THE THEODORE D. BROSS LINE CONSTRUCTION COMPANY

OSHRC Docket No. 5421

Occupational Safety and Health Review Commission

January 27, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Francis V. LaRuffa, Regional Solicitor, U.S. Dept. of Labor

Mark C. Yellin, for the employer

OPINION:

DECISION

BY THE COMMISSION:

In this case, Administrative Law Judge Joseph Chodes affirmed Complainant's citation alleging that Respondent violated section 5(a)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) by permitting two employees to remain aloft on a 100 foot steel tower (at the 60 foot level) during demolition activities. The Judge assessed a $700 penalty for this violation. In addition Judge Chodes vacated a citation alleging that Respondent was in violation of 29 C.F.R. 1926.28(a) and 1926.951(b).

Having reviewed the record in its entirety, we find that the Judge properly decided the case for the reasons he assigned and we adopt his decision. Accordingly, the decision of the Judge is affirmed. It is so ORDERED.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I agree with affirming Judge Chodes' vacation of the citation for noncompliance with 29 C.F.R. 1926.28(a) and 1926.951(b). However, I would also vacate the citation for [*2] a violation of 29 U.S.C. 654(a)(1), n1 the so-called general duty clause, because the evidence is insufficient to establish the alleged violation.

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n1 That section requires each employer to:

". . . furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees . . . ."

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The facts are as follows: Respondent was dismantling steel towers along a 16-mile length. These towers were used to string high tension electrical lines. The towers were composed of four vertical posts and assorted cross bracing. The height of each tower was approximately 100 feet. The procedure used on the tower where the accident took place was to have two workers climb up the tower and cut two of the four posts 20 feet from the top. A crane was then used to pull this 20 foot section over and lower it to the ground.

This case was based upon an incident which occurred when two employees, Brill and Carter, had cut [*3] the support poles. The foreman in charge of this particular tower then asked the two men if they wanted to come down. The employees replied that they would be alright where they were and remained on the tower as it was dismantled. As the top section was pulled over it fell back and jarred the tower causing Brill to fall to his death. Carter became dislodged, but was held suspended by his safety belt.

This work was being performed pursuant to a contract between respondent and the International Brotherhood of Electrical Workers. It provided that the union would supply the mechanic journeymen and linemen, including the foreman for the job. The contract also specified that respondent was required to go through the union's shop general foreman prior to imposition of any discipline upon any employee.

Pursuant to this contract, the union had selected the foreman for this particular job. In fact Brill, the deceased employee, was the foreman for the first half of the job, but had requested to be merely a workman for the rest of the job even though he had greater seniority than the foreman who permitted him to remain atop the tower. It was established that respondent had a strong [*4] policy against employees remaining on the towers during the dismantling stages. This company policy was communicated to the employees through safety meetings.

The situation in the instant case is similar to the facts in National Realty and Construction Company, Inc. v. OSAHRC, 489 F.2d 1257 (D.C. Cir. 1973). In that case a foreman's idiosyncratic behavior resulted in his death while riding on a piece of equipment in direct contravention to company policy. The Circuit Court therein stated that:

"Though a generic form of hazardous conduct, such as equipment riding, may be 'recognized,' unpreventable instances of it are not, and thus the possibility of their occurrence at a workplace is not inconsistent with the workplace being 'free' of recognized hazards."

The conduct of the employees and foreman in this case is of the same unpreventable type as in National Realty. Here respondent could not have known or anticipated their disobeyance of company policy. Respondent had a supervisor on the job, but the worksite stretched over a 16-mile area.

The Act does not make an employer an insurer or guarantor of employee compliance therewith at all times. Brennan v. OSAHRC and [*5] Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139, 1144-1145 (9th Cir. 1975). Furthermore, a respondent is not in violation where the foreman who is supposed to enforce the company policy fails to do this and in fact encourages a violation of the Act. Secretary v. Engineers Construction, Incorporated, 20 OSAHRC     (Docket No. 3551, September 29, 1975); cf. United States v. Consolidation Coal Company, 504 F.2d 1330, 1333 (6th Cir. 1974).

Additionally, the complainant has failed to establish, as required by National Realty and Construction Company, Inc. v. OSAHRC, supra at 1267, that:

"demonstrably feasible measures would have materially reduced the likelihood that such misconduct would have occurred."

Here the complainant merely argues that the foreman should have required the employees to come down. However, it is precisely the foreman's conduct which is at issue. The complainant totally fails to show how the respondent could enforce its safety policies when it had no control over the foreman, that is, selection of or right to discipline or fire him.

The complainant is required to establish his case by a preponderance of the evidence. Olin [*6] Construction Company, Incorporated v. OSAHRC, No. 74-2516 (2d Cir., September 9, 1975); Secretary v. Armor Elevator Company, Inc., 5 OSAHRC 260 (1973). He has clearly failed to do so in the instant case.

I maintain that the majority's affirmance of the citation erroneously overlooks the evidentiary deficiencies in the complainant's case and, contrary to law, applies a standard of strict liability against this employer for deliberate employee misconduct. This standard of practice was specifically rejected in Secretary of Labor v. OSAHRC and Raymond Hendrix d/b/a Alsea Lumber Co., supra., and National Realty and Construction Company, Inc. v. OSAHRC, supra.

Since this decision relies in part on Judge Chodes' opinion and does not expound on all matters contained therein, the same is attached hereto as Appendix A.

APPENDIX A

DECISION AND ORDER

Ian P. Spier, for the Secretary of Labor

Mark C. Yellin, for the Respondent

Joseph Chodes, Judge, OSAHRC

STATEMENT OF THE CASE

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 659) in which the respondent is contesting a citation issued by the complainant under [*7] the authority vested in complainant by Section 9(a) of the Act (29 U.S.C. 658(a)). The citation, which was issued on October 30, 1973, and a complaint filed later, alleges that an inspection of a place of employment located at Tower 133, Eden Road, Mt. Pleasant, New York, allegedly revealed that the respondent violated section 5(a)(1) of the Act (29 U.S.C. 664(a)(1)), the so-called general duty clause, and section 5(a)(2) of the Act (29 U.S.C. 664(a)(2)) which requires compliance with occupational safety and health standards promulgated under section 6 of the Act (29 U.S.C. 665).

With respect to the general duty clause, the respondent is charged with failure to furnish two of its employees employment and a place of employment which were free from recognized hazards and were causing or likely to cause death or serious physical harm in that respondent permitted the employees to remain aloft on a one hundred foot steel tower (at the 60 foot level) during demolition activities.

The standards allegedly violated were promulgated by the Secretary by publication on December 16, 1972 in the Federal Register, Vol. 37, No. 243, and codified in 29 CFR, Chapter XVII, Part 1926. The standards [*8] prescribed by Part 1926 were adopted as occupational safety and health standards under the Act at 29 CFR 1910.12. Specifically, the respondent is alleged to have violated the standards set forth at 29 CFR 1926.28(a) and 1926.951(b) in that respondent failed to ensure that an employee working at the 60 foot level of a 100 foot tower was wearing and utilizing personal protective equipment, specifically a life line and safety belt.

Pursuant to the enforcement procedure set forth in section 10(a) of the Act (29 U.S.C. 659(a)), the respondent was notified by letter dated October 30, 1973 from Nicholas D. Archangel, Area Director of the New York area, Occupational Safety and Health Administration, U.S. Department of Labor, of a proposed penalty of $700 for each violation (total $1400).

After respondent contested this enforcement action, and a Complaint and Answer had been filed by the parties, the case came on for hearing at New York, New York, on July 17, 1974.

STIPULATIONS

The following stipulations were entered into at the hearing (T. 6, 7).

1. The legal name of the respondent is The Theodore D. Bross Line Construction Corporation, a corporation organized under the laws [*9] of the State of Connecticut, with its principal office located at 42 Dudley Town Road, Bloomfield, Connecticut.

2. Many of the materials and supplies used by respondent were manufactured outside the State of New York, and respondent does business in more than one state.

3. On October 12, 1973, respondent was engaged in the dismantling of transmission lines at Eton Road, Tower 133, Mount Pleasant, New York.

4. On October 12, 1973, Robert L. Carter was an employee of respondent and as a result of an accident on October 12, 1973, Mr. Carter was injured.

5. On October 12, 1973, George Brill was an employee of respondent and as a result of an accident on October 12, 1973, Mr. Brill died.

6. The accident referred to in stipulations number 4 and 5 occurred at respondent's workplace, described stipulation number 3.

7. Both Mr. Carter and Mr. Brill were wearing safety belts.

8. The local union assigned the foreman on the job where the accident occurred.

AMENDMENT TO CITATION

At the hearing the complainant's motion to amend citation number 2 by adding the allegation that the standard set forth at 29 C.F.R. 1926.951(b) was violated by the respondent, was granted.

EVIDENCE [*10] OF ALLEGED VIOLATIONS

The respondent was erecting and dismantling steel towers along a 16 mile stretch which included the tower involved in the instant case (T. 63, Stipulation No. 3). On October 15, 1973, William M. O'Day, one of complainant's compliance officers, investigated a fatal accident which occurred on October 12, 1973 at the place of employment involved herein. Mr. O'Day inspected the accident site and observed that the tower which originally was approximately 100 feet high was cut off about 20 feet from the top (T. 24-27).

A few days later Mr. O'Day spoke to Lyle Bradley, the foreman in charge of the operation to dismantle the tower. Mr. Bradley told him that on the day of the accident, George Brill and Robert L. Carter, employees of the respondent, were on the tower and that their job was to cut two of the tower base supports so that the top of the tower could be pulled over by a winch and lowered to the ground by a crane. Before the tope of the tower was pulled over Mr. Bradley asked the men if they wanted to come down and they said they would be alright where they were and they stayed on the tower while the dismantling operation was taking place. When the winch [*11] pulled and folded the top of the tower over the edge, the top of the tower slammed against the lower part of the tower and Mr. Brill fell to the ground. The other employee on the tower, Mr. Carter, became dislodged but was held by his safety strap which was belted around a diagonal bracing (T. 28-34, 83).

At the time of the accident both Mr. Brill and Mr. Carter had on safety belts with strap attachments. Arthur Aubin, respondent's construction manager, testified that it was possible for Mr. Brill to have had his safety belt attached or tied off and still fallen to the ground without causing damage to the body belt or safety strap. This could have happened if the strap was attached to a piece of steel above him which was cut off. Or he could have been strapped to a diagonal bracing, and the velocity was such that two bolts were sheared off the bracing and his strap slid down (T. 71, 84-90, 103).

Mr. Aubin further testified that it was the respondent's policy not to permit its employees to be on the tower when the top of the tower was being removed because the work was "hazardous in its general nature" (T. 92).

The union on the job, the International Brotherhood of Electric [*12] Workers, had a contract with the respondent covering all employees up to and including the shop general foreman. Under this contract the union supplied mechanic journeymen and linemen on request, including the foreman for a particular job. The respondent did not have any voice in choosing the employees who, presumably, were experienced workers. To discipline an employee respondent was required to go through the unions shop general foreman. The men involved in the accident in this case, and the foreman at the time the accident happened, Mr. Bradley, were assigned to the job by the union (T. 73-77, Stipulation No. 8).

EVIDENCE REGARDING PENALTY *

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* Section 17(j) of the Act (29 U.S.C. 666(i)) provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

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Mr. O'Day recommended an unadjusted penalty of $1,000 for each serious violation which was reduced 10 percent for the respondent's good faith based on an overall view of the respondent's safety policy which was about average. An additional 20 percent was allowed for past history as there was no record of previous safety violations in the complainant's New York area office. No allowance was made for the size of the respondent's business because the respondent had over 100 employees (T. 50-53).

Pursuant to a contract with Raymond Lappla Associates, respondent's executives attended safety meetings conducted by the Lappla Associates on a monthly basis, more or less. The respondent had a safety committee composed of union members including the shop steward, the foreman and the construction superintendent. The committee had a "job walk" and safety discussions with the working employees once a week, and the foremen met once a month to discuss safety. From time to time, the respondent issued notices to its employees concerning safety, including one notice which threatened to fire any employees failing to wear protective equipment. Safety equipment including safety [*14] belts were provided to employees (T. 64, 69-71, Exhibits R-1, 2).

DISCUSSION

The respondent is charged with two serious violations: one for violation of specific standards, namely, 29 C.F.R. 1926.28(a) and 29 C.F.F. 1926.951(b), and the other for violation of section 5(a)(1) of the Act, the so-called general duty clause.

The standards allegedly violated provide in pertinent part:

Personal protective equipment.

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

Personal climbing equipment.

Body belts with straps or lanyards shall be worn to protect employees working at elevated locations on poles, towers, or other structures except where such use creates a greater hazard to the safety of the employees, in which case other safeguards shall be employed.

It is the opinion of this Judge that the evidence does not establish a violation of either of the above standards. The uncontradicted evidence shows that both of respondent's employees were wearing safety [*15] belts around their bodies and a safety strap attached to the belt. This safety equipment prevented Mr. Clark from falling from the tower to the ground. Because the equipment did not prevent Mr. Brill's fall, the complainant contends that the safety belt which he wore was not tied off or attached to a restraining structure to prevent him from falling. However, there is no evidence that Mr. Brill did not properly tie off his safety equipment and this cannot be presumed from the circumstance that Mr. Brill did fall in view of Mr. Aubin's testimony that under the circumstances which prevailed at the time of the accident, it was possible for Mr. Brill to have been thrown clear to the gound even though his safety belt was properly tied off. Therefore the burden of proof, which under Rule 73 of the Rules of Procedure of the Commission, shall rest with the complainant, has not been sustained.

With respect to the alleged violation of the general duty clause, the evidence supports the violation charged against the respondent. The method utilized by the respondent to dismantle the top of the tower as depicted by the testimony was fraught with danger which was recognized by the respondent's [*16] construction manager, Mr. Aubin. He testified that because of the hazardous conditions created when the top of a tower is being dismantled, it was company policy not to permit any employee to remain on the tower. During this time, because of the possibility that the top part of the tower being removed could slam into the bottom section, the top of the tower where the employees were was not free from recognized hazards that were likely to cause death or serious physical harm to the employees. Even the wearing of safety belts and straps does not assure that the force of the top of the tower striking the remaining part will not dislodge an employee and cause him to fall to the ground or otherwise injure himself.

The respondent asserts that since the foreman in charge of the dismantling operation, Mr. Bradley, was selected by the union, there is no responsibility on the part of the respondent for the disregard of company safety rules which occurred while the foreman was in charge. This argument is untenable in light of the specific provisions of section 5(a) of the Act which places the responsibility for furnishing his employees with a place of employment free of recognized hazards [*17] on "[e]ach employer". The respondent cannot be relieved of this obligation by contract or agreement. As stated by Judge Risteau in Secretary v. James L. Brussa Masonry, No. 725 (June 14, 1973), "the law makes each employer responsible for achieving safe and healthful working conditions for its employees and he cannot legally contract away this responsibility". The purposes of the Act cannot be thwarted by any arrangement between the respondent and the union.

It is respondent's contention that a violation of the general duty clause cannot be charged to the respondent because the employees on the job wilfully defied company policy by staying on the tower while it was being dismantled. However, the decision to permit the employees to remain on the tower was Mr. Bradley's, the foreman on the job who was acting on behalf of the respondent. Certainly, in light of the company policy of which he was aware, he could have ordered the employees off the tower prior to commencing the dismantling operation.

Respondent argues that the general duty clause is not applicable where there is a specific standard governing the violation. This is true, but the alleged violation of the general [*18] duty clause is predicated on a different factual basis than that of the specific standards cited by the respondent. The general duty violation alleges that the respondent permitted the employees to remain on the tower when it was being dismantled. This is a separate violation and is independent of the violation charging failure to wear personal protective equipment required by the specific standards referred to by the respondent.

There remains the assessment of the penalty for violation of the general duty clause. The complainant initially considered an unadjusted penalty of $1,000. which after deductions of 10 percent for good faith and 20 percent for the negative history for previous safety violations, resulted in a proposed penalty of $700. No credit was allowed for the size of respondent's business because its employees numbered over a hundred.

The controlling factor in reaching an appropriate penalty is the gravity of the violation. See Commissioner Burch's decision in Secretary v. Broadview Construction Co., 2 OSAHRC 210 (1973). The other factors for consideration in assessing a penalty, good faith, compliance history and size of the employer's business, are [*19] usually unrelated to the specific violation charged. In the instant case the gravity of the violation may be discerned from the resulting consequences to respondent's employees, a death and an injury. Thus the maximum penalty of $1,000 allowable under section 17(c) of the Act (29 U.S.C. 666(c)) is warranted, subject to any deductions for the other factors. The respondent does have an ongoing safety program and a negative history of safety violations which ordinarily would merit a greater allowance than the 30 percent accorded by the complainant. However, the gravity of the violation is an overriding consideration so that taking into account all factors, it is considered that the proposed penalty of $700 is appropriate.

FINDINGS OF FACT

On the basis of the citations, notification of proposed penalty, notice of contest, pleadings, stipulations, the testimony adduced at the hearing and the representations of the parties, it is concluded that on the basis of the record as a whole, a preponderance of the evidence supports the following findings of fact:

1. Paragraph 1 through 8 of the stipulations are incorporated herein as findings of fact.

2. On October 12, 1973, the respondent's [*20] employees, Robert L. Carter and George Brill, were working on the steel tower at a height of approximately 60 feet above the ground, and both employees were wearing body belts with straps or lanyards attached.

3. The complainant has not established that the personal protective equipment referred to in paragraph 2 above was not tied on or attached to a supporting structure with the view to safeguarding the employees from falling to the ground.

4. On October 12, 1973, the respondent did not furnish to the employees referred to in paragraph 2 above a place of employment which was free of recognized hazards that caused or was likely to cause death or serious physical harm to the employees in that the employees were permitted to remain aloft on a steel tower approximately 100 feet in height during dismantling operations. The top 20 feet of the tower was pulled over by a winch and the top of the tower slammed against the remaining tower where the employees were working causing an injury and a death.

5. Giving due consideration to the size of respondent's business, the gravity of the violation, the good faith of the respondent and the negative history of previous violations, the appropriate [*21] penalty for the violation described in paragraph 3 above is $700.

CONCLUSIONS OF LAW

1. The respondent at all times material hereto was engaged in business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

2. The respondent at all times material hereto was subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and of the subject matter herein.

3. The respondent did not violate the standards set forth at 29 C.F.R. 1926.28(a) and 29 C.F.R. 1926.951(b).

4. Respondent violated section 5(a)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 654(a)(1)) and is assessed a penalty of $700.

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is ORDERED:

1. That the citation issued on October 30, 1973 for violation of 29 C.F.R. 1926.28(a) which was amended to include an alleged violation of 29 C.F.R. 1926.951(b), is hereby vacated.

2. The citation issued on October 30, 1973, for serious violation of section 5(1)(a) of the Occupational [*22] Safety and Health Act of 1970 (29 U.S.C. 654(a)(1)) and the penalty proposed by the complainant of $700, is affirmed.

JOSEPH CHODES, JUDGE, OSAHRC

Dated: October 10, 1974

New York, New York