UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-2777
ARMSTRONG CORK COMPANY,
Respondent.

February 29, 1980

DECISION

BEFORE, CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

BY THE COMMISSION:

The issue in this case is whether Armstrong Cork Company (‘Armstrong’) violated the general duty clause, section 5(a)(1) of the Act,[1] by failing to protect its employees from the hazard of being crushed by the operation of certain papermaking machinery. Judge Abraham Gold concluded that Armstrong violated section 5(a)(1) as alleged and assessed a $400 penalty.[2] We affirm his decision.

I.

Armstrong operates a plant in Fulton, New York, for the production of ‘hydrocord,’ a type of heavy paper used as backing for vinyl flooring. The plant contains a ‘No. 1 paper machine,’ installed in 1971 or 1972, which winds large rolls of finished paper onto reels, cuts them into smaller rolls of various widths, and rewinds the smaller rolls. Finished rolls, which weigh about 5,000 pounds, are lowered from the rewinder to the floor by use of a large, heavy metal ‘tilt table.’ The tilt table is located adjacent to the rewinder and is hydraulically powered. When the tilt table is in the ‘up’ position, one edge is flush against the rewinder and the table top is horizontal, except for the edge away from the rewinder, which is curved. To lower a roll of paper, the roll first is moved from the rewinder onto the table. Then the table is lowered, moving away from the rewinder and tilting by pivoting on its base as the paper rolls to the floor. When the table is in the lowered position, the curved edge touches the ground the there is a space of several feet between the rewinder and the edge of the table closest to the rewinder. Employees stand in this space while performing various tasks at the rewinder, such as starting a roll of paper or splicing a break in the paper. In the course of a normal shift, employees operating the paper machine must stand in this location 15 to 30 times.

Prior to December 1975 or January 1976, the tilt table was operated by a three-position ‘maintain’ switch, which was located on a console four or five feet away from the machine. When the switch was straight up, it was in the neutral position; when it was turned to the right the table would rise; when it was turned to the left the table would lower. Employees often placed the switch in the ‘raise’ position before the rewinder completed its cycle; this was more convenient for them, as they could then attend to other tasks as the rewinder completed winding a roll. Even with the switch in the ‘raise’ position, the table would not rise until a safety gate in front of the rewinder was lowered. Thus, after the rewinder completed its operation, an employee would lower the gate, and the table, whose switch was already in the ‘raise’ position, would rise. The lever controlling the safety gate was located at the right end of the rewinder.

As the result of a safety suggestion submitted by an employee at the prompting of supervisor Donald Powers, the switch was replaced by a spring-loaded three-position switch in December 1975 or January 1976. The new switch was similar to the old one, except it had to be continuously held in the raise or lower position in order for the table to move; the moment the new switch was released, it would spring back to the neutral position. However, the new switch broke and had to be repaired several times shortly after it was installed. It then broke again in February or March 1976 and was not repaired until May 18, 1976. When the spring-loaded switch was broken, it operated just like the one it had replaced; i.e., it remained in whatever position it was placed rather than springing back to the neutral position.

Early in the morning of May 18, 1976, Joseph Castiglia, who was working on the night shift as their hand on the No. 1 paper machine, went to the side of the rewinder opposite the tilt table to splice a break in the roll of paper. As he was facing the rewinder, the tilt table was activated and began to rise behind him. He was crushed between the rising table and the side of the rewinder. He died as a result. After the accident the switch which controls the tilt table was found in the ‘raise’ position.

An OSHA compliance officer inspected the accident scene on the same day, as a result of Armstrong’s prompt reporting of the fatality. Armstrong thereafter received a citation and a proposed penalty of $600. The citation stated:

The employer failed to provide employment and a place of employment free from recognized hazards, in that a constant-pressure three-position switch, mounted in a console by the No. 1 paper machine, located in Bldg. No. 2, and designed to function as a safety device for the lowering and raising of an elevating table, which, when in the raised position, is at the same level, and makes contact with the discharge end of the rewinder, was defective, thereby exposing an employee, when required to be in the danger zone, to death or serious physical harm, should the table mechanism become activated.

Armstrong’s supervisory personnel testified that they had no knowledge that the switch was broker until the accident occurred. Armstrong employees are required to report broken or defective equipment to their supervisors. None of them reported the broken switch, however, either because they assumed that management already knew about it, they did not consider it to be broken, or they preferred using it in its broken condition.

Supervisors observed the No. 1 paper machine operations four to eight times a shift and more often if the machine was not operating properly. According to employees who operated the machine, supervisors routinely observed its operations at times when the tilt table was rising and no one was at the console to hold down the switch which activated the table. However, two employees, when questioned, could cite no specific instance of this particular phase of the operation being observed. Also, department supervisor Donald Powers testified that he had not noticed employees being away from the console while the tilt table was rising. He thought that the spring-loaded switch had broken once or twice following its installation, but could not remember ever inspecting the switch thereafter to see if it was still functioning properly.

Following the accident, Armstrong repaired the broken switch so that it had to be held down in order for the tilt table to move. Also, a buzzer was installed on the table which buzzed continually when the table was rising to warn anyone standing at the rewinder with his back to the table.

II.

On the basis of these facts, Administrative Law Judge Abraham Gold upheld the general duty clause citation and assessed a penalty of $400. He found that Armstrong recognized that a single-action switch on the paper machine constituted a hazard, as evidenced by Armstrong’s decision, prompted by a safety suggestion, to replace that switch with a spring-loaded one. He also found there was no proof that Armstrong’s supervisors had actual knowledge of its employees’ practice of turning the switch to the ‘raise’ position and leaving it unattended. He noted, however, that supervisors observed these employees fairly often. He also found that Armstrong’s own safety inspections and the failure of its employees to comply with Armstrong’s rules requiring them to notify management of a hazard did not suffice to show that Armstrong took all reasonable precautions to protect its employees. The judge further found that Armstrong’s supervisors knew that the spring loaded switch had not functioned on previous occasions and, therefore, should have been on notice to check the switch themselves. Additionally, the judge found that the hazard was likely to cause death or serious physical harm to an employee. The judge also ruled that Armstrong had abated the hazard by repairing the switch and installing a buzzer which sounded when the tilt table was rising. Finally, the judge rejected Armstrong’s contention that the general duty clause was inapplicable because Armstrong was covered by the pulp and paper manufacturing standards set forth in 29 C.F.R. § 1910.261.

III.

Armstrong argues for reversal of the judge’s decision on two grounds. First, it argues that section 5(a)(1) is not an appropriate basis for the citation because 29 C.F.R. §§ 1910.261(k)(22) and (24) and §§ 1910.261(1)(9) and (10) apply to the cited condition. Section 1910.261 concerns pulp, paper, and paperboard mills. The specific provisions cited by Armstrong are as follows:

§ 1910.261 Pulp, paper, and paperboard mills.

(k) Machine room

(22) Control panels. Floor stand panels should be protected from being hit by moving equipment. All control panel handles and buttons shall be protected from accidental contact.

(24) Lifting reels. (i) The reels shall stop rotating before being lifted from bearings.

(ii) All lifting equipment (clamps, cables, and slings) shall be maintained in a safe condition and inspected regularly.

(iii) Reel shafts with square block ends shall be guarded.

(1) Finishing room

(9) Finishing room rewinders.

(iii) Mechanical lifting devices shall be provided for placing and removing rolls from the machine.

(10) Control panels. The requirements of paragraph (k)(22) of this section shall apply.

Second, Armstrong argues that the hazard was not reasonably foreseeable and that it took reasonable precautionary steps under the circumstances to protect its employees. Armstrong contends that to have foreseen the hazard, it would have had to foresee the following sequence of events: 1. The spring-loaded switch would break; 2. Armstrong’s inspection program of the plant would not detect the broke switch; 3. The machine employees would not report the broken switch to management, contrary to a company rule; and 4. An employee would activate the table and then place himself between the table and the rewinder. Armstrong contends that it is not reasonably foreseeable that all four of these contingencies would occur. Additionally, the fact that the switch broke several times within a month after it was installed did not make its later malfunctioning reasonably foreseeable because ‘it is not uncommon to have trouble with newly installed equipment as the ‘bugs are ironed out.” Further, after the switch was fixed, it functioned properly from January through mid-April, Armstrong asserts. Moreover, the fact that Armstong installed a safety switch should not decide the foreseeability issue, since that would penalize employers who take safety precautions and reward those who do not.

Armstrong further argues that it took reasonable precautions to protect its employees by installing the spring-loaded switch, inspecting the switch after installation, maintaining a program of overlapping plant inspections and requiring employees to report unsafe conditions. Armstrong also points to testimony that it took only three seconds for the tilt table to rise, so that the fact that the switch was broken would be noticeable to a supervisor only if he noticed that during the three seconds the table was rising no employee was standing at the switch console. Armstrong suggests that when supervisors were present, employees stood by the console as the table was rising to conceal the fact that the switch was broken. Armstrong blames its lack of knowledge of the broken switch on its employees’ failure to report the switch and characterizes this failure as unpreventable employee misconduct.

IV.

The Commission has held that an applicable standard preempts application of the general duty clause. Isseks Brothers, Inc., 76 OSAHRC 8/B9, 3 BNA OSHC 1964, 1975–76 CCH OSHD ¶ 20,361 (No. 6415, 1976); Sun Shipbuilding and Drydock Co., 73 OSAHRC 44/A9, 1 BNA OSHC 1381, 1973–74 CCH OSHD ¶16, 725 (No. 161, 1973). In order for a specific standard to preempt the general duty clause, however, the standard must be addressed to the particular hazard for which the employer has been cited under the general duty clause. United States Pipe and Foundry Co., 78 OSAHRC 8/D6, 6 BNA OSHC 1332, 1978 CCH OSHD ¶ 22, 514 (No. 11739, 1978). The standards which Armstrong asserts are applicable do not address the hazards created by the possibility of the tilt table rising while an employee is positioned between the table and the rewinder. Sections 1910.261(k)(22) and (1)(10) address the hazard of accidental contact with control panels. Section 1910.261(k)(24) concerns lifting reels and equipment such as slings, not lowering equipment such as tilt tables. Section 1910.261(1)(9)(iii) similarly concerns mechanical lifting devices. None of these standards purport to address defective switches or the hazard of employees becoming pinned or crushed by a tilt table or similar machinery. Thus, they do not render the application of the general duty clause inappropriate under the circumstances.

V.

In order to establish a violation of the general duty clause, the Secretary must show that an employer failed to render its workplace free from a hazard that is recognized and that is causing or likely to cause death or serious physical harm to his employees. The Secretary also must show the feasibility and likely utility of a means to eliminate or materially reduce the alleged hazard. Whirlpool Corp., 79 OSAHRC 32/A14, 7 BNA OSHC 1356, 1979 CCH OSHD ¶ 23,552 (No. 9224, 1979), appeal filed, No. 79–1692 (D.C. Cir. July 3, 1979). National Realty and Construction Co., v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).

Here, the hazard was the possibility that the tilt table would rise and crush an employee working between it and the rewinder. Armstrong itself recognized the hazard,[3] as evidenced by its efforts to reduce the hazard by installation of a spring-loaded switch in response to an employee’s safety suggestion.[4] Owens-Corning Fiberglas Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1979 CCH OSHD ¶23,509 (No. 76–4990, 1979), appeal filed, No. 79–2516 (5th Cir. June 26, 1979). Moreover, there is no dispute that the result of an accident would likely be death or serious harm.

The record also demonstrates a feasible method of abatement, since a properly functioning spring-loaded switch would have materially reduced the hazard by requiring the employee’s presence at the console while the tilt table was rising.[5] Armstrong argues, however, that it had installed a switch and had taken all reasonable precautions to guard against inadvertent operation of the tilt table.

When a workplace contains a recognized hazard that is likely to cause death or serious harm, and employer’s duty under the Act is to take all feasible steps to eliminate or materially reduce the hazard. General Dynamics Corp., Quincy Shipbuilding Division v. OSHRC, 599 F.2d 453 (1st Cir. 1979); Beaird-Poulan, A Division of Emerson Electric Co., 79 OSAHRC 21/D11, 7 BNA OSHC 1225, 1979 CCH OSHD ¶23,493 (No. 12600, 1979). Here, Armstrong attempted to eliminate the hazard by installing a spring-loaded switch. However, installation of safety equipment is not itself sufficient to fulfill an employer’s duty under the Act to take all feasible steps to eliminate the hazard from its workplace. Such steps include exercising reasonable diligence to assure that defects or malfunctions in safety equipment are expeditiously detected and corrected.

Despite Armstrong’s early problems with the spring-loaded switch, which demonstrated that the switch was prone to break and operate like the unsafe ‘maintain’ switch it had replaced, the company did not periodically inspect the switch to see if it was working properly. Instead, Armstrong chose to view the malfunctioning of the switch as a temporary ‘break-in’ problem that had been resolved. Thus, Armstrong failed to discover the fact that the switch was broken during the period of at least one month prior to the accident.

Under the circumstances, Armstrong failed to exercise reasonable diligence. Where elimination of a hazard depends on the proper operation of safety equipment, the employer must periodically inspect such equipment to assure its continued effectiveness. The required frequency of such inspections will depend on a variety of factors, but one important consideration is any known tendency of the equipment to malfunction. Here, Armstrong knew that the spring-loaded switch had broken on prior occasions, and its failure to inspect the switch in the month prior to the accident demonstrates a lack of reasonable diligence to assure that the method it had installed to eliminate the hazard caused by the rising tilt table remained effective. Moreover, Armstrong’s supervisors observed the operation of the tilt table several times each shift. If they had exercised reasonable diligence, they would have noticed that the table was rising with no one holding down the switch, and would have realized that the switch was broken. See Combustion Engineering, Inc., 77 OSAHRC 182/A2, 5 BNA OSHC 1943, 1977–78 CCH OSHD ¶ 22,241 (No. 76–2210, 1977) (constructive knowledge found because violative condition existed for days and numerous employees engaged in conduct evincing violative condition.)

Armstrong asserts that it would have known the switch was broken if its hourly employees reported the malfunction, as they were supposed to do. The duty to comply with section 5(a)(1), however, rests with the employer. An employer cannot shift this responsibility to its employees by relying on them to, in effect, determine whether the conditions under which they are working are unsafe. J. H. Mackay Electric Co., 78 OSAHRC 77/B10, 6 BNA OSHC 1947, 1978 CCH OSHD ¶ 23,026 (No. 16110, 1978); Alder Electric Co., 77 OSAHRC 49/C8, 5 BNA OSHC 1303, 1977–78 CCH OSHD ¶ 21,748 (No. 13573, 1977). Armstrong could not fulfill its duty to render its workplace free of the hazard by relying on its employees to report that the switch was broken.[6]

Armstrong’s contention that it should not be found in violation of section 5(a)(1) because it could not foresee the precise sequence of events that led to the fatal injury is without merit. Although reasonable foreseeability is properly considered in a section 5(a)(1) violation, this inquiry does not extend to whether the employer could have foreseen the exact sequence of events leading to the occurrence of injury or death. Rather, a section 5(a)(1) violation must be predicated on the reasonably foreseeable occurrence of an accident, the probable result of which is death or serious physical injury. Here, Armstrong foresaw the possibility that the tilt table could crush an employee between it and the rewinder since it installed the spring-loaded switch in an effort to prevent the fatal injury from occurring. Moreover, Armstrong could have foreseen that the switch would break because the switch had broken in the past. Therefore by failing to exercise reasonable diligence to assure the continuing effectiveness of its abatement method, the spring-loaded switch, Armstrong failed to render its workplace free of the hazard.

Accordingly, we conclude that Armstrong violated section 5(a)(1) as alleged. We also affirm the $400 penalty assessed by the judge for the reasons he assigned.

The Judge’s decision is affirmed.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: FEB 29, 1980

CLEARY, Chairman, concurring:

While my colleagues reach the correct result in this case, I disassociate myself from the majority opinion to the extent it attempts, albeit in dictum, to qualify the recognized hazard element of a section 5(a)(1) violation by use of the term ‘reasonably forseeable.’

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-2777
ARMSTRONG CORK COMPANY,
Respondent.

April 27, 1977

APPEARANCES:

Helen Huyler, Atty, For Complainant

A. Earl Mays, Esq., and Jon Tryon, Esq., For Respondent

DECISION AND ORDER

This case arose under Section 10(c) of the Occupational Safety and Health Act, 29 U.S.C. § 659(c), and came on for hearing on October 27, 1976, at Syracuse, New York.

On May 28, 1976, Respondent was issued a serious citation, for which a penalty of $600 was proposed by the Secretary. Respondent duly filed a timely notice of intent to contest the citation and proposed penalty.

Respondent is a large corporation, organized in Pennsylvania, maintaining a plant at Fulton, New York, where it manufactures floor backing paper and felt (Ans. II, Tr. 4); many of the materials and supplies used by Respondent were manufactured outside the State of New York, and Respondent thereby engages in a business affecting commerce, within the meaning of Sections 3(3) and 3(5) of the Act (Ans. III). Jurisdiction over the parties and the subject matter is vested in the Commission (Ans. I), and it is so found.

Under Section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1), each employer ‘shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.’

29 U.S.C. § 654(a)(2) requires that each employer comply with occupational safety and health standards promulgated under the Act.

Pursuant to 29 U.S.C. § 666(b), an employer shall be assessed a civil penalty of up to $1,000 for each serious violation.

Section 666(c) provides that an employer may be assessed a civil penalty of up to $1,000 for each nonserious violation.

29 U.S.C. § 666(j) declares that ‘a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition that exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.’

Civil penalties can be imposed under the Act only after considering the size of the business of the employer, the gravity of the violation, good faith of the employer, and history of previous violations. 29 U.S.C. § 666(i).

Respondent is charged with a serious violation of 29 U.S.C. § 654(a)(1), the so-called general duty clause, because of a defective constant pressure three-position switch which was designed to function as a safety device for its #1 paper machine.

The primary product of Respondent’s 68-acre Fulton plant is Hydrocord, Armstrong’s trade name for a material resembling paper or felt, which is used as a backing for resilient vinyl flooring (Tr. 101, Exh. J–8).

The #1 paper machine named in the citation winds rolls of finished product onto reels; normally the rolls are 36 inches in diameter and 1,200 yards in length, and weigh about 5,000 pounds; the reels usually accumulate three rolls for a total length of about 3,300 yards and total weight of about 15,000 pounds (Tr. 111). The machine then slits the paper into different widths (Tr. 10), and the rewinder, which is part of the machine (Tr. 153), rewinds the Hydrocord into smaller rolls (Tr. 111). Three men make up the crew of the #1 machine: a 3rd hand, 4th hand, and back tender (Tr. 112).

Finished rolls are lowered from the machine onto a tilt table which is a roll-lowering device consisting of a heavy metallic table with a flat top and three angled extensions (Exh. J–1); it is used to remove finished rolls from the rewinder unit to floor level, an operation performed by the 3rd hand with the assistance of the 4th hand (Tr. 113).

When the tilt table is lowered (titled back to the floor) there is a space of approximately two feet between the table and machine (Tr. 17, Exh. J–1). An employee would have to stand between the table and machine prior to the winding of a roll in order to tape the paper, and would also have to stand there whenever necessary to make a splice because of a break in the paper (Tr. 19, Exh. J–4). During the course of a shift an employee might be required to work in the space between table and machine 15 to 30 times (Tr. 19–20).

The table is raised or lowered hydraulically (Tr. 18) by means of a three-position selector switch located on a console about four feet high; the console is about four or five feet from the machine; the switch has three positions: ‘raise,’ ‘lower,’ and ‘off’ (Tr. 126. 157); when the switch is in the center the electrical circuitry is off, when turned to the right the system raises the table, when turned to the left it lowers the table (Tr. 13, 126, 157).

Originally, when the rewinder was installed at the plant, the table was activated by a single-action, fixed switch (Tr. 136, 157) that did not require the employee to keep his hand on the switch; he merely turned the switch to ‘raise’ and the table automatically raised itself until it met the rewinder (Tr. 126).

In December 1965 or January 1966, for safety reasons (Tr. 15, 27, 122, 137) and upon the suggestion of an employee (Tr. 27, 88, 98, 116) a three-position spring-loaded, momentary, pressure switch was installed in replacement of the single-action, fixed switch (Tr. 136). The spring switch requires the employee to hold the switch to complete the operation of raising or lowering the table; if the employee lets go, the switch snaps back to the neutral or ‘off’ position and the table stops (Tr. 52, 127, 137, 142).

Joseph Castiglia, 3rd hand on the #1 paper machine, died after being trapped between the table and the rewinder frame on the morning of May 18, 1976 (Tr. 9–11, 42–43, 63–64, 134). There had been a tear in the paper, and the deceased was in the process of making a splice (Tr. 43–46). It was customary for the 3rd hand to be standing there when splicing was necessary (Tr. 46); he would stand with his back to the table, and would not know if the table were rising (Tr. 68), as it moves quietly (Tr. 92). It takes only about three seconds for the table to be fully raised to a position flush with the frame of the rewinder (Tr. 18).

Examination of the switch after the accident disclosed that the spring device was not functioning; apparently the casing had sprung (Tr. 161). With the spring broken, the switch acted in the same manner as the original single-action switch did, i.e., if the 3rd hand turned the switch to ‘raise’ or ‘lower’ and walked away, the table was raised or lowered automatically (Tr. 127).

The spring required repairs on two or three occasions during the first month after its installation (Tr. 16–17), and had not been functioning for about a month prior to the accident (Tr. 15).

The back tender on the machine at the time of the accident testified that he has performed the duties of 3rd hand and 4th hand (Tr. 11, 24); that it had been common practice for the 3rd hands to turn the broken switch to the ‘raise’ position during the operation of the rewinder, then leave the switch and ‘do other things,’ thereby saving a little time (Tr. 20, 23). He asserted that this was his practice, and that he had observed others doing the same thing (Tr. 20–21). The back tender did not report the defect in the switch to supervisory personnel (Tr. 33, 36), claiming that he did not consider it ‘that dangerous’ (Tr. 36, 39, 40), and that in fact he preferred working with the switch in that condition because ‘it made it a lot easier for myself. It allowed me to do other things while that table was coming up,’ such as setting up for the next roll of paper coming off (Tr. 37).

The 4th hand on the #1 paper machine at that time also said that he had seen 3rd hands turn the switch to ‘raise’ prior to the completion of the rewinding operation (Tr. 49).

There is no evidence that any person, including the back tender and 4th hand, witnessed the conduct of the deceased just prior to his being trapped between the raised table and rewinder (Tr. 10–11, 43).

Under section 5(a)(1) of the Act, Complainant must prove (1) that the employer failed to render its workplace free of a hazard which was (2) recognized and (3) causing or likely to cause death or serious physical harm. Actual occurrence of hazardous conduct is not, by itself, sufficient to sustain a violation. Section 5(a)(1) only requires the elimination of preventable hazards. National Realty and Construction Company, Inc. v. Occupational Safety and Health Review Commission, 489 F. 2d 1257, 1266 (D.C. Cir. 1973). Actual knowledge of a hazard on the part of an employer satisfies the general duty clause requirement of recognition. Secretary of Labor v. Occupational Safety and Health Review Commission and Vy Lactos Laboratories, Inc., 494 F. 2d 460, 464 (8th Cir. 1974).

On the basis of this record I find that Respondent recognized that a single-action switch on the #1 paper machine constituted a hazard. The supervisor of the felt manufacturing department testified that he and ‘another fellow’ recognized the original (fixed) switch as a hazard (Tr. 137) and he had advised the other person to put in a suggestion that a spring switch be installed (Tr. 137). The suggestion was adopted by management (Tr. 136). The superintendent of felt manufacturing said that the suggestion came from an employee working on the machine (Tr. 116). The instrument control and electrical supervisor declared that he definitely regarded the suggestion as a safety measure, and that he understood that the employee who made the suggestion got paid for a safety suggestion (Tr. 166). The foregoing clearly demonstrates that Respondent’s supervisory personnel, acting for Respondent, recognized that a single-action (non-spring) switch was a hazard, and it is so found.

Next, it is necessary to determine whether Respondent took reasonable precautionary steps to protect its employees from a reasonably foreseeable recognized hazard.

A copy of ‘Rules of Employment’ (Exh. R–1) is issued to all employees (Tr. 102). At Page 8, Item N, it is stated. ‘Report to your supervisor any condition that you consider unsafe or dangerous.’ The rules contained therein are also posted on bulletin boards at the plant (Tr. 103, Exh. R–2).

The spring had not functioned for about a month prior to the accident, but no employee reported the defect to management (Tr. 36, 75, 115–116, 137–138, 159). There is no proof that supervisors had actual knowledge of the practice of the 3rd hands to turn the switch to the ‘raise’ position and leave the switch unattended while they did other work. However, supervisors were observed by the 4th hand in the vicinity of the operation every 30–60 minutes (Tr. 52); the supervisor of the department noted that he conducted personal safety inspections; and safety inspection tours of the plant were made monthly by a group consisting of two members of management and two Union members (Tr. 106–107). The failure of employees to comply with Respondent’s rules requiring them to notify management of a hazard and Respondent’s safety inspections do not suffice to show that Respondent took all reasonable precautionary measures to protect its employees. It is not enough merely to post a rule on bulletin boards, and issue a copy to employees, advising them to notify supervisors of hazards; there is no showing that Respondent exerted strong and persistent efforts to impress upon its employees their duty to do so, and that a failure to comply could lead to disciplinary action. Respondent’s supervisors knew that the spring switch had not functioned on previous occasions; this should have put Respondent on notice to check the switch rather than rely on employees to inform it of a malfunction. A thorough inspection would have disclosed the faulty spring. The superintendent of felt manufacturing at the plant admitted that it should have been checked during the safety inspections (Tr. 124). Instead, he depended on his 12 supervisors and 120 employees to report any abnormal conditions (Tr. 129). I find that in light of the history of broken springs the malfunctioning of the switch was reasonably foreseeable hazard, and that Respondent failed to take all reasonable precautionary measures to protect its employees therefrom.

Another element in the general duty clause is proof that the hazard is causing or is likely to cause death or serious physical harm to an employee. Since the hazard did cause the death of an employee, it is found that this point has been established by the Secretary.

Respondent has been charged with a serious violation. It is obvious that there was a substantial probability that death or serious physical harm could result from a mishap caused by the violative condition. In fact, a death did result. Respondent, through its supervisory personnel, with the exercise of reasonable diligence could have known of the violation. Based on the foregoing, it is found that the violation was of a serious nature.

Respondent contends that since it engages in the manufacture of paper its business is covered by the standards set forth in 29 CFR 1910.261, which ‘applies to establishments where pulp, paper, and paperboard are manufactured and converted,’ and therefore Respondent is not citable under Section 5(a)(1) of the Act.

Under 29 CFR 1910.5(f), ‘(a)n employer who is in compliance with any standard in this part shall be deemed to be in compliance with the requirement of section 5(a)(1) of the Act, but only to the extent of the condition, practice, means, method, operation, or process covered by the standard.’ Inasmuch as none of the paper industry standards specifically covers the ‘condition, practice, means, method, operation, or process’ involved in the instant case, Respondent was properly cited under the general duty clause.

Upon consideration of the entire record, it is concluded that on May 18, 1976, Respondent was in violation of Section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1), for failure to furnish to each of its employees employment and a place of employment free of a recognized hazard that was causing or was likely to cause death or serious physical harm to its employees. It is further concluded that this violation was of a serious nature, within the contemplation of 29 U.S.C. § 666(j).

The Secretary has proposed a penalty of $ 600. Respondent operates a rather large enterprise. The cited plant employs about 400. This establishment was issued a citation in 1971 which became a final order of the Commission (Tr. 4). The violation was of a high level of gravity, as evidenced by the death of an employee which resulted from the infraction. While the employer has a safety program, the supervisors entrusted to carry it out have failed to make it as effective as it should be. As of the date of the trial Respondent had abated the cited hazard; the spring switch was functioning properly, and Respondent had installed an alarm system which buzzes continually while the tilt table is rising (Tr. 68). Taking into account the factors listed in 29 U.S.C. § 666(i), it is found that a penalty of $400 is appropriate.

Accordingly, it is ordered that the serious citation of May 28, 1976, be affirmed, and that a penalty of $400 be assessed within the meaning of Sections 3(3) and 3(5) of the Act.

Section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), requires that each employer comply with occupational safety and health standards promulgated under the Act.

Pursuant to 29 U.S.C. § 666(b), an employer shall be assessed a civil penalty of up to $1,000 for each serious violation.

Section 666(c) of Title 29 provides that an employer may be assessed a civil penalty of up to $1,000 for each nonserious violation.

29 U.S.C. § 666(j) declares that ‘a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition that exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, knew of the presence of the violation.’

Civil penalties can be imposed under the Act only after considering the size the business of the employer, the gravity of the violation, good faith of the employer, and history of previous violations. 29 U.S.C. § 666(i).

On August 11, 1976, a compliance officer of the Department of Labor inspected a worksite at the intersection of Salinas and Washington Streets, Syracuse, New York (Tr. 22–23), where Respondent was engaged in the construction of a roof over a pedestrian walkway or bridge connecting the Syracuse Mall and a parking garage across the street from the Mall (Tr. 18–19, 23). The walkway, running parallel to the ground (Tr. 29), was about 89 feet long and 9–1/2 feet wide; the roof measured 26 feet, 11 inches above sidewalk level, and 27 feet, 5 inches above road level (Tr. 24–25). The roof was about 10 feet above the walkway (Tr. 27). It was a flat roof (Tr. 73, 287).

Four employees of Respondent were working at the site at the time of the inspection, two on the roof and the other two on the ground; at other times as many as three worked on the roof (Tr. 18, 26). The job lasted about two workdays (Tr. 42).

The nonserious charge, which will be dealt with first, is based on Section 1926.100(a), which states:

Subpart E—Personal Protective and Life Saving Equipment

§ 1926.100 Head protection.

(a) Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be protected by protective helmets.

The inspecting officer observed the two employees working at ground level; one was hoisting rolls of tar paper which were stacked along the edge of the roof; other materials on the roof included roofshingling, buckets, mops, and hammers (Tr. 45–46$. These two employees of Respondent were not wearing hard hats to protect them from the possible danger of head injury from falling objects (Tr. 45–47). The foregoing sustains the nonserious charge.

The violation was of a low level of gravity. The probability of injury was low. Respondent has eight employees usually, but at the time of the inspection employed 15 (Tr. 18). The record contains no evidence of prior safety violations (Tr. 18). Upon consideration of the entire record, I am convinced that Respondent is safety-oriented. Taking into account the factors listed in 29 U.S.C. § 666(i), it is found that no penalty should be assessed for this infraction.

We turn to the serious citation. Originally, it alleged a violation of Section 1926.500(d)(1). The complaint amended the citation by substituting Section 1926.28(a) or, in the alternative, Section 1926.105(a). The latter sections read:

Subpart C—General Safety and Health Provisions

§ 1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

Subpart E—Personal Protective and Life Saving Equipment

§ 1926.105 Safety nets.

(a) Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

Respondent had contracted to apply the roofing upon a prefabricated metal deck already in place (Tr. 279, 302–304), by first putting down a layer of insulation board, one inch thick, in sections two feet by four feet; the insulation was bonded to the metal deck with a special adhesive material, then hot asphalt was applied, Then a roll of base felt three times heavier than normal felt, acting as a cushion; after that came three layers of 15-pound felt bathed in hot asphalt, and finally a layer of aluminum exterior coating (Tr. 303–304). The asphalt was pumped to the roof (Tr. 292) from a kettle on the ground (Exh. C–3, Tr. 58–59).

It was the testimony of John Amie, the roofers’ local union business representative, that the roof was hand-mopped (Tr. 248) with hot bituminous asphalt heated to about 400–500 degrees (Tr. 250). The mop is long-handled (Tr. 250), the handle varying in length from 6 to 10 feet (Tr. 251). The mop is about two feet long (Tr. 251). It weighs 25 pounds (Tr. 287).

Louis DeStefano, Secretary of Respondent corporation, described it as a two-man operation on the roof, with one employee rolling the felt while the other mopped (Tr. 287).

Mr. Amie testified that the mopper would be ‘nowhere near the edge of the roof’ (Tr. 251), but ‘would always be working from the inside of the roof no matter what he was doing’ (Tr. 251). Mr. DeStefano asserted that at no time during this operation is a man closer than 3–1/2 feet from the edge of the roof (Tr. 287). However, the inspecting officer said that he observed two employees working approximately six inches from the edge of the roof (Tr. 293-31).

It is undisputed that Respondent’s employees on the roof did not use safety nets, safety belts, safety lines, ladders, scaffolds, or catch platforms, and that there was no standard railing guarding the open sides of the roof.

As far as the charge under Section 1926.28(a) is concerned, that regulation has been ruled ineffective as a standard due to vagueness. Hoffman Construction Co. v. OSHRC and Secretary of Labor, 546 F.2d 281, 283 (9 Cir. 1976). In Hoffman the Court reversed the Commission, holding that 1926.28(a) ‘created no specific standard, a violation of which would give rise to liability.’ In any event, 1926.28(a) contains only general wording; it appears under the heading of ‘General Safety and Health Provisions;’ it does not specify either the personal protective equipment required for compliance or the particular circumstances or conditions requiring such protection. Under 1910.5(c), when a particular standard is specifically applicable, it shall prevail over any different general standard which might otherwise apply. Section 1926.105(a) is a particular standard which is specifically applicable to the facts in this case; hence, 1926.105(a) preempts 1926.28(a), and the charge laid under Section 1926.28(a) must, and will, be vacated.

This leaves us with 1926.105(a). This poorly worded regulation has been interpreted judicially as requiring an employer to utilize one of the safety devices listed herein. Secretary of Labor v. Fiegen 513 F.2d 713 (8 Cir. 1975). Secretary of Labor v. Southern Contractors Service, 492 F.2d 498, 501 (5 Cir. 1974). Secretary of Labor v. The Verne-Woodrow Company, 494 F.2d 1181 (5 Cir. 1974). Secretary of Labor v. J. W. Bounds (Pearl Steel Construction Co.), 488 F.2d 337 (5 Cir. 1973).

One of the protective measures satisfying the requirements of 1926.105(a) is a temporary floor. In the instant case, Respondent’s employees on the roof were working on metal decking, which was a solid, permanent surface; in my view, that deck was at least as safe as a temporary floor, and perhaps safer. It is my finding that Respondent met, or surpassed, the safety requirements of 1926.105(a). Hence, the charge based on 1926.105(a) has not been sustained, and it is so found. It will be ordered vacated.

I find that the Secretary has not established a violation of either standard named in the amended serious citation; as to 1926.28(a) the failure was as a matter of law, while as to 1926.105(a) the basis of the failure was factual.

Since the serious citation will be vacated for the reasons stated above, I see no purpose to delve into and pass upon the various contentions raised by Respondent in seeking dismissal of this citation on other grounds.

It is ORDERED that the amended serious citation and the penalty proposed therefor be vacated; that the nonserious citation be affirmed, and that no penalty be imposed therefor.

ABRAHAM GOLD

Judge, OSHRC

Dated: May 16, 1977

Boston, Massachusetts

---

[1] The Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678. The general duty clause, 29 U.S.C. § 654(a)(1), provides:

Sec. 5(a) Each employer—

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

[2] The judge’s decision is before the Commission for review pursuant to a direction for review issued under 29 U.S.C. § 661(i).

[3] An employer’s own recognition of a hazard is sufficient to establish that the hazard is ‘recognized’ within the meaning of § 5(a)(1). See Empire Detroit Steel Div., Detroit Steel Corp. v. OSHRC, 579 F.2d 378, 383 (6th Cir. 1978), and cases cited therein.

[4] Although Armstrong made some effort to abate the hazard, we reject Armstrong’s argument that its actions cannot be the basis to find that Armstrong recognized the hazard. See Owens-Corning Fiberglas Corp., supra at note 7. We do not agree that employers will be discouraged from attempting to eliminate recognized hazards if a conclusion that the employer was aware of the hazard is based on evidence that the employer took partial but inadequate steps to abate the hazard. Instead, employers will be encouraged to take those precautions that are necessary to eliminate the hazard to the extent feasible, i.e., to provide ‘a place of employment . . . free from recognized hazards’ as required by § 5(a)(1).

[5] After the accident, Armstrong also installed a buzzer system that further reduces the hazard by providing a warning to an employee in the danger zone that the table is rising.

[6] Armstrong suggests that its employees purposely concealed the fact that the switch was broken when supervisors were present. However, this argument is based solely on conjecture and is not supported by the record. While Armstrong’s supervisors testified that they did not know before the accident that the switch was broken, none affirmatively stated that they always observed employees holding down the operated the table was rising. The testimony of the employees who operated the tilt table makes clear that they did not take the trouble to hold down the switch or remain by the console to operate the table to hold down necessary to do so. The only employee who was asked if he remained by the console when supervisors were present to conceal the broken switch denied doing so.