EICHLEAY CORPORATION
OSHRC Docket No. 2610
Occupational Safety and Health Review Commission
February 20, 1975
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners.
OPINIONBY: CLEARY
OPINION:
CLEARY, COMMISSIONER: On October 16, 1973, Judge James D. Burroughs issued his decision in this case. Pursuant to the authority of section 12(j) of the Occupational Safety and Health Act of 1970 (hereinafter "the Act"), review of the case was directed.
We have reviewed the entire record, including the briefs of the parties. We find no prejudicial error in the Judge's decision and it is therefore affirmed.
We specifically approve the Judge's determination that the standard at 29 CFR § 1926.28(a) is reasonable, definite, and enforceable. His conclusion is consistent with recent Commission decisions in Hoffman Constr. Co., No. 644 (January 31, 1975) and Carpenter Rigging & Contracting Corp., No. 1399 (February 4, 1975). n1
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n1 At the time of Hoffman and Carpenter Rigging, section 1926.28(a) read as follows:
§ 1926.28 personal protective equipment. (a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions and where this part indicates the need for using such equipment to reduce the hazards to the employees (emphasis added).
On December 16, 1972, before the inspection in this case, the section was amended by substituting the word "or" for the emphasized word "and." 37 FR 27510 (1972). The preamble to the amendment stated that no substantive changes were made. Accordingly, the word "or" should receive the same reading as the initial word "and." That reading is set forth in Hoffman and Carpenter Rigging.
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We also note that the Judge, in imputing the foreman's knowledge to respondent, decided this question consistent with our decision in Floyd Pike, Inc., No. 3069 (January 30, 1975), and Peco Steel Arizona, No. 1930 (January 22, 1975).
Accordingly, it is ORDERED that the decision of the Judge is affirmed in all respects.
DISSENTBY: MORAN
DISSENT:
MORAN, CHAIRMAN, dissenting: It is my belief that imputation of a foreman's knowledge to an employer is improper when the foreman's conduct was not foreseeable or preventable. As the court said in National Realty and Construction Co., Inc., v. OSAHRC, 489 F.2d 1257 (D.C. Cir., 1973), "Congress intended to require elimination only of preventable hazards." Since the record in this case demonstrates that the conduct of respondent's foreman could not be foreseen or prevented, I would vacate the citation.
There was no dispute about the facts of this case. Respondent was engaged in the erection of a gas precipitator at a coal burning power generating plant in Burgen, Kentucky. The precipitator and gas ducts were located on the side and top of the building. The [*3] duct work of the precipitator runs a vertical distance of approximately 50 feet, turns in elbow fashion and runs in a horizontal direction. There are four bays, each approximately 5 1/2 feet in width, in the vertical duct.
Standard 2" X 12" boards had been placed in the bays of the vertical duct approximately three feet below the horizontal duct to permit welding in the vertical duct. The boards were supported by a pipe truss which runs diagonally across the duct and on both ends by angle iron clips welded to the inside of the duct. A pipe truss along the right side of the duct also helped secure the right end of the boards.
After the welding had been completed, two employees of the respondent, Masters, a boilermaker foreman, and Horrine, set about the task of removing the boards. The procedure they used to remove the boards involved stepping down from the horizontal duct onto the board in the vertical duct. One foot was placed on a pipe truss and the other on a dividing plate that bisected each bay. The boards were then passed up to the other worker who was in the horizontal duct. Five boards were removed by Horrine in this manner. The workers then switched positions, and [*4] Masters proceeded to remove the sixth. In the process of removing this board, Masters fell 50 feet to his death. Horrine did not observe what caused Masters to fall.
As a result of an inspection following the accident, respondent was charged with a violation of 29 U.S.C. § 654(a)(2) based upon an alleged failure to provide and require the use of safety belts and lifelines as specified in 29 C.F.R. § 1926.28(a). Horrine could provide no explanation why he and Masters failed to use a safety belt and lifeline while performing this task. Safety belts were provided to all employees and they were readily accessible at the jobsite. Horrine and Masters were aware that removing the boards was a hzardous task, and had talked about the hazardous nature of the job prior to removing the boards. Horrine testified further that he had worn a safety belt, without exception, when performing jobs of equivalent danger.
Respondent's superintendent, who had supervised Masters for a six-month period, regarded him as an excellent and a safety-conscious worker. Masters had demonstrated safe work practices in the past when observed by the superintendent. He had long experience in his craft, [*5] 29 years as a boilermaker. The superintendent was unaware of any previous occasion in which Masters had not followed safe work practices.
At the time the accident occurred, there were 10 men at the worksite under the direction of the superintendent, seven of whom were boilermakers for whom Masters was foreman. The work area inside the duct where the accident occurred was isolated and not visible to the superintendent from the ground. Employees standing on the boards to weld inside the ducts had been observed wearing safety belts and lifelines by the superintendent.
Safety meetings at which attendance was required were held weekly for respondent's employees at the construction site. Employees had been told that safety belts and lifelines were to be used when warranted. The worksite was also periodically inspected by respondent's safety director, as well as by its insurance company.
Based on these facts, Judge Burroughs found that respondent did not comply with the requirements of § 1926.28(a) because respondent's boilermaker foreman (Masters) was aware of the violation of this standard by an employee under his direction (Horrine) and the knowledge of the foreman must be attributed [*6] to the respondent. This ruling has now been adopted by the Commission. n2 In reaching his decision, the Judge took cognizance of previous Commission ruling that an employer is not responsible for unforeseeable violations of a standard by an employee when the employer has made reasonable efforts to enforce compliance with a standard. n3 He noted that in view of these cases, all of which involved violations by nonsupervisory employees, a decision for respondent would be an easy matter if Masters had not been a foreman. He concluded, nevertheless, that since Masters had been placed in his position of responsibility by respondent, respondent must be charged with knowledge of the violation and power to prevent it.
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n2 The Judge also ruled that § 1926.28(a) was sufficiently definite to apprise respondent of what it requires. Since the work being done was so obviously hazardous and because respondent recognized that safety belts were appropriate protection for this work, I do not disagree with the Judge's conclusion on the facts of this case. However, because of the broad coverage of this standard, we should assess with care the adequacy of the notice it provides on the facts of each case to determine if, as applied, it provides sufficient warning of what it requires or prohibits. "Obviously an employer cannot be penalized for . . . a condition which the citation did not fairly characterize." National Realty case, supra.
n3 Secretary v. Standard Glass Co., Inc., 1 OSAHRC 594 (1972); Secretary v. Ira Holliday Logging Co., Inc., 2 OSAHRC 1415 (1973); Secretary v. Hansen Brothers Logging, 1 OSAHRC 869 (1972).
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The adoption of this per se rule, attributing to an employer the knowledge and conduct of a supervisor, is inappropriate because it does not advance the purposes of this Act. The stated Congressional purpose in enacting the Occupational Safety and Health Act was "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . ." 29 U.S.C. § 651(b). (Emphasis added.) It is axiomatic that the only possible extent to which workplace injuries can be reduced is the extend to which the conditions or conduct which cause them can be foreseen. Noncompliance with a safety standard by a supervisor is not foreseeable when an employer has taken all steps reasonably necessary to ensure compliance by its supervisory personnel and when the supervisor's conduct is a deviation from his usual practice and established rules at the worksite. n4
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n4 The factors that have a bearing on whether a violation by a supervisor is foreseeable are whether his experience and work habits are concomitant with the responsibility he has been given. Delegating responsibility to a supervisor who is too inexperienced to appreciate the hazards to which the workers he is directing may be exposed, should not exonerate such an employer from the errors in judgment which that supervisor makes. Likewise, delegating such responsibility to a supervisor who is known to be careless or heedless should not provide an escape from liability.
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The Commission, by adopting a rule at per se attribution to an employer of a supervisor's knowledge, is fixing liability for violations of the Act by applying common law principles of vicarious liability in master-servant relationships. The application of common law theories to the problems with which we are presented is proper only when those theories coincide with the purposes of this Act. Since the rationale for vicarious liability is unrelated to the objectives which this Act seeks to achieve, the Commission's adoption of this principle is improper. In this connection see Buckley & Co., Inc., v. Secretary of Labor, 507 F.2d 78 (3d Cir., 1975), where this Commission's attempt to apply the common law rules of agency to the service requirements of this Act was overturned because it "would frustrate one of the principal purposes of the Act -- abatement of hazardous conditions."
The modern justification for vicarious liability is that it is a deliberate means to allocate risks between an injured innocent plaintiff and an employer who is better able to absorb these losses, and protect [*9] himself against them through insurance or by passing them along to the public as a cost of doing business. n5 It is basically a device to insure that injuries will be compensated. These considerations obviously play no role in this law. This Act has no concern with deciding which of the parties to job safety litigation, the Secretary of Labor or the employer, can best bear the burdens of a monetary penalty. The only justification for the penalties that are imposed for violations of this Act is (a) to encourage employers who have been derelict in their statutory duties to comply with the obligations imposed on them by the Act and (b) to deter potential violators. The imposition of penalties on an employer when misconduct by a supervisor could not have been foreseen, makes the employer absolutely liable. The circuit courts have uniformly concurred that the Act does not impose absolute liability on employers. See National Realty and Construction Company, Inc., supra; REA Express, Inc., v. Brennan, 495 F.2d 822 (2d Cir., 1974); Brennan v. OSAHRC and Hanovia Lamp Division, Canrad Precision Industries, 502 F.2d 946 (3rd Cir. 1974).
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n5 See Prosser, Law of Torts, p. 459, 4th Ed. 1971. Professor Prosser further states that "added to this [rationale] is the makeweight argument that an employer who is held strictly liable is under the greatest incentive to be careful in the selection, instruction, and supervision of his servants, and to take every precaution to see that the enterprise is conducted safely." See also, Douglas, Vicarious Liability & Administration of Risk, 1929, 38 Yale L.J. 584, 720.
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The Judge's opinion correctly states two propositions: that the Act would be meaningless if an employer could escape the actions of its supervisory employees by merely stating that its top management had no knowledge of their actions and that while employees have the duty to comply with standards, final responsibility to assure compliance remains with the employer. n6 These rules are not dispositive in this case, however.
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n6 29 U.S.C. § 654(b); see also S. Rep. No. 91-1282, 91st Cong., 2d Sess., 11 (1970).
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The record in this case shows that respondent has done much more than state that he was blind to the transgression of his supervisor. Respondent made comprehensive efforts to insure the safety of its workers: safety belts were provided and instructions given to use them when warranted, weekly safety meetings were held at which attendance was required, inspections of the worksite were conducted by both respondent's safety director and its insurer. The employee to whom respondent had entrusted supervisory responsibilities demonstrated that he was experienced in his craft and safety conscious. He had never shown a disregard for safety. This tragedy, which occurred when he departed from this consistent pattern of safety consciousness, was thus not foreseeable by respondent and should not be a basis for its liability. One might well ask the Commission this question: "What else should this respondent have done to avoid conviction?" No answer appears in the opinion nor does the opinion take up the rule of the National Realty case, supra, that "To assure that citations issue only upon careful deliberation, [*12] the Secretary must be constrained to specify the particular steps a cited employer should have taken to avoid citation, and to demonstrate the feasibility and likely utility of those measures."
There is one additional reason why I disagree with the affirmance of the Judge's decision. By construing the standard at issue to apply to unforeseeable occurrences of employee misconduct, it fails to meet the statutory definition of a standard. An occupational safety and health standard is defined in 29 U.S.C. § 652(8) as a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment. The words conditions, practices, means, methods, operations, and processes all imply that only ongoing conduct and procedures in existence at a workplace are properly covered by standards. Employee misconduct, that departs from the usual practice at a worksite, thus is not an appropriate basis for finding noncompliance with a job safety standard.
The record in this case establishes that the wearing of safety belts in dangerous situations [*13] was a practice in force at respondent's worksite that was encouraged both by a comprehensive safety program and by entrusting supervisory responsibility to an employee who adhered to and enforced that practice. The record thus establishes that the respondent complied with the practices which the standard requires.
Moreover, unless there is an existing practice in force that endangers the health and safety of workers, it cannot be abated. Hazards created by employee misconduct cannot be totally eliminated from the workplace. National Realty and Construction Company, Inc., supra. Reckless or heedless acts by an individual employee can circumvent the best possible efforts of an employer. Thus, while a practice of not wearing safety belts at a worksite is subject to abatement by instructions, warnings, reprimands, and care in the selection of supervisors, unpreventable and unforeseeable safety infractions are not subject to abatement.
The record is barren as to what complainant believed that this respondent should have done to prevent this accident. I am consequently at a loss to ascertain what demonstrably feasible additional measures would have materially reduced [*14] or eliminated the likelihood that this misconduct would have occurred. With this decision, the employer is likewise unable to determine what he did or failed to do that violated the standard and what he must do in the future to avoid further citations.
The net result of this decision is that the Act has been changed so that every work accident -- regardless of whether it could have been prevented -- subjects the victim's employer to punishment. This, of course, is a novel way to cure America's job injury problem. If it works, the same rule ought to be applied to highway accidents, plane crashes and other tragedies.
[The Judge's decision referred to herein follows]
BURROUGHS, 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., 84 Stat. 1390 (hereinafter referred to as the Act), to review a citation for serious violation issued by the Secretary of Labor (hereinafter referred to as the complainant), pursuant to Section 9(a) of the Act, and the assessment of a $600.00 penalty proposed pursuant to Section 10(a) of the Act.
On the basis of an investigation conducted on February 22, 1973, of a fatality occurring [*15] on February 21, 1973, at a workplace under the ownership, operation or control of the respondent located at the E. W. Brown Generating Station, Burgin, Kentucky, it is alleged that respondent committed a serious violation of Section 5(a)(2) of the Act by failing to comply with certain specified safety standards. A citation for serious violation was issued to respondent on March 12, 1973, alleging a failure to comply with the safety standards published at 29 CFR 1926.28(a) and 29 CFR 1926.451(a)(4).
The alleged violation of 29 CFR 1926.28(a) was described in the citation for serious violation as follows:
Appropriate personal protective equipment (e.g., safety belts and lifelines) were not provided and required to be worn where there was an exposure to hazardous conditions (employees were exposed to a fall of approximately 50 feet).
The alleged violation of 29 CFR 1926.451(a)(4) was described in the following manner:
Standard guardrails were not installed at all open sides and ends on scaffold platforms more than 10 feet above the floor.
Failure to provide employees, removing scaffold platforms at outlet duct on notth side of precipitator, a place of employment which [*16] is free from hazards likely to cause serious physical harm. The possibility of a fall existed as evidenced by the following conditions:
The employees were working at a height of approximately 50 feet without appropriate personal protective equipment (e.g., safety belts). Scaffold platforms greater than 10 feet above the floor were not equipped with standard guardrails on all open sides and ends of the platforms.
A notification of proposed penalty was issued on March 12, 1973, proposing a penalty of $600.00 for the alleged violations. The two alleged violations were treated as one for purposes of proposing the penalty.
Respondent timely notified the complainant that it wished to contest the citation for serious violation issued March 12, 1973, and the proposed penalty of $600.00. The complainant advised the Occupational Safety and Health Review Commission of the notice of contest filed by respondent. The case was subsequently assigned to this Judge for purposes of conducting a hearing pursuant to Section 10(c) of the Act. The hearing was held in Lexington, Kentucky, on July 31, 1973. No additional parties desired to intervene in the proceeding.
ISSUES
The following issues [*17] are pertinent to a disposition of this case:
1. Did respondent fail to comply with the standards published at 29 CFR 1926.28(a) and 29 CFR 1926.451(a)(4) and thereby violate Section 5(a)(2) of the Act?
2. If respondent violated either or both of the alleged standards was the resulting violation of a serious nature as defined by Section 17(k) of the Act?
3. What penalty, if any, should be assessed for any violation of the Act?
FINDINGS OF FACT
The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving the issues presented in this case.
1. Respondent, Eichleay Corporation, is a corporation having its principal office at 33 South 19th Street, Pittsburg, Pennsylvania. At all times material to this proceeding it maintained a place of work at the E. W. Brown Generating Station, Burgin, Kentucky, where it was engaged in the erection of a gas precipitator (Par. II, Complaint and Answer).
2. The E. W. Brown station is a coal-burning power generating plant. An elevated precipitator was being erected at the plant by respondent. The precipitator and gas ducts were located [*18] on the side and top of the building (Ex.1).
3. On February 22, 1973, compliance officer Steven R. Fewell conducted an investigation of the fatality of respondent's foreman, Chester Masters, which occurred at the E. W. Brown Generating Plant, Burgin, Kentucky, on February 21, 1973.
4. Respondent had approximately ten employees assigned to the job at the time of the accident. Only four of respondent's employees were working on the day of the accident. Additional persons were employed on the project by subcontractors. The company as a whole could have several thousand people employed at any given period of time.
5. The duct work of the precipitator runs a vertical distance of approximately 50 feet, turns in elbow fashion and runs in a horizontal direction (Ex. 1). There are four bays or compartments in the vertical duct. Each bay is approximately 5 1/2 feet in width. The horizontal duct is approximately 22 feet in width and approximately 4 1/2 to 5 feet in height.
6. Each bay of the vertical duct has a dividing plate, called the turning vane or splitter plate, bisecting the bay (Ex. 5). The splitter plate or turning vane extends downward only three feet below the horizontal [*19] duct (Exs. 4, 5).
7. Standard 2" X 12" boards had been placed in the bays of the vertical duct approximately three feet below the horizontal duct. The boards were inserted in order to permit the welding of the turning vanes or splitter plates inside the vertical duct and to tie-in the vertical and horizontal ducts (Exs. 4, 5, 6, 7, 8). Each bay contained two boards, one on each side of the turning vanes.
8. The 2" X 12" boards were supported by a pipe truss which runs diagonally across the duct and on both ends by angle iron clips welded to the inside of the duct (Exs. 4, 5, 12). A pipe truss along the right side of the duct also helped secure the right end of the board (Exs. 4, 5).
9. While the boards were being used for welding employees using the boards were required to use, and did use, lifelines and safety belts.
10. After the 2" X 12" boards had served their purpose, they had to be removed from the bays of the vertical duct. The procedure for removing the boards involved an employee stepping down from the horizontal duct onto the board in the vertical duct. He would then stand with one foot on the pipe truss and the other on the splitter plate or turning [*20] vane and use a torch to cut off one of the clips. He could also stand on the board while removing the first angle iron clip. The board would then be passed out of the vertical duct to someone on the horizontal duct immediately above. After the board was removed the other angle clip would be removed. The clips, after being cut off by the torch, would be removed by the employee on the horizontal duct by means of a wire with a hook on it.
11. On the afternoon of February 21, 1973, Clifford Horrine, the boilermaker steward, and Masters began removing the 2" X 12" boards from the bays in the vertical duct. Five of the boards were removed from the bays by Horrine. Masters assisted Horrine in removing the boards out of the bay and by pulling out the angle iron clips. Masters then switched positions with Horrine and proceeded to remove the sixth board.
12. Masters was working in the vertical duct approximately three (3) feet below the elbow which turns and runs in a horizontal direction. Horrine was standing on the horizontal duct immediately above him. Masters removed the first angle clip so that he could pass the board up to Horrine. He burned the clip off with a torch. He [*21] stood directly at the location of the splitter plate and on the pipe support while performing his work.
13. At the time of the accident, Masters was in the process of removing one of the 2" X 12" boards from inside one of the bays in the vertical duct. He was working at a point on the inside of the bay approximately 50 feet above the bottom of the vertical duct. He fell down the vertical duct and struck the bottom. The duct was open from the point of work to the bottom.
14. Immediately prior to the accident, Masters had cut off one of the angle clips supporting the 2" X 12" board and thrown it up to Horrine. Horrine threw the clip out of the way and then heard Masters falling. Horrine did not see what caused Masters to fall.
15. The 2" X 12" boards contained no guardrails on the open sides. Masters and Horrine did not wear a safety belt or lifeline while removing the boards. A safety belt or lifeline could have been used by them. Horrine had used lifelines and safety belts on other jobs when they were necessary.
16. Horrine and Masters realized that the removal of the boards was a hazardous task. They talked about the hazardous nature of the job prior to [*22] removing the boards.
17. Lifelines and safety belts were provided to all employees of respondent and were available to Masters and Horrine at the job. They were stored in the tool trailer and readily accessible to all employees.
18. Masters had twenty-nine years experience as a boilermaker. He was regarded as safety conscious by the superintendent. The superintendent had observed him on several occasions and was satisfied that he was capable and competent in safety procedures. Respondent's superintendent was unaware of any previous instances in which Masters had not followed safe working practices.
19. Safety meetings were held for respondent's employees at the construction site. Attendance at the meetings was required. Employees were told that safety belts and lifelines were to be used when warranted. Respondent's workplace was also periodically inspected by its safety director and by personnel furnished by its insurance company.
20. In determining the proposed penalty of $600.00, complainant commenced with an unadjusted amount of $1,000.00 and alllowed a 20 percent reduction for good faith and another 20 percent for previous history. No reduction was allowed for [*23] size.
LAW AND OPINION
Complainant has cited two standards which he contends were violated by respondent. Since both standards have been applied to the same work condition, an inference is raised that the Act requires double protection under the circumstances of this case. It is assumed (although complainant's position is far from clear) that complainant in essence contends that respondent could have complied with Section 5(a)(2) of the Act by compliance with the provisions of either of the cited standards.
Complainant does not specifically state his preference as to applicability. However, 29 CFR 1910.5(c)(1) states that a particular standard specifically applicable to a condition shall prevail over any different general standard which might otherwise be applicable to the same condition. There is nothing in the Act or standards which requires double protection where employees are adequately protected by one standard. The object of the Act is to insure the safety of working men and women and not to ascertain how many standards can possibly be applied to one work condition.
Alleged Violation of 29 CFR 1926.451(a)(4)
Section 1926.451(a)(4) of 29 CFR provides as follows: [*24]
Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 6 feet above the ground or floor, except needle beam scaffolds and floats. Scaffolds 4 feet to 6 feet in height, having a minimum horizontal dimension in either direction of less than 45 inches, shall have standard guardrails installed on all open sides and ends of the platform.
The compliance officer admitted that the 2" X 12" boards did not constitute one of the types of scaffolds enumerated in 29 CFR 1926.451. He relied on the general definition of a scaffold stated in 29 CFR 1926.452(b)(27). n1
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n1 29 CFR 1926.452(b)(27) defines a scaffold as "Any temporary elevated platform and its supporting structure used for supporting workmen or materials, or both."
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Complainant submits that there was a double violation of 29 CFR 1926.451(a)(4). The first violation purportedly was committed while employees were standing on the 2" X 12" boards welding portions of the ducts. The second violation purportedly occurred [*25] at the time the boards were being removed by Masters and Horrine.
The undisputed evidence reflects that the 2" X 12" boards at no time contained any guardrails or toeboards. However, this does not per se constitute a violation of the standard by respondent. The basic question is whether the requirements of 29 CFR 1926.451(a)(4) n2 are applicable to the work performed by respondent's employees. The reasonableness of the standard is not challenged. Its application to the facts in question is challenged.
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n2 It would appear that the provisions of 29 CFR 1926.500(d), which applies to platforms 6 feet or more above adjacent floor or ground level, would have been more appropriate for citing than the scaffolding standard. This seems especially true since the 2" X 12" boards did not constitute any of the types of scaffolds enumerated in the standard. The type of guardrails are the same for both standards.
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The attachment of guardrails and toeboards to a 2" X 12" board would have severely limited and restricted employees [*26] in their welding of the turning vanes and the tie-in of the vertical and horizontal ducts. The use of guardrails and toeboards would have necessitated the workmen maneuvering themselves into an opening of approximately 12 inches. As a practical matter, it is doubtful that most workmen could fit into a 12 inch opening between guardrails and toeboards. A large workman certainly would not be able to maneuver inside such a small area without putting considerable pressure on the guardrails and severely restricting his movements.
The area inside the bays of the vertical duct is severely limited. The bay is bisected by a turning vane which extends down approximately three feet from the horizontal duct. Since guardrails required under the standard must be approximately 42 inches high, n3 there is considerable doubt as to whether the curvature of the turning vane would have permitted the construction of standard guardrails. Respondent's superintendent testified that guardrails were impractical because of the turning vanes. The superintendent's testimony in this regard is corroborated by Clifford Horrine, the boilermaker steward. Exhibits 3 and 4, which show the curvature [*27] of the turning vanes, also support the conclusion that guardrails were impractical.
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n3 29 CFR 1926.451(a)(5) states:
Guardrails shall be 2 X 4 inches, or the equivalent, approximately 42 inches high, with a midrail, when required. Supports shall be at intervals not to exceed 8 feet. Toeboards shall be a minimum of 4 inches in height.
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The compliance officer testified that guardrails could have been fitted to the 2" X 12" board. However, the pertinent question is not whether they could have been fitted but whether they were practical under the circumstances. No opinion is expressed by the compliance officer as to whether guardrails were practical. In view of the size of the board, the limited space area inside the bay and the curvature of the turning vane, it is concluded that the application of 29 CFR 1926.451(a)(4) to the work condition is an unreasonable interpretation of the standard.
The construction of guardrails on the 2" X 12" boards for purposes of the dismantling operation is illogical. The installation [*28] of guardrails would have made the job of removing the boards more difficult and would not have afforded protection for the employee when he had to step off the board onto the pipe truss. The board certainly could not have been removed while an employee was standing on it. If guardrails had been installed an employee would have had to crawl under or climb over the guardrail. This would have made it more difficult for the employee to maintain his balance as he stepped onto the pipe truss. Furthermore, in order to burn off the first angle clip the employee would have had to bend over or stoop to a position that the guardrails (even if he could have fitted inside the opening of approximately 12 inches) probably would not have afforded him protection.
While employees were standing on the boards to weld portions of the ducts, respondent took effective measures to adequately protect its employees. Employees were required to use, and did use, lifelines and safety belts. Thus in the first use of the boards by employees the respondent adequately protected the safety of its employees. A more practical and reasonable approach was followed in protecting its employees from the hazard of [*29] a fall. The lifelines and safety belts permitted freedom of movement to accomplish the job and, at the same time, assured the safety of the employees from the hazards of a lengthy fall.
Alleged Violation of 29 CFR 1926.28(a)
Section 1926.28(a) of 29 CFR provides as follows:
The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions and where this part indicates the need for using such equipment to reduce the hazards to the employees.
The citation for serious violation and complaint allege that respondent did not provide and require appropriate personal protective equipment, i.e., safety belts and lifelines, to be worn where there was exposure to hazardous conditions, namely, a fall of approximately 50 feet.
The first argument advocated by respondent concerns the enforceability of 29 CFR 1926.28(a). Respondent adopts the rationale of Commission Judges in the cases of Secretary of Labor v. American Bridge, Division of U.S. Steel Corp., Secretary of Labor v. Edward M. Ream, Inc., OSHRC [*30] Docket No. 1504 (Review Ordered April 27, 1973), wherein 1926.28(a) was held to be a general provision, adjunctive in nature and without effective thrust as a standard. The standard was held to lack the indispensable ingredient of particularity and the reference to "hazardous conditions" was regarded as a general duty requirement which contravened Section 5(a)(1) of the Act. The rationale of the decisions has been carefully considered. Since the cited cases are on review, they are not binding precedent in resolving this case.
The concept of vagueness or indefiniteness rests on the principle that procedural due process requires fair notice and proper standards for adjudication. The primary factor involved in resolving cases of alleged vagueness arising under the Occupational Safety and Health Act is whether the promulgated standards are sufficiently definite to give reasonable notice of the required conduct to employers who wish to avoid the sanctions for the Act and to apprise the Commission and the courts of standards for the determination of violations. Where a standard is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its [*31] applicability it will not be enforced. This does not mean to infer that every detail must be specified so that the employer does not have to decide the most appropriate course of action to be taken. The fact that an employer is required to think in implementing the requirements of a standard does not per se make it unenforceable.
The infinite variety of work situations which arise make it impossible for the Secretary to write standards with such minute detail that every conceivable work condition is covered with such particularity that the employer does not have to use his common intelligence. The crux of the issue in resolving standards of general intent should not be one of whether it is enforceable but rather whether the interpretation placed on that standard by the complainant is reasonable from the standpoint of a person of ordinary prudence when construed in light of the facts surrounding the working condition. In other words, is what the complainant alleges as constituting a violation under the standard a reasonable interpretation of the language of the standard after consideration of the facts surrounding the working condition and the fact that the employer [*32] is a person of at least orinary intelligence. n4
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n4 One must assume that employers possess some knowledge of hazards encountered in their business operations and have some knowledge as to how the hazards can be prevented.
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In construing the reasonableness of a standard, there may also be considered, among other factors, the objective designed to be promoted, the previously established policy and the spirit of the standard, as well as its contemporaneous and practical construction. One must also keep in mind the gravity of the conduct which the standard seeks to prohibit, the conduct and intent of the party regulated and the circumstances under which the work condition arose. The language of the standard must be read in its ordinary and natural sense unless it is clear from the standard or definition of a particular word that a different meaning was intended.
The argument that the phrase "hazardous conditions" contained in 29 CFR 1926.28(a) contravenes Section 5(a)(1) of the Act in essence infers that the Secretary [*33] is prohibited from using the word "hazard" in a standard. There is nothing in the Act or legislative history which remotely suggests that Section 5(a)(1) was enacted to achieve this result. The general duty provisions of Section 5(a)(1) were enacted to provide protection for employees where no standards existed to cover a condition which constituted a recognized hazard. In this case the phrase "hazardous conditions" is used in a duly promulgated standard and takes precedence over the general duty clause. The standard is not unenforceable merely because it contains the word "hazard."
The provisions of 1926.28(a) are general. The fact that protective measures are referred to in Subpart E in 29 CFR 1926 does not automatically render the provisions of 1926.28(a) inoperable. A particular standard specifically applicable to a condition prevails over any different general standard which might otherwise be applicable to the same condition. Where the general standard is the only one applicable to a work condition it is not unenforceable because the condition is not covered in a specific standard. There is no specific standard requiring the use of safety belts or lifelines. [*34] Section 1926.104(a) does not require the use of lifelines and safety belts. It primarily relates to the capability and proper use of the equipment. Under such circumstances, the general provisions of 1926.28(a) are controlling and applicable to the conduct of the respondent.
The key phrases of 1926.28(a) refer to "personal protective equipment" and "exposure to hazardous conditions." Do these phrases have significance to an employer? In answering this question one must first look at the facts in lieu of viewing the significance of the phrases in the abstract. When this is done the question must be answered in the affirmative.
The word "hazard" is not shrouded in obscure or irrational speculation. It has meaning to a person of ordinary intelligence. In this case the foreman and union steward found themselves working inside a vertical duct approximately 50 feet from the bottom. They stood on a round pipe truss while lifting out 2" X 12" boards approximately 6 feet long. One slip and they were subject to a 50 foot fall. Would a person of ordinary intelligence consider this to be a hazardous condition? Again, the question must be answered in the affirmative. The facts also [*35] show that Horrine and Masters considered the job to be hazardous. Horrine testified that he and the foreman considered the removal of the boards a hazardous job and discussed the situation prior to removing any of the boards.
Section 1926.28(a) requires the wearing of personal protective equipment. It does not indicate the type of protective equipment but does specify that it be appropriate. Does the word appropriate mean anything to an employer? Obviously it infers that the employer must think through the situation. However, as previously stated, the fact that an employer is required to think does not render the standard unenforceable. The word appropriate is ordinarily interpreted as meaning suitable. Thus the employer is required to see that suitable equipment is worn to protect against a specific hazard.
What is appropriate personal protective equipment for someone standing on a round pipe truss inside a vertical duct approximately 50 feet above the bottom in order to remove a 2" X 12" board? The employer must first determine the hazard to be protected against. In the instant case it is readily apparent that the hazard is that of a possible 50 foot fall. [*36] Thus the employer immediately knows that head, foot, hearing, eye and face protection are not appropriate. One does not wear helmets, ear protective devices, or eye and face protection equipment to protect against an unexpected fall. He needs protection for the total person. Safety belts, lifelines or safety nets would be appropriate to prevent a fall. When reference is made to 29 CFR 1926.105(a) the employer is aware that safety nets are to be used when safety lines or safety belts are impractical. Since safety lines and safety belts are practical the provisions of 29 CFR 1926.105(a) are rendered inoperable. Thus appropriate personal protective equipment in this case would be safety lines and safety belts.
The record conclusively reflects that respondent had no difficulty in comprehending that the job was hazardous and that safety belts and lifelines were appropriate personal protective equipment. Employees were required to use, and did use, lifelines and safety belts while they were working off the boards to do the welding inside the vertical ducts. Respondent's foreman and union steward also recognized the hazardous condition of removing the boards. The union steward was [*37] unable to state why the lifelines and safety belts were not used when the boards were removed.
The evidence is undisputed that there was no compliance with 1926.28(a) by the foreman or the union steward while they were removing the 2" X 12" boards from the bays of the vertical ducts. Respondent submits, however, that the citation should be vacated because the violation was in fact an isolated incident which was unknown to it. Respondent points to several facts which are established by the record to buttress its contention. The recited facts include the following: (1) Employees were provided with and had easy access to lifelines and safety belts and were instructed to use them where necessary; (2) The work area inside the vertical duct was isolated and not visible to the superintendent from the ground; (3) The superintendent was unaware of any previous occasion where employees should have worn safety lines and safety belts and failed to do so; (4) The union steward had worn safety lines and safety belts on other occasions where necessary and had no reason for failing to wear them in removing the 2" X 12" boards; (5) Employees standing on the boards to weld inside the [*38] ducts had worn safety belts and lifelines and had been observed by the superintendent; (6) The two employees involved in removing the boards had in the past, when observed by the superintendent, demonstrated safe work practices and were regarded as safe, experienced and capable workers in their craft; (7) The superintendent had no reason to suspect that the employees would not wear safety belts and lifelines where required; (8) The two employees were aware that the job of removing the boards was hazardous.
Respondent cites several cases which it contends supports its position that the citation should be vacated. These cases include the following decisions rendered by the Commission: Secretary of Labor v. Ira Holliday Logging Company, Inc., Secretary of Labor v. Standard Glass Company, Inc., Secretary of Labor v. Canrad Precision Industries, Inc., Hanovia Lamp Division, Secretary of Labor v. Arnold Hansen, d/b/a Hansen Brothers Logging, The remaining decisions cited were rendered by Commission Judges and are presently on review by the Commission.
In Ira Holliday [*39] Logging Company, Inc., supra, the Commission vacated a citation for serious violation because the employer did not know of the unsafe practice and because reasonable diligence failed to reveal the existence of such practice. A citation for serious violation was vacated by the Commission in Arnold Hansen, d/b/a Hansen Brothers Logging, supra, because the record failed to show that the employer knew or reasonably should have known that an employee would disobey repeated instructions. The same rationale was followed by the Commission in vacating a citation for serious violation in Canrad Precision Industries, Inc., Hanovia Lamp Division, supra. The Commission has stated that where the employer is unaware of the hazardous condition the question is whether the employer could, with the exercise of reasonable diligence, know of the presence of the violation. This question assumes that proper instructions have been issued, necessary equipment furnished, and that reasonable efforts are made to enforce safe conditions.
The Commission in Standard Glass Company, Inc., supra upheld a Commission judge vacating an alleged violation for failure to wear protective head [*40] gear where the violation resulted from an isolated occurrence which was unknown to the employer. The record established that the hard hat rule was strictly enforced and that employees could expect reprimand if they violated the instructions to wear the hard hats. The Commission stated its position on such instances as follows:
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.
The Commission cases cited by respondent involve violations of safety practices by non-supervisory employees. In each instance it is important to note that the Commission concluded that the violation by the employee were unknown to the employer. An employee is not part of management. A violation by an employee can not automatically be presumed to be known by the employer. [*41] If this case simply concerned a violation by a nonsupervisory employee, which was not foreseeable by management, a decision for respondent would be an easy matter. The situation is complicated by the fact that Masters was part of respondent's management. He had responsibility subordinate only to the superintendent.
Final responsibility for compliance with the Act lies with the employer. n5 The respondent failed in its responsibility in this case when Masters permitted Horrine to remove the boards inside the bays of the vertical duct without any type of protection. The respondent, through the supervisory powers bestowed upon Masters, had primary control of the work environment. Masters was placed in his position of responsibility by respondent and it must be held accountable for his actions. Since Masters directly represented management, it must be concluded that respondent knew of the violation and could have prevented it by a simple order from Masters. Under the circumstances the respondent cannot be absolved from responsibility of the actions of Masters.
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n5 S. Rep. No. 91-1282, 91st Cong., 2nd Sess. 11 (1970)
[*42]
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The Act would be meaningless if top management of an employer could escape the actions of its supervisory employees by merely stating that it had no knowledge of their actions. Employees generally obtain their orders from supervisors and it is the orders from the supervisors that directly affect the safety of the employees. As this Judge stated in Secretary of Labor v. Southern Soya Corporation of Leesville,
The employer stands in such a relation with its supervisor as to give the employer a definite control over his actions. This control carries with it a duty or obligation to insure that the supervisor exercises that control to protect the employees. An employer's policy of safe and healthful working conditions has little value if it is not implemented. In most instances the implementation of policy is effected by the line supervisors who have direct and immediate supervision over the employees. Thus it is only reasonable to assume that the Act requires a different standard where the violation of orders occurs at the management level as [*43] opposed to the employee level. If such were not the case, the objective of the Act, namely to provide safe and healthful working conditions, would be frustrated. The employer must be held strictly accountable for the acts of its supervisors when employees endeavor to undertake to do a job in the manner required by their supervisor.
In Secretary of Labor v. Broadview Construction Co., Judge's conclusion that an employer is responsible for the actions and instructions of its supervisors. The supervisor was determined to be acting as management and his actions were deemed the responsibility of management. In essence management participated in the violation. The same is true in the instant case since Masters was aware of the failure to use lifelines and safety belts and took no affirmative action to prevent a violation.
TYPE OF VIOLATION
Complainant contends that the violation of 29 CFR 1926.28(a) was a serious violation within the meaning of Section 17(k) of the Act. This section provides as follows:
For purposes of this section, a serious violation shall be deemed to exist in a place of employment [*44] if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means. methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
It is clear that Section 17(k) requires two findings prior to determining that a violation constitutes a serious violation. These are: (1) substantial probability that death or serious physical harm could result from the violation, and (2) the employer did not, and could not with the exercise of reasonable diligence know of the presence of the violation.
The employer is deemed aware of the violation since its foreman had actual knowledge of the incident. This leaves the question as to what type of injury was likely to result from the violation. The union steward and foreman were exposed to the possibility of a 50 foot fall. They were standing on a round pipe truss without any type of protection. Under the circumstances it is concluded that the violation must be deemed a serious violation. An accidental [*45] fall of 50 feet was certain to result in death or serious physical injury.
PENALTY DETERMINATION
Once a notice of contest is served, the authority to assess civil penalties under the Act resides exclusively with the Commission. The Commission, in Section 10(c) of the Act, is charged with affirming, modifying or vacating citations issued by the Secretary under Section 9(a) and notifications issued and penalties proposed by the Secretary under Sections 10(a) and 10(b). The Commission, by Section 17(j) of the Act, is expressly required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of an appropriate penalty. See Secretary of Labor v. Nacirema Operating Company, Inc., In Nacirema the Commission stated that the four criteria to be cor sidered in assessing penalties cannot always be given equal weight. It indicated that the principal factor to be considered in assessing an appropriate penalty for a violation is the gravity of the offense.
In Secretary of Labor v. National Realty [*46] and Construction Company, Inc., OSHRC Docket 85, the Commission stated that in determining the gravity of a violation, several elements must be considered, including but not necessarily limited to the following: (1) the number of employees exposed to the risk of injury, (2) the duration of the exposure, (3) the precautions taken against injury, if any, and (4) the degree of probability of occurrence of an injury.
The facts of this case show a high probability of occurrence of a serious injury. The union steward was working inside a narrow space at a height of 50 feet without any type of protection. The exposure to a fall was of a short duration but he undertook the same task (removing a 2" X 12" board) on five separate occasions without any objection by the foreman. After consideration of all factors specified by Section 17(j) of the Act, with particular emphasis on the gravity of the violation, it is concluded that a penalty of $600.00 is fair and appropriate for the facts surrounding this violation.
CONCLUSIONS OF LAW
1. The respondent was at all times material hereto engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.
2. [*47] The respondent was at all times material hereto subject to the requirements of the Act and the standards promulgated thereunder.
3. Respondent's foreman was aware of the violation of 29 CFR 1926.28(a) by Clifford Horrine and knowledge of the foreman must be attributed to respondent.
4. Respondent was in violation of 29 CFR 1926.28(a) and the violation was of a serious nature.
5. Respondent was not in violation of 29 CFR 1926.451(a)(4) since it was unreasonable and impractical to require guardrails on a 2" X 12" board.
6. A penalty of $600.00 is fair and appropriate for the violation of 29 CFR 1926.28(a).
ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is
ORDERED.
(1) That the alleged violation of 29 CFR 1926.28(a) set forth in the citation for serious violation issued March 12, 1973, is affirmed and that the alleged violation of 29 CFR 1926.451(a)(4) is vacated; and
(2) That the notification of proposed penalty issued March 12, 1972, is affirmed.