MURPHY PACIFIC MARINE SALVAGE COMPANY
OSHRC Docket No. 2082
Occupational Safety and Health Review Commission
January 13, 1975
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Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order directing review of a decision made by Judge Leon J. Moran. Complainant alleged that Respondent violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ) by failing to comply with the eye protection safety standard published at 29 C.F.R. 1915.81(b). n1 A $25 penalty was proposed. Judge Moran found for Respondent, holding (1) that the violation was merely an isolated incident within the meaning of our decision in Standard Glass Co.,
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n1 The standard provides:
(b) Protection against impact. (1) In any operations such as chipping, caulking, drilling, riveting, grinding, and pouring babbitt metal, in which the eye hazard of flying particles, molten metal, or liquid chemical exists, employees shall be protected by suitable face shields of goggles meeting the requirements of paragraph (a) of this section.
Respondent received a three item citation but contested only the item charging a violation of 29 C.F.R. 1915.81(b).
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The relevant facts are undisputed. During an inspection of Respondent's Staten Island yard, an individual dressed in work clothes was observed using an air hose to clean an engine. Complainant's compliance officer pointed out to Respondent's foreman that the worker was not wearing protective goggles as required by 29 C.F.R. 1915.81(b). The foreman immediately halted the operation and asked the worker where his protective glasses were. The individual replied that they were in his locker, whereupon he left the scene and returned wearing protective goggles. The cleaning operation was then resumed. Respondent produced no evidence at the hearing.
The defense announced in Standard Glass is an affirmative defense. Mississippi Valley Erection Co., Respondent therefore bears the burden of proof on that issue. However, Respondent here offered no evidence on this issue and consequently did not carry its burden. It was error to vacate on this basis.
It was also error to find that Complainant failed [*3] to establish an employment relationship between Respondent and the workman in question. The only reasonable inference from the evidence of record is that the individual exposed to the hazard was Respondent's employee. The Secretary's evidence indicated a single employer worksite n2 and that Respondent exercised control over the affected employee. n3 On these facts it is more reasonable to infer that an employment relationship existed than that one didn't exist. Respondent presented no evidence in rebuttal. Accordingly, Complainant established a prima facie case as to the existence of the relationship. Since the evidence demonstrates that the terms of the standard were violated, we conclude that Complainant has carried his burden of proof.
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n2 Had either the Secretary's evidence or the Respondent's rebuttal evidence (had any been presented) demonstrated a multi-employer worksite with commingling of employees the result may have been different.
n3 Control by Respondent is one consideration in determining the existence of an employer-employee relationship. See Bayside Pipe Coaters, Inc., Frohlick Crane Service,
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The proposed penalty is appropriate considering the gravity of the hazard and Respondent's size, good faith, and safety history.
Accordingly, we find Respondent in violation of 1915.81(b) and hereby assess a civil penalty of $25 therefor. It is SO ORDERED.
CONCURBY: MORAN
CONCUR:
MORAN, CHAIRMAN, concurring: I agree with this disposition, but think it would be useful to explain why the evidence is inadequate to establish an "isolated occurrence" defense. In Secretary v. Standard Glass Co., Inc., 1 OSAHRC 594 (1972) the Commission held that an isolated brief violation of a standard which is unknown to the employer and is contrary to specific instructions and a company work rule which the employer has uniformly enforced is not a violation of the Act. There was ample evidence in Standard Glass that the company had strictly enforced a company work rule requiring the wearing of protective helmets, and that the incident observed was a deviation from the regular practice at the worksite.
In order to establish an "isolated occurrence" defense under the rule of Standard Glass, the elements of proof [*5] that must be satisfied are that the incident which is alleged as the basis of the violation is a (1) deviation, (2) from a company work rule or instructions, (3) which are enforced, and (4) that the deviation was unknown to the employer. There is evidence relevant to some of these elements which is not mentioned in the Commission decision. n4 The government safety inspector testified on cross-examination that he saw a sign indicating that goggles should be worn when working with compressors. The sign is some evidence of the existence of a company work rule requiring that goggles be worn. In addition, the fact that respondent's foreman asked the worker where his protective goggles were tends to establish that the violation was unknown to the employer. However, we do not have to decide whether this evidence was adequate to establish the existence of a company work rule or the employer's lack of knowledge of the violation, since there is no evidence that the work rule was enforced or that the incident observed was a deviation from normal practice at the worksite. As evidence on these two elements is lacking, the proof is inadequate to establish this defense.
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n4 The statement in the Commission decision that ". . . Respondent here offered no evidence on this issue and consequently did not carry its burden of proof on that issue [isolated occurrence]" is troublesome. This statement along with the Commission's failure to mention evidence in the record relevant to the defense conveys the impression that only evidence offered by the party asserting the defense will be considered in deciding whether the defense has been established. This is contrary to hornbook law that evidence coming from witnesses of the opposing party is available to either party in a lawsuit. Bradford Builders v. Sears, Roebuck & Co., 270 F.2d 649 (5th Cir. 1959).
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Because of the inadequacy of proof, respondent's claim fails since the burden of proof on this issue has been quite properly placed on the party asserting the defense. The reasons compelling this allocation of the burden of proof are twofold. The first is that the facts necessary to prove an isolated occurrence will usually be peculiarly within the [*7] knowledge of an employer. He is in the best position to know, and to marshall the evidence to prove what safety policies and practices exist at the worksite and how they are enforced. Complainant, whose knowledge of respondent's operation is ordinarily limited to conditions prevailing at the time of inspection, would have much greater difficulty proving the routine practices at the site. The second reason is that when an infraction is observed, it is more probable that it represents the general practice at a site, rather than a departure from the usual practice. If it is contended that it does not represent the usual practice, it is more reasonable to place the burden of proving that assertion upon the party who advances it. n5
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n5 These are among the rationales most frequently cited by courts for the allocation of burden of proofs. Wigmore on Evidence, Vol. IX (1940) § 2486 at 274; McCormick on Evidence (1972) § 337 at 785.
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It should also be noted that while an isolated occurrence is an affirmative defense, failure [*8] to raise the issue in the notice of contest or the answer does not necessarily bar consideration of the question. n6 Secretary v. Mississippi Valley Erection Co., 5 OSAHRC 483 (1973), a case mentioned in the Commission decision (but incorrectly cited) contains a statement that the defense should be raised during "formulation of the issues in a case." This suggests that failure to raise the issue at the stage of the proceedings may be an absolute bar to asserting the defense. Such a restrictive rule is improper.
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n6 Respondent pleaded facts in its answer I would construe to raise an isolated occurrence defense. Specifically, respondent alleged that it had provided employees with goggles and instructed them in their use, and that any failure to wear goggles was contrary to its instructions and without its knowledge. Although not mentioned in its decision, the Commission has apparently also construed the pleadings to raise the issue since its disposition rests solely on failure of proof.
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Rule 15(b) of the Federal [*9] Rules of Civil Procedure provides that "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleadings." Where there is no objection, implied consent will be inferred when the opposing party is not unfairly prejudiced by implying his consent. Lomartira v. American Automobile Co., 371 F.2d 550, 552 (2nd Cir. 1967). Actual notice of the amended issue, as well as an adequate opportunity to litigate it, is necessary to avoid prejudice. Kuhn v. Civil Aeronautics Board, 183 F.2d 839 (D.C. Cir. 1950), Systems, Inc. v. Bridge Electric Co., 335 F.2d 465 (3rd Cir. 1964).
Affirmative defenses are among the issues to which Rule 15(b) is applicable. n7 Moreover, administrative pleadings, in addition to being liberally construed, are very easily amended. National Realty & Construction Co., Inc., v. OSAHRC et al., 489 F.2d 1257, 1264 (D.C. Cir. 1973). As was said by the Court in National Realty,
So long as fair notice is afforded, an issue litigated at an administrative hearing may be decided by the hearing agency even though the formal pleadings did [*10] not squarely raise the issue.
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n7 Wright & Miller, Federal Practice and Procedure (1969) § 1278 at 339.
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Because of these considerations, I submit that it is proper for this tribunal to entertain an isolated occurrence defense even if the issue is not raised by the pleadings, as long as the issue has been litigated and fair notice has been provided to the opposing party to present evidence and argue the issue.
[The Judge's decision referred to herein follows]
MORAN, 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 referred to as the Act. The Respondent was issued a Citation for other than serious violation on January 4, 1973, following an inspection of its worksite by a compliance officer of the Occupational Safety and Health Administration on December 4, 1972. The Citation consisted of three items of alleged violations. The Respondent timely filed a notice of contest as to only Item 1 which charged an alleged violation of [*11] 29 C.F.R. 1915.81(b) for "failure to protect employees from eye injuries in any operation such as air cleaning with protective goggles or soitable (sic) face shield." A notification of proposed penalty of $25.00 was also issued by the Complainant. A hearing on this matter was held in New York City on May 23, 1973. No employee representative or affected employee appeared at the hearing although given the opportunity to do so.
The parties stipulated that the full name of the Respondent corporation is the Murphy Pacific Marine Salvage Company which is incorporated in State of California and licensed to do business in the State of New York; the Respondent's principal office in New York is at 17 Battery Place, New York, New York; the Respondent employs about 60 individuals in New York including office help and is engaged in a business affecting commerce; and the Respondent is the only corporation or business engaged in offshore salvaging operations in the United States.
The standard involved herein at 29 C.F.R. 1915.81(b) provides:
(b) Protection against impact. (1) In any operations such as chipping, caulking, drilling, riveting, grinding, and pouring babbitt metal, in [*12] which the eye hazard of flying particles, molten metal, or liquid chemical exists, employees shall be protected by suitable face shields or goggles meeting the requirements of paragraph (a) of this section.
The Complainant's compliance officer, Sebastiano G. Lima, testified he conducted an inspection of the Respondent's worksite on December 4, 1972. The witness testified during the inspection he saw an employee using an air hose to clean an engine mounted on four by fours who did not have on goggles or protective equipment for his eyes. He pointed this out, he said, to the Respondent's foreman who immediately stopped the operation and asked the man where his glasses were and was told "They're in the locker." The compliance officer testified the individual went inside a room and in a few minutes came out with goggles on. On cross examination, Mr. Lima testified that he did not ascertain the name of the individual who was not wearing goggles; or ask him if he were an employee; or inquire whether he had been instructed to wear goggles when working with compressors. The compliance officer said there was a sign indicating that goggles should be worn when working with compressors. [*13]
This Commission has held that an employer cannot in all circumstances be held to the strict standard of being an absolute guarantor or insurer that his employees will observe all the Secretary's standards at all times and an isolated brief violation of a standard by an employee which is unknown to the employer and is contrary to both the employer's instructions and a company work rule which the employer has uniformly enforced does not necessarily constitute a violation of Section 5(a)(2) of the Act. Secretary of Labor v. Standard Glass Company, Inc., 1 OSAHRC 1045, decided July 27, 1972. In the instant case, the employer had posted a sign that goggles should be worn when using the compressor. The only probative evidence of record indicates goggles were available for use and the individual using the compressor knew that they were. In addition, the Complainant has failed to establish that this unidentified individual was an employee of the Respondent to whom the Respondent owed a duty under the Act. It is concluded therefore that the evidence of record fails to establish a violation of the standard by the Respondent.
FINDINGS OF FACT
Upon consideration of the record [*14] as a whole, the following findings of fact are made:
1. The evidence of record does not disclose the identity of the individual who was observed by the Complainant's compliance officer cleaning an engine during the inspection of the Respondent's worksite on December 4, 1972, without wearing goggles or protective equipment for his eyes.
2. The evidence of record establishes that the compliance officer did not ascertain the individual cleaning the engine without protective equipment was an employee of the Respondent.
3. The evidence of record discloses that the Respondent had a work rule evidenced by a sign that goggles should be worn when working with compressors.
4. The evidence of record does not establish that the Respondent knew or should have known that the individual was doing the air cleaning contrary to the Respondent's work rule for the use of compressors.
5. The evidence of record shows that eye goggles were readily available for individuals using the compressors.
6. It is reasonable to find that the incident was an isolated brief occurence which was unknown to the employer.
CONCLUSIONS OF LAW
1. The Respondent is and at all times pertinent herein was [*15] engaged in a business affecting commerce and the Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter within the meaning of Sections 3 and 4(a) of the Occupational Safety and Health Act of 1970.
2. The Respondent was not in violation of Section 5(a)(2) of the Act and the standard promulgated thereunder at 29 C.F.R. 1915.81(b) on December 4, 1972.
ORDER
It is therefore ORDERED that Item 1 of the Citation and the proposed penalty are VACATED.