FLOYD S. PIKE, ELECTRICAL CONTRACTOR, INC.

OSHRC Docket No. 3069

Occupational Safety and Health Review Commission

June 14, 1978

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

William H. McElwee, III, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

I. INTRODUCTION

This case is before the Commission upon remand from the Court of Appeals for the Fourth Circuit. Floyd S. Pike Electrical Contractor, Inc. v. OSHRC, 557 F.2d 1045 (4th Cir. 1977). The court vacated the Commission's previous order n1 that found respondent in serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 n2 for failure to comply with the standard at 29 CFR 1926.955(a)(6)(ii). The instructions accompanying the remand order directed the Commission to reconsider our previous decision in this case in light of our subsequent decision in Engineers Constr., Inc., 75 OSAHRC 84/E11, 3 BNA OSHC 1537, 1975-76 CCH OSHD para. 20,012 (No. 3551, 1975). The court directed that:

If the Commission decides to reaffirm, it should explain (a) why the case does not conflict with Engineers; or (b) if the cases cannot be reconciled, why it adheres to its ruling. If it decides that its judgment should be modified, [*2] it should explain the reasons for its change of view.

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n1 75 OSAHRC 31/D1, 2 BNA OSHC 1520, 1974-75 CCH OSHD para. 19,274 (No. 3069, 1975).

n2 29 U.S.C. 651 et seq., hereinafter "the Act".

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Pursuant to these instructions, we have reconsidered our previous decision. For the reasons that follow, we conclude that the citation must be vacated.

II. BACKGROUND

Respondent, an electrical contractor, was engaged in the conversion of an electrical distribution line from 4,160 volts to 12,470 volts. Two of respondent's crews were working on the line. The crews were stationed about 250 feet from each other and each crew was supervised by its own foreman. A hoist truck and a bucket truck were being used in the conversion operation. The line had been deenergized, but later in the day the foremen decided to reenergize it. The crews were informed that the line had been reenergized. As a transformer was being raised by the hoist truck, the hoist load line contacted the energized line. One of the foreman was leaning [*3] against the hoist truck at the time of the contact and he was electrocuted. The truck had not been grounded or barricaded as required by 1926.955(a)(6)(ii), n3 and a citation for failure to comply with that standard was issued to respondent.

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n3 The standard reads:

Lifting equipment shall be bonded to an effective ground or it shall be considered energized and barricaded when utilized near energized equipment or lines.

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Respondent contested the citation, a partial stipulation was agreed to, and a hearing was held. Respondent argued that the citation must be vacated because it neither knew nor could have known of the violation; the accident was an isolated incident over which it had no control; and, it had an extensive safety program that required that trucks be grounded when work is performed near energized lines.

Administrative Law Judge Abraham Gold vacated the citation. The Judge reviewed the evidence concerning respondent's safety program and its instructions to its supervisors regarding compliance with the [*4] cited standard. He found that, in failing to assure compliance with the terms of the cited standard, the foreman had acted contrary to respondent's safety instructions, and that respondent "could not reasonably have been expected to have prevented or to have foreseen the foreman's error". Judge Gold concluded that respondent had done all that reasonably could have been expected of it to insure compliance with the cited standard and, on this basis, vacated the citation.

The judge's decision was reviewed by the full Commission and was reversed. In rejecting respondent's arguments, the majority opinion noted that a failure to comply with the standard's requirements had been shown and that all of the involved employees had been exposed to the resulting hazard. The decision stated:

It is of no moment that respondent's foreman had a record of past safety and that respondent had no way of knowing that one of its employees would act in a reckless manner.

Because the foreman was respondent's representative at the worksite, his acts and knowledge were imputed to his employer. The majority concluded that respondent's assertion "that it huad a detailed safety program, and [that] it could [*5] not have done more in the way of accident prevention . . . is a matter for [penalty] mitigation." Accordingly, the citation was affirmed and a $300 penalty assessed.

Respondent petitioned the Court of Appeals for the Fourth Circuit for review of the Commission's order. While the case was pending before the court, the Commission decided Engineers Construction, Inc., supra. In Engineers, the employer's foreman was observed working in an unsafe trench. The administrative law judge held that the employer was absolutely liable for the conduct of its foreman and affirmed the citation. After review by the full Commission, the judge's decision was reversed. The Commission majority found that, in entering the unprotected trench, the foreman had acted contrary to the known safety rules of his employer. The majority held that, since the violation resulted from the unpreventable misconduct of the foreman, the employer could not be held responsible. Accordingly, the citation was vacated.

III. DISCUSSION

The decision in Engineers conflicts with our previous decision in this case. n4 Whereas in Pike we held that the fact that a supervisor may have acted contrary to [*6] the safety instructions of his employer is irrelevant to the existence of a violation, in Engineers the failure of a foreman to follow instructions was recognized as a valid defense to a citation. On this point of conflict, our decisions subsequent to Engineers consistently have recognized the availability of the defense that a violation resulted from the unpreventable misconduct of a supervisory employee.

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n4 In my dissenting opinion in Engineers, I observed that "the majority opinion would seem to overrule [Floyd Pike, No. 3069]".

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In Ocean Electric Corp., 75 OSAHRC 6/C14, 3 BNA OSHC 1705, 1975-76 CCH OSHD para. 20,167 (No. 5811, 1975), aff'd, No. 76-1060 (4th Cir., August 2, 1977), decision withdrawn and rehearing granted, October 26, 1977, the reasons for, and nature of, this defense were discussed in the lead opinion:

A corporate employer can, of course, only act and acquire knowledge through its agents. Thus, in the ordinary case, the actions and knowledge of supervisory [*7] employees are imputed to their employer and the employer is responsible for violations they create or of which they have actual or constructive knowledge . . . (citations omitted).

However, the opinion acknowledged the need for an exception to this rule when "the employer has done everything reasonably possible to assure compliance, but a supervisor nevertheless creates a violation which was unforeseeable and therefore unpreventable". n5 It was recognized that "[t]o hold employers to the absolute duty of guaranteeing compliance at all times by its supervisory personnel would be to impose a duty which is not achievable, a result not intended by Congress" (citations omitted). The opinion concluded that:

[A]n employer who would otherwise be found in violation due to the actions and knowledge of a supervisor should be permitted to defend on the basis that it took all necessary precautions to prevent the occurrence of the violation.

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n5 We have recognized a similar defense where only nonsupervisory employees are involved in the violation. E.g., Del-Cook Lumber Co., 78 OSAHRC 14/A2, 6 BNA OSHC 1362, 1978 CCH OSHD para. 22,544 (No. 16093, 1978); Leo J. Martone & Associates, Inc., 77 OSAHRC 46/C4, 5 BNA OSHC 1228, 1977-78 CCH OSHD para. 21,718 (No. 11175, 1977); B.G. Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD para. 20,744 (No. 4713, 1976).

[*8]

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The defense discussed in Ocean Electric has been applied in a long line of Commission decisions addressing the issue of an employer's responsibility for the violative acts of a supervisor or for those violations of which the supervisor had actual or constructive knowledge. E.g., Mountain States Telephone & Telegraph Co., 78 OSAHRC 30/A2, 6 BNA OSHC 1504, 1978 CCH OSHD para. 22,668 (No. 13266, 1978); Minnotte Contracting & Erecting Corp., 78 OSAHRC 15/D4, 6 BNA OSHC 1369, 1978 CCH OSHD para. 22,551 (No. 15919, 1978); F.H. Sparks, Inc., 78 OSAHRC 13/C13, 6 BNA OSHC 1356, 1978 CCH OSHD para. 22,543 (Nos. 15472 & 15760, 1978); Coastal Pile Driving, Inc., 77 OSAHRC 206/F3, 6 BNA OSHC 1133, 1977-78 CCH OSHD para. 22,375 (No. 15043, 1977); Larkan Steel Erectors, 77 OSAHRC 167/B12, 5 BNA OSHC 1783, 1977-78 CCH OSHD para. 22,100 (No. 15016, 1977); Alder Electric Co., Inc., 77 OSAHRC 49/C8, 5 BNA OSHC 1303, 1977-78 CCH OSHD para. 21,748 (No. 13573, 1977); Kansas Power & Light Co., 77 OSAHRC 39/A2, 5 BNA OSHC 1202, 1977-78 CCH OSHD para. 21,696 (No. 11015, 1977); Iowa Southern [*9] Utilities Co., 77 OSAHRC 32/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD para. 21,612 (No. 9295, 1977).

We conclude that the recognition of the defense described in these cited cases is more consonant with the intended purpose of the Act, i.e., "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions" (emphasis added), than the approach previously taken in this case. Furthermore, we believe that the availability of this defense is preferable in that it provides employers with an incentive to take affirmative steps in instructing and training its employees as to the proper methods of complying with the requirements of the standards. n6

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n6 The defense is also available where a violation of section 5(a)(1) of the Act, the general duty clause, is alleged. Mercer Well Service, Inc., 77 OSAHRC 178/C6, 5 BNA OSHC 1893, 1977-78 CCH OSHD para. 22,210 (No. 76-2337, 1977).

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As discussed in the above-cited decisions, elements in the proof of the defense [*10] that all necessary precautions to prevent the occurrence of the violation have been taken include the following:

1) A demonstration of the employer's commitment to employee safety reflected by the establishment of work rules that effectively implement the requirements of the standard at issue: n7

2) the effective communication of the work rules to employees; and,

3) the effective enforcement of these work rules through supervision adequate to detect failures to comply with the rules and discipline sufficient to discourage such violations. n9

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n7 E.g., Kansas Power and Light Co., supra; Iowa Southern Utilities Co., supra.

n8 E.g., Minnotte Contracting and Erecting Corp., supra; F.H. Sparks, Inc., supra.

n9 E.g., Mountain States Telephone and Telegraph Co., supra; Constructora Maza, Inc., 78 OSAHRC 6/E2, 6 BNA OSHC 1309, 1977-78 CCH OSHD para. 22,487 (No. 13680 & 14509, 1978).

We have previously recognized a similar defense where only non-supervisory employees are involved. See n.4, supra. Because the safety and health of other employees are entrusted to the care of supervisors, however, where supervisory personnel are involved in the violative conduct, the proof required is more rigorous and the defense is more difficult to establish. Mountain States Telephone and Telegraph Co., supra; Ocean Electric Corp., supra, at n.2.

[*11]

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Respondent argued that, in failing to ground the hoist truck, the foreman acted contrary to respondent's known work rules. We must determine whether respondent has made the necessary proof to establish the defense it asserts. Facts regarding respondent's instructions to its employees concerning compliance with the cited standard were entered into the record through stipulation, testimony, and exhibits. These facts can be summarized as follows.

Respondent issues an employee manual to each of its employees. The manual provides: "Both line trucks and bucket trucks will be grounded when they are working within reaching distance of an energized line." The foreman had received a copy of this manual. The hoist truck was equipped with the necessary grounding apparatus, as are all of respondent's trucks that have extensions capable of reaching energized lines. The truck had four decals placed on it that instructed employees to ground the truck when working in the vicinity of energized lines. A sign on the truck read:

CAUTION

Keep truck grounded. Stay clear of truck when working near energized line. [*12]

The foreman attended a meeting about two weeks before the accident at which safety was the main topic of discussion. The need to ground hoist and bucket trucks was discussed at that meeting. The foreman was considered a safety-minded person. Respondent's safety director had visited the foreman's crew in the past and had observed him working. At no time prior to his electrocution had respondent heard or observed that the foreman had failed to ground his truck in similar circumstances. Violators of safety rules received punishment ranging from reprimand to discharge, and disciplinary action had been taken in the past for failure to ground a truck.

After reviewing these facts, in his decision Judge Gold stated:

It is true that an employer can be held accountable for his foreman's acts, or inaction where there is a duty to act, but it is felt that in this case it would be unreasonable and unfair to do so. [The foreman's] conduct was contrary to the company's safety instructions, and he had never acted in such manner previously . . . . In view of [the foreman's] reputation for safety awareness, the company acted appropriately in relying upon [the foreman] to carry out its safety [*13] instructions, which directed (1) that the hoist truck be grounded and (2) that employees stay clear of the truck when working near an energized line.

On the basis of this record it is found that Respondent could not reasonably have been expected to have prevented or to have foreseen its foreman's error. Respondent should not be held responsible for this isolated, unauthorized misconduct of [the foreman]. It had done all that can reasonably be expected of it to insure compliance with safety regulations. It is therefore found that Respondent is not chargeable with failure . . . to bond lifting equipment to an effective ground or barricade same when utilized near energized equipment or lines.

We agree with Judge Gold's decision. The Judge correctly anticipated and applied the unpreventability defense. Unrebutted evidence establishes that in failing to ground the hoist truck, the foreman acted contrary to respondent's work rule. If the work rule had been followed, a failure to comply with the standard would not have occurred. The work rule was effectively communicated to its employees, including the foreman, and compliance with the rule was enforced through adequate supervision [*14] and disciplinary measures. Respondent has established that the failure to comply with the standard resulted from the unpreventable misconduct of its foreman.

Accordingly, it is Ordered that the Judge's decision, vacating the citation for failure to comply with 29 CFR 1926.955(a)(6)(ii), is affirmed.

Commissioner COTTINE took no part in the consideration or decision of this case for the reasons set forth in his separate opinion.

SEPARATE OPINION

As a new member of the Commission, I must resolve the issue of my participation in pending cases. It is also necessary for me to set out the principles guiding my decision on this important issue.

In this case, Chairman Cleary and Commissioner Barnako reached a unanimous decision on the merits before I received my commission on May 1, 1978. A decision was already in preparation when I assumed office. I have concluded that the wisest exercise of discretion is to decline to participate in this case even though a new Commission member has authority to participate in pending cases. It should be emphasized that by declining to participate I express no opinion on the procedural or substantive issues in this case or on the appropriateness [*15] of the accompanying order.

Discretion of Commission Members

As a matter of law, it is not necessary for all Commission members to participate for an agency to take official action. In Drath v. FTC, 239 F.2d 452 (D.C. Cir. 1956), cert. denied, 353 U.S. 917 (1957), the Federal Trade Commission issued a cease-and-desist order with only three of its five members participating. The Court of Appeals rejected petitioner's contention that the FTC can act in its adjudicatory capacity only when all members participate, except when there is a vacancy. The court ruled that official action can be taken by the majority of the requisite quorum. Also Frischer & Co. v. Bakelite Corp., 39 F.2d 247 (C.C.P.A. 1930), cited approvingly in FTC v. Flotill Prod. Inc., 389 U.S. 179, 182-183 (1967). Similarly, section 12(f) of the Occupational Safety and Health Act, 29 U.S.C. 661(e), provides:

For the purposes of carrying out its functions under this chapter, two members of the Commission shall constitute a quorum and official action can be taken only on the affirmative vote of at least two members.

Thus, the unanimous decision already reached in this case satisfies the [*16] quorum and official action requirements of the Act and my participation is not necessary for the Commission to carry out its adjudicatory functions in this particular case.

However, it is also settled that a new member of an administrative agency may participate in pending cases. For example, a new member of the Civil Aeronautics Soard who had not participated in previous proceedings was entitled to vote and break an existing tie where he had familiarized himself with the record. Western Air Lines v. CAB, 351 F.2d 778 (D.C. Cir. 1965), citing United Air Lines v. CAB, 281 F.2d 53 (D.C. Cir. 1960). n1 In United the court indicated that, where a member voting with the majority without hearing oral argument "had the record before him and the benefit of briefs", there was no abuse of discretion in his participation. 281 F.2d at 56. There are numerous other cases supporting this holding. The clearest statement of law is set forth in Gearhart & Otis, Inc. v. SEC, 348 F.2d 798 (D.C. Cir. 1965):

The decisions of numerous courts and administrative agencies establish that, even without agreement of the parties, a member of an administrative agency who did not hear oral [*17] argument may nevertheless participate in the decision where he has the benefit of the record before him. [footnotes omitted]

348 F.2d at 802. n2 See Au Yi Lau v. U.S. Immigration and Naturalization Service, 555 F.2d 1036, 1042 (D.C. Cir. 1977); Arthur Lipper Corp. v. SEC, 547 F.2d 171, 182 & n.8 (2d Cir. 1976). Thus, a new member possesses the necessary authority to participate in all cases pending before the Commission on assuming office.

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n1 A Commissioner may vote simply to avoid an impasse. Public Service Commission of State of N.Y. v. FPC, 543 F.2d 757, 777 (D.C. Cir. 1974). See generally Screws v. United States, 325 U.S. 91, 134 (1945) (Rutledge, J., concurring in result).

n2 The Court distinguished WIBC, Inc. v. FCC, 259 F.2d 941 (D.C. Cir.), cert. denied, sub nom. Crosley Broadcasting Corp. v. WIBC, Inc., 358 U.S. 920 (1958), because oral argument was statutorily required if a party requested it. 348 F.2d 798, 802 n. 14.

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Though a new member may participate [*18] in all pending cases, particularly those involving an impasse, the decision remains a matter of discretion since adjudicatory decisions may be upheld on a majority of a quorum. In FTC v. Flotill Prob., 389 U.S. 179 (1967), rev'g 358 F.2d 224 (9th Cir. 1966), an FTC member appointed to fill one of two vacancies declined to participate because he had not heard the oral argument. Thus, three of the possible four Commissioners actually participated in the decision. As a result, the FTC issued a cease-and-desist order based on the affirmative vote of only two members. Despite its obvious impact on the number of members constituting a majority, the Court did not review the exercise of discretion by the new member. Instead, the Court accepted the abstention at face value and upheld the action of the two members of the FTC. See also LaPeyre v. FTC, 366 F.2d 117 (5th Cir. 1966); Atlantic Refining Co. v. FTC, 344 F.2d 599 (6th Cir. 1965). In addition, administrative decisions involving two or more abstentions have been upheld by reviewing courts without question or comment on the grounds for these abstentions. All that was necessary to sustain the agency decision [*19] was a majority of the required quorum. E.g., Greater Boston Television Corp. v. FCC, 444 F.2d 841, 848, 861 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971).

Decision Not to Participate

I decline to participate in this case because a majority of the Commission has reached agreement on the merits and my vote would have no effect on the outcome. Moreover, in cases where Chairman Cleary and Commissioner Barnako have reached a unanimous decision, my participation would delay the issuance of decisions and conflict with the goal of a prompt and efficient decision-making process. See generally Atlas Roofing Co., Inc. v. OSHRC, 430 U.S. 442, 97 S.Ct. 1261, 1272 (1977); Keystone Roofing Co., Inc. v. OSHRC, 539 F.2d 960, 964 (3d Cir. 1976); Nader v. FCC, 520 F.2d 182, 205-207 (D.C. Cir. 1975), citing 5 U.S.C. 555(b). Since abatement is stayed until the Commission enters a final order, 29 U.S.C. 659(b), additional deliberations would delay the control of hazardous working conditions in any case where the Commission has determined that a violation of the Act exists. That result would be inconsistent with the statutory purpose to assure so far as possible [*20] safe and healthful working conditions for every working man and woman. 29 U.S.C. 651(b).

I will, however, participate fully in all cases in which previous Commission deliberations have resulted in a one-to-one deadlock. Decisions by an equally divided Commission are without precedential value, e.g., Life Sciences Products Co., 77 OSAHRC 200/A2 (microfiche), 6 BNA OSHC 1053, 1977-78 CCH OSHD P22,313 (No. 14910, Nov. 11, 1977), appeal filed, No. 77-1014 (4th Cir. Jan. 6, 1978), and, therefore, do not serve as guidance to the Commission's administrative law judges. Moreover, these decisions also promote needless litigation in the U.S. Courts of Appeals to decide issues which should initially be determined by the Commission because its members have specialized training, education, and experience in occupational safety and health. 29 U.S.C. 661(a). See generally Atlas Roofing Co. v. OSHRC, supra at 1264, 1272; Keystone Roofing Co., Inc. v. OSHRC, supra at 963-964. Administrative resolution on pending issues also promotes a more uniform application and development of occupational safety and health law. After reading the record, I will participate [*21] in the consideration and decision of these cases.

Conclusion

My decision not to participate in pending cases which have reached a unanimous decision by my colleagues, but to participate in those cases with unresolved issues, promotes the prompt adjudication of cases. The full benefit of Commission review is also assured the parties and the public. Both of these results are essential to protecting the lives, health and safety of American workers and the operation of American business while providing for the effective adjudication of cases by the administrative law judges.