ALDER ELECTRIC COMPANY, INC.

OSHRC Docket No. 13573

Occupational Safety and Health Review Commission

April 18, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Reg. Sol., USDOL

Wiley L. Mitchell, Vice President, Alder Electric Co., Inc., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

The decision of Judge William J. Risteau of December 2, 1975, is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act."] n1 Judge Risteau affirmed the citation issued to respondent, Alder Electric Company, Inc., for a serious violation of section 5(a)(2) of the Act for noncompliance with 29 CFR 1926.451(a)(4), n2 and assessed a penalty of $650. In affirming the citation, he rejected the contention of respondent that the corporation should not be charged with knowledge of violation of the Act when they hire qualified supervisory personnel who subsequently violate instructions; he also rejected the argument that no penalty should be assessed since respondent had furnished adequate equipment, promptly abated the violation, and had an unblemished safety record. n3

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n1 Respondent petitioned for review on November 18, 1975. Commissioner Moran issued a general direction for review on December 17, 1975. Our review of the case is in accordance with the policy statement published in 41 Fed. Reg. 53015 (1976).

n2 The standard reads in relevant part:

1926.451 Scaffolding.

(a) * * *

(4) Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor, except needle beam scaffolds and floats.

n3 Respondent did not petition for review on its contention concerning the penalty assessment.

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We affirm the Judge's decision.

The facts are undisputed. Respondent, Alder Electric Company, is an electrical contractor in the southeastern United States, doing work in Alabama, Texas, Mississippi, and Kansas. At the time of the inspection, respondent had four jobs in progress in the Dallas and Greenville areas of Texas. Mr. Hackett was the supervisor in charge of the four jobs. Respondent hired Hackett to supervise the jobs because of his impressive qualifications. He had [*3] ten to fifteen years of experience in electrical work with an emphasis on traffic signal work. He previously had worked for Fishback & Moore, described as a large electrical contractor.

The Greenville jobsite was inspected by an OSHA compliance officer. At the subsequent hearing, the compliance officer testified that she observed an employee of respondent installing traffic lights from a scaffold erected in the bed of a dumptruck. The scaffold platform was sixteen feet above the pavement. There were no standard guardrails installed around the platform. The employees stated that Mr. Hackett was their supervisor, and came to the jobsite at least once a week to check their progress on the project. Mr. Hackett had just left the jobsite. In Mr. Hackett's absence, the foreman, Mr. Maxwell, was in harge of the job.

The compliance officer concluded that a hazard existed in that an employee could slip from the unguarded scaffold, inadvertently overstep the end of the platform, or be jolted off if the truck were hit by passing traffic. n4 Furtrermore, the employees stated to the compliance officer that they had used this scaffold arrangement for a period of two to three weeks.

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n4 The truck was parked in an intersection where there was moderate traffic. There were no barriers in place to divert traffic.

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These facts prove a working condition that does not meet the standard's requirements. Respondent concedes this, but defends on the ground that it had no knowledge of the violative condition. It asserts that once it provides the proper equipment for the job, it is not responsible for its employees' failure to use that equipment.

Respondent's vice-president testified that it was Hackett's responsibility to see that the jobsites complied with all safety and health regulations under the Act. n5 Respondent's vice-president said Hackett had been instructed not to use the scaffold on this job because it was to be used on another project. Respondent had provided a bucket truck for use on this project. On the day of inspection, however, the bucket truck was being used at a different site.

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n5 Respondent stated that although Hackett had extensive safety training, Maxwell did not.

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The Commission has previously considered the question of whether knowledge of actions done by a supervisory employee in violation of the Act should be imputed to a corporate employer. The Commission has held that because a corporate employer can only act and acquire knowledge through its agents, the actions and knowledge of supervisory employees are imputed to their employer. Thus, the employer is generally responsible for any violations their supervisory employees create or of which they have actual or constructive knowledge. Ocean Electric Co., BNA 3 OSHC 1705, CCH 1975-76 OSHD para. 20,167 (No. 5811, 1975). n6 Accord, Melody Home and Insulation Co., BNA 4 OSHC 1852, CCH 1976-77 OSHD para. 21,290 (No. 6908, 1976); Floyd Pike Inc., BNA 2 OSHC 1520, CCH 1974-75 OSHD para. 19,274 (No. 3069, 1975); Structural Steel Erectors, Inc., d/b/a Pecosteel-Arizona, BNA 2 OSHC 1506, CCH 1974-75 OSHD para. 19,223 (No. 1930, 1975).

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n6 In Ocean Electric, the supervisor had determined that no insulated gloves or blankets were needed on the particular project because all energized equipment was enclosed. One box which enclosed an energized bus bar was left open by the supervisor. One of the workers was electrocuted when he came in contact with the energized bus bar.

[*6]

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An exception to the rule exists when, although the employer has taken all necessary precautionary steps to comply with the requirements of the Act, a hazardous condition results from the unforeseeable, and therefore unpreventable, acts of the supervisory employee. See the Commission's divided opinion in Horne Plumbing and Heating Co., BNA 2 OSHC 1271, CCH 1974-75 OSHD para. 18,824 (Nos. 1261 & 1096, 1974), aff'd 528 F.2d 564 (5th Cir. 1976); n7 Ocean Electric Co., supra.

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n7 In Horne Plumbing and Heating, the supervisors were given extensive safety training by the manager including safety instructions as to the requirements of the Act. Regular group and individual meetings were held. The manager was diligent in his safety program, to the extent of contracting additional men and equipment to meet requirements of the Act.

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But this exception does not mean that an employer may shift his ultimate responsibility of compliance [*7] with the Act to a supervisory employee. Ocean Electric, supra. A different result would reward ignorance, and likely impede the statutory purpose of effective enforcement of the Act. Section 2(b) of the Act, 29 U.S.C. 651. The employer must demonstrate that the supervisory employee responsible for the violation was himself adequately supervised regarding safety matters.

Even if respondent was justified in relying upon the general expertise of Mr. Hackett, it should have reasonably known that Hackett could not have been on all four jobs at the same time. It therefore could have taken precautionary steps to maintain an adequate safety program in the absence of Mr. Hackett. For example, the record is silent concerning whether employees were instructed not to work from a scaffold without a guardrail. Also, there is no indication that Mr. Hackett gave, or was instructed to give, any safety instructions to Mr. Maxwell, or that Mr. Maxwell had any separate knowledge or experience concerning the Act's requirements. n8

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n8 Neither Mr. Hackett nor Mr. Maxwell appeared as witnesses.

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Accordingly, we find that respondent did not adequately supervise its safety program implemented by its own supervisors. n9 Thus, it did not take any feasible precautionary steps to prevent the hazard, and does not come within the aforementioned exception.

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n9 "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 is lax." National Realty and Construction Co. v. O.S.H.R.C., 489 F.2d 1257, 1268 n.38 (D.C. Cir. 1974).

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We hold that there was a violation of 29 CFR 1926.451 and that the employer did have knowledge of the violative conditions through its supervisory personnel.

Accordingly, we affirm the Judge's decision.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The majority errs in [*9] finding that respondent possessed the requisite knowledge of the alleged violative conditions on the basis of an imputation theory. Under the facts of this case, that knowledge should not be imputed to respondent and the citation should be vacated.

Respondent hired Mr. Hackett, a man with 10 to 15 years experience in electrical and traffic signal installation work, to supervise the installation of traffic lights at worksites, including the Greenville worksite which is in issue in this case. It had previously instructed Hackett to assure that the worksites complied with "safety, OSHA requirements." Although Hackett was furnished scaffolding with protective guarding, n10 respondent specifically instructed him not to use the scaffold at the Greenville worksite because it would be difficult to lift heavy signal heads onto the scaffold. Instead, Hackett was provided with, and instructed to use, a bucket truck with an extendable hydraulically operated boom -- a typical procedure in the industry.

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N10 The guarding was stored in the Dallas area. The record does not explain why it was not brought to the Greenville worksite.

[*10]

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The majority opinion correctly indicates that respondent's "employees stated to the compliance officer that they had used [the] scaffold arrangement for a period of two to three weeks." However, the employees who provided this information were not identified and that hearsay evidence is offset by the testimony of respondent's vice president that he was told by Mr. Maxwell that "the day this violation occurred was one of the first days this scaffolding had been used because Mr. Hackett had taken the bucket truck back to Dallas."

The record does not clarify why Mr. Hackett disobeyed respondent's instructions to use the bucket truck and not the scaffolding. However, that is unimportant. The important thing is that he did in fact disobey and that there would have been no violation if he had complied with respondent's instructions. Moreover, there is no indication that respondent had any reason for believing that Hackett would disobey its instructions.

In Secretary v. Engineers Construction, Incorporated, 20 OSAHRC 348 (1975), the Commission refused to affirm a violation which resulted from the failure [*11] of a previously reliable foreman to follow company safety rules. The foreman's knowledge was not imputed to the employer because that would have imposed a standard of absolute liability on him contrary to the intent of the Act.

The Engineers Construction decision was cited with approval in Horne Plumbing and Heating Company v. OSAHRC, 528 F.2d 564 (5th Cir. 1976), a case which also involved the disobedience of a foreman. In so doing Court stated at page 571:

"[It]t was error to find [respondent] liable on an imputation theory for the unforeseeable, implausable, and therefore unpreventable acts of his employees. A contrary holding would not further the policies of the Act, and it would result in the imposition of a standard virtually indistinguishable from one of strict or absolute liability, which Congress, through section 17(k), specifically eschewed."

These two cases require rejection of the imputation theory in the instant case.

My colleagues find that "respondent did not adequately supervise its safety program" in that it did not demonstrate that it exercised adequate oversight on safety matters delegated to its supervisors and did not provide a substitute with [*12] equal experience in the supervisor's absence. However, this presumes that respondent should have known that Hackett, who was at the worksite three days a week, n11 would disobey its specific instructions. In addition, respondent was not cited for any failure in its safety program nor for inadequate supervision -- it was cited only for failure to comply with a specific scaffolding requirement.

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n11 Although the majority opinion indicates that Hackett "came to the jobsite at least once a week," respondent's vice president testified that it "was no less than three days a wekk."

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In Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975), a case involving employee disobedience of company instructions, the Circuit Court found that the requisite employer knowledge was not established. In so finding the Court observed:

"No effort was made to establish that the instructions were a mere sham or that the employer had any on-going practice of permitting its instructions to be disregarded [*13] by its employees with impunity."

511 F.2d at 1141. That is also true here.

Since respondent's assertions regarding the penalty assessment are addressed only in Judge Risteau's decision, his decision is attached hereto as Appendix A.

APPENDIX A

DECISION AND ORDER

Jack Ostrander, for the Secretary of Labor

Mr. Wiley L. Mitchell, Office Manager, for the Respondent

Risteau, Judge: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter called the Act), in which the respondent contests a citation issued by the complainant pursuant to Section 9(a) of the Act. The citation, which was issued on May 8, 1975, alleges that as the result of an inspection on May 1, 1975, of a workplace under the ownership, operation or control of the respondent, located at Wesley at Stanford and Loop 315, Greenville, Texas, and described as: "Construction site," respondent violated Section 5(a)(2) of the Act in the following manner:

SERIOUS VIOLATION

Item

No.

Standard

Description of Alleged Violation

1

29 CFR

Platform, more than ten (10) feet in height

1926.451(a)(4)

on the following scaffold, was not guarded on

all open sides and ends by guardrails and

toeboards:

Safeway scaffold on Ford dump truck, license

# 2BR-436 at the intersection of Wesley and

Stanford, Greenville, Texas.

[*14]

The cited standard provides:

Standard

1926.451(a)(4)

Guardrails and toeboards shall be installed on all open

sides and ends of platforms more than 10 feet above the

ground or floor, except needle beam scaffolds and floats

. . . . Scaffolds 4 feet to 10 feet in height, having a

minimum horizontal dimension in either direction of less

than 45 inches, shall have standard guardrails installed

on all open sides and ends of the platform.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, respondent was notified on May 8, 1975, by W. E. Hargrove, Director of Area 1730, Occupational Safety and Health Administration (OSHA), United States Department of Labor, of the following proposed penalty for the alleged violation:

SERIOUS VIOLATION: Item 1 $650

After the filing of a Notice of Contest, Complaint, and Answer, the case came on for hearing at San Antonio, Texas, on August 22, 1975.

DISCUSSION

On May 1, 1975, employees of respondent were engaged in the installation of overhead traffic signals at the intersection of Wesley and Stanford Streets in Greenville, Texas. The work was performed from a scaffold platform mounted on a dump truck at [*15] a distance of 16 feet above ground level (Tr. 15-16), as shown in a photograph of the operation (Ex. C 1). The photograph also shows clearly that the platform was not fitted with guardrails and toeboards, and there is no doubt that a violation of the cited regulation is established by the record.

Additional facts must be considered in deciding whether the violation was a serious one. Section 17(k) of the Act states:

For purposes of this Section, 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 which 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.

Accordingly, there are two elements to proof of the serious nature of a violation, the first relating to the type of injury which might be incurred as a result of the violation, and the second to the employer's knowledge or lack of knowledge of the presence of the violation.

As to the first [*16] of these elements, respondent does not seriously deny that a fall from the unguarded platform could well result in death or serious physical injury, and complainant has met his burden of proof on this point (Tr. 16-21). See: Secretary v. Standard Class and Supply Company, 2 OSAHRC 1488 (1973). On the second question, respondent maintains strenuously (Tr. 39-45; Ex. R 1) that the corporation and its principal officers should not be charged with knowledge of violation of the Act at the numerous worksites which the firm operates when they hire qualified supervisory personnel who subsequently violate instructions or otherwise permit violations to occur. n1

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n1 At the same time, it would appear that a serious violation is admitted. (Tr. 45).

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This argument must be rejected. In the first place, respondent, in a letter of explantion (Ex. R 1) states in effect that its representative on the project had not been properly trained in safety procedures and equipment, n2 clearly matters for which an employer is responsible. [*17] Moreover, even without such training, it would appear that the representative must have known of the existence of a hazard, since he had been supplied with a truck equipped with a "bucket" boom for work at elevated levels in the past. Such knowledge on the part of its representative or supervisor is, under decisions of the Courts and this Commission, imputable to respondent, which must be held liable for serious violation of the Act. See: United States v. Dye Construction Company, 510 F. 2d 78 (10th Cir. 1975); Secretary v. Horne Plumbing & Heating Co., 12 OSAHRC 155 (1974); Secretary v. Structural Steel Erectors, Inc., dba Pecosteel-Arizona, 15 OSAHRC 141 (1975); Secretary v. Floyd S. Pike Electrical Contractors, Inc., 15 OSAHRC 302 (1975).

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n2 Par 2: Our representative in charge of this project . . . is one of the youngest men we have in our company. He is the only man in this position or higher who has not attended seminars and other informative meetings on OSHA related matters. We have had to move him from project to project and have never had him in one place long enough to sit in on a seminar being conducted in the immediate area.

Par 3: We have several active projects in the Dallas area and have to move our equipment around quite a bit. Until this isolated instance [the representative] has been able to use a bucket truck for the type of work he was performing when the alleged infraction occurred. However, the bucket truck was evidently required elsewhere and [he] used what was available. Hand rails and toe boards for this scaffolding have been stolen and since he was not familiar with the scaffolding he picked up what was available and went about his work.

[*18]

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Respondent urges further that no penalty should be assessed, relying not only on the apparent violation of instructions to its supervisor, but on its action in furnishing adequate equipment which had not been used, on the prompt abatement of the violation after it was noted by the OSHA inspector, and on its safety record, unblemished before the present proceedings. All of these factors properly enter into the decision as to the amount of penalty. n3 They do not, however, justify reduction of the proposed penalty in the present case. As respondent's vice president stated at the hearing, the firm's activities are performed at widely separated locations where centralized observation and control of employees is impossible. Under such circumstances it is incumbent on an employer to take whatever measures are necessary to insure that its on-the-job supervisors are fully knowledgeable of required safety measures and that they understand their responsibility to put them in effect. As pointed out above, this was not done here, with the result that a serious violation of the Act occurred. Under the circumstances, [*19] and afte consideration of the statutory criteria, it must be held that a penalty of $650 is proper.

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n3 See Section 17(j) of the Act.

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FINDINGS OF FACT

1. On May 1, 1975, employees of respondent were engaged in the installation of overhead traffic signals at the intersection of Wesley and Stanford Streets in Greenville, Texas.

2. This work was performed from a scaffold platform mounted 16 feet above ground level; the platform was not equipped with guardrails or toeboards.

3. There was a substantial probability that death or serious physical harm could result from a fall from the unguarded platform referred to in Finding 2, above.

4. Respondent's representative at the worksite described above could, if respondent had exercised reasonable diligence in his training and instruction, have known that a work platform 16 feet above ground level which was not equipped with guardrails and toeboards was in violation of regulations promulgated pursuant to the Occupational Safety and Health Act of 1970.

5. A penalty [*20] of $650 for the above violation is proper, in view of respondent's size, good faith, and history under the Act, as well as the gravity of the resulting hazard.

6. Respondent has admitted those facts which confer jurisdiction of this proceeding on this Commission and its Judges.

CONCLUSIONS OF LAW

1. This Commission has jurisdiction of the parties and issues raised by the pleadings.

2. On May 1, 1975, respondent violated Section 1926.451(a)(4) of Title 29, Code of Federal Regulations, comprising a safety standard promulgated by the Secretary of Labor pursuant to the Occupational Safety and Health Act of 1970; this was "serious" violation, as defined in the Act.

ORDER

On the basis of the preceding Findings of Fact, Conclusions of Law, and the entire record, it is hereby ORDERED that the Citation for Serious Violation issued on May 8, 1975, be AFFIRMED. It is further ORDERED that a civil penalty of $650 be assessed against respondent.

December 2, 1975

WILLIAM J. RISTEAU, ADMINISTRATIVE LAW JUDGE