Docket No. 13266

MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY

OSHRC Docket No. 13266

Occupational Safety and Health Review Commission

July 30, 1981

[*1]

Before: CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Henry C. Mahlman, Associate Regional Solicitor, U.S. Department of Labor

David R. Hansen, General Attorney-Labor Relations, for the employer

OPINION:

DECISION

BY THE COMMISSION:

In the Commission's prior decision in this case, it concluded that Respondent, Mountain States Telephone and Telegraph Company ("Mountain States" or "the company"), violated section 5(a)(2), 29 U.S.C. § 654(a)(2), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"), by failing to comply with the safety standard at 29 C.F.R. § 1910.132(a). n1 78 OSAHRC 30/A2, 6 BNA OSHC 1504, 1978 CCH OSHD P22,668 (No. 13266, 1978). In finding Mountain States in violation, the Commission imputed to the company the knowledge of one of its supervisory employees. On appeal, the United States Court of Appeals for the Tenth Circuit set aside the Commission's decision, holding that it improperly imputed the supervisor's knowledge to the company. Mountain States Telephone and Telegraph Co. v. OSHRC, 623 F.2d 155 (10th Cir. 1980). The court remanded the case for us to reconsider the Commission's prior decision in light of [*2] its holding. Having done so, we conclude that Mountain States failed to comply with section 1910.132(a).

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n1 This standard provides:

§ 1910.132 General requirements.

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

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The relevant facts are stated in the Commission's prior decision and will not be repeated here in detail. Briefly, Halverson, a subforeman for Mountain States with seventeen years of experience, was electrocuted when he failed to wear rubber insulating gloves when stringing telephone [*3] wires on a pole containing energized electrical power lines ("joint-use pole"). It is undisputed that Halverson's failure to wear the gloves contravened both section 1910.132(a) and the company's own safety rule, which requires that gloves be worn whenever stringing wires on a joint-use pole. The dispute between the parties centers on whether Mountain States should be held responsible for Halverson's conduct.

Both employers and employees have a duty to comply with the standards promulgated under the Act. Sections 5(a)(2) and (b) of the Act, 29 U.S.C. § § 654(a)(2) and (b). However, final responsibility for compliance rests with the employer. E.g., Atlantic & Gulf Stevedores, Inc., 75 OSAHRC 47/A2, 3 BNA OSHC 1003, 1010-11, 1974-75 CCH OSHD P19,526 at p. 23,304 (No. 2818, 1975), aff'd, 534 F.2d 541 (3d Cir. 1976). Accordingly, when compliance with a standard depends on employee conduct, employers must take the steps necessary to see that employees engage in the required conduct. Employers are not, however, responsible for violations that they lack the ability to prevent. Thus, when an employer is cited for a violation arising out of the failure of an employee to [*4] comply with a standard, the employer may defend on the basis that the employee's conduct was unpreventable. In order to establish this defense, the employer must show that the employee's violation of the standard represented a departure from a workrule that the employer had uniformly and effectively communicated and enforced. E.g., Frank Swidzinski Co., 81 OSAHRC , 9 BNA OSHC 1230, 1981 CCH OSHD P25,129 (No. 76-4627, 1981).

Unpreventable employee misconduct is an affirmative defense. Before we determine whether an employer has established an affirmative defense, we must conclude that the Secretary has made out a prima facie case of a violation. In order to establish a prima facie case that an employer has violated a standard, the Secretary must prove that (1) the standard applies to the facts, (2) there was a failure to comply with the standard, and (3) employees of the cited employer had access to the hazard created by the noncomplying condition. Wander Iron Works, Inc., 80 OSAHRC 40/A2, 8 BNA OSHC 1354, 1980 CCH OSHD P24,457 (No. 76-3105, 1980). The Secretary must also show that the employer either knew or could have, with reasonable diligence, known of the [*5] noncomplying condition. Prestressed Systems, Inc., 81 OSAHRC , 9 BNA OSHC 1864, 1981 CCH OSHD P25,358 (No. 16147, 1981).

We have held that the Secretary can show employer knowledge by proving that a supervisory employee of the employer either knew or could have known of the condition. Ocean Electric Corp., 75 OSAHRC 6/C14, 3 BNA OSHC 1705, 1975-76 CCH OSHD P20,167 (No. 5811, 1975), rev'd, 594 F.2d 396 (4th Cir. 1979). This holding was based on the principal that a corporate employer can only act and acquire knowledge through its agents. Thus, in this case, we concluded that the Secretary had established a prima facie case that Mountain States knew of the violative condition by showing that Halverson knew of his own violation of the standard. We then concluded that Mountain States had not established the defense of unpreventable employee misconduct because it failed to show that it effectively enforced its safety rule requiring rubber gloves to be worn.

In setting aside our decision, the Tenth Circuit did not hold that the knowledge of supervisory personnel could never be imputed to a corporate employer. The court held, however, that a supervisor's knowledge [*6] of his own conduct could not be imputed, but only his knowledge of the conduct of his subordinates. n2 Because we had relied solely on the imputation of Halverson's knowledge to find that Mountain States had knowledge of the noncomplying condition, the court held that we had improperly shifted the burden of proof to the company to prove lack of knowledge. Thus, the issue to be resolved on remand is whether, without imputing Halverson's knowledge of his own failure to wear rubber gloves to Mountain States, the record establishes that Mountain States knew or could have, with reasonable diligence, known that Halverson would fail to wear his rubber gloves when required.

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n2 We have previously expressed our disagreement with the court's rationale and with a similar holding in Ocean Elec. Corp. v. Secretary of Labor, 594 F.2d 396 (4th Cir. 1979). Western Mass. Elec. Co., 81 OSAHRC , 9 BNA OSHC 1940, 1946 n.13, 1981 CCH OSHD P25,470 at pp. 31,766-67 n. 13 (No. 76-1174, 1981). We believe that the rationale for imputing a supervisor's knowledge to his employer is at least as compelling for violations the supervisor commits himself as for violations committed by his subordinates. "Because the behavior of supervisory personnel sets an example at the workplace, an employer has -- if anything -- a heightened duty to ensure the proper conduct of such personnel. Second, the fact that a foreman would feel free to breach a company safety policy is strong evidence that implementation of the policy was lax." National Realty and Constr. Co. v. OSHRC, 489 F.2d 1257, 1267 n. 38 (D.C. Cir. 1973) (emphasis in original).

Nevertheless, the Tenth Circuit's holding is the law of the case and the Commission must apply it to this case. See Briggs v. Pennsylvania R.R. Co., 334 U.S. 304, 306 (1948); Frank Irey Jr., Inc., 77 OSAHRC 192/F11, 5 BNA OSHC 2030, 1977-78 CCH OSHD P22,283 (No. 701, 1977).

[*7]

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As noted above, a corporate employer can only acquire knowledge through the knowledge of its agents. Therefore, a corporation only has actual or constructive knowledge of a violation if individuals in the corporate hierarchy have such knowledge. Under the court's remand order, in order to find that Mountain States had knowledge of Halverson's failure to wear rubber gloves, we must inquire whether Halverson's superiors within Mountain States knew or could have, with reasonable diligence, known of his failure to wear the gloves.

Our earlier decision noted that persons in Mountain States' hierarchy higher than Halverson knew that Halverson had violated safety rules on a number of occasions prior to the incident in this case.

Fonk (Halverson's supervisor) testified that he knew Halverson took chances where safety was concerned and that he had to be reminded at times about using his safety equipment. About a month before the fatal accident, Fonk inspected Halverson's truck and discovered that his rubber gloves were improperly stored. Fonk had told Halverson on several occasions that he wasn't wearing [*8] a hard hat and that he had to wear it. On about five occasions, Fonk spoke to Halverson about his failure to wear glasses, and Fonk talked to Halverson several times about improper placement of cones around his parked truck. Halverson was also verbally reprimanded for using a broken ladder and improperly throwing tools. In the field observation portion of Mountain States' quarterly safety reviews several deviations were noted, indicating that Halverson needed correction in these areas.

6 BNA OSHC at 1506, 1978 CCH OSHD at p. 27,353 (footnote omitted). There was also evidence indicating that Halverson frequently violated Mountain States' rubber glove rule.

Trenary (Halverson's subordinate) testified that a majority of the time he and Halverson did not use rubber gloves when working on joint use poles. Trenary stated that he and Halverson wore rubber gloves only when they thought they might be "caught" by a supervisor or come in contact with power. Trenary also testified that he had not been instructed on the job on which Halverson was killed to wear rubber gloves or to tie down and ground the telephone line.

6 BNA OSHC 1506, 1978 CCH OSHD at p. 27,354. Halverson's superiors [*9] knew that he did not always use his rubber gloves properly. A work observation rating sheet, a document used by Mountain States to record whether employees are following proper work practices, noted deviations for Halverson in the second quarter of 1974 under the category "Insulating Gloves - Insulating Blanket." These deviations occurred under the headings "used when required" and "used properly." Additionally, Fonk testified that, approximately one year before the alleged violation in this case, he had observed a crew under Halverson's direction preparing to begin work without wearing rubber gloves. Although the employees were not yet working in the immediate vicinity of energized lines, Fonk considered it necessary to instruct the workers to put on their rubber gloves. While Fonk did not observe Halverson directly violating the rubber glove rule on this occasion, this incident serves as a further indication that Mountain States should have known that it could not rely on Halverson to comply strictly with the company's rubber glove rule.

Thus, Halverson frequently violated safety requirements, including the requirement that rubber gloves be worn when working on joint use poles. [*10] Moreover, his tendency to commit safety violations was well known to his superiors within the company. Despite this, Halverson was never disciplined beyond verbal reprimands, and the company continued to permit him to work without direct higher level supervision, giving him the authority for the day to day implementation of Mountain States' safety policies.

When an employer knows that an employee is consistently violating safety rules, that employer can reasonably anticipate that the employee will continue to violate rules unless specific action is taken to deter such conduct. This is particularly true when the employee normally works outside the presence of higher level supervisors. An employer cannot reasonably believe that an employee who consistently violates safety rules will change his behavior when the employee has little reason to believe that his violations will be discovered and no reason to fear that, if they are discovered, he will suffer any consequences beyond a verbal reprimand. See Daniel International Corp., Brown and Williamson Project, 81 OSAHRC , 9 BNA OSHC 1980, 1983, 1981 CCH OSHD P25,492 at p. 31,790 (No. 15690, 1981). As the Tenth Circuit [*11] pointed out in this case, "common sense and experience suggest that an employer who has not implemented an effective safety program should know employees are likely to violate rules designed to guard against foreseeable risks attendant to the employer's business." 623 F.2d at 157 n.3.

Accordingly, we conclude that Mountain States could have, with reasonable diligence, known that Halverson would fail to wear rubber gloves when working near energized power lines. We therefore reaffirm the Commission's earlier decision finding Mountain States in serious noncompliance with 29 C.F.R. § 1910.132(a) and assessing a penalty of $500. SO ORDERED.