Docket No. 237

IRA HOLLIDAY LOGGING CO., INC.

OSHRC Docket No. 237

Occupational Safety and Health Review Commission

April 27, 1973

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: BURCH

OPINION:

BURCH, COMMISSIONER: On June 13, 1972, Judge James A. Cronin, Jr. issued his recommended decision and order in this case, affirming the Secretary's citation for serious violation and the proposed penalty of $650, affirming items no. 1, n1 3, 5, and 6 of the citation for other than serious violations and the proposed $13 penalty for item no. 1, and vacating items no. 2 and 4 of that citation.

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n1 Since respondent did not contest item no. 1 of this citation within the 15 working day period as required by section 10 of the Act, that item became the final order of the Commission. Consideration of that item by the Judge was without legal effect.

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On July 11, 1972, I directed that the proposed decision and order be reviewed by the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., hereinafter referred to as "the Act").

Having considered the entire record, the Commission adopts the Judge's recommended decision and order insofar as it is consistent with the following.

Respondent, a logging company, contracted with White Sands Forest Products (hereinafter "the sawmill") to cut and deliver timber. On September 2, 1971, one of respondent's eight drivers delivered a load of logs to the sawmill and subsequently was discovered dead near the truck by the operator of the sawmill's unloading machine who had arrived to unload the truck. All three binders used to secure the load of logs had been released, two had been completely removed from the load, and a log was lying on the ground next to the deceased. The investigation which resulted in the issuance of the instant citations was precipitated by this fatality.

The evidence adduced during the course of the hearing establishes that the sawmill exercises the responsibility for unloading logs. It utilizes an unloading machine which lifts the entire load of logs while enclosing them between a fork lift and a covering claw. It is undisputed that the deceased employee had been instructed by both respondent and the sawmill to refrain from unfastening all the binders from the load prior to the logs being supported by the unloading machine.

It would appear that respondent and the sawmill might constitute joint employers as to the drivers during the unloading process. Although respondent hires, disciplines and pays the drivers, the sawmill which has devised the means the methods of unloading logs, is responsible for the safety of drivers regarding the unloading process, which is conducted on the sawmill's property and under its control. See, Boire v. Greyhound Corporation, 376 U.S. 473, 481 (1964), on remand 368 F.2d 778 (5th Cir. 1966).

Judge Cronin has correctly determined that respondent is subject to 29 CFR 1910.265(d)(1)(i)(b), which is captioned "sawmills." The standard is concerned with unloading methods and specifically proscribes releasing binders on logs prior to securing the load with an unloading device. Respondent's joint employer status as to the drivers during unloading renders it subject to the cited standard. Its employees regularly perform the duties referred to in the standard and the fact that it is denominated "sawmills" in no way relieves respondent, because it calls itself a logger, from the obligation to comply with occupational safety and health standards relating to the job functions of its employees.

The primary question which must be answered is whether respondent knew or, with the exercise of reasonable diligence, could or should have knwon of the violation of the standard by its driver. The evidence is uncontroverted that respondent had no actual knowledge of the deceased's unfastening of all the binders prematurely. The record shows that respondent's supervisor undertook to survey the unloading operation, from time-to-time, and had observed no contravention of safety instruction. To require that an employer constantly scrutinize work processes under the control of another employer, away from premises and operations under his direct control, imposes a burden not contemplated by the Act. See, Secretary of Labor v. Hanovia Lamp, We hold that respondent is not in violation of 29 CFR 1910.265(d)(1)(i)(b) by reason of not knowing of the unsafe practice and because reasonable diligence failed to reveal the existence of such practice.

With respect to the contested items of the citation for other than serious violations, the Judge's decision and order is adopted.

It is ORDERED that the Judge's decision and order be modified in accordance with this decision and that the citation for serious violation and notification of proposed penalty be vacated.

DISSENTBY: VAN NAMEE

DISSENT:

VAN NAMEE, COMMISSIONER, dissenting: The evidence of record, in my view, establishes violations of the standards prescribed by 29 C.F.R. 1910.265(d)(1)(i)(b) and 29 C.F.R. 1910.132(a) and of section 5(a)(2) of the Act.

The standard at 29 C.F.R. 1910.265(d)(1)(i)(b), requires that "Binders on logs shall not be released prior to securing with unloading lines or other unloading devices." The Secretary alleged that Respondent was in serious violation of the standard and therefore of the Act. I concur that the proofs fail to establish a serious violation since it was not shown that Respondent knew, or with the exercise of reasonable diligence could have known of the presence of the violation (section 17(k)). The fact that Respondent is not in serious violation, however, does not mean that it is not in non-serious violation.

As I stated in my concurring opinion in Secretary of Labor v. Mountain States Telephone and Telegraph Company,

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n2 Section 17(c) provides for the charge of a non-serious violation. However, unlike a serious violation, no definition of a non-serious violation is given in section 17. Analysis of this point is provided in detail in my concurring opinion in Mountain States Telephone and Telegraph Co.

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I also made it clear in my opinion in Mountain States, supra, that the element of knowledge is not a totally improper subject for consideration in the event of a non-serious violation. Certainly in a case such as this where the employer has neither constructive nor actual knowledge and could not with the exercise of reasonable diligence know of the violation, and where the employer has an on-going safety program, it would be entirely proper to refuse to assess a penalty.

For the reasons stated above I would also find Respondent in non-serious violation of 29 C.F.R. 1910. 132(a).

The standard, in pertinent part is as follows:

Protective equipment including [hard hats] . . . shall be provided, used, and maintained . . . wherever it is necessary by reason of hazards of processes or environment . . .

Here the evidence establishes that although a hard hat was issued to the decedent, and thought to be required in view of the hazards of the environment, he was not using it at the time of death. Therefore, compliance with the standard by Respondent has not been demonstrated. Although there are certain acceptable affirmative defenses to non-compliance, the only defense advanced here is lack of knowledge of the incident by the employer. As I indicated in Mountain States, supra, lack of knowledge is neither a characteristic element nor an acceptable defense to a charge of a non-serious violation. n3

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n3 See further discussion in footnote 1 of my concurring opinion in Mountain States, supra.

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The Judge also erred by concluding that "In situations where the regulation cited for violation is designed to protect the employees whose very conduct causes the violation, the employer should not be held liable unless he knew of the presence of the violation, or his affirmative conduct or inaction contributed to its commission." Further, he was in error in applying the principles advanced in the Secretary of Labor v. General Tire Co., That case involved a serious violation of section 5(a)(1) of the Act, and therefore is not a precedent for this case. For the reasons given above, I would affirm this violation as originally charged.

I also dissociate myself completely from the implication of the majority's dicta to the effect that Respondent and the sawmill operator, White Sands Forest Products, were "joint employers" of the decedent. The evidence clearly establishes that Respondent was an independent contractor, having no community of interest with White Sands. n4 Its sole responsibility was to deliver the logs and to sever the restraining bands. Thereafter White Sands is shown to have had exclusive control over the remainder of the unloading operation. Said remainder operations were conducted by White Sands' employees. Despite the statement of the majority to the contrary, no obligation of White Sands to "supervise" Respondent's employees was ever established.

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n4 See: NLRB v. Greyhound Corp. (So. Greyhound Lines Div. ) 368 F.2d 778 (5th Cir. 1966), on remand from Boire v. Greyhound Corporation, 376 U.S. 473 (1964), which the majority cites to support the position that Respondent and White Sands are "joint employers." In that case the court found that the two employers were "joint employers" because each "shared" or "co-determined" with the other "essential terms and conditions of employment" of certain employees. (Id. at p. 780). See also: NLRB v. M.P. Building Corp., 411 F.2d 567, 568 (5th Cir. 1969); Ref-Chem Co. v. NLRB, 418 F.2d 127, 129 (5th Cir. 1969); Acc-Alkire Freight Lines, Inc. v. NLRB, 431 F.2d 281, 282 (8th Cir. 1970).

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If, however, the two were "joint employers" of the decedent, as the majority suggests, it must be noted that there was "knowledge" of prior safety infractions by Respondent's employees, which was unknown to Respondent but which was shown to have been known by White Sands. This "knowledge" might well be vicariously imputed to Respondent, as a "joint employer," n5 an application which would defeat the result the majority proposes with regard to the serious violation, i.e., vacation because of lack of "knowledge" by Respondent!

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n5 United States v. Fleisher Engineering & Const. Co., 107 F.2d 925, 929 (2d Cir. 1939), aff'd, 311 U.S. 15 (1940).

See also Beavers v. West Penn Power Co., 436 F.2d 869 (3d Cir. 1971); United States v. Comstock Extension Min. Co., 214 F.2d 400 (9th Cir. 1954).

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[The Judge's decision referred to herein follows]

CRONIN, JUDGE, OSAHRC: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereafter called the Act) to review two citations, and proposed assessment of penalties based thereon, issued by the Secretary of Labor (hereinafter called the Secretary) against the Respondent, Ira Holliday Logging Company, Inc.

Citation No. 1 for "Serious Violation" and Citation No. 2 for other than serious violations were issued on November 11, 1971. Citation 1 alleges a violation of section 29 CFR 1910.265(d)(1)(i)(b), in that an employee of Respondent released binders on a truck load of logs prior to securing load with unloading lines or other unloading device. Citation No. 2 alleges Respondent was in violation of the Act in six respects, as follows:

Item			Date to be
No.	Standard Violated	Description	Corrected
1	1910.314	The following equipment connected
	(d)(4)(iii)(c)	by cord and plug, having exposed non-
		current carrying metal parts, which are
		liable to become energized were found
		to be ungrounded:
		a. Skill Model 542, 1/2" drill in Tool
		Shop, garage-shop building;
		b. Skill Model 597, 3/8" drill in Tool
		Shop, garage-shop building;
		c. Black & Decker heavy duty sander,
		located in Tool Shop, garage-shop
		building.	12/1/71

2	1910.132(a)	Employee was not wearing protective
		helmet while releasing the binders
		during unloading of logs from truck.	Immediate
		This alleged violation occurred in the	Abatement
		White Sands Forest Products, Inc.	Required

3	1910.22(a)	The inside and outside areas of the
		garage/repair shop were not being
		kept in a clean and orderly condition.
		Old parts and excess or waste materials
		were scattered over the outside area of
		the building; passageways inside of the
		building were partially blocked by
		parts and boxes of supplies. The work
		bench inside of the shop was cluttered
		with parts, excess or waste materials
		and tools.	11/30/71

4	1903.2 (Fed-	The company had not posted in a
	eral Register	prominent place the standard poster
	Vol. 36, No.	informing employees of the job safety
	173, Sept. 4,	and health protection provided under
	1971)	the Occupational Safety & Health Act
		of 1970.	11/29/71

5	1904.2 (Fed-	The company was not maintaining the
	eral Register	log of occupational injuries and ill-
	Vol. 36, No.	nesses as required by the Act	11/29/71
	128, July 2,
	1971.)

6	1904.4
		The company was not maintaining the
		supplementary record of occupational
		injuries and illnesses as required by
		the Act.	11/29/71

Notifications of Proposed Penalties also were issued on November 17, 1971. A penalty of $650.00 for citation No. 1 was proposed and a total of $32 for items No. 1 and 2 of citation No. 2. No penalties were proposed by the Secretary for the remaining items, 3 through 6, of citation No. 2.

The Respondent served notice of intention to contest both citations and the proposed penalties based thereon, with the exception of item No. 1 of citation No. 2, by letter dated November 29, 1971. The Secretary's complaint was filed with the Commission on December 9, 1971 and Respondent's answer on December 20, 1971.

Pursuant to due notice, this case was heard at Las Cruces, New Mexico on March 21, 1972. Both the Secretary and Respondent were represented by counsel. No affected employee or employee representative sought to participate in the proceedings.

On May 8, 1971, the Secretary and the Respondent filed proposed Findings of Facts, Conclusions of Law, memorandum and brief.

Upon the entire record, I made the following:

FINDING AND CONCLUSIONS

I. JURISDICTION

The Respondent, a corporation with its headquarters at Eager, Arizona is engaged in the logging business in the states of Arizona and New Mexico. During September and October, 1971 the Respondent employed in Alamogordo, New Mexico, approximately 30 persons on a logging operation under contract with White Sands Forest Products Co. hereinafter called White Sands). On these facts, it is found that Respondent is an employer within the meaning of section 3(5) of the Act and that assertion of jurisdiction by the Commission is warranted.

II. THE ALLEGED VIOLATIONS

A. Issues Presented

The complaint alleges, four violations of 29 CFR 1910, one of which is deemed serious, and two violations of 29 CFR 1904, and one of 1903.2(a) alleged to be of a non-serious nature. Respondent in his answer, admitted that three portable tools were not grounded, but denies all other violations as alleged in the citations and complaint.

The issues to be resolved and determined are:

1. Does the record establish that Respondent violated the cited regulations?

2. If so, are the proposed penalties appropriate?

B. The Evidence

The Secretary called seven witnesses, Respondent's foreman, Ralph Bellon; three employees of White Sands Forest Products Company, (hereinafter called White Sands), Stanley Stephens, Ernest Pettillo, and Wayne Rusk; and two employees of the Occupational Safety and Health Administration, U.S. Department of Labor, Compliance Officer Amos Robert Evans, Jr., and Area Director Robert Simmons. The Respondent called three witnesses: the Respondent's President Ira Holliday, its Treasurer Doyle Mills, and the Respondent's landlord, Leroy Johnson.

Officer Evans testified that on October 7, 1971, he inspected the Respondent's garage and yard at Alamogordo, New Mexico and the log cutting and truck loading operation located 30 miles away on the Mescalero Indian Reservation while accompanied by Respondent's shop foreman and truck supervisor, Ralph Earl Bellon. Officer Evans, prior to this inspection, also made an investigation on October 7, 1971 into the fatal accident of Respondent's employee Mr. James Woodall on September 2, 1971 at the mill yard of White Sands.

In a tool shop at Respondent's garage location, there were 3 portable hand held operated tools which did not have grounding wires or grounding prongs (Tr. 64-65).

According to Officer Evans, the bench in the shop was "extremely crowded, cluttered over" with different parts and a battery charging machine. There was an air-conditioning ventilator located in the middle of an aisle, and tires and tire tools were "scattered around" and constituted "tripping hazards." A storeroom was "crowded with boxes in the aisles and tools disorderly." Behind the shop, parts of trucks were "scattered around" and "not in an orderly manner" (Tr. 66-67).

Respondent's Treasurer, Doyle Mills, testified that he inspects the operation at Alamogordo once a month or "every two months anyway," and in his words, "it's a fairly orderly shop and everything's left clean and put up" (Tr. 140-141).

According to Mr. Leroy Johnson, who is Respondent's landlord at Alamogordo garage site, the Respondent's operation is "an asset to the community." He states he has visited the shop 2 or 3 times a week and in his opinion, the "shop has been kept very orderly in the type of operation that it is." He is unaware of any hazardous conditions existing there (Tr. 148-149).

Officer Evans said there was no official poster up in the garage and no log or supplementary record of occupational injuries all illnesses were being maintained there (Tr. 69-70).

According to Treasurer Mills, the log and supplementary records in question were maintained at the Respondent's headquarters at Eager, Arizona because there was no bookkeeper at Alamogordo site. He testified that he started keeping records in accordance with the booklet, "Record Keeping Requirements Under The Williams-Steiger Occupational Safety and Health Act of 1970," when received in July, 1970. These records were up to date at the time of inspection and contained reports of accidents occurring before the fatal accident on September 2, 1971.

On September 2, 1971, a little before 9 o'clock in the morning, an employee truck driver of Respondent, James G. Woodall, delivered a load of logs to the White Sands logging yard at Alamogordo, New Mexico. After weighing in, he apparently loosened all three wrappers and binders on the load and as a result, one log fell off, striking him fatally. His hard hat was found after the accident between the seats in the cab of the truck (Tr. 20-21).

The unloading of the logs at the yard is conducted by White Sands under the supervision of Wayne Rusk, Assistant Manager of White Sands, and is that company's primary responsibility (Tr. 123, 59, 37).

The operator of the Waggoner log handling machine on September 2, 1971 was Ernest Pettillo, a White Sands employee. That morning, he had just taken a load of logs to the mill; saw the truck of Respondent as it weighed in, and was on his way to unload it when he saw Mr. Woodall lying beside the truck near the back. He observed that all three "binders" had been "broken" (Tr. 42-43).

Mr. Pettillo testified that on September 1, 1971, the day before the fatality, Mr. Woodall also had loosened the binders prematurely and had been advised by Mr. Pettillo of the danger and that Mr. Woodall was to leave "at least one (1) wrapper on the load." Also, from May of 1971 until the accident, Mr. Pettillo had observed Mr. Woodall's tendency to stand too close to the logs while unloading them (Tr. 48). It was the further testimony of Mr. Pettillo that seven of the eight drivers of Respondent made a regular practice of breaking the wrappers before Mr. Pettillo got there with his unloader (Tr. 48-49).

Mr. Pettillo further testified that it was only after the accident on September 2, 1971 that he was under orders from White Sands to drive off and not unload a truck if the banks on the load were broken (Tr. 49). He never reported to his employer, White Sands, or the Ira Holliday Logging Co. that latter's employees were breaking their bands prematurely (Tr. 51).

According to Wayne Rusk, Assistant Manager of White Sands, he personally recalls only one instance (September 2, 1971) when an employee of Respondent released trucks without assistance of Waggoner log handling machine (Tr. 54). He claimed that it was not the policy of his company to unload logs in a situation where binders had been broken, but "understood" it had been done (Tr. 57, 59, 60).

Mr. Stephens, the Sales Manager of White Sands Co. related that normal procedure of unloading logs at the White Sands Co. was as that depicted in Secretary's Exhibit 4 (Tr. 34-35).

Mr. Bellon, Respondent's foreman, testified that the policy of Respondent with respect to unloading of logs was to pull the load into the mill yard, wait for unloading machine to place forks around load, securely binding it, and then get log unloading operator's attention before tripping the binders (Tr. 13-14).

At the time drivers are employed by the Respondent, formalized safety instructions are given them. In addition, written reminders concerning safety policy were placed upon the bulletin board at Respondent's garage shop and at the weigh scales at White Sands mill yard (Tr. 15, 23-25).

Mr. Bellon, who is charged with the supervision of Respondent's drivers, stated he has, on occasion, gone down to White Sands mill yard, parked at the weigh shop and watched the unloading operation. At no time has he seen anything against the rules (Tr. 15-16).

Ira Holliday, Respondent's President, testified he personally hired James Woodall along with 5 other drivers for the Alamogordo operation, issued them hard hats, and explained to them the hazard of unloading logs. He told them there were three rules which would result in automatic dismissal, if broken: no drinking alcohol on job, wear hard hats, and don't loosen binders until loading machine was secured against the load (Tr. 129-130). It is his practice to visit the Alamogordo operations every week to 10 days and he has never received any reports concerning the unsafe conduct of employees while unloading trucks with the exception of one report from Foreman Bellon regarding failure of an employee to wear a hard hat (Tr. 127, 131). According to President Holliday, he has his employees checked with respect to "speed, courtesy and such as that" during the period driver is on road, traveling from logging area to mill (Tr. 131).

A letter from Robert A. Charles, Safety Representative, State Compensation Fund, Northern District Office, Flagstaff, Arizona, was introduced by Respondent (Respondent's Exhibit No. 1). According to Mr. Charles, it was the practice of Respondent's truck drivers prior to June, 1971, to release one of the two load binders after the truck halted in the mill yard and before the log loads were secured by the unloading device. After issuance of OSHA standards, however, the firm's policy was changed to comply with section 1910.265 and it was well known by the drivers that anyone "caught" removing the binders would be terminated. Since June of 1971, Mr. Charles has not witnessed drivers releasing either of two binders and, between April and November, 1971, he made 9 calls of an investigative nature at Respondent's various job locations. According to Mr. Charles, he has never uncovered an intentional violation of a safety regulation or standard and expresses the opinion that Respondent is "doing everything possible to insure the well-being of their employees."

III. THE PROPOSED PENALTIES

Both Officer Evans and Area Director Simmons testified how the Secretary's penalties were determined (Tr. 73-75, 100-110). The unadjusted penalty for the alleged "serious" violation was $1,000.00, which was then adjusted downward to $650.00 by granting a 10% reduction of "good faith," 5% for "size," and 20% for "past history." With respect to items No. 1 and 2 of citation 2, the unadjusted proposed penalties were $40.00 and $60.00, respectively. Reduction factors reduced these figures to $13.00 for item 1 and $19.00 for item 2. No penalties were proposed by the Secretary for items 3, 4, 5, and 6 of citation No. 2.

IV. DISCUSSION

A. As To Applicability

The Respondent, at the hearing and in its brief, stresses that the Secretary's regulations appearing under the section entitled, "Sawmills," at 1910.265 et seq. are not applicable to the Respondent because that section applies exclusively to "sawmill operations" and Respondent is engaged solely in logging operations. Therefore, according to Respondent's argument, it cannot be charged with the violation of safety and health regulations promulgated for the sawmill industry.

The Secretary rejoins first, that Respondent is an employer engaged in sawmill operations, at least to the extent that its employees took part in the log unloading procedure and, secondly, that 29 CFR 1910.265's applicability depends on the nature of the employer's activity rather than the nature of the employer's business.

The manifest objective of the Act, of course, is to protect all places of employment by requiring employers to comply with the appropriate safety standards prescribed for the particular work activities engaged in by their business. Thus, the test of a safety standard's applicability is whether an employer's business encompasses the activity to which the standard's provisions relate.

The declared purpose of section 1910.265 et seq. is to establish safety requirements for sawmill operations, including log handling at a sawmill site, and 1910.265(d)(1)(i)(b) expressly relates to log unloading methods. The Respondent, in this case, is primarily engaged in the logging business but its operation also requires that certain of its employees participate in the unloading of logs at the White Sands' yard. Therefore, the Respondent clearly is obliged to comply with 1910.265(d)(1)(i)(b).

In support of its "applicability" argument, Respondent emphasizes that the "contract" responsibility and "jurisdiction" for unloading logs belongs to White Sands. That may be true, but that fact is made irrelevant to the determination of the applicability of the standard in question because the job duties of Respondent's employee drivers included releasing the binders, the very work activity covered by 1920.265(d)(1)(i)(b).

B. As To Violations

Substantial evidence was introduced by the Secretary to support a finding that a violation of 1910.265(d)(1)(i)(b) was committed on September 2, 1971 by Respondent's driver. Does this same evidence, however, require a finding that Respondent also was in violation of the same safety standard? In this Judge's view, it does.

Respondent, essentially, argues that because the violation resulted from an employee's actions, executed without the knowledge of the Respondent and contrary to Respondent's express instructions, it cannot be held accountable. Respondent further contends that because White Sands was in charge of the log unloading operation and had "control" of the actions of Respondent's employee, Respondent is relieved of the responsibility for the said violation.

Section 5(a)(2) of the Act provides that each covered employer "shall comply with the Occupational Safety and Health standards promulgated under this Act" and section 29 CFR 1910.265(d)(1)(i)(b) was duly promulgated by the Secretary on May 29, 1971, with an effective date of August 27, 1971. The prescribed duty of this standard, to refrain from releasing binders prematurely, is mandatory and applies equally to employers and employees engaged in log unloading activities. The situation here in unlike that of the case of General Tire and Rubber Company of Akron, Ohio, cited by the Respondent, where compliance required affirmative employer action which was performed but then negated by an employee's conduct, unbeknown to the employer. n1 Under those circumstances, it would be unreasonable to cite an employer unless he knew, or could have known with the exercise of reasonable diligence of the employee's conduct.

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n1 See reference at pg. 673 of Occupational Safety & Health Reporter (Current Report, Number 34, December 23, 1971).

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To comply with standard here, however, the Respondent employer need not act, only avoid the proscribed conduct of releasing the binders prematurely and this duty is absolute, nondelegable, and continuing. To hold that Respondent could delegate or contract away this duty which is clearly enjoined upon it would nullify the effectiveness of the particular safety standard and defeat the manifest legislative intent of the Act.

When an employer is under a statutory duty and then entrusts its performance to an employee, he becomes responsible for the failure of that employee to comply with the law; see Pirtle's Adm'x. v. Hargis Bank and Trust Co. et al., 44 S.W. (2d) 541, where it was held that an agent's disregard or violation of a statutory duty in discharging an act for his principal renders both principal and agent liable. n2 The underlying purpose of such a rule, of course, is to achieve more effective control of the acts of an employee in the interest of public policy by imputing the employee's acts to his creator and imposing penalties on the latter.

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n2 Under this Act, there is no provision to cite and impose penalties on the employee.

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The Courts have long held that a principal is not only liable for the acts which he has directed his agent to commit, but also for all other acts committed by his agent while acting within the scope of his authority. n3

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n3 See 3 C.J.S. Agency, sections 254, 255 and the cases cited thereunder.

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The corporate Respondent here delegated its task of releasing log binders to its truck drivers, thereby making them his agents to comply with the safety standard relating to their release. Thereafter, whatever action Respondent's agents took in furtherance of carrying out this work assignment, even action resulting in a violation of law, must be deemed to have been done within the scope of their employment and must be imputed to the Respondent. Moreover, the operation of this well-established principle of the Law of Agency is not affected by the fact that an employee may have acted contrary to instructions. As the court stated in Dalrymple v. Covey Motor Car Co., 135 P. 91, at 93, ". . . while the servant is pursuing his line of duty within the scope of his employment, even if he violates express orders, a deviation therefrom is not an abandonment of the masters service." See also, McCouley v. Ray, 453 P.2d 192, where it was held that an employer is liable even for the intentional torts of an employee if committed in the course of, and scope of employment.

The testimony of Respondent's president and foreman, and Respondent's Exhibit 1 tend to refute Respondent's argument that it had relinquished "control" over its employees' actions in regard to the releasing of the load binders in White Sands' yard. But even assuming that this relinquishment of control had taken place, an employer can not, as previously pointed out, relieve himself of his statutory duty to comply by delegating it to another. The duty here belonged to the Respondent, whose employee had the task of releasing the binders. This, of course, is not to say that White Sands was without an obligation to comply with the safety standard in question, but White Sands is not the Respondent in this case.

Obviously, the premature releasing of binders on a log load, as depicted in Secretary's Exhibit 1, presents a substantial probability that serious physical injury, even death, could result. Respondent's driver had been instructed not to release the binders until the load was secured, not only by the White Sands' unloader operator, but also by Respondent's president and foreman, and thus, on September 2, 1971, it is reasonable to infer that he knew he was engaging in prohibited conduct. Just as the driver's actions must be imputed to the Respondent, so must his knowledge be imputed. Furthermore, the Respondent was aware that it had been the unsafe practice of its drivers prior to the adoption of the standard to release all but one of the binders (Respondent's Exhibit 1). n4 While we are told Respondent adopted a new policy in accordance with 1910.265(d)(1)(i)(b) after June 1, 1971, this past history should have dictated that Respondent take stronger supervisory measures rather than continue to rely on ineffectual written reminders or oral instructions to correct an established unsafe practice. Under all of these circumstances, the violation committed September 2, 1971 is deemed "serious."

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n4 It should be noted that even the White Sands' operator was under the mistaken belief, as late as September 1, 1971, that release of all but one binder is permissible conduct (Tr. 46).

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The other violation, however, by Respondent's driver on September 2, 1971, namely, 1910.132(a) (item 2 of citation 2) presents a situation similar to that of the General Tire and Rubber Company case. The evidence of record establishes that hard hats were provided by the Respondent to its truck drivers as required by the standard and they were instructed to use them on penalty of dismissal. There is no indication that Respondent's employee had made a practice of not wearing his hat which was known to Respondent's supervisory personnel or any other evidence from which Respondent's knowledge reasonably could be presumed. Therefore, no violation of 1910.132(a) by Respondent is found. In situations where the regulation cited for violation is designed to protect the employees whose very conduct causes the violation, the employer should not be held liable unless he knew of the presence of the violation, or his affirmative conduct or inaction contributed to its commission.

On the basis of Respondent's admission of the factual averments of item 1 of citation 2, a violation of 1910.314(d)(4)(iii)(c) is sustained.

While recognizing that the Compliance Officer appeared to give insufficient consideration to the nature of the garage operation in determining the existence of a housekeeping violation, the fact remains that his undisputed testimony concerning the clogged and partially blocked aisles of the shop and storeroom requires a finding that Respondent violated 1910.22(a) on October 7, 1971.

Item 4 of citation No. 2 alleges that Respondent failed to post the official poster at the Alamogordo garage, thereby violating 1903.3. The evidence reflects, however, that Respondent did display, at its headquarters at Eager, Arizona, the one poster furnished by the U.S. Department of Labor. While section 1903.2 provides that when an employer's activities are physically dispersed, separate notices are to be posted at the various locations to which employees report each day, it also provides that those separate notices shall be posted in each location "to the extent that such notices have been furnished by the Occupational Safety and Health Administration, U.S. Department of Labor." Until they are furnished by the Department of Labor, the mandatory requirement to "post and keep posted" is not considered operative.

The same result, however, does not extend to Respondent's admitted failure to maintain records of occupational injuries and illnesses on Forms OSHA 100 and 101, or the equivalent, at the Alamogordo garage location. Sections 1904.2 and 1904.4 require that separate records be maintained in "each establishment" for "that establishment." This was not done here and Respondent, therefore, must be held in violation of these sections.

C. As To Penalty

All four factors prescribed under section 17(j) of the Act, the size of the Respondent's business, the gravity of the violations, the good faith of the employer, and history of previous violations under the Act have been considered. The Respondent, a family corporation, admittedly is the largest logging operation company in the southwestern area of the United States with no previous violations under the Act. The good faith of the Respondent is reflected in the statements of Mr. Charles (Respondent's Exhibit 1) which indicate that Respondent, in the past two years, has made great strides in improving its safety record. However, as previously pointed out, Respondent was on notice of an unsafe practice engaged in by its drivers and more stringent supervisory controls by Respondent might have prevented the tragic accident in this case. In view of the foregoing, the Secretary's proposed penalties of $650.00 for the serious violation of citation No. 1, $13.00 for item 1 of citation No. 2, and no penalties for items 3, 4, 5, and 6, are considered appropriate.

CONCLUSIONS OF LAW

1. On September 2, 1971 and October 7, 1971, the Respondent was an employer engaged in a business affecting commerce within the meaning of section 3 of the Act and jurisdiction of the proceeding is conferred on the Commission by section 10(c) of the Act.

2. Respondent, on September 2, 1971, was in violation of 29 CFR 1910.265(d)(1)(i)(b).

3. Respondent, on October 7, 1971, was in violation of 29 CFR 1910.314(d)(4)(iii)(c), 29 CFR 1910.22(a), and 29 CFR 1910.2 and 1904.4.

4. Respondent, on September 2, 1971, was not in violation of 29 CFR 1910.132(a).

5. Respondent, on October 7, 1971, was not in violation of 29 CFR 1903.2.

ORDER

Based on the foregoing findings, conclusions of law, and the entire record, it is ORDERED, that

1. Citation number 1, issued November 17, 1971, and the proposed penalty of $650.00 based thereon, are hereby AFFIRMED.

2. Items number 1, 3, 5, and 6 of citation number 2, issued November 7, 1971 are hereby AFFIRMED.

3. A penalty of $13.00 for item 1 and no penalties for items number 3, 5, and 6 are hereby ASSESSED.

4. Items numbered 2 and 4, and the proposed penalties based thereon, are hereby VACATED.