, p. 39,678 (No. 88-821, 1991). Here, there is no dispute over the allegation that the cited standard applies to the cited conditions. The standard clearly applies because Mosser was engaged in construction work and it was using a 65-ton truck crane in its work. At issue is whether the Secretary proved the remaining three elements of her prima facie case.

A. Noncompliance with the standard's terms.

The cited standard, which we have quoted in full above, requires guarding of a crane's gears "if such parts are exposed to contact by employees, or otherwise create a hazard." Mosser argues in effect that this test has not been met here because "[i]n this case, the operator, by his own admission, had no reason to place his hands in the area of gear movement to perform maintenance on the crane." Citing two decisions arising under other machine guarding standards, it contends that the Commission's case law compels the conclusion that the Secretary failed to prove the degree of exposure to a hazard that would require the installation of guarding. [[3]]

We disagree. The cases cited by Mosser are not applicable in this context. They arose in situations involving alleged exposure to point of operation hazards. Under the express terms of 29 C.F.R. 1910.212(a)(3)(ii), the primary standard governing such hazards, point of operation guarding is required only on those "machines whose operation exposes an employee to injury." Thus, it is the specific language of this standard that is the source of the Secretary's evidentiary burden of proving that a cited machine is operated in such a manner that the operator has to place his or her hands in the vicinity of the machine's point of operation. In contrast, the language of the standard that has been cited in this case contains no such limitation, either expressly or implicitly. The Secretary is required to prove only that the moving gears "are exposed to contact by employees."

Furthermore, there are important differences in the safety considerations that are involved in these two different situations. With moving gears and other moving parts of mechanical power transmission apparatus, such as in this case, there is a very real possibility of an employee inadvertently coming into contact with the moving part while his or her attention is directed elsewhere, e.g., by backing into the moving gears or by catching an article of clothing on them. In contrast, the primary hazards created by a point of operation are the possibility that the machine could be inadvertently activated while the operator's hands are in the point of operation and the possibility that an employee who must work near the point of operation will accidentally enter into the zone of danger and be injured. We therefore conclude that neither the case law, safety considerations, nor the underlying intent of 1926.550(a)(8) support a limitation of the standard's guarding requirements to situations where employees have to place their hands "in the area of gear movement to perform maintenance on the crane," as Mosser suggests.

In this case, the incident that led to these proceedings conclusively establishes that the gears in question were "exposed to contact by employees." The testimony and photographic exhibits provide further support for this conclusion and also show that Hofstatter's exposure on the day he was injured was neither isolated nor unforeseeable. On the contrary. the close proximity of stored materials used in the maintenance of the crane to the gears in question demonstrates that the exposure of employees to contact with those gears was a regular and recurring situation. We therefore conclude that the Secretary met her burden of proving that guarding of the gears was required under the express terms of the standard.

We further conclude that the Secretary met her burden of proving that the gears were not in fact guarded. Mosser challenges the judge's finding to this effect by arguing strenuously that it did provide one of the means of guarding expressly permitted under the standard, that is, a "complete enclosure." Citing unrebutted testimony from several witnesses, Mosser correctly points out that the housing and the door of the doghouse acted as a fully effective guard--specifically, a complete enclosure of the cited gears--so long as the door was closed and employees remained outside of the compartment. In Mosser's view, Hofstatter was injured because he circumvented the guarding that it had provided; in the absence of this unpreventable and unforeseeable employee misconduct, it reasons, the crane operator would have been fully protected from the hazard created by the moving gears.

For the reasons that follow, we reject this argument and hold that Mosser did not comply with the requirements of the cited standard. We assume for the sake of argument that the housing and the door of a crane compartment can under certain circumstances constitute a complete enclosure guard for the mechanical power transmission apparatus inside the compartment. Nevertheless, we must conclude that those circumstances did not exist at Mosser's workplace. The method of "guarding" provided by Mosser could easily be circumvented merely by opening the door of the doghouse while the gears were still moving. It was therefore incumbent upon Mosser to adopt and strictly enforce a work rule that prohibited entry into the doghouse for any reason unless the main clutch was first disengaged. This would have eliminated the hazard to employees who entered into the compartment. Indeed, Mosser's arguments on review show that it fully recognizes the necessity of supplementing the protection provided by the physical enclosure. Thus, it has repeatedly asserted in its arguments to us that, prior to the incident that led to these proceedings, it had already adopted and enforced such a work rule and that, by combining this work rule with the physical protection provided by the "complete enclosure," it had satisfied its duty under the cited standard.

We conclude however, that the record provides no support for Mosser's claims that it adopted and implemented a work rule that was adequate to eliminate the hazard to its employees. Instead, the record fully supports the finding of Judge Brady that Mosser's work rule required employees to disengage the master clutch only before engaging in oiling and greasing operations.

Insofar as written work rules are concerned, it is beyond dispute that Mosser did not have the broad rule governing into the doghouse that it claims it had. The only clearly applicable rule it is able to cite is Rule 26 under the section of its safety pamphlet that is captioned "cranes, hoists, elevators and conveyors." That rule states that "[t]he oiler should never grease or oil while the crane is operating." Crane operator Hofstatter characterized this rule as nothing more than "common sense," noting that it was necessary to stop the movement of the gears in order to perform the oiling and greasing operations properly. His testimony clearly reveals that he did not view the rule as having any broader safety purpose, and he certainly did not construe it, as Mosser apparently did, as a rule requiring employees to disengage the main clutch when they entered the doghouse for other purposes, such as. checking the fuel levels or obtaining stored materials.

Mosser also cites a second written work rule, Rule 6 of the section captioned "motor vehicles and mechanized equipment." It is not clear. however, that this work rule even applies to cranes since the rules governing crane operations are found in a separate section of the pamphlet. In any event, the rule provides only that equipment operators are required to check fuel levels "before starting [their] equipment each day." The rule does not prohibit these operators from checking fuel levels at other times during the day. Nor does it require them to disengage the motor before entering a compartment to check the fuel levels, as Mosser would have us believe.

Finally, Mosser relies on oral instructions and training that it provided to its employees. However, crane operator Hofstatter was the only witness to testify on this subject and his testimony taken as a whole indicates that Mosser's oral instructions were no different than its written work rule. We therefore conclude that there is no evidence in this record to support a finding that Hofstatter was trained to disengage the master clutch before entering the doghouse, except in the limited instance when he entered for the purpose of oiling and greasing the mechanical power transmission apparatus.

Here, it is undisputed, as Mosser contends, that the housing and the door of the doghouse acted as a complete enclosure in relation to the moving gears in question if and when the door was closed and employees remained outside of the compartment. On the other hand, it is also undisputed that crane operator Hofstatter repeatedly circumvented this guarding method by opening the door and going into the compartment while the gears were moving; the witness testimony to this effect was not rebutted. At those times there was nothing to prevent Hofstatter from coming into contact with the gears, as he did on the day of the accident. We therefore affirm the judge's finding "[t]hat although a door was used to enter the gear compartment, the gears themselves were not guarded." While the door in question could have been used as an effective means of guarding, it lost its effectiveness as a guard when it became the means of access to a frequently entered storage area.

In her review brief, the Secretary asserts that "Mosser's argument that compartment door was itself an adequate guard is meritless" because the undisputed evidence establishes that "ordinary work processes required Mosser's employees to enter that compartment" while the gears were moving and "Mosser, had neither a workrule nor a physical guard protecting its crane operators and oilers from the hazard of turning gears at any time other than greasing when they opened the doghouse compartment in the course of their duties." We conclude that the record fully supports this argument. The judge was therefore correct in holding that Mosser failed to comply with the terms of the cited standard and in rejecting Mosser's argument that it met the standard's terms by providing complete enclosure guarding.

B. Access to the violative conditions.

From our previous discussion, it is clear that the Secretary met this element of her burden of proof. At least one of Mosser's employees, crane operator Hofstatter, was "in and out of [the doghouse] all the time" while the gears were moving. He testified that he could not count the number of times he was exposed to the moving gears. Given the confined nature of the compartment and the storage of materials used in the maintenance of the crane in close proximity to the moving gears, we have little difficulty in crediting this testimony and concluding that Hofstatter had access to the zone of danger created by the unguarded moving gears on those occasions.   The record is silent as to whether any other employees were exposed to the violative conditions, and we are unable to draw any inference one way or the other on that question.  Nevertheless, the unrebutted evidence of Hofstatter's repeated exposures to sustain the Secretary's burden of proof.

C. Knowledge of the violative conditions.

There is no evidence that any of Mosser's supervisory employees had actual knowledge that Hofstatter was entering into the doghouse to check fuel levels and obtain stored materials without first disengaging the master clutch.   We therefore cannot conclude that Mosser had actual knowledge of the violative conditions.  Accordingly, the issue becomes whether Mosser had construction knowledge that is, could it have known with the exercise of reasonable diligence of Hofstatter's exposure to the hazard created by the unguarded moving gears.  We conclude that it had such constructive knowledge and that the Secretary therefore established this final element of her prima facie case.

In determining whether an employer has constructive knowledge of a violation, it is appropriate to examine whether the employer has exercised responsible diligence requires adequate supervision of employees and the formulation and implementation of adequate training programs and work rules, all for the purpose of ensuring that the employees perform their work safely. See Gary Concrete Prod., Inc., 15 BNA OSHC 1051, 1054-55, 1991 CCH OSHD 29.344, pp. 39,451-52 (No. 86-1087,1991); Towne Constr. Co., 12, BNA OSHC 2185, 2190-91, 1986-87 CCH OSHD 27,760, pp. 36,312-13 (No. 83-1262, 1986) , aff'd, 847 F. 2d 1187 (6th Cir. 1988).

Here, Hofstatter's unrebutted testimony establishes that he was in and out of the doghouse while the gears were moving "all the time" to get stored materials used in his crane maintenance work and to check the fuel levels.  Yet the work rule Mosser formulated to protect its employees required them to disengage the master clutch only before greasing and oiling operations and not before entering the compartment for other purposes.  In the absence of a work rule prohibiting such entries, Hofstatter's entry into doghouse while the gears were moving in order to get stored materials and to check on fuel levels was foreseeable and predictable.

As for supervision of Hofstatter, the record is essentially silent. Mosser's safety officer did testify, as a general matter that his duties included making sure that employees complied with all of Mosser's safety rules. However, Mosser provided no testimony or other evidence of any specific actions taken to ensure that the crane operators and oiler's performed their work in a safe manner. On this record, therefore, we conclude that Mosser, with the exercise of reasonable diligence, could have known that Hofstatter repeatedly entered into the doghouse without first disengaging the master clutch, thereby exposing himself to the moving gears. Based on this reasoning, we further conclude that the Secretary has met her burden of proving the knowledge element of the alleged violation.

Focusing on the events that led up to Hofstatter's injury, Mosser argues that the citation must be vacated because the Secretary failed to prove that it "knew or reasonably should have known that its employee would perform maintenance on the crane in question in an unsafe manner." Mosser reasons that Hofstatter's conduct in entering the crane compartment without first disengaging the master clutch was unforeseeable in view of the comprehensive training he had received and his awareness of the proper procedures to be followed in performing crane maintenance.

We disagree. We note initially that it is not at all clear on this record that Hofstatter in fact performed crane maintenance in a manner contrary to his training and instructions. (This matter will be discussed more fully below in connection with Mosser's unpreventable employee misconduct defense.) More importantly, however, we conclude that Mosser's entire focus on the issue of exposure during maintenance operations is misplaced, given the Secretary's amendment of the charge. Thus, even if we were to accept Mosser's claim that Hofstatter's contact with the moving gears on January 16 was caused by his failure to perform his duties properly, we would still be left with the evidence of Hofstatter's repeated exposures to the moving gears on other occasions when he was not engaging in maintenance work at all but was merely checking the fuel levels or obtaining stored materials. As we have noted above, Mosser has failed to prove its claim that these other exposures were contrary to its work rules or the training it provided to Hofstatter. We therefore reject Mosser's argument on the knowledge issue.

Having concluded that the Secretary proved all of the elements of her prima facie case, we turn now to the issue of whether Mosser established either of its affirmative defenses.

II. Did Mosser establish an affirmative defense?

A. Unpreventable employee misconduct.

In order to establish an unpreventable employee misconduct defense the employer must establish that the violative conduct on the part of an employee was a departure from a uniformly and effectively communicated and enforced work rule. Archer Western Contractors Ltd., 15 BNA OSHC 1013, 1017, 1991 CCH OSHD 29,317, p. 39,378 (No. 87-1067, 1991), petition for review filed, No. 91-1311 (D.C. Cir. July 1, 1991). In his decision, Judge Brady rejected Mosser's unpreventable employee misconduct defense on the ground that crane operator Hofstatter did not in fact violate Mosser's work rule on the day he was injured. In so holding, the judge entered two key finding: (1) that Mosser's work rule required that the gears he disengaged only while greasing and oiling the crane and (2) that Hofstatter had completed this process before he re-engaged the master clutch. Mosser however, disagrees with both of these findings, and it continues to argue before us that Hofstatter's exposure to the moving gears was due to his own misconduct in entering the doghouse without first disengaging the master clutch.

With regard to the first of the judge's two key findings, we have little' difficulty in affirming the Judge. For the reasons we have stated previously, we reject Mosser's claim that it had a work rule strictly prohibiting employee entry into the doghouse whenever the gears were moving. The judge correctly found that Mosser only required its employees to disengage the master clutch when they were entering the compartment to perform a greasing and oiling operation.

Mosser's challenge to the judge's second key finding raises a more difficult issue. The only evidence as to Hofstatter's actions on the day of his injury is Hofstatter's own testimony, and that testimony unfortunately is internally inconsistent. At one point, the witness that he had finished the greasing mid oiling operation before he re-engaged the master clutch, thereby complying with Mosser's work rule. At another point, however, he testified that he re-entered the doghouse, after re-engaging the clutch, to pick up his tools, his grease gun, and his rags "as part of the greasing operation." In other words, Hofstatter's testimony provides support both for the judge's finding that Hofstatter complied with the work rule and for Mosser's argument that Hofstatter violated the work rule. [[4]]

We conclude that it is not necessary to resolve this factual, dispute in order to rule on Mosser's unpreventable employee misconduct defense. As we have emphasized in this decision, the Secretary's amendment of the charge has shifted the focus away from maintenance operations generally and away from the events leading up to Hofstatter's injuries in particular. Assuming we were to agree with Mosser that Hofstatter's exposure on the day of his injury was "unpreventable," we would still be left with the fact of Hofstatter's exposure to the moving gears on numerous other occasions that were not even related to oiling and greasing operations, such as the exposure that occurred while Hofstatter was checking the fuel level or obtaining stored materials. On this record, there is no reason to believe that these other incidents of employee exposure were either unforeseeable or unpreventable.

Because Mosser did not have a work rule that was clear enough or broad enough to eliminate employee exposure to the moving gears, and because strict compliance with the literal terms of Mosser's limited work rule would not have fully protected Hofstatter the judge ruled correctly in rejecting Mosser's unpreventable employee misconduct defense. See Gary Concrete, 15 BNA OSHC at 1055 56, 1991 CCH OSHD at pp. 39,452-53 ( unpreventable employee misconduct defense rejected where employer failed to prove that it had established " work rules designed to prevent the cited violation"; Gar's instructions "too general" to inform the employee of "how to prevent the violation of the standard which resulted in his death"); Archer-Western, 15 BNA OSHC at 1017 1991 CCH OSHD at p. 39,377 ("An unpreventable misconduct defense will not be established where the employer's instructions were insufficient to eliminate the hazard even if the employee had complied with those instructions"); Brown & Root, Inc., 8 BNA OSHC 2140, 2144, 1980 CCH OSHD 24,853 p. 30,656 (No. 76-1296, 1980) (Commission rejects unpreventable employee misconduct defense with observation that "the work rule as perceived by Respondent's employees is quite distinct from the rule Brown & Root suggests is enforced").

B. Infeasibility of Compliance.

On review, Mosser argues that Judge Brady "erred in falling to find that compliance with 29 C.F.R. 1926.550(a)(8) was impossible." Citing case law that has since been superseded, it argues that it met its burden of proving that "compliance with the standard would preclude the performance of required work or make the work functionally impossible." It claims that it met this burden by showing that "an operator cannot perform the greasing operation without first opening the door on the crane." In Mosser's view, it therefore follows that "an employee could not perform the required greasing operations and at the same time comply with the standard requiring the guard to be in place."

Before ruling on this defense, it is necessary for us first to restate it in fundamentally different terms. For the reasons we have previously given, Mosser's reliance on the housing and door of the doghouse as the sole means of compliance with the cited standard is misplaced. Therefore, it misses the point in arguing that compliance with the standard was impossible because it had to open the door to perform crane maintenance. Giver crane operator Hofstatter's practice of going "in and out of [the doghouse] all the time" while the crane was operating, and in the absence of effective work rules and other measures to ensure that the gears were not moving whenever it was necessary for Hofstatter to enter the compartment, Mosser's defense must be restated in terms of whether the gears themselves could have been guarded by installing at least one of the four devices specified in the cited standard.

In addition, we must further modify the issue to be resolved because, as noted, the case law cited by Mosser has been superseded--specifically, under the precedent that now controls, the "impossibility defense" has been replaced by the "infeasibility defense." Under our current case law, the issue is whether Mosser met its burden of proving that (1) literal compliance with the terms of the cited standard was infeasible under the existing circumstances and (2) an alternative protective measure was used or there was no feasible alternative measure. Seibel, 15 BNA OSHC at 1226, 1228, 1991 CCH OSHD at pp. 39,682 & 39,685.

On the record before us, we have no difficulty in concluding that Mosser failed to sustain its burden. Indeed, the only party to introduce evidence at the hearing on the feasibility of guarding the gears and the availability of alternative protective measures was the Secretary. As noted by the judge, who implicitly credited their testimony, both the OSHA compliance officer and the business representative for the local union representing Mosser's employees testified that band guards could have been used to protect employees from the moving gears and that they had personally observed this form of guarding on similar gears on other cranes. Mosser made no effort to discredit or rebut this testimony. It also made no effort to show that any of the other three types of guarding that are expressly permitted under the terms of the cited standard as alternatives to band guards could not have been used to block access to the cited crane gears. Mosser's impossibility of performance defense is therefore clearly without merit.

III. Is the assessed penalty appropriate?

In discussing an appropriate penalty for item 1b, the item that is at issue before us on review, the judge erroneously concluded that "the proposed penalty in the amount of $210 is deemed appropriate." In her complaint, the Secretary proposed a penalty of $210 for a different alleged serious violation, which was stated in item 2 of the citation. She proposed a penalty of $175 for item 1b. The judge then compounded this error in his order, by assessing a single penalty of $210 to cover both item 1b and item 2, even though there is to apparent relationship between these two items that would warrant grouping them for penalty assessment purposes.

We therefore modify the judge's order to assess separate penalties for items 1b and 2. At the beginning of the hearing, Mosser withdrew its notice of contest to item 2 and its proposed penalty of $210. Accordingly, we assess at penalty of $210 for item 2.

We Assess a separate penalty of $300 for item 1b. Under the express terms of section 17(j) of the Act. 29 U.S.C. 666(j), we have the "authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations". The penalty we assess gives Mosser substantial credit for three of the four stated penalty criteria--size, good faith, and past history. Because the record contains little relevant information concerning these factors, we have given Mosser the benefit of the doubt on each of these three factors in determining in appropriate penalty. The one factor we can assess on the basis of this record is the gravity of the violation. In our view, that factor warrants a penalty higher than the $175 proposed by the Secretary. In this regard, we note that the Secretary's proposal was apparently based on OSHA's erroneous belief that exposure to the moving gears occurred only during maintenance operations. Since employee exposure in fact occurred more frequently than OSHA originally believed, we increase the penalty to reflect the increased gravity of the violation that has been established on this record. We also note, as the Judge correctly held, that the violation is properly classified as a serious violation because the likely result of contact with the moving gears was death or serious physical harm. Unfortunately, Hofstatter's injury is proof of this fact.

ORDER

Accordingly, for the reasons given in this opinion, we affirm citation no. 1, item 1b, as amended, (alleging a serious violation of 29 C.F.R. 1926.550(a)(8). We assess a penalty of $300 for this item and a penalty of $210 for item 2.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Dated: December 10, 1991


SECRETARY OF LABOR,
Complainant.
v.
MOSSER CONSTRUCTION COMPANY,
Respondent.

INTERNATIONAL UNION OF
OPERATING ENGINEERS
LOCAL UNION 18,

Authorized Employee
Representative.

OSHRC Docket No. 89-1027

APPEARANCES:

Sandra B. Kramer, Esquire, Office of the Solicitor, U.S. Department of Labor, Cleveland, Ohio, on behalf of complainant.
Douglas M. Bricker, Esquire, Arter & Hadden, Columbus, Ohio, on behalf of respondent.
Mr. Ronald Richmond, Business Representative, Local 18, International Union of Operating Engineers, Cleveland, Ohio, on behalf of authorized employee representative.

DECISION AND ORDER

BRADY, Judge: This proceeding is brought pursuant to section 10 of the occupational Safety and Health Act of 1970 ("Act") to contest a citation issued by the Secretary of Labor ("Secretary") pursuant to section 9(a) of the Act.

Prior to commencement of the hearing, the parties agreed to the disposition of items 1a and 2 of the citation, leaving in issue item 1b which alleges violation of 29 C.F.R. 1926.550(a)(8).

The standard at 29 C.F.R. 1926.550(a)(8) provides:

Belts, gears, shafts, pulleys, sprockets, spindles, drums, fly wheels, chains, or other reciprocating, rotating, or other moving parts or equipment shall be guarded if such parts are exposed to contact by employees, or otherwise create a hazard. Guarding shall meet the requirements of the American National Standards Institute B 15.1-1958 Rev., Safety Code for Mechanical Power Transmission Apparatus.

The citation alleges the standard was violated by Mosser Construction Company ("Mosser"), because the crane operator "was permitted to perform maintenance on the crane while the machinery was rotating." [[1]]

The basic facts which gave rise to issuance of the citation are not in dispute. On January 16, 1989, Mr. Eric Hofstatter, a crane operator, performed maintenance on respondent's Linkbelt 65-ton crane. Hofstatter disengaged the crane's gears before he began to grease them. Upon completion, he engaged the clutch and the gears began to move again. When he returned to the gear compartment to check the fuel level, a rag became tangled in the moving gears which lead to the serious injury of his hand.

The Commission has held that, in order to establish a violation as in this case, it is necessary for the Secretary to show by a preponderance of the evidence that (1) the cited standard applies; (2) there was a failure to comply with the standard; (3) employees had access to the violative condition; and (4) the cited employer either knew or could have known of the condition with exercise of reasonable diligence. Astra Pharmaceutical Products. Inc., 82 OSAHRC 55/E9, 9 BNA OSHC 2126, 1981 CCH OSHD 25,578 (No. 78-6247, 1982) Daniel International Corp., 81 OSAHRC 71/D6, 9 BNA OSHC 2027, 1977-78 CCH OSHD 21,679 (No. 76-181, 1977).

In determining the factor of applicability, the specific language of the standard itself must first be noted. Essentially, it provides that gears such as those in question shall be guarded "if such parts are exposed to contact by employees or otherwise create a hazard." There is no dispute that the standard applies to the facts of this case. However, the question of compliance is the central issue.

Clearly, the. gears themselves were not guarded, but respondent maintains that the gear compartment door serves as a guard since no employees are exposed to the hazards of moving gears when the door is closed. In support of its contention, Mosser shows that prior to the inspection, a testing laboratory performed "a complete OSHA inspection" on the crane without any reference to inadequate guarding (Ex. R-5). It was also shown that the manufacturer had not provided specific guarding for the gears. Since Mosser maintains that the compartment door was the guard, employees were not exposed to violative conditions; it could not have known of any such conditions.

The secretary, in accordance with the foregoing criteria, established the violation as alleged. This included employee exposure to the moving gears at times other than performance of maintenance work. The facts are clear that although a door was used to enter the gear compartment, the gears themselves were not guarded. The record also shows that materials were stored in the compartment which required Mr. Hofstatter to go "in and out of it all the time" while the gears were moving. It was during one of these times when the accident occurred as he picked up a rag which got caught in the moving gears.

Mr. Ronald Richmond, a crane operator for 25 years and business representative for local operating engineers, testified he has seen these gears guarded on other cranes. He stated the guards consist of metal bands that wrap around the guars and are similar to the guards used to protect the operator from moving gears in the crane's cab.

Mr. Pat Bland, the compliance officer who conducted the inspection, testified that newer crane models include the band-type guarding.  HE started such grauding would cost about $500.00.

Underlying respondent's argument is the fact that a safety rule was in effect that prohibited greasing and oiling the crane while it is operating (Ex. R-1).  There is no question Mr. Hofstatter was bound by, and understood the rule.  Mosser, therefore reasons that it could not have known Hofstatter would lubricate the gears in an unsafe manner.

The evidence in this case, however, shows that Hofstatter had completed the process of oiling and greasing the crane, in compliance with the safety rule, when the accident occurred.  He, in fact, was handling a rag which was part of the material and equipment stored in the compartment.  The record convincingly shows that the standard was violated and affirmative defenses of unpreventable employee misconduct on impossibility of performance are without merit.

the violation having been established, it must now be determined whether it is of serious nature, as alleged.  For a violation to be determined serious under section 17(k) of the Act, there must be a substantial probability that death or serious physical harm could result therefrom.  The resulting injuries sustained by Mr. Hofstatter are obviously serious within the meaning of the Act.

The Next Question for determination concerns the amount of penalty to be assessed for violation.  Under section 17(j) of the Act, the Commission in required to find and give  "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of previous violations in determining the assessment of an appropriate penalty. The gravity of the  offense is the principal factor to be considered. Nacirema Operating Co., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD 15,032 (No. 4, 1971). The Commission stated in Secretary v. National Realty & Construction Co., 72 OSAHRC 9/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD 15,188 (No. 85, 1971), that the elements to be considered in determining the gravity are: (1) the number of employees exposed to the risk of injury; (2) the duration of exposure; (3) the precautions taken against injury, if any; and (4) the degree of probability of occurrence of injury.

Weighing all the foregoing factors in light of the circumstances, including respondent's attempts at compliance, it is concluded that the proposed penalty in the amount of $210.00 is deemed appropriate.

FINDINGS OF FACT

1. Mosser Construction Company, at all times hereinafter mentioned, was a contractor performing concrete and structural steel work at 300 Sprowl Road, Huron, Ohio.

2. On January 30, 1989, authorized representatives of the Secretary conducted an inspection at the work site resulting in the issuance of a citation.

3. On January 18, 1989, a crane operator at the work site performed maintenance on a Linkbelt 65-ton crane. He disengaged the gears while he oiled and greased them.

4. The operator followed respondent's safety rules while he oiled and greased the gears.

5. Although door was used to enter the gear compartment, the gears themselves were not guarded. The manufacturer of the Crane had not provided specific guards for the gears.

6. Materials were stored in the compartment, and employees entered the compartment for purposes other than oiling and greasing the gears. Those employees were exposed to the hazard of moving gears.

7. On January 16, 1989, Eric Hofstatter, who had completed the tasks of oiling and greasing the crane's gears, was exposed to the hazard of moving gears while performing other duties in the gear compartment.

CONCLUSIONS OF LAW

1. Mosser Construction Company, at all times pertinent hereto, was an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and subject matter herein pursuant to section 10(c) of the Act.

2. Respondent is, and at all times pertinent hereto,required to comply with the Act and the safety and health regulations promulgated pursuant thereto.

3. Respondent. violated 29 C.F.R. 1926.550(a)(8) and 1926.407(b) as alleged in the citation.

4. Respondent was not in violation of 29 C.F.R.

ORDER

Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, it is ORDERED:

1. That part of the citation alleging violation of 29 C.F.R. 1926.550(a)(8) and 1926. 407(b) is affirmed and a penalty in the sum of $210.00 is hereby assessed.

2. That part of the citation alleging violation of 29 C.F.R. 1926.21(b)(2) is hereby vacated.

Dated this 11th day of June, 1990.

PAUL L. BRADY
Judge


FOOTNOTES:
[[1]] Federal Rule 15(b) states in pertinent part:
(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment ....

[[2]] At the outset of his decision, Judge Brady expressly granted the Secretary's pending motion to amend under Fed. R. Civ. P. 15(b). Mosser has not objected to the judge's action. Nor did it object to the introduction of the underlying testimony that served as the basis of the Secretary's motion, and it made no effort to rebut or to discredit that testimony. Under these circumstances, we decline to review the propriety of the judge's order granting the amendment, although we clearly have the authority to consider the matter under Commission Rule of Procedure 92 (a) 29 C.F.R. 2200.92 (a).

[[3]] The specific cases that Mosser cites are unreviewed judge's decisions which assertedly support the result it urges. Smurfit Diamond Packaging Corp. 12 BNA OSHC 119,1984-85 CCH OSHD 27,115 (No. 83-1012, 1984) (consolidated cases)(ALJ), Parr, Inc., 4 BNA OSHC 1449, 1975-76 CCH OSHD 20,272 (No. 9352, 1976)(ALJ). However, while these unreviewed judge's decisions maybe considered for their persuasive value, they "[d]o not constitute precedent binding upon [the Commission]." Leone Constr. Co., 3 BNA OSHC 1979, 1981. 1975-76 CCH OSHD 20,387, p. 24,322 (No 4090, 1976).

[[4]] We consider it significant that Hofstatter believed he was in compliance with Mosser's work rule at the time he was injured. As we have observed previously, Hofstatter saw the work rule as a "common sense" rule based on practical concerns -- specifically, the necessity of stopping movement of the gears in order to perform the greasing and oiling operation properly. Thus, he read the work rule very narrowly as requiring the clutch to be disengaged only while he was actually performing the tasks of oiling and greasing.
Mosser argues persuasively that the cleanup activities should be considered an integral part of the greasing and oiling operation. From a safety viewpoint, we certainly agree, and we note that there is no explanation in the record for Hofstatter's actions in re-engaging the master clutch before checking the fuel levels and picking up the tools and materials used in the greasing and oiling operation. On the other hand, we also note that there is no evidence that Mosser actually trained or instructed its employees to finish their cleanup and the storage of tools and materials before re-engaging the master clutch. If this was Mosser's intent in adopting its work rule, we must conclude that it was ineffective in communicating that intent.

[[1]] Complainant's motion to amend the pleadings is granted. The citation is, therefore, amended to include exposure at other times while the gears are moving such as checking the fuel level and obtaining stored materials.