THE MOUNTAIN STATES TELEPHONE & TELEGRAPH COMPANY
OSHRC Docket No. 355
Occupational Safety and Health Review Commission
January 3, 1973
Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: On June 2, 1972, Review Commission Judge Robert N. Burchmore issued a decision and order in this case holding that the respondent had violated Section 5(a)(2) 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") in that he failed to comply with an occupational safety and health standard promulgated by the Secretary of Labor pursuant to Section 6 of the said Act. He assessed no penalty. Thereafter, pursuant to Section 12(j) of the Act, I directed that the decision be reviewed by the Commission.
The Commission has reviewed the record in this case and the briefs of the parties. On the basis of such review, the Commission finds that the Judge erred in holding that the respondent had violated Section 5(a)(2) as charged.
The facts of the case are not in dispute. The respondent is an employer in a business affecting commerce who has employees. On September 9, 1971, one of respondent's employees died in the course of employment from electrocution aftr receiving a shock from a portable, electrically-powered impact wrench which was subsequently shown to contain a short circuit. It was conceded by all parties that the short circuit rendered the tool unsafe. The evidence established, and the Judge correctly found, that the employer did not know of the existence of the short circuit in the tool prior to the fatality and could not have known so even with the exercise of reasonable diligence.
On December 8, 1971, the Secretary of Labor caused a citation to be issued to the respondent on the basis of the above facts alleging a violation of an occupational safety and health standard promulgated by the Secretary by publication in the Federal Register on May 29, 1971 (36 F.R. 10653) and codified in 29 C.F.R. Section 1910.242(a). n1
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n1 The Secretary is authorized to promulgate such standards pursuant to Section 6 of the Act and employers are obligated to comply therewith pursuant to Section 5(a)(2) of the Act.
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The standard allegedly violated provides as follows:
"1910.242 hand and portable powered tools and equipment, general.
(a) General Requirements. Each employer small be responsible for the safe condition of tools and equipment used by employees, including the tools and equipment which may by furnished by employees."
The Judge who heard this case ruled that the wording of this standard renders the employer absolutely responsible for the safe condition of the tools. The Commission finds such an interpretation to be inconsistent with the Act.
Congress did not enact the Occupational Safety and Health Act to create guarantors upon whom to fasten responsibility for illnesses or injuries o deaths to employees. Their purpose was remedial. The Act is a broad scale effort to prevent "personal injuries and illnesses arising out of work situations." n2 The first-stated purpose of the Act is to encourage and stimulate "programs for providing safe and healthful working conditions." n3 (emphasis supplied)
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n2 Section 2 of the Act.
n3 Section 2(b)(1) of the Act.
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To hold an employer absolutely and strictly responsible for all deaths and injuries to his employees is contrary to that purpose, to the very reason for having occupational safety and health standards, and to the Act itself.
This Act does not address itself to intangibles. It provides for the promulgation of specific standards. A standard is developed because there is a workplace hazard which has been revealed through research or the experience resulting from many work situations. The standard is then promulgated for the purpose of telling employers what they must do in order to avoid that workplace hazard. Congress also recognized that there were many unknown hazards. The Act thus created a new agency to do research in this area and to recommended standards of conduct in order to prevent such newly discovered hazards from occurring. n4
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n4 Section 22 of the Act. Congress also recognized that many work hazards were already known at the time this Act was being considered. It authorized the Secretary of Labor to promulgate "national consensus standards" as enforceable standards of conduct to prevent the occurrence of such known hazards. Section 6(a) of the Act.
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If an employer, as the Judge found in this case, did not and could not with the exercise of reasonable diligence, have known that the tool being used by his employee was unsafe neither he, nor the Secretary, nor this Commission could have devised any program to prevent his employee's death. Consequently, the interpretation placed upon this standard by the Judge does not implement the purposes of the Act.
This Commission presumes that the Secretary of Labor in promulgating the standard under which the respondent was cited in this case, was implementing the purposes of the Act. The standard must be interpreted accordingly.
Consequently, it is our opinion that this standard places on employers the burden of seeing that their employees work only with safe tools but that this burden is dischargeable. The employer can discharge that burden only if he takes every reasonable precaution to assure the safe condition of the tools used by his employees. Where the facts show that the employer knew, or should have known, of the unsafe condition of the tool, or failed to act where there were circumstances which would indicate that he should have the tool checked to be sure it was safe, then the employer has violated this standard.
There were no facts of this kind present in this case. The Judge found that "the tool had recently been sent out to established repair shops for repair and testing," that "it had been operating properly the day before the accident, and there had been no warning to the company that it was not safe."
Under these circumstances, the Commission finds that the respondent has not violated Section 5(a)(2) of the Act.
CONCURBY: BURCH; VAN NAMEE
CONCUR:
BURCH, COMMISSIONER concurring: I concur in the opinion that respondent has not violated section 5(a)(2) of the Act.
I must disagree with the statement that ". . . one of respondent's employees died in the course of employment from electrocution after receiving a shock . . ." from a defective impact wrench. The record is devoid of evidence as to the cause of this employee's death, revealing only that while at work on September 9, 1971, he collapsed and died. This employee had been using an electrically powered impact wrench that was subsequently found to have a short circuit. This short circuit was demonstrated only once after which it could not be demonstrated again. Upon opening the case of the wrench and removing some electrical tape, respondent's expert investigator found that the wiring inside was broken, frayed, and insufficiently insulated. These conditions rendered the tool unsafe. At the time of the inspection of the tool, following the employee's death, the ground prong of the plug was broken off. It was not determined if the prong was missing when the tool was put into service or if it was broken off when the plug was kicked out of the receptacle.
On December 8, 1971, the Secretary of Labor issued a citation to respondent, alleging serious violation of the Act by non-compliance with the safety standard at 29 C.F.R. 1910.314(d)(4)(iii)(c). A penalty of $600 was proposed. Respondent filed a notice of contest to the citation and notification of proposed penalty. Thereafter, the Secretary filed a complaint to which respondent filed an answer. On February 18, 1972, an amended citation was issued, alleging a non-serious violation of the Act by non-compliance with the safety standard at 29 C.F.R. 1910.242(a). A penalty of $105 was proposed. Respondent filed a notice of contest to this amended citation and the Secretary filed an amended complaint to reflect the changes in the amended citation. Respondent filed an answer to the amended complaint and the hearing was held before Judge Burchmore.
The standard with which respondent allegedly failed to comply provides:
1910.242 Hand and portable powered tools and equipment, general.
(a) General requirements. Each employer shall be responsible for the safe condition of tools and equipment used by employees, including tools and equipment which may be furnished by employees.
In this case, employer provided its employee with a tool that was subsequently shown to be unsafe. The tool had last been sent to an authorized repair shop for repairs on July 21, 1971, and had been used without incident the day before it was removed from service, September 9, 1971. The Judge correctly found that respondent did not know of the unsafe condition of the tool and could not have known of the condition with the exercise of reasonable diligence.
I do not believe that it is necessary or appropriate to this decision to allude to holding ". . . an employer absolutely and strictly responsible for all deaths and injuries to his employees. . . ."
The question more appropriately to be answered here is whether non-compliance with a standard with nothing more is a violation of the Act.
Part of the answer to this question is readily apparent. Section 17(k) of the Act defines a serious violation, in part, as requiring that the employer knew, or with reasonable diligence should have known, of the violation. Thus, it is obvious that a serious violation requires more than mere non-compliance with a standard. The answer with regard to non-serious violations is not so obvious.
Under what circumstances non-compliance with a standard becomes a non-serious violation of the Act is a question that must be answered in light of the purposes of the Act, the reasonableness of the action taken by the employer, and the reasonableness of the application of the standard to the facts of the case.
In my opinion, mere non-compliance with a standard establishes a prima facie non-serious violation -- nothing more. To hold otherwise is to deny employers any affirmative defenses, and I do not believe that is in keeping with either the stated purposes or the spirit of the Act. In addition, it is noted that the standard cited requires that the employer shall be responsible for the safe condition of tools and equipment used by employees. In my opinion, in the circumstances of this case, the employer has discharged that responsibility insofar as the standard requires.
In considering the reasonableness of the respondent's actions, its reliance on the proper performance of repair work to make the tool safe was reasonable and sufficient under the circumstances. Knowledge is specifically required by the Act in order to find a serious violation. The inference that Congress did not intend that the employer with the exercise of reasonable diligence should have known of the non-compliance with a standard in order to find a non-serious violation is not reasonable. It follows that knowledge is relevant to a non-serious violation and there was no intent on the part of Congress to hold employers to a standard of "absolute liability."
The record of this case will not support a finding that respondent violated section 5(a)(2) of the Act.
Accordingly, I would order that the Secretary's citation and notification of proposed penalty as amended be vacated.
VAN NAMEE, COMMISSIONER concurring: I concur that the evidence of record does not establish a violation of the standard prescribed by 28 C.F.R. 1910.2(a). The citation could have been vacated on this basis alone since compliance with the standard constitutes compliance with the requirements of the Act.
The standard involved in this case requires employers to be "responsible" for the "safe" condition of hand and portable powered tools and equipment used by their employees. In Judge Burchmore's view the word "responsible" must be construed as meaning "absolutely responsible." Accordingly, he would find a violation whenever a hand tool or the like is unsafe. In support of this conclusion he merely states that the standard plainly intends absolute responsibility. I cannot agree.
The word "responsible" according to both its legal and common definitions means liable, legally accountable, or answerable. Black's Law Dictionary, 4th Ed., p. 1476 (1968); Webster's Seventh New Collegiate Dictionary, p. 732 (1970). Clearly, the definition does not carry with it the term "absolutely." Accordingly, the Judge could have construed the standard as requiring the employer to act responsibly in the factual circumstances of the case. Indeed, such interpretation is mandated because to interpret it as requiring strict liability is to impose an impossible burden upon employers.
Under such theory employers would be responsible even though an unforeseeable malfunction of a tool occurs while it is being used in the workplace. Moreover, the standard recognizes that in some crafts it is the custom for employees to supply and use their own tools. It is a matter of common knowledge that such employees use their tools outside the scope of their employments, e.g., in their homes. Under Judge Burchmore's theory employers would either have to inspect all employee owned tools before they are used in the workplace or the custom would have to be changed and employers would have to supply the tools. I cannot believe that such results were intended by the framers of the standard.
Accordingly, I do not construe the language of 29 C.F.R. 1910.242(a) as requiring an interpretation that the word "responsible" be modified to mean "absolutely responsible". Rather, I construe the language of the standard as requiring responsible conduct by the employer in the circumstances. In this case, as Judge Burchmore pointed out, the Respondent did conduct itself in such manner. I therefore concur in the decision to vacate the citation.
My colleagues, however, have predicated their disposition of the case upon other grounds. Specifically, they conclude that this Respondent is not in non-serious violation of the Act's requirements because it did not, and could not with the exercise of reasonable diligence, know of the presence of the condition alleged to be violative in the case. That is, they imply the knowledge requirement prescribed in section 17(k) for a serious violation into the criteria for establishing a non-serious violation. n5 I must, as a matter of law, disassociate myself completely with their opinions in this regard.
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n5 My colleague, Commissioner Burch, apparently believes that this interpretation is necessary for otherwise, according to his opinion, employers would be denied ". . . any affirmative defenses . . . ." I do not believe that this is the question. The burden of proving a violation is on the Secretary. To establish a serious violation he must show knowledge of the type required by section 17(k). Since the majority has incorporated the knowledge requirement into and as a requirement for the establishment of a non-serious violation it seems to follow that they also impose the burden of proving such knowledge on the Secretary. Moreover, and contrary to Commissioner Burch's position, I do not view my opinion as being one that would deny all affirmative defenses. For example, my opinion does not deny employers the right to challenge the applicability of a standard in the factual circumstances of a case. Similarly, we have indicated that impossibility of compliance may constitute an affirmative defense. Secretary of Labor v. W.C. Sivers Company,
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It is my view that the interpretation made by the majority in this case conflicts with clear congressional intent In this regard, it is most significant that Congress expressly defined the elements that are characteristic of a serious violation and those that are characteristic of a de minimis violation. Thus,
. . . a serious violation shall be deemed to exist in a place of employment 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. (Emphasis added.) n6
And,
. . . the Secretary may prescribe procedures for the issuance of a notice in lieu of a citation with respect to de minimis violations which have no direct or immediate relationship to safety or health. n7
The Act contains no definition for a non-serious violation.
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n6 29 U.S.C.A. 666(j).
n7 29 U.S.C.A. 658(a).
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It does, however, state that a civil penalty must be assessed for a serious violation n8 and may be assessed for a non-serious violation. n9 Further, the Act contains no provision granting authority to assess a civil penalty in the event that the violation is determined to be of a de minimis nature.
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n8 29 U.S.C.A. 666(b).
n9 29 U.S.C.A. 666(c).
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Under these circumstances it is clear that a non-serious violation has characteristics that fall between those which are characteristic of a serious violation and those that are characteristic of a de minimis violation. Since Congress specifically defined the latter two violations, it had no need to expressly define the characteristics of a non-serious violation. I am therefore of the opinion that the rule (or guideline to statutory construction) of express mention-implied exclusion applies n10 and that we should not incorporate employer knowledge as a characteristic element of a non-serious violation.
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n10 F.T.C. v. Fred Meyer, Inc., 390 U.S. 341 (1968); F.T.C. v. Sun Oil Co., 371 U.S. 505 (1963); F.T.C. v. Simplicity Pattern Co., Inc., 360 U.S. 55, rehearing denied, 361 U.S. 855 (1959).
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This is not to say, however, that knowledge (or the lack thereof) may not be considered. As Judge Burchmore points out the good faith of the employer is an element to be considered in the assessment of an appropriate civil penalty. n11 Certainly, in those cases where the violation is non-serious and the employer does not have actual or constructive knowledge and could not with the exercise of reasonable diligence know of the violation, it would be consistent with the provisions of sections 17(c) and (j) to assess no civil penalty.
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n11 29 U.S.C.A. 666(k).
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[The Judge's decision referred to herein follows]
BURCHMORE, JUDGE, OSAHRC: By amended citation issued February 18, 1972, the Secretary of Labor charged that on September 9, 1971, the respondent, The Mountain States Telephone and Telegraph Company, failed to maintain in a safe condition a portable powered tool provided for the use of its employees, in non-serious violation of 29 C.F.R. 1910.242(a); a penalty of $105 was proposed. Timely notice of contest was filed by the employer and this Commission has jurisdiction of the resulting proceeding by virtue of section 10 of the Occupational Safety and Health Act of 1970.
The case was referred to the undersigned judge for hearing and adjudication. Hearing was held at Phoenix, Arizona, on April 6, 1972. The parties have submitted the case on the record, but they filed memoranda on the law as to the applicability of the cited regulation.
There is no dispute as to the facts. On September 9, 1971, two telephone company employees, Dale Amon and James Kelly, were replacing a pole and doing other work with a company truck in Phoenix, Arizona. The truck had a basket on a boom and Amon was up in the basket working with an electrically powered portable impact wrench which was plugged into a receptacle on the boom through which it received its power from a generator on the truck. Suddenly, Amon called to shut off the power and then slumped down in the basket, unconscious. In an emergency effort to succor and revive him, Kelly shut off the generator, jerked the cord of the tool from the receptacle and then lowered the basket, but to no avail; Amon was dead on arrival at the hospital.
Immediately following the accident, the wrench was found to have a short circuit allowing current to flow through to its outer casing. It was also found that the ground prong was missing from the plug at the end of the electric supply cord. No one was able to testify as to whether the cord had a ground prong on it when Amon began working with the tool (a prong could conceivably have been ripped off when Kelly jerked the cord out of the receptacle; the receptacle had a spring loaded cover on it). The company's rule and practice required grounding of the tool and Amon had a reputation for being meticulous in such matters. Moreover, the tool had recently been sent out to established repair shops for repair and testing.
Whether or not the tool did have a ground prong on its cord at the time of the accident, it is clear that it was in an unsafe condition. Upon disassembling, it was found that the hot wire was badly frayed and that the insulation of the wires near the tool's switch was weak and perforated. As stated, the tool case was found to be energized after the accident and the circumstances clearly prove that the tool was, in fact, unsafe.
If the standard governing the telephone company's responsibility in this matter simply required the use of ordinary care, it is difficult to see how the company could be held at fault. The tool had been repaired by a recognized repair shop; it had been operating properly the day before the accident, and there had been no warning to the company that it was not safe. However, the standard that has been prescribed for employers with respect to hand and portable powered tools is not simply to use reasonable care to see that such tools are safe. In such matters, the standard is more strict; it provides:
1910.242 Hand and portable powered tools and equipment, general.
(a) General requirements. Each employer shall be responsible for the safe condition of tools and equipment used by employees, including tools and equipment which may be furnished by employees.
The plain intent and effect of the above quoted provision is to render the employer absolutely responsible for the safe condition of the tools, and therefore subject to a citation any time that an unsafe tool is provided for use by an employee. The employer is thus a virtual guarantor of the safe condition of the portable powered tools used by its employees, at least so far as this Act is concerned. This does not mean that the employer is necessarily liable in damages for any injury or death which results from the use of an unsafe tool; the Act does not purport to fix such liability and this Commission has no jurisdiction in such matters. Nor does the strict responsibility here imposed mean that a civil penalty must be assessed in every case wherein an employee is found to have been provided with an unsafe tool. Even though an unsalfe tool has been provided, the good faith of the employer, the care exercised by it to assure the safe condition of the tool and all other circumstances are clearly to be considered in determining what, if any, penalty should be assessed. The holding here is that the unsafe condition of the tool in use requires, and only requires, that a citation for violation of 242(a) be affirmed.
Respondent contends that the standard in 242(a) does not apply to an impact wrench, that the standard was not applicable to respondent anyway and that the standard did not take effect until February 15, 1972.
The effective date of 242(a) was originally fixed at February 15, 1972, as respondent contends. The effective date was specifically so provided in section 1910.245 as published in the Federal Register of May 29, 1971. (36 F.R. 10466 et seq. ) However, on August 13, 1971, an amendment to 245 was published in the register (36 F.R. 15106) and this amendment expressly advanced the effective date of 242 to August 27, 1971. The standard was therefor in effect two weeks before the occurrence involved herein on September 9, 1971.
The applicability of 242 is governed in part by the provisions of 29 C.F.R. 1910.5(c) which provides in paragraph (1) that a specific standard shall prevail over any general standard which might overwise apply to a condition. Respondent points out that there was, at the time of the involved accident, a specific requirement for the grounding of portable powered tools, referring to 1910.314(d)(4)(iii)(c). That section was restricted by 1910.308(b)(2) so as not to apply to telephone companies such as respondent, but it is the position of respondent that the section also superseded 242 because it was more specific. That argument is not tenable because the cited applicability rule in 1910.5(c) further provides in paragraph (2) that the general standard shall apply according to its terms to the extent that the more particular standard does not apply. In this case, the standard in 314 deals only with grounding of tools, whereas the standard in 242 deals generally with the safety of tools and not only as to their grounding. Consequently, the most that could be conceded to respondent at this point would be that the grounding of the tool was governed by 314 and not by 242 so that respondent would not be responsible for the absence of a ground because it was exempted from 314. However, the charge in this case is not merely that the tool was not grounded; it is that the tool was not safe. And the holding here is that the tool was unsafe, whether or not it was grounded. The condition that rendered it unsafe was the short circuit from the power supply to the case of the tool and that existed independently of the ground, if any. Indeed, respondent introduced the testimony of an expert witness whose opinion it was that the employee could have been electrocuted by the tool even if the ground wire and prong were intact and connected. Consequently, section 242 applies here regardless of the provisions of 314.
Finally on the applicability question, respondent contends that 242 does not apply to the particular type of portable powered hand tool here involved. In support of its position it points out that 242 is found in Subpart P or Part 1910, entitled "Hand and Portable Powered Tools and Other Hand-Held Equipment," and that there are definitions in the first section thereof which mention specifically a number of tools but do not mention impact wrenches. Respondent argues that such wrenches are therefor not subject to Subpart P, or to 242. This argument is rejected because 242 constitutes a general rule applying by its terms to all Hand and Portable Powered Tools. There is no definition of the general phrase "Hand and Portable Powered Tools" anywhere in Subpart P, so the scope of the term is fixed by the ordinary meaning of the words used. The existence of special definitions (and regulations) applying to individually defined tools does not render inapplicable to other, undefined, hand and portable powered tools the general requirement for maintaining them in a safe condition. Since the tool here involved was clearly a portable powered tool, 242 required the employer to be responsible for its safe condition.
I conclude that 242 made the respondent responsible for the safe condition of the considered wrench, that the wrench was unsafe while in use by the employee and that the citation must therefor be affirmed. I also conclude that the employer did not, and could not with exercise of reasonable diligence, know of the presence of the violation; therefor by the terms of section 17(k) of the Act, the violation was not a serious one, even though the condition was clearly one that gave rise to a substantial probability of death or serious physical harm.
In cases of non-serious violation, a penalty of up to $1,000 "may" be assessed; the Commission is required by section 17(j) to give due consideration to the appropriateness of the penalty with respect to the size of the business of the employer, the gravity of the violation, the good faith of the employer and the history of previous violations. There is here no evidence of past violations and the good faith of the employer appears to be exemplary. While the consequences of the accident were grave in the extreme, the violation for which the employer was cited rests upon the most strict construction of the regulation, which makes of the employer a guarantor of the safe condition of the tool; only minimum gravity can be attached to the employer's failure under the circumstances found herein. Considering all of the statutory criteria, it is my opinion that no penalty should be assessed in this case and I conclude that the proposed penalty is inappropriate and should be vacated.
Premises considered, it is ORDERED that the citation be and the same is hereby affirmed, that the proposed penalty be and the same is hereby vacated, that no penalty shall be assessed and that this proceeding is hereby discontinued.