1 of 202 DOCUMENTS

TURNER COMPANY


A. SCHONBEK & CO., INC.  


NORANDA ALUMINUM, INC.  


GENERAL MOTORS CORP., GM ASSEMBLY DIV.  


ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.  


CLEMENT FOOD COMPANY


MILLCON CORPORATION


FWA DRILLING COMPANY, INC.  


CCI, INC.  


GENERAL ELECTRIC COMPANY


CONSOLIDATED ALUMINUM CORPORATION


THE BRONZE CRAFT CORPORATION


CARGILL, INC.  


CHAPMAN CONSTRUCTION CO., INC.  


GALLO MECHANICAL CONTRACTORS, INC.  


SPECIAL METALS CORPORATION


WILLAMETTE IRON AND STEEL COMPANY


NASHUA CORPORATION


WESTINGHOUSE ELECTRIC CORPORATION


RESEARCH-COTTRELL, INC.  


ROCKWELL INTERNATIONAL CORPORATION


NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.  


NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.  


BUNKOFF CONSTRUCTION CO., INC.  


GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION


HARRIS BROTHERS ROOFING CO.  


GENERAL DIVERS COMPANY


ORMET CORPORATION


R. ZOPPO CO., INC.  


COEUR D'ALENE TRIBAL FARM


L. A. DREYFUS COMPANY


CMH COMPANY, INC.  


BENTON FOUNDRY, INC.  


MICHAEL CONSTRUCTION CO., INC.  


WHIRLPOOL CORPORATION


BROWN & ROOT, POWER PLANT DIVISION


MARION POWER SHOVEL CO., INC.  


ERSKINE-FRASER CO.  


MORRISON-KNUDSEN AND ASSOCIATES


THE BOAM COMPANY


DIC-UNDERHILL, a Joint Venture


C. R. BURNETT AND SONS, INC.; HARLLEE FARMS


STRIPE-A-ZONE, INC.  


FORTE BROTHERS, INC.  


RAYBESTOS FRICTION MATERIALS COMPANY


TEXLAND DRILLING CORPORATION


THE ANACONDA COMPANY, WIRE AND CABLE DIVISION


SAM HALL & SONS, INC.  


VAMPCO METAL PRODUCTS, INC.  


LEONE INDUSTRIES, INC.  


ASARCO, INC.  


DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY


PLUM CREEK LUMBER COMPANY


PLUM CREEK LUMBER COMPANY


STEARNS-ROGER, INC.  


FERRO CORPORATION, (ELECTRO DIVISION)


AMERICAN PACKAGE COMPANY, INC.  


BROWN & ROOT, INC., POWER PLANT DIVISION

OSHRC Docket No. 76-1296

Occupational Safety and Health Review Commission

September 30, 1980

  [*1]  

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Joe M. Stevens, Jr., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Henry F. Martin, Jr. is before this Commission for review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   The Respondent was charged with an alleged violation of section 5(a)(1) of the Act n2 for failure to furnish to each of his employees a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm to the employees.   It was specifically alleged that the Respondent failed to protect employees working on its construction site from falling materials such as steel whalers being removed from concrete forms overhead. The judge vacated the citation based upon the complainant's failure to prove that the Respondent was aware of or could have anticipated the careless action of its employees in the area of the hazard. The Secretary's petition for review of the decision was granted by Commissioner Frank R. Barnako.   [*2]  

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n1 29 U.S.C. §   661(i).

n2 29 U.S.C. §   654(a)(1).

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The issues to be resolved are whether the Secretary has established the existence of a "recognized hazard" at Respondent's workplace, the protective measures Respondent should have taken to protect its employees from the hazard, and the feasibility and likely utility of those measures -- all necessary elements of the Secretary's burden of proof in cases arising under section 5(a)(1) of the Act.   National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973); Titanium Metals Corp. of America v. Usery, 579 F.2d 536 (9th Cir. 1978). For the reasons that follow, we reverse the decision of the administrative law judge and affirm the citation.

I

Respondent is a large general contractor that was engaged in the construction of a power plant facility located in Glen Rose, Texas.   The area of the project that was the focus of the inspection included a concrete wall in various stages of completion and a portion of the base of a spillway referred to as   [*3]   the keyway. The keyway was a portion of the spillway floor that was adjacent to the base of the spillway wall and sloped toward the wall.   It had an elevation slightly below that of the finished floor of the spillway so that the anchor bolts could be positioned in this sub-surface before the final pour of cement to complete the floor was made.   Several of Respondent's employees were working on the ground next to the wall that was being built to form part of the spillway when a fatal accident took place.   The employees on the ground were responsible for the drilling of holes in the keyway in order to accommodate the placement of anchor bolts to be used in future construction.   At the same time, employees were working at a height of 30 to 40 feet above ground in the process of "wrecking" (removing) wooden forms which had been installed to hold the freshly poured concrete in place while it cured.   The forms covered two vertical grids of steel rods ("rebar") that were 3 to 4 feet apart.   Once concrete was poured into the forms, it encased the grids of rebar, hardened, and formed a solid wall.   To aid in bearing the weight of the concrete against the wooden forms, lengths of steel I-beam [*4]   ("whalers") n3 were secured perpendicular to the face of the wall at approximately 10 foot vertical intervals along the edge of the forms.   Each whaler was bolted and then welded in place.

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n3 The whalers in question, two steel I-beams welded together, in parallel, were between 4 and 5 feet long, weighed "about 100 or 150 pounds," and extended far enough out from the wall to support other whalers which were placed along the wall across the face of the formwork.

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The procedure being used to dismantle the forms was for a rigger to unbolt the whalers from the wall forms and a welder to follow and cut the welds that held the whalers in place.   The lowest whaler on the wall was removed first and the work proceeded upward to the next higher whaler. The lower whalers were pulled from the rebar by ropes after the welds were cut and the retaining bolts were removed.   Some of the lower whalers had to be pried loose with wrecking bars and pieces of 2 X 4 lumber in order to be extricated.   A crane was used to remove the whalers [*5]   located further up the wall.   On the day of the fatal accident, one of the whalers had been unbolted and a welder had burned out most of the retaining welds on it.   That whaler was resting in the rebar as the welder climbed up the forms to work on the next whaler. By the time the welder repositioned himself by the higher whaler, secured his lifeline and safety belt, and paused to light a cigarette, the unbolted whaler fell, striking and fatally injuring one of the workers on the ground below.

The employees working on the ground adjacent to the wall were involved in the process of drilling anchor bolt holes. The anchor bolt holes were necessary to house the bolts that were used to secure steel form work for a subsequent concrete pour.   With one exception, they were located in pairs approximately 5 feet apart and at ten foot intervals, starting nearly 25-30 feet from the base of the wall and progressing inward to approximately 5 to 6 feet from the wall where a single hole was located.   The holes were nearly 5 inches wide and had been drilled once already, but had since become filled with mud and construction debris to the point that they could not be blown clear with air hoses.    [*6]   It was necessary to re-drill the holes.

The day before the accident, John McClain and Don O'Bannon were sent to re-drill the anchor bolt holes. McClain, a construction worker of 20 years experience, operated the drill and was assisted by O'Bannon.   They successfully drilled out three holes that were 15 to 20 feet from the wall when power to the worksite was shut off.   The two men then proceeded to clean the drill and compressor and left for the day at their regular quitting time.   Upon their return the following day, it was discovered that water had accumulated over the surface in which the remaining holes had to be re-drilled.   McClain and O'Bannon could not proceed until the water was evacuated.   A pump and pump operator, George Stubblefield, were dispatched to evacuate the water so that the holes could be located and re-drilled.   Stubblefield had worked with McClain and O'Bannon before and knew their job responsibilities.   As the pump started to siphon out the water, McClain entered the keyway to look for the hole closest to the wall.   O'Bannon joined in the search.   As the water level lowered, McClain directed his search closer to the wall and Stubblefield joined him.   When McClain [*7]   and O'Bannon decided that the hidden hole was yet closer to the wall, Stubblefield returned to his pump in order to move it to a more effective position in the keyway. At that time, the whaler fell from above and struck O'Bannon.

Danny Hash was the foreman of the drilling crews at the time of the accident.   He was not present at the jobsite on the morning the whaler fell.   He telephoned his leadman, Sam Spear, early that morning to discuss the work planned for the day.   Hash spoke with the foreman of the carpentry crews the day before as he knew that the holes were to be re-drilled.   He also knew that the area of the anchor bolt holes had to be cleared before drilling could continue.   Responsibility for the clean-up of that area belonged to the crews supervised by Jim Parnell, a supervisor in the carpentry department, and by Billy Russ, a supervisor in the building department.   McClain and O'Bannon were not to aid in the clean-up activities; they were only to re-drill the holes. Spear dropped the drillers off at their drill in the morning, nearly an hour before the cleanup crew was due to arrive.   Spear told the drillers to "hang loose until they got there and cleaned it up." Spear [*8]   then left to distribute other drillers to their respective job assignments.   By the time Spear returned, the accident had already occurred.   The supervisors responsible for the activities of the rigger, welder and clean-up crews also were not present at the time of the accident.

Respondent's witnesses at the hearing testified about Respondent's safety program.   Howard Durni, Jr., the safety supervisor for Respondent, explained the hiring and firing procedures used by the company.   He stated that new employees are shown a film on construction safety and are given a book of company safety rules for which they must sign.   Safety meetings are held with the employees every Monday morning. If an employee violates any of the safety rules, he is either given a warning or his employment is terminated.   Durni also set forth the line of supervisory control and responsibilities used at the jobsite. n4 Other employees testified concerning Respondent's active enforcement of its safety program, including weekly safety meetings and safety inspections by company supervisors. They testified that they knew of instances in which workers who had violated safety policies and procedures were either disciplined [*9]   or discharged.

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n4 Each craft on the project has a superintendent.   The superintendents supervise the general foremen who, in turn, supervise the foremen.   Foremen have authority over the leadmen and the leadmen are, at times, responsible for the general laborers.

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II

Judge Martin vacated the citation finding that Respondent "was not aware of or could not have anticipated the careless action of its employees in the keyway area." Specifically, he concluded that O'Bannon and McClain were either careless or neglected to think about the hazards of persons working overhead. The judge further concluded that "there is no evidence in the record to show that the drillers or other workers at the keyway site were lax in following instructions or that they were inclined to be disobedient or failed to comply with safety directives." Due to the nature of their lengthy tenure in the trade, Judge Martin also concluded that it would be unreasonable to expect one-on-one supervision for such experienced workers.

On review, the Secretary [*10]   argues that the hazard of working beneath an area of overhead work was recognized by the construction industry and by this Respondent.   He further argues that safety precautions such as the use of physical barricades to prevent employees from entering areas that would expose them to work being done overhead or the tying-off of the steel I-beams prior to cutting their supports would prevent any injuries and were feasible but not used.   Relying on Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902 (2d Cir. 1977), the Secretary asserts that precautions such as the use of physical methods to prevent the hazard were warranted to protect the employees.   The Secretary further argues that physical means, such as barriers, could and should have eliminated the hazard in this case rather than reliance on instructions to employees.   Concerning this point, the Secretary posits that specific instructions were not given to the ground crew in order to alert them to the work progressing overhead.

In lieu of a brief to the Commission, Respondent has filed a letter arguing that the decision of the judge is correct on the law and the facts and should be affirmed.   Respondent contends that [*11]   its safety program was adequate to protect the employees from the hazard. To find otherwise, Respondent argues, would be tantamount to the imposition of strict liability for any accident that could occur.   Respondent also argues that its instructions to employees not to work under overhead operations would have prevented the accident had the employees followed those instructions.

III

A.

In order to establish a violation of section 5(a)(1) of the Act, the "general duty clause," the Secretary must prove:

(1) that the employer failed to render its workplace "free" of a hazard which was

(2) "recognized," and

(3) causing or likely to cause death or serious physical harm to its employees.

National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1265 (D.C. Cir. 1973); Beaird-Poulan, A Division of Emerson Electric Co., 79 OSAHRC 21/D11, 7 BNA OSHC 1225, 1228, 1979 CCH OSHD P23,493 at p. 28,459 (No. 12600, 1979).   The record must also show that there were feasible steps the employer could have taken to avoid citation.   National Realty & Construction Co. v. OSHRC, supra at 1268.

A recognized hazard is a condition or practice in the workplace that is known to be hazardous [*12]   either by the industry in general or by the employer in particular.   See Beaird-Poulan, A Div. of Emerson Electric, supra; Empire Detroit Steel Div., Detroit Steel Corp. v. OSHRC, 579 F.2d 378, 383 (6th Cir. 1978). Furthermore, it is the hazard, not a specific incident that resulted in injury, which is relevant in determining the existence of the recognized hazard. See Brennan v. Vy Lactos Laboratories, Inc., 494 F.2d 460 (8th Cir. 1974); Boeing Co., Wichita Division, 77 OSAHRC 188/D13, 5 BNA OSHC 2014, 1977-78 CCH OSHD P22,266 (No. 12879, 1977).   In order to establish a recognized hazard, the Secretary must also prove that the occurrence of an incident is reasonably foreseeable. n5 Pratt & Whitney Aircraft, 80 OSAHRC    , 8 BNA OSHC 1329, 1334-35, 1980 CCH OSHD P24,447, pp. 29, 824-25 (No. 13591, 1980), appeal docketed, No. 80-4102 (2d Cir. June 24, 1980).

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n5 Chairman Cleary does not join in the discussion of reasonable foreseeability with respect to violations of §   5(a)(1).

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We conclude [*13]   that the evidence of record establishes the existence of a recognized hazard. The evidence indicates that the possibility of being struck by falling objects is recognized as a hazard by both the construction industry and this Respondent.   Indeed, that such a condition is hazardous is not disputed by the parties.   Every employee witness testified that he was aware of the danger of falling objects.   Since the acting Area Director believed that this hazard was recognized by the construction industry and was not covered by any specific standard, he agreed with the inspecting compliance officer's recommendation that the alleged violation should be cited under section 5(a)(1) of the Act.   Indeed, the fact that Respondent instructed its employees to secure themselves and their tools from falling indicates that Respondent also recognized falling objects to be hazardous. The witnesses' testimony also leads us to the conclusion that it is reasonably foreseeable that a whaler would fall.   Each whaler weighed approximately 150 pounds, was not tied off, and was in the process of being removed from the formwork.   In addition, we conclude that a whaler falling nearly 40 feet would likely cause [*14]   death or result in serious physical harm.

As noted earlier, in order to prove a violation of section 5(a)(1) of the Act, the Secretary also must demonstrate that there were feasible measures that the employer could have taken to avoid the citation. n6 In this case the compliance officer suggested two alternative methods of abatement. The first was to secure the whalers before preparing them for removal from the formwork.   The second method of abatement suggested by the Secretary was to station an employee on the ground to prevent other employees from entering the area below where the riggers and welders were working.   Either of these two methods would have freed the worksite of the hazard. Respondent does not challenge the feasibility of the abatement methods suggested by the Secretary.   In response to the two methods of abatement suggested by the Secretary, Respondent, citing to the judge's decision, contends that it "had no reason to believe that the experienced employees in question would deviate from an established work rule" (i.e., not to enter areas where work is proceeding overhead).

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n6 National Realty & Construction Co. v. OSHRC, supra at 1267.

  [*15]  

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Section 5(a)(1) requires the employer to free its workplace of recognized hazards. The Act, however, does not specify the manner by which recognized hazards are to be removed from the worksite. Accordingly, the employer may use any method that renders its worksite free of the hazard and is not limited to those methods suggested by the Secretary.   It follows that an employer may defend against a section 5(a)(1) citation by asserting that it was using a method of abatement other than the one suggested by the Secretary.   However, the burden is then on the employer to establish that its abatement method is as effective as the one suggested by the Secretary.   See Beaird-Poulan, A Division of Emerson Electric Co., supra. Where, as here, Respondent asserts that it had an established work rule designed to prevent the violation, Respondent must show that the work rule was in fact adequate to prevent the violation and was adequately communicated to its employees.   Respondent must also show that it had taken steps to discover violations of this rule and had effectively enforced the rule in the event [*16]   of infractions.   Cf. Jensen Construction Co., 79 OSAHRC 49/D3, 7 BNA OSHC 1147, 1979 CCH OSHD P23,664 (No. 76-1538, 1979) (elements needed to prove the affirmative defense of unpreventable employee misconduct under 29 U.S.C. §   651(a)(2) of the Act).

Brown & Root points out that the judge found that its "employees had been advised through [its] safety program that working under overhead operations was hazardous and should not be done." Brown & Root contends that this work rule demonstrates that it had a safety program which would have prevented the violation if employees had followed it.   As the following discussion demonstrates, however, its safety program (work rule) was not adequate to protect Respondent's employees from the recognized hazard in this case.

In regard to the work rule at issue, Respondent's safety supervisor stated that in the event of a lengthy operation of this type the area would be barricaded off. n7 Generally, however, employees were given instructions not to work below an area in which overhead work was proceeding.   He also stated that employees were terminated for violations of safety rules.   The carpentry foreman also emphasized in his testimony   [*17]   that in a situation in which work was proceeding overhead, the specific instruction given at safety meetings was to stay out of the area below.   He stated that he would have ordered employees out of such an area if he had seen them.   The drilling foreman, who was in charge of O'Bannon, the deceased employee, testified that in regard to overhead loads or anyone working overhead, he had instructed his crew "to back out and shut down" if the situation became unsafe.   He emphasized that his crew can shut down without his permission, noting that the crew has "to remain aware of what is going on and use their good judgment for their own protection without us being around." The leadman of the drillers testified that he had instructed the two drillers, McClain and O'Bannon, to stand by and wait until the water was pumped out before resuming work.   He noted, however, that both workers had shown a high degree of initiative in the past and that he had not instructed them not to work.   The surviving driller, McClain, testified that although he was instructed "to watch overhead and make sure there is nothing swinging loose or swinging in over your head with a crane," he could not recall being specifically [*18]   instructed to stay out from under an area where people were working.   Stubblefield, who was pumping out water to enable the drillers to finish drilling, stated that if people were working above him, he was instructed to stay clear of them.   He had, however, received no specific safety instructions with regard to his work on the day of the accident, although he did notice that rebar work was going on overhead. Two other employees of Respondent, a welder and a rigger, both testified that they were instructed to warn any employee working below them.

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n7 Respondent's safety director testified that when new employees are hired they sign a copy of Brown & Root's safety rules.   The rules were not introduced into evidence, however, nor was there a claim that the rule before us was a written rule, thus we consider the rule before us to be an oral, general work rule.

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This testimony demonstrates that Respondent's work rule is not specific enough to protect against the recognized hazard. Moreover, even if Respondent had a specific [*19]   work rule, the details of that rule were not communicated effectively to employees.   The testimony indicates that the work rule as perceived by Respondent's employees is quite distinct from the rule Brown & Root suggests is enforced.   The instruction as understood by the foreman and the leadman, to back out and stop work if conditions become unsafe, is too general to be an effective work rule. n8 See J.K. Butler Builders, Inc., 77 OSAHRC 26/A2, 5 BNA OSHC 1075, 1977-78 CCH OSHD P21,585 (No. 12354, 1977).   It places the burden for employee protection and compliance with the Act on the employees themselves, requiring them to perform their work assignment and to watch for unsafe conditions developing overhead. The Act, however, places final responsibility for compliance on the employer.   An employer cannot shift this responsibility to an employee by a work rule that is not effectively communicated and enforced.   See Iowa Southern Utilities Co., 77 OSAHRC 32/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD P21,612 (No. 9295, 1977).

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n8 The surviving driller's perception of the rule as an injunction, "to watch and make sure there is nothing swinging . . . in over your head . . .," reflects an even further dilution of the alleged work rule.

  [*20]  

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Although the work rule itself is inadequate to protect against the recognized hazard, even if we were to assume that the work rule was sufficient, Brown & Root's communication of that rule is also inadequate.   Both the drilling foreman and leadman knew that whalers were being wrecked above where the drillers were expected to work.   In addition it was apparent that the two drillers would take the initiative and begin work as soon as sufficient water was pumped out.   Yet the foreman and leadman gave them no instructions regarding the possible hazards, nor did they attempt to ascertain the progress of the work above in order to coordinate work above and below.   Further, these supervisors took no steps to remove those working below when work was proceeding above, and thereby implement Brown & Root's work rule. Thus, Brown & Root's work rule was a general work rule which was not communicated or enforced effectively enough to insure compliance with the rule.   General Telephone of Michigan, 78 OSAHRC 32/A12, 6 BNA OSHC 1255, 1978 CCH OSHD P22,676 (No. 14193, 1978).

We do not reach these conclusions from [*21]   the perspective of Respondent's assistant safety manager, who stated that this type of exposure to a recognized hazard could be prevented if there were "a safety inspector out there for every man on the job." See National Realty & Construction Co. v. OSHRC, supra, at 1266. Instead, we recognize that when work rules specifically address a recognized hazard, are effectively communicated to employees, and uniformly and effectively enforced, these rules can prevent the type of exposure to a hazard that took place at this worksite. n9

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n9 We reach no conclusions as to the quality of Brown & Root's overall safety program.   A list of employees dismissed for infractions of safety rules was introduced as evidence, and there was testimony regarding the vigilance of Brown & Root's safety inspectors.   While these factors may be indicative of a salutary safety program, the issue before us here is a narrow one, dealing with one work rule.

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Since our evaluation of Respondent's general, oral work rule reveals that it was [*22]   not implemented effectively and that it did not offer the employees protection necessary to render the workplace free of the hazard, we conclude that Respondent violated section 5(a)(1) of the Act.

We also conclude, after considering the penalty factors set forth in section 17(j) of the Act, n10 that the $600 penalty proposed by the Secretary is an appropriate one under the circumstances of this case.

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n10 29 U.S.C. §   666(i).

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Accordingly, the judge's decision is reversed, the citation is affirmed and a penalty of $600 is assessed.

SO ORDERED.