NIAGARA MOHAWK POWER CORPORATION

OSHRC Docket No. 76-2414

Occupational Safety and Health Review Commission

May 23, 1979

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

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

John P. Clinton, Niagara Mohawk Power Corporation, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Commissioner:

A decision of Review Commission Judge Abraham M. Gold is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter referred to as "the Act"). Respondent, Niagara Mohawk Power Corporation, was issued a citation for a serious violation of 29 C.F.R. 1926.201(a)(4) n1 because Terry, a mechanic for Respondent, allegedly acted as a flagman without wearing a red or orange warning garment. Judge Gold affirmed the citation and assessed a $400 penalty. The issues on review are (1) whether the judge erred in finding that the failure to comply with 29 C.F.R. 1926.201(a)(4) was not an unpreventable occurrence as alleged by Respondent, and (2) if a violation occurred, whether it was serious. For the reasons that follow, we affirm the judge's findings with respect to the violation, but reduce the penalty from [*2] $400 to $25.

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n1 29 C.F.R. 1926.201(a)(4) provides:

Flagmen shall be provided with and shall wear a red or orange warning garment while flagging. Warning garments worn at night shall be of reflectorized material.

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Four of Respondent's employees, including a foreman, were working on a gas line serving a residence that was located adjacent to a two lane highway. The day was clear, visibility was unobstructed, and the work area could be seen by approaching drivers from a distance of about one city block. "Men Working" signs were placed about 300 feet from the site in each direction along the road. The equipment -- a crew truck, trailer, and dump truck -- was parked along the shoulder, but the outrigger of a backhoe protruded onto the road during part of the operation.

Respondent's foreman, Callari, testified that both lanes of traffic could pass the job site, but with very little clearance. Therefore, he told Terry to get a warning vest and direct traffic. Since the safety vests were stored in a truck parked [*3] on the other side of the road, it was necessary for Terry to cross the street to obtain a vest. Terry testified that he waved some hesitant drivers through the work area so he could cross the street. Cones surrounded the job site, and Terry stated that he stood within the coned area when he gave these signals. One of the cars Terry waved through contained the Occupations Safety and Health Administration (OSHA) Area Director for Syracuse, New York, who was en route to investigate a complaint at another location. According to Terry, he believed that the Area Director was a state inspector, and told Callari that a state investigator had just passed. Callari testified that he assured Terry that Respondent had the necessary state permits, and then Callari himself got a vest for Terry because, as Callari put it, Terry had been unable to cross due to the traffic.

The Area Director's version of the facts was somewhat different. He testified that there was not enough room for two cars to pass in opposite directions. According to the Area Director, Terry stood near the center of the road and had to step aside to let cars pass. The Area Director saw Terry, who was not wearing a red or [*4] orange warning garment, wave two cars through. The Area Director testified that by the time he parked and returned to Respondent's job site, Terry was wearing a vest as were all employees, whether or not they needed one.

Respondent repeatedly told its 661 employees, including Terry and Callari, that flagmen must wear reflecting vests. Terry was told about Respondent's safety vest rule in monthly safety meetings, various safety publications, and safety movies. Terry testified that he was a flagman between 50 and 60 times in the past; he customarily wore a vest. Respondent issued a warning to both Terry and Callari after the citation. The Area Director testified that if one could possibly be too safety conscious, Respondent was so regarding vests. Because of Respondent's "beautiful safety record," the Area Director testified that he "points with pride" to Niagara Mohawk during OSHA safety meetings. The record does not show any prior violations of the Act.

Before the judge, Respondent argued that Terry did not act in the capacity of a flagman during this incident, but merely followed the natural, courteous, and only safe course of action in waving through some hesitant drivers [*5] on his way to obtain a warning vest. In any event, Respondent argued that even if Terry was acting as a flagman, Terry's actions were an isolated event, contrary to Respondent's well-enforced safety vest rule. Respondent emphasized the warnings given to both Terry and Callari, the Area Director's "unsolicited assessment" of its safety program, and the lack of evidence of prior violations. Respondent also contended that Callari did not know Terry was flagging without a vest, but supplied a vest as soon as he became aware of Terry's actions.

Based on witness demeanor, Judge Gold disbelieved Terry's and Callari's version of the events leading to the citation and found that, at the time of the incident, Terry was acting as a flagman without wearing a warning vest. The judge noted that Callari expressly told Terry to direct traffic, and Terry admitted that he gave traffic signals. Finally, Judge Gold noted that even that Terry became apprehensive when he saw the Area Director, Terry did not continue across the road to get a vest. Rather, the foreman immediately got a vest for everyone -- despite the traffic.

Judge Gold also rejected Respondent's argument that the violation was [*6] an unpreventable, isolated occurrence. He noted that even though Respondent had issued instructions that flagmen must wear high-visibility vests, the record did not establish that the work rules were uniformly enforced. The judge reasoned that Terry's failure to wear a vest occurred in the presence of the foreman, Callari, and that Callari's action or inaction was imputable to Respondent.

We agree with the judge's findings. With respect to whether Terry was acting as a flagman, we accept Judge Gold's credibility determination. That determination was based on witness demeanor and the evidence as a whole and was supported by specific reasons. Accordingly, we defer to it. See P & Z Co., 77 OSAHRC 211/F5, 6 BNA OSHC 1189, 1977-78 CCH OSHD P22,413 (No. 76-431, 1977).

The defense of unpreventable employee misconduct does not apply if the violation was known to or could have been foreseen by the employer. B-G Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD P20,744 (No. 4713, 1976). Here, Callari had expressly told Terry to direct traffic, and Terry failed to comply with the safety vest requirement of 1926.201(a)(4) while Callari was [*7] present. Although Respondent contends that Callari became aware of Terry's conduct only after the Area Director passed, Judge Gold rejected Respondent's version of the facts based on the demeanor of the witnesses and the record as a whole and concluded that the foreman should have assured that Terry was wearing the required vest. For the same reasons we accepted the judge's determination that Terry was acting as a flagman, we accept the judge's finding that the supervising foreman knew or could have known of Terry's actions. See P & Z Co., supra.

A supervisor's knowledge is usually imputed to the employer. However, an exception to this rule exists if the employer has taken all necessary steps to comply with the Act, including adequate supervision of its supervisory personnel. Alder Electric Co., 77 OSAHRC 49/C8, 5 BNA OSHC 1303, 1977-78 CCH OSHD P21,748 (No. 13573, 1977).

Respondent repeatedly told its supervisors about the safety vest requirement. But it is not sufficient simply to communicate safety rules to supervisors. Compare Floyd Pike Electrical Contractor, Inc., 78 OSAHRC 50/E1, 6 BNA OSHC 1675, 1978 CCH OSHD P22,805 (No. 3069, 1978) with Mountain [*8] States Telephone & Telegraph Co., 78 OSAHRC 30/A2, 6 BNA OSHC 1504, 1978 CCH OSHD P22,668 (No. 13266, 1978), petition for review filed, No. 78-1438 (10th Cir., June 2, 1978). The employer must make a specific showing that its safety rules were effectively enforced, by discipline if necessary. Although Respondent warned Callari after the citation, Respondent presented no evidence of prior efforts to enforce its safety rule, or of any mechanism to discover violations of the rule. Safety instructions coupled with post-citation disciplinary measures, without more, are not enough to show that the employer adequately supervised its foremen about OSHA safety requirements.

Therefore, we agree with Judge Gold's conclusion that Callari's knowledge was properly imputed to Respondent. Alder Electric Co., supra. Since Respondent knew or could have known of the violation through its foreman, Respondent's contention that Terry's conduct was unpreventable is without merit. See B-G Maintenance Management, Inc., supra. Accordingly, we affirm the judge's holding regarding unpreventability.

Judge Gold held that the violation was serious, as defined in section 17(k) n2 of the Act, [*9] because there was a substantial probability that a flagman could be seriously injured or killed if hit by a car and because Respondent, through its foreman, knew or with the exercise of reasonable diligence could have known of the violation. On review, Respondent asserts that even if there was a violation, the violation was not serious. To support its argument, Respondent cites Nojac Co., 74 OSAHRC 81/C12, 2 BNA OSHC 1327, 1974-75 CCH OSHD P18,982 (No. 1602, 1974), in which a violation of the same standard was cited as serious but reduced, on the Secretary's motion, to nonserious. In that case, the Commission did not address the seriousness issue because the issue was not on review. However, even though a similar violation has been cited as or found to be nonserious under a particular set of facts, that determination does not control a similar issue in a subsequent case. See T.J. Service Co., 78 OSAHRC 23/A2, 6 BNA OSHC 1509, 1978 CCH OSHD P22,670 (No. 14991, 1978). Each case must be decided on its own facts.

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n2 Section 17(k) provides:

For purposes of this section, 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.

[*10]

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For a violation to be deemed serious under section 17(k) of the Act, there must be a substantial probability that death or serious physical harm could result if an accident occurred; the probability that an accident will occur is irrelevant. Boonville Division of Ethan Allen, Inc., 78 OSAHRC 105/B4, 6 BNA OSHC 2169, 1979 CCH OSHD P23,219 (No. 76-2419, 1978). The Area Director testified that serious injury would probably result from being hit by a car, and that the likelihood of an accident was increased because Terry was not wearing a red or orange garment. Respondent emphasizes the short duration of the violation, the high quality of its safety program, and the clear visibility during the flagging episode. Such factors relate to penalty assessment, but not to seriousness. Respondent offered no evidence to dispute the probability of death or serious harm.

Section 17(k) of the Act also specifies that a violation will not be deemed serious if the employer did not and could not, with the exercise of reasonable diligence, know of the violation. As indicated previously, Respondent knew or could [*11] have known of the violation because Callari's knowledge was imputed to Respondent. Since both factors of section 17(k) are thus satisfied, we affirm Judge Gold's holding that the violation was serious.

Although Respondent does not specifically take issue with the penalty, Respondent refers to gravity in its brief on review. Respondent compares the brevity of the violation and its good safety record with similar facts in Mojac, supra. n3 Judge Gold considered Respondent's size (661 employees) and history (no evidence of prior violations). But, based on the severity of the possible injury, Judge Gold found that the gravity was high and accordingly assessed a $400 penalty.

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n3 Respondent erroneously cites the partial concurring/partial dissenting opinion in Mojac, supra. The majority affirmed the judge who had assessed a high penalty ($650) based on findings that employees other than the flagman were exposed. Because the facts in this case show that only one employee was exposed, Mojac, supra, is distinguishable.

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We do not agree with the judge's conclusion that the gravity of the violation was high. Although an accident would likely have had serious consequences, the probability that an accident would occur was extremely low; the day was clear, cones surrounded the work area, and the job site was readily visible to passing motorists. Moreover, only one employee directed traffic without a vest, and he did so for only a very short time. We conclude that the violation was of relatively low gravity. Baltz Bros. Packing Co., 73 OSAHRC 3/C4, 1 BNA OSHC 1118, 1971-73 CCH OSHD P15,464 (No. 91, 1973).

The record also evidences a strong showing of Respondent's good faith effort to promote employee safety. Respondent has an extensive program of safety meetings, movies and publications to educate its employees about occupational safety. The Area Director points with pride to Respondent's safety program during OSHA meetings. Since one of the purposes of the Act, as enunciated in section 2(b)(1), is to encourage employers in their efforts to reduce occupational safety and health hazards, we feel that a substantial penalty is not warranted. In light of the low gravity of [*13] the violation, coupled with Respondent's good faith, we reduce the penalty from $400 to $25.

Accordingly, the judge's decision is modified to assess a penalty of $25 and, as so modified, is affirmed.