SECRETARY OF LABOR,

Complainant,

v.

PEAVEY GRAIN COMPANY,

Respondent.

OSHRC Docket No. 89-3046

DECISION

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

BY THE COMMISSION:

In Hereford, Texas, a town located approximately 40 miles southwest of Amarillo, Peavey Grain Company ("Peavey" or "the Company"), a division of ConAgra, Inc., operates a grain-handling and merchandising facility.  It consists of an office, two grain elevators and various grain storage sheds.  After a fatality in a grain storage shed during the month of June 1989, the Occupational Safety and Health Administration ("OSHA"), of the United States Department of Labor, conducted an inspection and issued a serious citation.  One item of the citation alleged noncompliance with OSHA standards regarding emergency action plans.  Peavey contested the citation, and the parties presented evidence to an administrative law judge of the Commission, who thereafter affirmed the citation item regarding Peavey's emergency action plan. [[1]]

I. The Relevant Standards

A. The Standards Cited in the Pleadings and Tried by the Parties

29 C.F.R. 1910.272(d) requires employers who operate grain handling facilities to "develop and implement an emergency action plan meeting the requirements contained in 1910.38(a) [of 29 C.F.R. Part 1910]."   Peavey's citation alleged noncompliance with 1910.272(d) and 1910.38(a), in that:

[Peavey had not] developed and implemented an emergency action plan which meets the requirements contained in 1910.38(a): Elements of the emergency action plan that need to be emphasized are 1910.38(a)(2)(iv) rescue and medical duties for those that are to perform them and 1910.38(a)(3)(i) alarm system for use during an emergency situation.

Section 1910.38(a)(2)(iv) specifies the following element that--"at a minimum"--an employer must include in any emergency action plan: "Rescue and medical duties for those employees who are to perform them[.]"  Section 1910.38(a)(3)(i) specifies that the employer must "establish an employee alarm system which complies with 1910.165 [of 29 C.F.R. Part 1910]."  At the hearing and in their arguments, the parties referred particularly to 1910.165(b)(5).  It states:

The employer shall establish procedures for sounding emergency alarms in the workplace.  For those employers with 10 or fewer employees in a particular workplace, direct voice communication is an acceptable procedure for sounding the alarm[,] provided [that] all employees can hear the alarm.  Such workplaces need not have a back-up system.

B. Standards that Explain the Requirement for an Emergency Alarm

The purposes of the emergency alarm that employers must have are standard in 1910.165(b)(1): "[To] provide warning for necessary emergency action as called for in the emergency action plan, or for reaction time for safe escape of employees from the workplace or the immediate work area, or both."  The purposes are reiterated in 1910.165(b)(3), which indicates that the alarm shall be "a signal to evacuate the work area or to perform actions designated under the emergency action plan."

Section 1910.165(b)(4) indicates that employers' emergency action plans do not necessarily have to designate use of the alarm for the purpose of summoning the local fire department or rescue squad or alerting the appropriate person to do so; instead, employers may train employees in the use of the telephone or other devices for accomplishing these particular emergency actions:

The employer shall explain to each employee the preferred means of reporting emergencies, such as manual pull box alarms, public address systems, radio or telephones.  The employer shall post emergency telephone numbers near telephones, or employee notice boards, and other conspicuous locations when telephones serve as a means of reporting emergencies.  Where a communication system also serves as the employee alarm system, all emergency messages shall have priority over all non-emergency messages.

Also, 1910.38(a)(3)(ii) states: "If the employee alarm system is used for alerting fire brigade members, or for other purposes, a distinctive signal for each purpose shall be used."  Moreover, one element that 1910.38(a)(2)(v) includes in an emergency action plan is "[t]he preferred means of reporting fires and other emergencies[.]"  In sum, an alarm system is not the only "means" that the standards permit for "reporting fires and other emergencies."

II.  The Facts

Seven persons comprised the full-time workforce at the plant: the Plant Manager, Mark Black; two office secretaries; the plant superintendent, Joseph Neville; a lead man, Jesse Andrade; and two laborers, Lane Warren and Rodney Eubank.  The four temporary employees were Kenneth Hackworth, Pete Gaitan, Tim Goodman, and Harold Sanders.  Employee Hackworth was about twenty-five years old; the three others were eighteen or nineteen.

A.  The Accident

Plant Manager Black hired the temporary employees to partly empty a "flathouse," a barn-like grain-storage shed measuring 205 feet long, 78 feet wide, and more than 25 feet high.  The flathouse was capable of holding approximately 490,000 bushels of corn, but at the time it held fewer than 200,000 bushels.  Some grain had been drained through trapdoors in the floor, below which was a conveyor belt in an underground tunnel leading to the building's exterior; there, the grain was loaded onto trucks.  Supervisors positioned the temporary employees in the flathouse on the concrete floor that had been cleared, near the two westernmost trapdoors, about 15 to 20 feet inside the western entrance.  The employees' assignment was to shovel into the trapdoors the grain remaining piled against the walls.  While the employees were "pulling" the grain down from piles, which were approximately 20 to 25 feet high, there may have been up to several feet of grain where the employees were standing.  During this work, employee Sanders got "stuck" under a pile of grain.  It collapsed around and over him: he became buried, could not be uncovered quickly enough, and suffocated.

The record indicates that the temporary employees were inexperienced in grain-handling.  The two temporary employees who testified, Hackworth and Gaitan, had never before worked in a grain-handling facility, and two of the young men, Gaitan and Sanders, had just graduated from high school.  Their supervisors had not specified what they should do in an emergency, or whom they should contact.[[2]]  There was no alarm in the flathouse or in any other part of the plant.   Also, in the flathouse there was no means by which to stop the conveyor that operated in the tunnel below.  According to employee Hackworth and OSHA compliance officer Guadalupe Rodriguez, whose testimony was based on an inspection that included interviews with employees and supervisors, the temporary employees panicked when employee Sanders became stuck in the grain.  Employee Hackworth estimated that approximately 15 to 20 minutes elapsed from his first realization that there was an emergency to the arrival of fire department personnel.  Of this time, 10 minutes or more may have been lost while the employees themselves tried to uncover employee Sanders; employee Hackworth estimated that the fire department arrived approximately 5 to 10 minutes after he sent one or more of the temporary employees to get help.

At the time of the accident, superintendent Neville was down in the tunnel below the flathouse, operating the conveyor and blending grain. [[3]]  He came outside not because he heard any outcry from the temporary employees but because he saw a truck outside waiting to be loaded.  When he looked toward the flathouse, he noticed a temporary employee outside talking to laborer Eubank. Realizing that something must be wrong, Neville went over, learned what had happened and told the temporary employee to run to the office to tell Plant Manager Black.  The plant manager, on learning of the accident, called the fire department.  Located only several blocks away, it responded promptly.  In the meantime, Neville had hurried to the western end of the flathouse.  The testimony of several witnesses indicates that, at some point, someone returned to the conveyor under the flathouse and shut the conveyor off.

B. The Investigation

Compliance officer Rodriguez came to the worksite the day after the accident.  He photographed the area where the body of employee Sanders was found, approximately 60 feet from the western end of the flathouse.   He noticed that Peavey had posted emergency telephone numbers, including the fire department's, but he did not obtain a copy of an emergency action plan.

According to Plant Manager Black, a plan was in effect at the plant when the accident occurred, and a copy is in evidence.  Also in evidence is a loss prevention report generated by ConAgra's insurance company, based on its own inspection shortly after the emergency.  Under the heading of "Important Changes," the report notes that "[a]n adequate Emergency Action Plan and self-inspection program are being maintained."  This notation of a change suggests that Peavey only recently began maintaining a plan as extensive as the one that is in evidence.

Peavey's emergency action plan does not specifically address the hazard of sliding grain, although a number of other hazards are addressed, including chemical exposures, fire and explosion, severe weather and nuclear attack.  The plan does not designate employees to perform rescue or medical duties and does not provide for an alarm.  Instead, in event of emergency, the affected employees are to turn off utilities and shut down operations before evacuating, report the emergency to the supervisor or the office, and assemble at the office. [[4]]

Compliance officer Rodriguez believed that the Company did not have all of the elements of a prescribed emergency action plan. He testified specifically that Peavey should have had an alarm system equipped to sound different alarms corresponding to the different work areas at the facility, so that the managers could immediately ascertain where any emergency was taking place.  He believed that an alarm system's primary purpose is to alert personnel outside of the immediate area in which an emergency is taking place.  Because the Company's employees worked in different buildings or task areas, separated by distance or physical barriers, and therefore could not hear shouted outcries of alarm from one task area to another, the compliance officer believed that Peavey's facility needed to have an alarm system.  On the basis of his inspection and interviews with Peavey's employees and supervisors, the compliance officer formed the opinion that an employee in the tunnel underneath the concrete floor of the flathouse "wouldn't have been able to hear anybody hollering" in the flathouse; in this particular instance, Superintendent Neville "didn't really hear anybody" while he was inside the tunnel, and didn't emerge because he heard anything.  Therefore, the compliance officer believed that the supervisor would not have heard the employees, even "had they been hollering inside there."[[5]]

Darrel Neely, ConAgra's Associate Corporate Safety Director and Senior Risk Analyst, testified regarding his opinion that Peavey's emergency action plan met all applicable OSHA requirements.  He had participated in the promulgation of OSHA's grain-handling standards and, based on that experience and experience as ConAgra's safety director, he had understood the standards to permit voice communication instead of an alarm system in buildings having ten or fewer employees.   He believed that the standards' purpose is to ensure the swift evacuation of a building or work area.

He also commented that it is inadvisable to rely on employees to perform rescue operations, because fatalities only multiply when employees instead of professional rescuers try to intervene.  Therefore, safety director Neely noted that the industry does not train its own rescuers.

III. The Judge's Decision and the Parties' Arguments

At the hearing, which was conducted by Administrative Law Judge Dee C. Blythe, the parties' attorneys did not make opening or closing statements to articulate their positions in detail.  The Secretary's attorney only used his examination of the compliance officer to suggest the Secretary's positions regarding the interpretation and application of the cited standards.  The Secretary's attorney did not submit a brief after the hearing.  Only Peavey's attorney filed a brief, arguing that the grain-handling facility had a complying emergency action plan and that an alarm system was not required for the flathouse because it had contained fewer than ten employees, who were able to hear each other and alert each other to emergencies. [[6]]

In his decision, Judge Blythe noted that Peavey's emergency action plan lacked a provision specifying employee "rescue and medical duties," a matter which 1910.38(a)(2)(iv) addresses.  The judge also noted that the plan did not provide for an alarm system that complied with 1910.38(a)(3)(i).  Because the whole grain-handling facility employed more than ten persons and the employees "were scatt[er]ed among several structures on the premises[,] including the office, the conveyor tunnel and a silo," the judge decided that there should have been an alarm system.  The judge reasoned: "Obviously, an alarm system could have shortened th[e] process" of calling the fire department to the flathouse.  The judge did not consider Peavey's argument that the flathouse itself was a "particular workplace" containing fewer than eleven persons and, as such, did not require an alarm system.

Chairman Foulke directed the following issue for review:

Whether the Administrative Law Judge erred in finding that Respondent failed to qualify for the exception permitting use of a direct voice communication alarm system under 29 C.F.R. 1910.165(b)(5)?

On review, Peavey continues to press its trial position on this issue; namely, that a separate structure or work area having ten or fewer employees is a "particular workplace" in which direct voice communication may be used. 

T he Secretary, having now filed a brief, acknowledges the essential validity of Peavey's position, but asserts that there remain sufficient grounds for affirming the citation item.

The Secretary does not rely on Judge Blythe's view that the exemption stated in 1910.165(b)(5) is limited to entire facilities that have ten or fewer persons. The Secretary also does not rely on compliance officer Rodriguez's view that an alarm's purpose is to facilitate the summoning of emergency services by alerting personnel throughout a whole plant to an emergency in one area of it. [[7]] Instead, the Secretary refers to compliance officer Rodriguez's testimony that Peavey should have had an alarm because voice communication from the flathouse could not be heard in the tunnel under the flathouse. The Secretary agrees that a "particular workplace" can be a particular work area or operation, but she argues that the flathouse and the tunnel in this case would constitute one "particular work-place" because, for one thing, an employee in the tunnel could not hear a shouted request from the flathouse to turn off the conveyor and stop the grain flow. The Secretary further argues that employees in the tunnel will, "[i]n all likelihood," be exposed to "the devastating effects of a fire or explosion occurring in the flathouse." The Secretary states that an alarm system's purpose is "to notify affected employees of emergencies that may affect them." The Secretary explains:

The standard differentiates between small workplaces, where a simple shout will be sufficient to warn employees of an emergency, and other multi-story buildings or a single-story building with interior sub-divisions, where a more traditional type of alarm is necessary.... Therefore, the type of employee alarm system that is acceptable under the standard will vary depending upon the characteristics of the particular workplace in question. The suitability of the alarm is ultimately judged upon whether all affected employees can be timely warned by the system that is used.

Neither party addresses that part of Judge Blythe's decision that upheld the item because of Peavey's failure to designate "[r]escue and medical duties for those employees who are to perform them[,]" as required by 1910.38(a)(2)(iv). The Company, in its petition and briefs, does not argue that, Judge Blythe erred in upholding the item on the basis of 1910.38(a)(2)(iv), but the Secretary does not specifically argue that Peavey infringed 1910.38(a)(2)(iv).

IV. Analysis

As we have indicated, the item alleged noncompliance with 1910.38 (a)(2)(iv) regarding rescue and medical duties and noncompliance with 1910.38(a)(3) regarding an alarm.  We will separately address these charges.

A. Rescue and Medical Duties

Section 1910.38(a)(2)(iv) requires that an emergency action plan include "[r]escue and medical duties for those employees who are to perform them[.]" Judge Blythe found, accurately, that the Company's written plan lacked any provision for medical and rescue duties.  The lack of such provision does not, however, automatically establish a violation according to the theory under which the parties evidently tried this case. All of the relevant testimony assumes that an employer must designate rescue and medical duties only if the employer has assigned employees to perform such duties.  This is the compliance officer's testimony: "If [persons] have been trained in rescue, then they have to have certain procedures that they follow..." (Emphasis added).  Although he testified that Peavey did not have a prescribed emergency action plan, he did not testify that Peavey had trained employees to perform rescue tasks. ConAgra's safety director explained that the industry considers it unsafe to rely on employees as rescuers, and does not do so. The Secretary did not refute the testimony of this witness familiar with the industry.

In short, the parties tried this case as if the cited standard were nonmandatory, and the Secretary has not argued otherwise. We therefore conclude that the Secretary has abandoned that part of the item that alleges that Peavey violated 1910.38(a)(2)(iv). [[8]]

B. The Lack of an Alarm System

At issue between the parties is the meaning in this case--the factual application--of the phrase "a particular workplace," found in 1910.165(b)(5), the standard to which the parties referred at the hearing and one of the standards which, as we set forth at the outset of this opinion, the cited standards incorporate by reference.  Section 1910.165(b)(5) establishes a requirement that employers "establish procedures for sounding emergency alarms in the workplace," but creates an exception for "employers with 10 or fewer employees in a particular workplace."  These employers may use "direct voice communication" to sound an alarm, "provided [that] all employees can hear the alarm."

At the evidentiary hearing in this case, the Secretary proved without dispute that Peavey had not established any procedure for the sounding of an alarm at the workplace.  The record reveals that Peavey did not have an alarm system at the workplace, and that Peavey's emergency action plan did not provide for the sounding of any alarm.  Also, the parties did not dispute that the employees had access to the various parts of the facility to which the cited standard indisputably applies, and the parties did not dispute Peavey's knowledge of the allegedly violative conditions.  See, e.g., Walker Towing Corp., 14 BNA OSHC 2072, 2074, 1991 CCH OSHD 29,239, p. 39,157 (No. 87-1359, 1991) (elements of the Secretary's prima facie case).   It therefore became Peavey's burden to establish that the Company qualified for the exception stated in 1910.165(b)(5). See StanBest, Inc., 11 BNA OSHC 1222, 1226, 1983-84 CCH OSHD 26,455, p. 33,619 (No. 76-4355, 1983) (the party claiming an exception has the burden to prove it comes within the exception). [[9]]

Peavey had more than ten employees, full-time and temporary, at its facility, but the parties now agree that "a particular workplace" can refer to something less than a whole facility.  That is, the phrase can refer to separate work areas in the facility or structures comprising it.  See 29 C.F.R. 1910.165(b)(1) (an alarm "shall provide warning...for safe escape of employees from the workplace or the immediate work area, or both" (emphasis added)); 29 C.F.R. Part 1910, Subpart L, Appendix A, 1910.165 Employee alarm systems, at 3. Reporting alarms (employers may assure "that entire plants or high-rise buildings are not evacuated for one small emergency").  Peavey has unquestionably established that, in the various work areas or structures of its facility, there were ten or fewer employees.  The remaining question raised by this record and actively disputed between the parties is, then, whether "all employees can hear the alarm."

Reasonably construed, this language of 1910.165(b)(5)'s exception indicates that a "direct voice communication" used to sound an alarm in "a particular workplace" must be able to reach at least "all employees" who need to hear the alarm; otherwise, the employer would not have an effective alarm system.  An employer cannot define "a particular workplace" so limitedly as to exclude those employees who need to hear an alarm.  This is the exact proposition stated in the appendix to the standard, 29 C.F.R. Part 1910, Subpart L, Appendix A, to which the parties refer in their briefs on review.  Regarding "[r]eporting alarms," the appendix specifies:

[I]n small workplaces, a simple shout throughout the workplace may be sufficient to warn employees of a fire or other emergency.  In larger workplaces, more sophisticated equipment is necessary so that entire plants or high-rise buildings are not evacuated for one small emergency...The goal of this standard is to assure that all employees who need to know that an emergency exists can be notified of the emergency.  The method of transmitting the alarm should reflect the situation found at the workplace.

As this passage indicates, one purpose of an alarm is to assure prompt evacuation in the event of an emergency, such as a fire.   In fact, as the standards set forth at the outset of this opinion indicate, evacuation is the only specific purpose for which the Secretary has actually required an alarm.  Employers, in their emergency action plans, may institute additional purposes, but the Secretary has not actually required employers to plan any additional purposes.  This scheme is prescribed in 1910.165(b)(1): "The employee alarm system shall provide warning for necessary emergency action as called for in the emergency action plan, or for reaction time for safe escape of employees from... the immediate work area...." See also 29 C.F.R. 1910.165(b)(3) ("a signal to evacuate the work area or to perform actions designated under the emergency action plan"); 29 C.F.R. 1910.38(a)(3)(ii) (" [i]f the employee alarm system is used for alerting fire brigade members...." (emphasis added)).  In sum, unless an employer's emergency action plan calls for an action in addition to evacuation, evacuation is the function of an alarm, including a voice alarm to warn ten or fewer employees in "a particular workplace."  Peavey's emergency action plan calls for evacuation (if necessary), turning off the utilities and shutting down operations (if time permits), and the assembling of employees at the office in the event of certain emergencies (major fire, tornado, explosions, major chemical releases from any nearby train derailment, and nuclear attack or bomb threat). Also, in the case of explosion or major fire, the plan calls for employees to telephone the fire department, or report the emergency to supervisors, or radio the office.

We do not consider these reporting duties, including contacting the office, to be emergency action for which the Secretary has required an alarm.  As we have discussed, the Secretary has not specified that an alarm is required for reporting an emergency to supervisors or for summoning the fire department.  On the contrary, the Secretary's standards affirmatively indicate that for these purposes, employers may use other means than alarms and, moreover, must prescribe the particular reporting method in the emergency action plan.  See 29 C.F.R. 1910.165(b)(4) (" [t]he employer shall explain to each employee the preferred means of reporting emergencies, such as manual pull box alarms, public address systems, radio or telephones"); 29 C.F.R. 1910.38(a)(3)(ii) ("[i]f the employee alarm system is used for alerting fire brigade members . . . ." (emphasis added); 1910.38(a)(2)(v) (one element of an emergency action plan--in addition to the alarm--is "[t]he preferred means of reporting fires and other emergencies").

Evacuation and shutdown, however, are emergency actions for which an alarm is required under 1910.165(b)(1) and (3) of the Secretary's standards.  As Peavey's plan indicates, evacuation and shutdown are responses to the hazards of explosion or major fire, among other things.  The Secretary's citation in this case was broad and general, not mentioning any particular hazards.  Because the fatality in this case was caused by sliding grain in the flathouse, the parties focused their evidence on that particular hazard rather than on other applicable hazards, such as explosion or major fire in the flathouse.  However, the emergency action plan that Peavey introduced into evidence establishes the potential for such hazards, and certain testimony given at the hearing tends to confirm that such hazards can exist in the flathouse.

Testimony from Peavey's supervisors reveals that Peavey forbade smoking in the flathouse because of the dry grain and that the employees shoveling grain in the flathouse wore, and were required to wear, dust masks because the atmosphere was dusty.  Also, according to the compliance officer's testimony, he was concerned not to trigger a dust explosion in the flathouse when he took photographs there.   A preponderance of the evidence establishes that, in the event of a major fire igniting the grain of the flathouse or an explosion combusting the dust, the tunnel would likely be affected.  The dry grain in the flathouse flowed down into the tunnel and, although the flathouse was separated from the tunnel by the concrete floor, one or more trapdoors were open while the conveyor was running and an employee was down in the tunnel.

As we have stated, Peavey has the burden to establish that it comes within the exception of 1910.165(b)(5) permitting voice alarms if all employees can hear them.  The burden therefore rested on Peavey to establish, if possible, that any hazard arising in the flathouse would be limited to the flathouse, where a shout of alarm could possibly be heard by all affected employees.  On this record, however, we cannot find that a flathouse fire or explosion would necessarily have been limited; in fact, we must find that a fire or an explosion in the flathouse would likely have endangered an employee in the tunnel, as well as the employees in the flathouse.  It is more likely than not, on this record, that employees in both work areas would have had to be warned to evacuate if an explosion or a major fire occurred.

Peavey's proof that it qualifies for the exception is even less strong regarding the shutdown of operations.  The parties presented considerable evidence at the hearing, including testimony from several witnesses showing that it was necessary to shut down the conveyor quickly when temporary employee Sanders was buried in the sliding grain.  This testimony confirms the Secretary's position that any employee in the tunnel must be able to hear an alarm emitted in the flathouse and that the two work areas are one "particular workplace" within the meaning of 1910.165(b)(5).

Peavey presented no evidence to demonstrate that a shout of alarm in the flathouse could be heard in the tunnel below, even though there was testimony that tends to show the contrary.  The compliance officer's testimony indicated that his inspection and interviews with Peavey's employees and supervisors led him to conclude that an employee in the tunnel underneath the concrete floor of the flathouse would not have been able to hear an alarm shouted in the flathouse.  Also, the compliance officer found and Superintendent Neville's testimony indicates that, in this case, the superintendent had not heard the temporary employees in the flathouse.   We therefore conclude that Peavey has not established that its operations come within the exception to 1910.165(b)(5). The Secretary having established her case (in particular, Peavey's failure to have an alarm between the flathouse and the tunnel), and Peavey having failed to establish the exception, we affirm the citation item, as did the judge. [[10]]

C. Fair Notice

Peavey strenuously argues on review that the Secretary failed to give fair notice of her theory on the issues underlying the exception. Peavey asserts that the Secretary's trial theory of these issues was not only amorphous but materially different than the theory given in her brief on review, and that the Secretary's failure to reveal her present theory at the trial below prejudiced Peavey's ability to prove the exception.  For the following reasons, we reject Peavey's arguments.

As we have discussed, 1910.165(b)(5) and the related standards in 1910.165 and 1910.38, as well as the appendix to 1910.165, give explicit notice as to the scope of the exception.  That is, these provisions and amplifications, carefully and reasonably read, reveal to employers that, in OSHA's view, they must consider the nature of the hazard that might arise and must ascertain which employees need to be alerted to its occurrence. [[11]]  Therefore, even though the compliance officer did not clearly explain the purpose of an alarm system under the relevant OSHA standards or the reasonable meaning of the phrase "a particular workplace," and the Secretary's attorney at the hearing did very little to illuminate these matters, Peavey had an adequate opportunity to bring to light any pertinent facts showing that the Company did qualify for the exception stated in 1910.165(b)(5).

Furthermore, the record supports a finding that, contrary to Peavey's assertions on review, the Secretary did sufficiently raise, at the hearing, the theory that she now asserts on review, i.e., that the flathouse and tunnel are one "particular workplace" which must have an alarm system, to alert the employees to shut down operations and evacuate.  Several witnesses, including the compliance officer, the two temporary employees, and Superintendent Neville, gave testimony indicating that, when temporary employee Sanders was buried in the grain, it was necessary to shut down the conveyor quickly.  The compliance officer and the two testifying temporary employees also addressed the necessity to communicate with the tunnel so that the conveyor could have been stopped in time to prevent the suffocation death.   This evidence revealed that the hazard of suffocating in the flathouse was connected with the operation of the conveyor in the tunnel, and gave notice regarding the issue of whether the two areas must be considered one "particular workplace."   In fact, the compliance officer explicitly propounded the view that the two areas must be considered one, when he opined that Peavey did not qualify for the exception permitting a voiced alarm because a shout from the flathouse could not be heard in the tunnel, to summon help from that employee.

VI. Serious Classification and Penalty

Judge Blythe affirmed the violation as serious and assessed a penalty of $700.  The record affirmatively establishes that the Company's management knew of the lack of an alarm system and that the noncompliance presented a substantial probability of death or serious physical harm.  Section 17(k), 29 U.S.C. 666(k).  Also, the record reveals that Peavey employs up to 1000 employees at several facilities and, although the Company had no history of OSHA violations and the compliance officer did not raise any question as to the Company's good faith, the gravity of the violation was high in light of the hazards potentially involved. We therefore affirm the penalty assessment of $700, on the basis of the factors stated in 17(j), 29 U.S.C. 666(j).

VII. Order

Accordingly, for the reasons given in this opinion, we affirm the citation item insofar as it alleges a serious violation of 29 C.F.R. 1910.272(d) and 1910.38(a)(3)(i).  We assess penalty of $700.

Edwin Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya Commissioner

Dated: November 20, 1991


SECRETARY OF LABOR,

Complainant,

v.

PEAVEY GRAIN CO., INC.,

Respondent.

OSHRC DOCKET NO. 89-3046

DECISION AND ORDER

Appearances:
Jerome T. Kearney, Esq., of Dallas, Texas

for the Complainant.

Dean G. Kratz, Esq., of Omaha, Nebraska
for the Respondent.

BLYTHE, Judge:

PROCEDURAL HISTORY

On his third day as a temporary laborer scooping grain for the respondent, Peavey Grain Co., Inc. ("Peavey"), a grain storage and shipping facility at Hereford, Texas, 18-year-old Harold Sanders was suffocated when he was covered by moving grain on June 15, 1989.  He and three other young men were hired to move corn to a conveyor running beneath a large rectangular storage building called a "flathouse" which is capable of storing 500,000 bushels of corn but then containing about 200,000 bushels.  Openings in the floor called "doors" were opened to permit stored grain to fall on the conveyor.  The four temporary employees scooped corn and moved it toward these doors.  Sanders climbed too high on the pile of corn and was covered by it when it moved beneath him. Efforts by his fellow workers and local firemen to rescue and resuscitate him were unavailing.

A compliance officer ("CO") of the Occupational Safety and Health Administration ("OSHA") investigated the fatality on June 16 and 20, 1989, and as a result one citation was issued September 20, 1989, to Peavey alleging serious violations of 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act") and safety standards promulgated thereunder. Peavey timely contested the citation and proposed penalty, thus involving the jurisdiction of the Occupational Safety and Health Review Commission ("the Commission"), a separate and independent tribunal established by Congress under 10(c) of the Act to adjudicate contested issues arising thereunder.  A complaint filed by the Secretary of Labor ("the Secretary") and an answer thereto from Peavey put this cause at issue, and a hearing on the merits was held at Amarillo, Texas, on March 15, 1990.  Only Peavey has filed a post-hearing brief.  It has also filed proposed findings of fact and conclusions of law.

THE ISSUES

The jurisdiction and coverage allegations of the complaint were admitted by Peavey's answer and were stipulated at the hearing. The issues remaining to be determined are whether Peavey violated 29 C.F.R. 1910.272 (e)(1)(ii) (training of employees) and 1910.272 (d) (emergency action plan) and the appropriate penalty, if any.

THE STANDARDS

Item la of Citation 1 alleges a serious violation of 29 C.F.R. 1910.272(e)(1)(ii), which provides:

(e) Training.  (1) The employer shall provide training to employees at least annually and when changes in job assignment will expose them to new hazards.  Current employees, and new employees prior to starting work, shall be trained in at least the following:

(ii) Specific procedures and safety practices applicable to their job tasks including, but not limited to, cleaning procedures for grinding equipment, clearing procedures for choked legs, housekeeping procedures, hot work procedures, preventive maintenance procedures and lock-out/tag-out procedures.

Item 1b of Citation 1 alleges a serious violation of 29 C.F.R. 1910.272(d), which states:

(d) Emergency action plan.  The employer shall develop and implement an emergency action plan meeting the requirements contained in 1910.38(a).

In turn, 1910.38(a) provides, in pertinent part as alleged in the citation:

(2) Elements.  The following elements, at a minimum, shall be included in the plan:

(iv) Rescue and medical duties for those employees who are to perform them;

(3) Alarm system.  The employer shall establish an employee alarm system which complies with 1910.165.

BACKGROUND FACTS

The flathouse where the fatality occurred is so called to distinguish it from other grain storage facilities such as bins, silos and tanks (Tr. 14).  Its width is greater than its height (Tr. 119).  As stated above, the flathouse has a storage capacity of about 500,000 bushels and at the time here involved it contained 200,000 bushels of corn (Tr. 18, 20, 119).

The flathouse is used to blend different grades of corn (Tr. 14, 22, 118), and for this purpose a conveyor belt running through a tunnel connected it with other storage facilities on the premises (Tr. 22).  To allow the grain to flow by gravity onto the conveyor belt, there were sliding "doors" in the floor of the flathouse (Tr. 22).  However, it was necessary to move the grain toward the doors with shovels or scoops.  Four young men, three of them 18-year-olds recently graduated from high school, were hired as temporary employees (Tr. 11).   They worked less than three days when Sanders was killed (Tr. 12).

DISCUSSION AND OPINION

The parties disagreed at the hearing (Tr. 47) on whether item 1(a) of the citation was limited to the final sentence thereof or whether all employee training mentioned in the cited standard was at issue.  Despite a ruling in favor of the first concept, both parties introduced extensive evidence on all aspects of Peavey's training of new employees.

Therefore, the issue was waived.

There are numerous conflicts in the testimony about this training.  In general, the surviving temporary employees testified that the training was minimal, while Peavey's permanent employees testified otherwise. Probably the truth lies somewhere in between.  Some of the temporary employees changed their testimony on cross-examination.  Peavey's posthearing brief used over 16 pages analyzing this testimony, but I do not deem it necessary to go into such detail.   Peavey's five witnesses agreed that the temporary employees were told by Manager Mark Black that they must not climb up on the piles of corn above their boot tops; that corn tended to roll and was dangerous; that they should work from the west side where the grain was shallow and scoop it toward the "doors" in the floor to the conveyor; that they must not smoke and must wear dust masks; that they should avoid becoming overheated and that they should take frequent drinks of water.  Exhibit R-1 contains notes made by Manager Black to remind himself, before the employee interviews, of the safety points to be covered. It seems logical to me that these essential points were covered and I so find.

There is one gap in the testimony about safety instructions, however.  The four temporary employees worked part of the second day in the tunnel under the storage buildings (Tr. 148, 183-184), yet there is nothing in the record about training the employees for this work.  However, the Secretary had the burden of proof, and Peavey had no obligation to introduce such evidence since the Secretary did not.

Of course, everybody was concerned with the fatality, although the purpose of this proceeding is not to establish blame for the accident.  Dye Const. Co. v. O.S.H.R.C., 698 F.2d 423 (10th Cir. 1983).

As previously mentioned, the citation and complaint specify the alleged lack of training as employees were "permitted to work, walk and/or stand on grain more than waist height".  Technically, this does not spell out a lack of training, but the parties litigated this point as if it did.   Under either interpretation, Peavey would prevail.  There was ample proof that the temporary employees were sufficiently instructed on this point.

Item 1b of citation 1 alleges a serious violation of 29 C.F.R. 1910.272(d), which is set out above.  Specifically this subitem alleges:

1b

29 C.F.R. 1910.272(d):  Employer has not developed and implemented an emergency action plan which meets the requirements, contained in 1910.38(a):

Establishment at 101 S. Lee, Hereford, Texas:   Elements of the emergency action plan that need to be emphasized are 1910.38(a)(2)(iv) rescue and medical duties for those that are to perform [sic] them and 1910.38(a)(3)(i) alarm system for use during an emergency situation.

The cited standard adopts by reference 29 C.F.R. 1910.38(a), which in turn adopts by reference 29 C.F.R. 1910.165.  Section 1910.38(a), provides that the plan shall include "rescue and medical duties for those employees who are to perform them."  Peavey's plan contains no such provision.   Section 1910.38(a)(3) requires "an employee alarm system which complies with Section 1910.165," which is lengthy and will not be set forth in full.   It requires an auditory or visual alarm system, which Peavey did not provide.   Peavy relies on an exception in 1910.165(b)(5), which provides:

(5)  The employer shall establish procedures for sounding emergency alarms in the workplace.  For those employers with 10 or fewer employees in a particular workplace, direct voice communication is an acceptable procedure for sounding the alarm provided all employees can hear the alarm.   Such workplaces need not have a back-up system.

Peavey claims that it qualifies for this exemption because it had only nine employees, and that they were close enough together for voice communication.  Peavey has the burden of proving that it comes within this exemption.  Finnegan Construction Co. Inc., 78 OSAHRC 31/B3, 6 BNA OSHC 1496, 1978 CCH OSHD 22,675 (No. 14536, 1978).  It failed to bear this burden in one and perhaps two respects.  First, its employees were scatted among several structures on the premises including the office, the conveyor tunnel and a silo.  Second, it apparently had 11 employees, and not the 9 it claims.  The names of 9 appear in the transcript, and in addition there were "secretaries" (plural) in the office, according to Black's testimony (Tr. 140, 1 .25).

When the fatal accident occurred, there were four temporary employees in the flathouse.  While two attempted to dig out the doomed employee, the fourth Pete Gaitan, ran outside but seemed at a loss as to what to do.   Joe Neville, a permanent employee had been working in the tunnel but had came out and was loading a truck when he saw two other permanent employees standing near a corner of the flathouse.  One of them, Tim Goodman, was waving his arms so Neville ran to him, learned that a man was buried in the corn, and sent him to the office to alert Black.   Black called the Hereford fire department and an ambulance, and the firemen took over the rescue effort.  Obviously, an alarm system could have shortened this process.  I find that Peavey's emergency action plan failed to meet the requirement of 1910.272(d).

The final issue is the appropriate penalty.   The citation proposes and aggregate penalty of $800 of a possible $1,000 for the two items.  If one assumes that the two items are of equal seriousness, the penalty might be equally divided.  However, in my view the 1910.272(d) item is the more serious.  I find that there was a substantial probability that death or serious physical harm could result from this violation, so it is serious under 17(k) in the Act.

Section 17(j) of the Act requires the Commission, in assessing penalties, to consider the gravity of the violation and the employers size, good faith and history of previous violations.  These factors need not be accorded equal weight, but the gravity is usually of greater significance than the others.  Colonial Craft Reproductions, 72 OSAHRC 11/B10, 1 BNA OSHA 1063, 1971-73 CCH OSHD 15,277 (No. 881, 1972).  Elements to be considered in determining gravity include the number of employees exposed to risk of injury, duration of the exposure, precautions taken against injury, and the degree of probability of occurrence of an injury. National Realty & Construction Co., Inc., 72 OSAHRC 9/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD 15,188 (No. 85. 1972) rev'd on other grounds, 489 F.2d 1257 (D.C. Cir. 1973).

Peavey is a large corporation with numerous facilities for handling grain.  It has about 1,000 employees.  It is a subsidiary of ConAgra, Inc.

No history of previous violations as proved.   Its good faith was not questioned.  The gravity of the violation was high.   On balance, I find a penalty of $700 to be appropriate.

FINDINGS OF FACT

1.  Peavey's answer admits the jurisdiction and coverage allegations of the complaint.

2.  Peavey, a subsidiary of ConAgra Inc., is a large employer with approximately 1,000 employees.  It operates a grain handling and storage facility at Hereford, Texas, which was the site of a fatal accident on June 15, 1989.

3.  An OSHA compliance officer investigates the fatality on June 16 and 20, 1989.   As a result, one citation was issued to Peavey alleging two serious violations of OSHA safety standards.

4.  On June 13, 1989, Peavey hired four temporary employees to shovel grain (corn) in a large rectangular storage building called a flathouse.  On the third day of their employment, one of the temporary employees, Harold Sanders, was suffocated when the grain covered him.  On June 13, the four new employees were instructed by Manager Mark Black on safety matters, including not getting into grain over their boot tops.  These instructions were adequate for the work to be performed.

5.  Peavey had an emergency action plan, but it was deficient in that it did not provide for designation of employees to perform rescue and medical and duties and it did not provide for an alarm system to summon aid in an emergency.

6.  Peavey had at least ten and perhaps eleven employees who were scattered in various facilities on the premises so that voice communication among all of them was not possible.  Peavey does not qualify for the exemption from the requirement for an alarm system.

7.  There was a substantial probability that death or serious physical injury could result from this violation.

8.  The appropriate penalty is $700.


CONCLUSIONS OF LAW

1.  The Commission has jurisdiction of the parties and of the subject matter of this proceeding.

2.  On June 16 and 20, 1990, Peavey was not in violation of 29 C.F.R. 1910.272(e)(1)(ii).

3.  On said date, Peavey was in serious violation of 29 C.F.R. 1910.272(d).


ORDER

1.  Subitem 1a of citation 1, alleging a serious violation of 29 C.F.R. 1910.272 (e)(1)(ii) is VACATED.

2.  Subitem 1b of citation 1, alleging a serious violation of 29 C.F.R. 1910.272(d) is AFFIRMED and a penalty of $700 is ASSESSED.

3.  All proposed findings of facts and conclusions of law inconsistent with this decision are DENIED.

So ORDERED.
DEE C. BLYTHE
Administrative Law Judge
Date: June 4, 1990

FOOTNOTES:

[[1]] The judge vacated another citation item, of which the Secretary does not seek review, that alleged noncompliance with a standard pertaining to employee training.

[[2]] Plant Manager Black testified:

They were aware of who was in charge and who[m] to report [to] in case they had any problems whatsoever.  Again, they have no need to know who[m] to call and who[m] to contact or to use the phone. Our full-time employees would take care of that as long as they are alerted to a problem.

[[3]] There were two tunnels at the plant, one under the flathouse and the other connected to the elevator.  Lead man Andrade was in the elevator tunnel on the day of the accident.  Superintendent Neville may have been with him on the two preceding days, but the superintendent's testimony implies that he was in the flathouse tunnel on the day of the accident.  He stated, in the context of questions about the temporary employees' position in the flathouse on the third day:   "I didn't see [laborer] Lane [Warren] place the [temporary] employees that morning .... I proceeded to go underneath the concrete and blend grain." (Emphasis added).

[[4]] Plant Manager Black gave his opinion that an alarm system would have caused further delay in this case because, on hearing a signal, someone would have had to find out what was the matter, then hurry to the office to request that a telephone call be put through to the fire department.  He posited that the existing system had been satisfactory in that the temporary employees were working near each other, knew their supervisors, and could send someone to the office for help.

[[5]] Superintendent Neville did not state specifically that he had been unable to hear any voice communication from the flathouse while he was in the tunnel below, but his testimony gives rise to that inference.   Moreover, Plant Manager Black did not make any claim in his testimony that employees down in the tunnel could have heard shouts from the flathouse; nor did any other witness provide such testimony.

[[6]] Peavey also argued that an alarm system was not required for the whole facility because it had fewer than ten employees.  As we have set forth, however, the number of employees on the worksite became eleven when the four temporary employees arrived for work.  Judge Blythe so found and, on review, Peavey explicitly accepts this finding.

[[7]] Although not arguing that employers must use alarms to report emergencies, the Secretary notes that 1910.165(b)(4) requires all employers, regardless of number of employees, to inform employees of "the preferred means of reporting emergencies" and argues that Peavey had not established any "preferred means."  In the citation, however, the Secretary did not cite this standard, nor did the parties address it at the hearing; they litigated only the lack of an alarm.  Therefore, we will not consider the Secretary's arguments alleging a need for improved instructions to the employees.  Compare Power Fuels, Inc., 14 BNA OSHC 2209, 2210 n.3, 1991 CCH OSHD 29,304, p. 39,343 n.3 (No. 85-166, 1991) (affirmative defenses neither pleaded nor tried by consent); Stacey Manufacturing Co., 10 BNA OSHC 1534, 1537-38, 1982 CCH OSHD 25,965, p. 32,560 (No. 76-1656, 1982) ("[t]he Commission will not generally consider nonjurisdictional issues that have not been raised before the administrative law judge").

[[8]] Review necessarily includes any matter essential to accepting or rejecting a judge's resolution of a citation item, see Donovan v. A. Amorello & Sons, Inc., 761 F.2d 61 (1st Cir. 1985); Seward Motor Freight, Inc., 13 BNA OSHC 2230, 2233, 1987-89 CCH OSHD 28,506, pp. 37,785-86 (No. 86-1691, 1989), but in this case we will not reach any issues of the merits of the alleged violation of 1910.38(a)(2)(iv), including any issues of interpretation posed by the standard.

[[9]] The exception that 1910.165(b)(5) creates is similar to an affirmative defense in that, if established, it eliminates an employer's duty to comply with the more particularized requirements of the standard.   Compare Seibel Modern Mfg. & Welding Corp., 15 BNA OSHC 1218, 1223-24 (No. 88-8821, 1991) (employer's burden of proof regarding affirmative defense justifying relief from compliance); Stone Container Corp., 14 BNA OSHC 1757, 1751, 1987-90 CCH OSHD 29,064, p. 38,817(No. 88-310, 1990) (circumstances constituting legal excuse for noncompliance).

[[10]] Peavey's emergency action plan was insufficient in that it made no provision for an alarm and Peavey's facility was inadequately equipped in that it did not have an alarm system between the flathouse and the tunnel.  The Company must train the employees in the operation of the alarm and the hazards that may require its use.  See A.P. O'Horo Co., 14 BNA OSHC 2004, 2008, 1991 CCH OSHD 29,223, pp. 39,129-30 (No. 85-369, 1991) (indicating that an employer's safety rules ought to be more than "a paper program").

[[11]] See Armour Food Co., 14 BNA OSHC 1817, 1825, 1987-90 CCH OSHD 29,088, p. 38,887 (No. 86-247, 1990) (reference to other standards or codes to give meaning to broad terms found in OSHA standards); Vanco Const, Inc., 11 BNA OSHC 1058, 1061, 1983-84 CCH OSHD 26,372, pp. 33,453-54 (No.79-4945, 1982), aff'd, 723 F.2d 410 (5th Cir. 1984) (same).  See also Brennan v OSHRC (Santa Fe Trail Transport Co.), 505 F.2d 869, 872 (10th Cir. 1974) (broad terms may be given specific meaning by reference to the evident purpose of the standard and a reasonable consideration of the facts to which it is to be applied); Ormet Corp., 14 BNA OSHC 2134, 2135-36, 1991 CCH OSHD 29,254, p. 39,200 (No. 85-531, 1991) ("[g]iven the purpose of the standard... the word 'near' means close enough... that it is reasonably foreseeable that [employees] could be hit"); Cleveland Consol., 13 BNA OSHC 1114, 1116-17, 1986-87 CCH OSHD 27,829 p. 36,428 (No. 84-696, 1987) ("'proximity' is an imprecise word" that must be "examined in context," taking into account the "evident purpose of the standard"); L.E. Myers Co., 12 BNA OSHC 1609, 1617, 1986-87 CCH OSHD 27,476, p. 35,607 (No. 82-1137, 1986), rev'd only as to another item, 818 F.2d 1270 ("imprecise and relative terminology," such as the term "area," must be applied in light of the factual circumstances relevant to the hazard against which the standard is directed).