STONE & WEBSTER ENGINEERING CORPORATION

OSHRC Docket No. 15314

Occupational Safety and Health Review Commission

July 18, 1980

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Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Walter E. Graham, Stone & Webster Engineering Corp., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Benjamin G. Usher is before the Commission for review under section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   Chairman Cleary granted the Secretary's petition for review.   The sole issue before the Commission is whether Judge Usher erred in not finding Respondent in willful violation of the Act for failure to comply with the safety standard at 29 C.F.R. §   1926.500(d)(1). n1

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n1 Commissioner Moran directed review of this case "for error." Following the inspection of the Respondent's worksite, the Secretary issued citations alleging one willful, four serious and 54 nonserious violations of the Act and a notification of $4,195 in proposed penalties.   Many of those items were either undisputed or resolved by stipulation before the hearing.   Of the matters that remained for determination, Judge Usher affirmed citation 1, nonserious items 1, 2, 6, 15-17, 29-31 and citation 2.   The judge vacated nonserious items 5, 26(2), 53 and 54 of citation 1.   Citation 6 alleged a willful violation of the Act.   The judge amended that citation to "serious" and affirmed the citation as amended.   He assessed a penalty of $500 for that violation, rather than $900 as originally proposed by the Secretary.   The total penalty assessed by the judge for the violations he affirmed was $1,255.   The Secretary challenges only the conclusion that the violation described in citation 6 was not willful. Neither party has taken issue with the judge's decision to affirm a serious violation for noncompliance when section 1926.500(d)(1).   Moreover, the parties have not taken issue with any other aspect of the judge's decision.   Given this lack of party interest, the judge's disposition of all items and issues other than the willful aspect of citation 6 is summarily affirmed because no compelling public interest warrants further Commission review of those matters.   Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976).   Accordingly, that portion of Judge Usher's decision and order is accorded the precedential value of an unreviewed judge's decision.   Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976), appeal withdrawn, No. 76-4070 (2d Cir. May 17, 1976).

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The Respondent, Stone & Webster Engineering Corporation, designs and builds fossil fuel and nuclear power plants in several states.   At the time of the violation in question, it was building four nuclear reactors and turbines for the production of electrical power at the North Anna power station, eight miles north of Mineral, Virginia.   Respondent employed approximately 3,000 workers at this construction site.

Three compliance officers of the Occupational Safety and Health Administration ("OSHA") inspected the North Anna site from July 29 to August 14, 1975.   As a result of this inspection the Secretary issued Respondent a citation alleging willful noncompliance with the safety standard at 29 C.F.R. §   1926.500(d)(1) for failure to guard an "opensided platform" 18 feet above the concrete floor of a trench. n2 The Secretary proposed a $900 penalty.

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n2 The safety standard at 29 C.F.R. §   1926.500(d)(1) provides:

(d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder.   The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery or there is equipment with which falling materials could create a hazard.

The citation alleged:

The open sided platform 18 feet above the bottom of a trench created by the construction of the screen well discharge tunnel was not guarded by a standard railing or the equivalent to protect the employee working at the side from falling, and it was not provided with a toeboard to protect the worker in the trench below from falling material.

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During their inspection of Respondent's construction site, the compliance officers observed Respondent's employee Edward S. Harris working at the unguarded edge of the concrete surface atop an enclosed discharge tunnel. The unguarded edge abutted the top of a trench that was 18 feet deep, 4-1/12 to 6 feet wide, and over 100 feet long.   The trench separated the discharge tunnel from a nearby wall of jagged rock.   The compliance officers noticed that only vestiges of a toeboard remained where a guardrail had stood on the perimeter of the concrete platform at the top edge of the trench.

In the earlier phases of construction, 50 to 60 employees worked on top of the discharge tunnel. At that time, Respondent provided "a barricade, handrails, midrails and a toe plate on both sides of the entire length of the tunnel top," according to Respondent's Chief Safety Supervisor, John Savage.   About one or one and a half days before the inspection, however, the guardrails and barricades were removed to enable a subcontractor to install a waterproof membrane in the tunnel wall and to line the trench with concrete.   [*4]   According to Savage, about 20 to 25 percent of the concrete had been poured when the work was interrupted by a rainstorm.   The weather cleared sometime during the day prior to the inspection, Savage testified, and workers began to remove the mud and debris that had accumulated in the trench.

Respondent assigned five or six workers to clear the trench, according to the testimony of employee Harris.   Employees at the bottom of the trench filled buckets with mud as Harris, working above, hauled the 15-pound loads to the surface on a rope.   The compliance officers observed Harris standing within inches of the unguarded edge, 18 feet above the concrete bottom of the trench. Both Respondent's foreman and general foreman observed this work, according to Harris.

Respondent's Safety Supervisor Savage suggested at the hearing that installing a new guardrail would have delayed work on the trench. In addition, he opined that a worker who followed safety instructions would not be exposed to "a fall in that void." Harris testified, however, that Respondent's foreman merely cautioned him to stay away from the edge and not to look down.   Harris explained that he could not follow either instruction [*5]   because he had to guide the bucket to the surface or it could strike a 2-inch by 4-inch board nailed to the side of the trench and spill mud and construction debris on the employees below.   Harris added that he was not told to wear a safety belt and lifeline nor was he issued protective equipment.

II

Judge Usher ruled that Respondent was in serious rather than willful violation of section 1926.500(d)(1). n3 He found that, according to the evidence, Respondent required its employee "to work at the edge of an unguarded or opensided floor, 18 feet above the adjacent ground level," while its supervisors were aware of the fall hazard. Furthermore, Judge Usher concluded that Respondent's knowledge of the need for perimeter protection was established by the evidence that guardrails were erected previously but were removed to allow installation of a membrane to line the trench.

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n3 The term "willful" is not defined in the Act.   Section 17(a), 29 U.S.C. §   666(a), provides:

Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of not more than $10,000 for each violation. (emphasis added)

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Judge Usher determined that the evidence adduced by the Secretary did not satisfy any of the legal tests for willfulness set forth by the Commission or the circuit courts of appeal.   He noted that willfulness under the Act "embraces knowledgeable action taken in disregard of its legality," and that malicious intent need not be shown.   However, the judge further held that to sustain a willful violation, "[n]ot only must the act itself be consciously, deliberately, intentionally and voluntarily performed, but the 'disregard of its legality' need be conscious, deliberate, intentional and voluntary." Judge Usher reasoned that the Secretary's proof fell short of satisfying this bifurcated test.   He concluded that Respondent's action in this case could "hardly be characterized as the kind of deliberate, conscious, intentional conduct that was considered by the Courts" in Intercounty Construction Co. v. OSHRC, 522 F.2d 777 (4th Cir. 1975), cert. denied, 423 U.S. 1072 (1976); F.X. Messina Construction Corp. v. OSHRC, 505 F.2d 701 (1st Cir. 1974); and Frank Irey, Jr., Inc. v. OSHRC, 519 [*7]   F.2d 1200 (3d Cir. 1975). n4

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n4 In Babcock & Wilcox Co. v. OSHRC. 8 BNA OSHC 1317, 1980 CCH OSHD P24,485 (3d Cir. May 15, 1980), the Third Circuit discussed its Irey decision.   The court observed that a conflict concerning the definition of the term "willful" has developed because of "several courts of appeals reading into our Irey definition a requirement that the employer act with 'bad purpose.' Read in this fashion, Irey has not been followed by some circuits [nor by the Commission]." Id. 8 BNA OSHC at 1322, 1980 CCH OSHD at pp. 29,912-29,913 (footnote omitted).   The court, however, concluded that "there is little, if any, difference between our [willfulness] approach and that taken by . . . other courts." Id. 1980 CCH OSHD at p. 29,913.

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Judge Usher found that the Secretary proved a serious violation. He specifically noted that the Secretary had established employer knowledge and that there was "a substantial probability that death or serious physical harm could result" from the 18 foot [*8]   fall hazard. Consequently, the judge amended the citation to conform to his finding that the violation was serious but not willful. See Toler Excavating Co., 75 OSAHRC 76/C8, 3 BNA OSHC 1420, 1975-76 CCH OSHD P19,875 (No. 2637, 1975) ("serious" characterization of penalty tried by consent of the parties; willful allegation of citation properly amendable); see note 1 supra. Judge Usher reduced the penalty from the $900 proposed by the Secretary to $500.

III

On review, the Secretary asserts that the judge erred by holding that the violation was not willful. In the Secretary's view the record clearly establishes what prevailing precedent has defined as willful conduct.   According to the Secretary, a willful violation is established by proof that an employer intentionally disregards the Act, is plainly indifferent to its requirements, or knows that his actions might violate the law.   Moreover, the Secretary contends that it is also appropriate to find a willful violation when an employer has acted in "reckless disregard" of a known hazard. In any event, the Secretary asserts that the judge's decision is erroneous and unduly restrictive in that it imposes upon the Secretary [*9]   the additional burden of proving that the employer's disregard for the legality of his actions was conscious, deliberate, intentional, and voluntary.

The Secretary notes that Respondent's supervisor conducted the trench clearing without guardrails and took no protective measures even after observing an employee work within inches of the unguarded 18 foot drop.   The Secretary asserts that the "essence of Respondent's willfulness is that it had previously installed guardrails at that very spot to protect against the hazard of falling into the trench." n5

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n5 In its post-hearing brief, the Secretary suggested that portions of the guardrail system could have been removed section-by-section as workers cleared portions of the trench because the waterproof membrane was to be installed section-by-section.   Therefore guardrails could have been removed in sections where they were no longer needed to protect workers, and the subcontractors could have installed sections of the membrane unimpeded by the guardrails in those locations, according to the Secretary.   In addition, the Secretary contended that it was not impossible nor impratical for the Respondent to replace guardrails before the employee on top of the trench began work on the clearing operation.

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In its post-hearing brief, n6 Respondent asserted that its conduct concerning the fall hazard was not "willful": "an action taken knowledgeably by one subject to the statutory provisions in disregard of the action's illegality," as defined by the Fourth Circuit in Intercounty Construction Co., supra. Respondent specifically contended that Intercounty was factually distinguishable because that employer had been warned by OSHA personnel of the necessity for protective measures before the alleged violation.   In contrast, Respondent argues there is no evidence that it knew of the applicability of section 1926.500(d)(1).

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n6 Respondent has not filed a brief on review.

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IV

A "willful" violation is action taken knowledgeably by one subject to the statutory provisions of the Act in disregard of the action's legality. Intercounty Construction Co., supra, at 779; P.A.F. Equipment Co., 79 OSAHRC 18/A2, 7 BNA OSHC 1209, 1979 [*11]   CCH OSHD P23,421 (No. 14315, 1979), appeal filed, No. 79-1398 (10th Cir. May 7, 1979).   It is conduct that results from a conscious, intentional or voluntary decision.   A showing of malicious intent is unnecessary.   Kent Nowlin Construction Inc., 77 OSAHRC 22/A2, 5 BNA OSHC 1051, 1977-78 CCH OSHD P21,550 (No. 9483 et al., 1977), aff'd in part and rev'd in part, 593 F.2d 368 (10th Cir. 1979). Furthermore, the Commission has found conduct willful when marked by a careless disregard of a standard or of employee safety.   National Steel & Shipbuilding Co., 78 OSAHRC 48/A2, 6 BNA OSHC 1680, 1978 CCH OSHD P22,808 (Nos. 11011 & 11769, 1978), aff'd, 607 F.2d 311 (9th Cir. 1978); Constructora Maza, Inc., 78 OSAHRC 6/E2, 6 BNA OSHC 1309, 1977-78 CCH OSHD P22,487 (Nos. 13680 & 14509, 1978). n7

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n7 Judge Usher's requirement for willfulness that the "disregard of [an action's] legality need be conscious, deliberate, intentional and voluntary" is inconsistent with the aforementioned cases and is therefore rejected.

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We find that Judge Usher properly concluded that the Respondent's failure to comply with section 1926.500(d)(1) was not willful. Its erection of a guardrail at the perimeter of the trench lip, evinced by vestiges of a toeboard at the time of inspection, indicates that the Respondent recognized the necessity for protection of the worker exposed to the 18 foot fall hazard. However, the only evidence submitted by the Secretary to establish that the violation was willful was the Respondent's previous use of guardrails to protect 50 to 60 employees who worked at the edge of the trench. n8 The guardrails were removed by the Respondent to allow a subcontractor's installation of a waterproof membrane and pouring of concrete into the trench.

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n8 An inspecting compliance officer, Janice Mendelsohn, testified as follows:

Q.   And for what reason was it determined that this was a willful violation?

A.   Based upon the fact that this area had been protected at one time.   This indicated to us that management was aware that there was a hazard of falling there.   They had protected against this hazard at one time, but for some reason they had removed the rails, yet continued and allowed employees to work at the site of this excavation without any protection at all when they had once given this protection.   We felt that this was a willful violation for that reason.

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The Secretary argues that erection of the protective guardrail and its subsequent removal demonstrate willfulness. We disagree.   The Commission has determined that "knowledge of a standard and a subsequent violation of that standard do not in themselves prove [a willful violation]." Graven Brothers and Co., 76 OSAHRC 40/A5, 4 BNA OSHC 1045, at 1046, 1975-76 CCH OSHD P20,544, at p. 24,549 (No. 2538, 1976), remanded, 5 BNA OSHC 1074,      CCH OSHD P   , (10th Cir. 1977); see also Wright and Lopez, Inc., 80 OSAHRC    , 8 BNA OSHC 1261, 1980 CCH OSHD P24,419 (No. 76-3743, 1980), appeal filed, No. 80-1569 (D.C. Cir. May 27, 1980).   Moreover, on these facts, it would be anomalous to find the Respondent in willful violation solely because it previously had provided protective measures.   An extension of the Secretary's reasoning would require a less than willful characterization of the Respondent's conduct if it had never complied with the Act.   We refuse to accept this proposition and hold that, on these facts, the Secretary has failed to prove a willful violation. A willful characteriazation [*14]   does not follow inevitably from evidence that, for whatever reason, conduct in compliance with the Act is discontinued.   A contrary decision could undermine the purposes of the Act by discouraging employer self-enforcement and maintenance of safe working conditions.

Although the Respondent used poor judgment in clearing the trench without protecting the employee who worked at the unguarded edge, the Secretary has failed to demonstrate that the conduct in question reached the level of intentional disregard, recklessness or plain indifference necessary to sustain a willful violation. In light of the Respondent's belief that the guardrail would interfere with the installation of the waterproof membrane, its dismantling of that protective barrier was not devoid of reason. n9

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n9 The Respondent's Chief Safety Superintendent, John Savage, testified as follows about the removal of the guardrail and toeboard:

Now, in the process of pouring this concrete, there was two things that had to occur.   Number one, to get the membrane on the tunnel wall, on the side of it, this toe plate and hand rail business had to be taken off, and number two, to facilitate swinging in the concrete bucket so they could drop this concrete down there to fill up this hole.   For those two reasons, that toe plate and that hand rail had been removed.

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V

As noted, Judge Usher assessed a $500 penalty for a serious violation of 29 C.F.R. §   1926.500(d)(1).   The judge's assessment reflects due consideration of the size of the Respondent's business, the gravity of the violation, the good faith of the Respondent and its history of previous violations.

Accordingly, it is ORDERED that the amended citation alleging a serious violation of the Act for noncompliance with 29 C.F.R. §   1926.500(d)(1) is affirmed and a $500 penalty is assessed.

CONCURBY: COTTINE (In Part)

DISSENTBY: COTTINE (In Part)

DISSENT:

COTTINE, Commissioner, concurring in part and dissenting in part:

A violation of 29 C.F.R. 500(d)(1) is properly found in this case.   However, the majority errs in failing to find that the violation is "willful" within the meaning of the Act.   The record establishes and the judge found that the Respondent was aware of the fall hazard to which its employee was exposed, knew that the hazardous area had previously been guarded, and was aware that the use of guardrails would protect against the hazard. Nevertheless, the Respondent knowingly exposed its employee to the 18-foot fall hazard   [*16]   posed by the unguarded edge and permitted employee exposure to continue for four days while the hazard remained unabated.

The Respondent was engaged in the installation of a waterproof membrane in the discharge tunnel when rain interrupted the installation. Before work on the membrane could resume, it was necessary to remove mud that had accumulated in the tunnel. As part of the clean-up process, employee Harris was instructed by his supervisor, Collier, to lift buckets of mud out of the tunnel. Harris testified that this job required him to lean over the unguarded edge of tunnel. According to Collier, Harris was warned "not to lean over the tunnel, . . . to stay back clear, . . ., [and] to keep from falling over".   However, Harris testified that he could not follow these instructions because it was necessary for him to lean over the edge to guide the bucket past a protruding 2 X 4.

The judge found that Respondent's knowledge of the need for perimeter protection was established by evidence that guardrails had been erected previously at the tunnel edge. The guardrails had been removed to facilitate installation of the membrane and were not reinstalled before the process of mud [*17]   removal began.   Nevertheless, despite his findings that the Respondent knew of the absence of a guardrail and "knew further that one was necessary to protect the employee from the hazard," the judge concluded that a willful violation was not shown.   The judge determined that in order for a willful violation to be established, it must be shown that the conduct involved was intentional and voluntary and that the "disregard of its legality" was intentional and voluntary.

Judge Usher's test for willfulness is properly rejected by my colleagues as being inconsistent with Commission precedent.   However, they fail to properly apply that precedent.   As stated by the majority, a willful violation is "conduct that results from a conscious, intentional or voluntary decision. . . [and is] marked by a careless disregard of a standard or of employee safety.   National Steel & Shipbuilding Co., 78 OSAHRC 48/A2, 6 BNA OSHC 1680, 1978 CCH OSHD P 22,808 (Nos. 11011 & 11769, 1978), aff'd, 607 F.2d 311 (9th Cir. 1979); Constructora Maza, Inc., 78 OSAHRC 6/E2, 6 BNA OSHC 1309, 1977-78 CCH OSHD P22,487 (Nos. 13680 & 14509, 1978)." As the majority notes, it is also action taken knowingly by one   [*18]   subject to the requirements of the Act in disregard of the action's legality. P.A.F. Equipment Co., 79 OSAHRC 18/A2, 7 BNA OSHC 1209, 1979 CCH OSHD P23,421 (No. 14315, 1979), appeal filed, No. 79-1398 (10th Cir. May 7, 1979).

In this case the Respondent knew of the fall hazard, knew that guardrails had previously been installed, and knew that reinstallation of guardrails would have abated the fall hazard. Nevertheless, the Respondent knowingly and intentionally exposed its employee to the fall hazard and permitted the exposure to continue unabated for a period of four days. * The decision was made in disregard of an obvious and grave danger and in disregard of employee safety.   This conduct constitutes a willful violation under Commission precedent.   See Adrian Construction Co., 79 OSAHRC 16/A2, 7 BNA OSHC 1172, 1979 CCH OSHD P23,389 (No. 15414, 1979); Constructora Maza, Inc., supra; Georgia Electric Co., 77 OSAHRC 30/A2, 5 BNA OSHC 1112, 1977-78 CCH OSHD P21,613 (No. 9339, 1977) aff'd, 595 F.2d 309 (5th Cir. 1979); Wright and Lopez, Inc., 80 OSAHRC    , 8 BNA OSHC 1261, 1980 CCH OSHD    , (No. 76-3743, 1980).   (Contine, Commissioner, dissenting).   [*19]   Accordingly, I dissent.

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* Testimony from the Respondent's chief safety supervisor indicates that the decision not to reinstall the guardrails was motivated by the Respondent's desire to avoid delay.

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