STANDARD GLASS COMPANY, INC.  

OSHRC Docket No. 259

Occupational Safety and Health Review Commission

July 27, 1972

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Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: MORAN

OPINION:

  MORAN, CHAIRMAN: On June 26, 1972, Review Commission Judge John S. Patton issued his report in this case.   Pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act), I hereby direct review of the same and herewith set forth the decision of the Commission.

The Commission affirms the findings of fact, conclusions of law and decision of the Judge as more fully discussed in the following paragraphs.

This case was initiated by a citation and notification of proposed penalty served by the Secretary of Labor on the respondent on November 17, 1971.   This action was duly contested by the latter within the statutory period provided therefor.   The citation alleged a violation of section 5(a)(2) of the Act in that the respondent failed to comply with an occupational safety standard promulgated by the Secretary by publication in the Federal Register on April 17, 1971 (29 C.F.R. 1518.100(a)). n1

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n1 Redesignated 29 C.F.R. 1926.100(a) at 37 F.R. 3512, February 17, 1972.

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That standard provides as follows:

Employees working in areas where there is a danger of head injury from impact, or from falling or flying objects, or from electrical shock or burns, shall be protected by protective helmets.

  The facts adduced at the hearing disclosed as follows: On October 18, 1971, the respondent was engaged in the business of distribution and installation of flat glass products.   It was installing certain glass upon the 18 story Michigan Bell Telephone Building which was being constructed at a site in Detroit, Michigan.   The construction project was approximately 50% to 60% complete and most of the work was being done on the 13th to 18th floors.   (Tr. 11) On that date a compliance officer of the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) conducted an inspection of the said workplace of the respondent pursuant to the Act.   During the course of that inspection he observed two parked vehicles marked with the name Standard Glass Company within an area in which the wearing of protective helmets was required.   Two employees of the respondent [*3]   emerged from the said vehicles (one from each of the two vehicles) without any type of protective head gear and engaged in a short conversation, also in the area where "hard hats" were required.   One walked back and forth across the said "hard hat" area, a distance of 75 to 100 feet.   The two then re-entered their vehicles and the compliance officer saw one drive away.   Their presence in this area lasted less than five minutes. These facts constitute the Secretary's case.

It is clear from the foregoing that the respondent's employees had failed to wear hard hats as required by the standard cited above.

From other evidence, Judge Patton found that this practice was not common; that respondent required as a company rule that hard hats be worn long before the Act was passed and that respondent enforced this rule; that hard hats were furnished by the respondent for everyone who went into the construction area and   extra hard hats were provided for any office personnel who might have occasion to go into said area; that respondent instructed its employees to wear the hard hats in the said area; that employees could expect reprimand if the instructions of respondent that hard [*4]   hats be worn were violated; that respondent made an earnest effort to assure that the hard hats would be worn; and that respondent did not have knowledge of the incident relied upon by the Secretary of Labor to establish a violation of the standard requiring the wearing of protective helmets at the time the same occurred.

On the basis of the above facts, the Commission finds that the respondent did not violate section 5(a)(2) of the Act as alleged by the Secretary.

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.   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 by the employer.

Judge Patton's order dismissing the citation issued by the Secretary against the respondent is affirmed.

[The Judge's decision referred to herein follows]

PATTON, JUDGE, OSAHRC: This case is on the complaint of James D. Hodgson, Secretary [*5]   of Labor, United States Department of Labor, hereinafter referred to as plaintiff, against Standard Glass Company,   Inc., hereinafter referred to as respondent, alleging that respondent violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (80 Stat. 1604; 29 U.S.C. 651, et seq. ) hereinafter called the Act and Occupational Safety and Health Standard 29 C.F.R. 1518.100(a).   It is alleged that a non-serious violation occurred in that on October 18, 1971, two employees were working without protective helmets in an area where there was hazard of head injury from impact, or from falling or flying objects.

Citation was issued by the Secretary of Labor alleging said violation and a penalty in the amount of $30 was proposed.   The respondent filed a Notice of Contest to said citation whereupon the aforesaid complaint was filed by plaintiff.   Hearing was held before John S. Patton, Judge on April 18, 1972, at Detroit, Michigan.   Mr. Allen H. Bean, Attorney, represented the plaintiff.   The respondent was not represented by counsel but was represented at the hearing by Mr. William F. Spratt, General Manager of the respondent.   Local Union 247, International Brotherhood [*6]   of Teamsters which union represents respondent's truck drivers intervened at the hearing.   Mr. Walter Sacharczyk, business agent of the union represented said intervenor at the hearing.   The parties were accorded the right to orally argue the case and to file briefs and proposed findings of fact and conclusions of law. Plaintiff and respondent orally argued the case and plaintiff filed proposed findings of fact and conclusions of law. No briefs have been received.

LAW AND ISSUES OF THE CASE

Section 1518.100(a) of said standards is as follows:

Employees working in areas where there is a danger of head injury from impact, or from falling or flying objects, or from   electrical shock or burns, shall be protected by protective helmets.

The issue for decision is, therefore, whether employees of respondent worked without protective helmets in areas in which injury could result from the causes set forth in the standard.   If employees did fail to wear such helmets in such areas, the issue arises as to whether such action constitutes a violation by respondent of said standard.   If a violation is found to have occurred, decision must be made as to whether a penalty should be assessed [*7]   and if so, in what amount.

EVIDENCE IN THE CASE

Respondent admits that it is a Michigan corporation, maintaining a place of business in Detroit, Michigan, where it is engaged in the distribution and installation of flat glass products.   By reason of respondent's direct and indirect receipt of goods originating outside the State of Michigan and its regular use of the channels of interstate communication, the respondent is engaged in a business affecting commerce within the meaning of section 3(5) of the Act.

On October 18, 1971, respondent was engaged in construction of the Michigan Bell Telephone Building at 440 Michigan Avenue, Detroit, Michigan.   Mr. Lindsay Hayes, Compliance Officer of plaintiff testified that when he inspected said project on said date it was 50 to 60 percent complete.   It is an eighteen story building.   Most of the construction was being done on the 13th to 18th floors.

Mr. Hayes testified that on said date he observed two men sitting in a truck of respondent at the crane pick-up point on said project.   Another employee was sitting in a truck on the east side of the building some distance   away.   Said latter employee got out of the truck, walked   [*8]   75 to 100 feet across the work site and was met by the driver of the truck parked under the crane pick-up area.   Mr. Hayes testified he knew they were employees of respondent because they were in vehicles marked with Standard Glass Company markings on the doors.   Neither of said employees were wearing any type of head protection.   They engaged in a very short conversation and one of said employees walked back across the site, got back in the vehicle and drove away.   The other employee returned to his vehicle.

The site was known as a hard-hat area.   The trucks were parked within the work site. It was normal for trucks to be so parked for unloading.

Mr. William F. Spratt, General Manager of respondent, testified that the respondent was installing exterior glass on said project.   Delivery of glass is by an independent company.   The respondent does have some trucks for the collecting of rubbish and empty crates.   When they come to the work site they leave within 15 minutes.

He testified that long before enactment of the Occupational Safety and Health Act the respondent issued instructions that hard hats were to be worn at all times.   The respondent purchased hard hats for all employees [*9]   who would be in the construction area.   They also have extra hats for office personnel to wear if they go into the construction area.

Upon hearing that an inspection had been made and a citation would issue, he went to the construction site. At that time he found hard hats being worn by everyone.   All employees denied to Mr. Spratt that they had failed to wear such hats on the day of inspection.

After the inspection respondent announced that the first time an employee is caught without a hard hat he   will be reprimanded; the second time he will be discharged.   He testified that even before the inspection an employee would have expected a reprimand for not wearing a hard hat.

Mr. Walter Sacharczyk, business representative of the intervening union, stated that the union also insists that hard hats be worn.

EVALUATION OF THE EVIDENCE

It appears from the evidence that two employees of respondent, for a very few minutes, failed to wear hard hats as required by the standard.   As above noted, the compliance officer of plaintiff saw two persons leave their trucks without such hats and engage in a brief conversation. I am of the opinion the men in question were employees of [*10]   respondent.   They got out of trucks which had the respondent's name on the side and one of the men drove away in one of said trucks. From these facts it may safely be assumed said men were employees of respondent.   I, therefore, find that respondent's employees failed to wear hard hats as required by the standard.

It does not necessarily follow however, that respondent should be found in violation of the standard.   Respondent required hard hats to be worn long before the Act was passed.   Hard hats were furnished for everyone who went into the construction area and extra hats were provided for any office personnel who might have occasion to go into said area.   The employees could expect a reprimand if the instructions of respondent that hard hats be worn were violated.   It therefore appears that respondent provided hard hats, instructed that they be worn and made an earnest effort to assure that they were worn.

It is true that a company rule that was not enforced   would not be a defense.   However, this rule was enforced.   Had there been repeated violations of the respondent's rule this Judge would perhaps hold that the citation should be sustained.   The rule also might   [*11]   not be a defense if the employees had failed to wear the hats in the construction area for a sufficient length of time that respondent should have discovered that its rule was being violated.

The evidence, however, shows only one occasion on which employees did not wear hard hats and this violation of the respondent's rule probably did not last over five minutes. The evidence is to the effect that the employees got out of their trucks, said a few words and got back in their trucks. Of course, employees should not go without hard hats for even a minute or two in areas of danger.   It would seem unreasonable however, to hold that respondent should have had knowledge of this occurrence.   There is no evidence that any supervisor was present or that respondent had knowledge of the violation of its rule or by the exercise of reasonable care could have had knowledge.   Respondent has apparently made every effort to comply with the standard.   Respondent was unable to find out who said employees were and, therefore, was unable to take disciplinary action.   I feel that respondent cannot be held responsible for this isolated, brief and to respondent unknown, violation of its rules.   I am of   [*12]   the opinion that the citation has not been sustained.   I, therefore, make the following findings of fact.

FINDINGS OF FACT

1.   Respondent is a Michigan corporation, maintaining a place of business in Detroit, Michigan, where it is engaged in the distribution and installation of flat glass products.

  2.   Respondent, by reason of direct and indirect receipt of goods originating outside the State of Michigan and its regular use of the channels of interstate communication is engaged in a business affecting interstate commerce.

3.   Local Union 247, International Brotherhood of Teamsters, intervenor, is a labor organization representing truck drivers employed by respondent.

4.   Respondent on October 18, 1971, was engaged in installing exterior glass on a building being constructed known as Michigan Bell Telephone Building at Detroit, Michigan.

5.   Respondent had a rule which it enforced requiring all employees in the construction area to wear protective helmets.

6.   On October 18, 1971, two employees of respondent were, for a few minutes, in said construction area without protective helmets on their heads.

7.   Respondent did not have knowledge of said employees violating [*13]   its rule requiring the wearing of protective helmets and was not responsible for said failure to wear said protective helmets.

CONCLUSIONS OF LAW

1.   Respondent is engaged in a business which affects interstate commerce and therefore, is subject to the Occupational Safety and Health Act.

2.   Respondent is not in violation of Section 5(a)(2) of the Occupational Safety and Health Act or of Occupational Safety and Health Standard 29 CFR 1518.100(a).

ORDER

IT IS THEREFORE ORDERED, That the citation issued against respondent in this cause be and the same hereby is dismissed.