JONES & LAUGHLIN STEEL CORPORATION

OSHRC Docket No. 76-2636

Occupational Safety and Health Review Commission

June 25, 1982

[*1]

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Daniel H. Minnick, for the employer

OPINION:

DECISION

BY THE COMMISSION:

Am employee of Respondent, Jones & Laughlin Steel Corporation ("J&L"), was killed in an accident involving an overhead electric crane at J&L's Aliquippa, Pennsylvania steel mill. The Secretary of Labor ("Secretary") issued a citation charging that J&L had violated section 5(a)(1), 29 U.S.C. 654(a)(1), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). n1 The citation alleged that J&L had not instructed its motor inspectors in Stripping Yard Crane No. 7 concerning proper crane boarding procedures and hazards associated with improper crane boarding. n2 A penalty of $800 was proposed. Administrative Law Judge Joseph Chodes vacated the citation on the basis that J&L had adequately instructed its employees on proper procedures and that the Secretary failed to show that J&L had not taken adequate measures to implement its crane boarding safety rules. For the reasons set forth below, we affirm.

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n1 Section 5(a)(1) of the Act provides that "[e]ach employer . . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

n2 The Secretary's complaint amended the citation to add the following language:

and there was not on that date, nor prior thereto, a safety program with systematically enforced work rules which would effectively compel the motor inspectors and other employees exposed to hazards associated with the boarding of cranes to follow safety procedures directed to those hazards.

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I.

J&L's Aliquippa Works, a vast facility, occupied a site six miles long and employed 11,000 employees. Its operations were organized into about 120 divisions, each headed by a general foreman. There were more than 100 overhead cranes at the facility.

On the morning of the fatality, motor inspectors John Plonka and Blaise Churney were assigned to change the ram brake shees of electric crane No. 7, located in the stripper yard. Crane [*3] No. 7, a "stripper" crane, was a large overhead crane sixty feet wide mounted on parallel runways between forty and sixty feet above the ground. The ram brakes were on the crane above the level of the runways. The cab from which the crane operator controlled the crane was twenty to thirty feet below the level of the runways and twenty to thirty feet above the ground. n3

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n3 Two witnesses gave varying estimates of the height of the crane cab and the runways.

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The job classification of motor inspector, to which Plonka and Churney were assigned, was a "sixteen point" job, the highest level non-supervisory job in J&L's maintenance department. To attain this position, an employee had to work his way up a series of maintenance jobs and pass a battery of tests. Motor inspectors performed crane inspection, troubleshooting, and electrical repairs. Plonka had been a motor inspector for about twenty years. Churney, a motor inspector for one year, had worked on overhead electric cranes for about eight years and had a total [*4] of fifteen years with J&L.

After receiving instructions to change the brake shoes from Fred D'Antonio, crane repair foreman, Plonka and Churney proceeded to the crane boarding station, where they waited for the brake shoes to be brought to them. The boarding station was twenty to thirty feet above the ground, the same height as the crane operator's cab. After waiting for some time without receiving the brake shoes, the two employees walked up a stairway to one of the crane runways. The motor inspectors waited while the crane, approximately 100 yards away, cleaned up the yard with a magnet. When it appeared that the No. 7 crane was not going to return to the boarding station, which it normally did upon the completion of a particular task, Plonka and Churney started to walk north along the runway towards the crane. n4 The crane was above a "drag," several molds filled with hot steel, that was to be stripped by the crane. At that point, foreman D'Antonio noticed the two motor inspectors on the runway and told them to "hold up." D'Antonio called the operator of crane No. 7 to come out of the crane cab. After determining that the drag was to be stripped before the brake shoes were [*5] to be changed, D'Antonio instructed the motor inspectors to go to the south corner and wait for the crane. According to D'Antonio, Churney and Plonka acknowledged him by shaking their hands and nodding their heads. n5

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n4 By this time, the brake shoes had arrived. For reasons not explained, however, Plonka and Churney moved to board the crane without the brake shoes.

n5 The crane operator testified that the two motor inspectors were instructed to go to the south corner and to wait for him to finish stripping the drag. He observed Plonka and Churney start to walk toward the south end. Churney, however, did not recall being told to wait at the south end of the runway. Although D'Antonio was standing 40 to 60 feet below the two motor inspectors, both D'Antonio and Churney testified that they had no difficulty hearing each other.

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Plonka and Churney remained on the runway, however, and watched the stripping operation for a short time. Then they decided to board the crane. Churney, "knowing" that the crane would [*6] not move when it was over a mold, walked onto the crane. Upon reaching the trolley of the crane, Churney attempted to ask the crane operator to stop the crane so that Plonka could board. However, the crane's speaker system was not functioning and the crane continued moving from mold to mold stripping the steel ingots. Plonka, apparently thinking that the crane had stopped, walked up the crane runway. However, the crane moved toward Plonka, and he was pinned between the crane bridge guardrail and an adjacent upright colum along the runway. Plonka died of the injuries he sustained.

At the hearing, J&L admitted that it was a recognized hazard for an employee to board a crane without notifying the crane operator. To protect against this hazard, J&L had a work rule requiring its employees to notify the crane operator whenever they intended to board a crane. After such notification, the crane operator was required to turn the main electric switch of the crane off and to observe the employees boarding the crane. J&L equipped its cranes with red and green lights which indicated whether the crane is energized.

J&L's work rules also required employees to board cranes only from designated [*7] boarding platforms and prohibited employees from walking upon crane runways unless authorized to do so by the "person in charge." However, when a crane was broken down in a location away from the boarding platform, it was necessary for repair personnel to board a crane from the crane runways. Motor inspectors, in performing repairs, did not need to obtain permission from their foreman each time they walked on the crane runways, but they still were required to notify the crane operator prior to boarding a crane.

J&L's safety rules and procedures relating to cranes were contained in a booklet entitled, Safety Rules for Electric Overhead Traveling Cranes or Gantry Crane Operators, Crane Directors, Hook-up Men, Repairmen (Cab Operated). Instructions in the booklet relating to boarding cranes were comprehensive and unambiguous. The booklet, first prepared in 1949 and updated periodically, was available in various units of J&L where such rules would apply and was also referred to on a sign, "Notice to Crane Operators," which was posted in every crane cab. The booklet was also, at least to some extent, distributed to individual employees. Plonka was issued a copy of this booklet [*8] in 1952. Three employees testified that they received copres of this booklet when they began working in the stripper yard, in each instance over 20 years previously. Churney and two other employees, however, testified that they never received the booklet.

Employees experienced in crane operations testified that they knew the crucial crane boarding rules and procedures, including use of prescribed boarding areas whenever possible in getting on and off cranes, notification of the crane operator before boarding a crane, and the requirement that cranes not be boarded when the green indicator light was on. For the most part, the employees' knowledge of the safety rules was acquired on the job by observation of and discussion with other employees. Several employees, however, further testified that on occasions they boarded cranes without notifying the crane operator, but that they knew they were violating J&L's safety rules. Two crane operators, Kozlina and Bielorucki, testified that violations of crane boarding rules occurred about 10% of the time. n6

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n6 Millwright helper Mancini testified that he boarded the crane from the crane runway about 85% of the time. However, he generally boarded a crane only after it was deenergized for repairs. Mancini also testified that he rarely worked in the stripper yard.

[*9]

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Churney and another motor inspector stated that they knew chey were violating J&L's safety rules when they boarded cranes without notifying the crane operator. They both expected discipline or a reprimand if a violation was discovered. Kozlina and Bielorucki also expected that employees would be reprimanded if management learned about crane boarding violations. Kozlina testified that, when employees had boarded his crane without notification, he had become angry and told them "I don't care for it." However, he did not notify management about such violations because he did not want to "squeal" on employees and get them in trouble.

The superintendent of the Aliquippa Works and the crane repair foreman testified that, prior to the accident, they had never observed or known of any crane boarding violations. The superintendet testified that, although there was an average of two supervisors in the stripper yard for each shift, discovery of crane boarding violations was difficult because employees were reluctant to report violations to management, and it would be hard to come across an unreported violation. [*10] If employees failed to comply with J&L's safety regulations, they were verbally reprimanded, and, in more serious cases, disciplined with "written reprimands, time off, further suspension, and even termination." Discipline procedures were provided in the union contract, and salaried supervisory employees also had been disciplined for safety violations.

J&L's safety program at its Aliquippa Works included safety seminars attended by persons selected by union and management, the posting of signs around the plant, and awards to divisions with the best housekeeping. A field safety inspector, whose duties were to attend safety meetings, look for unsafe practices, and review accident reports, was assigned to the Steel Works Department and reported to J&L's safety administrator. A joint labor-management safety and health committee also met monthly.

Supervisory employees and foreman D'Antonio testified that superintendents held monthly safety meetings with general foremen. The general foremen met monthly with the foremen under their direction, who in turn were required to hold two safety meetings per month. However, some of J&L's employees testified that safety meetings were held less [*11] frequently.

The general foreman of each plant division was required to make a job safety analysis each month of some operation within the division. A job safety analysis of crane No. 7 had not been done before the accident because the crane had been in operation only five months.

Compliance Officer O'Matz testified that a crane boarding fatality occurred at J&L's Pittsburgh plant in 1973. n7 That fatality involved a "trainee-type" person who was crushed between the crane and a column when he was attempting to board a moving crane. No citation was issued under section 5(a)(1) of the Act as a result of that incident. Safety administrator Gilberg testified that, prior to Plonka's death, there had never been any similar crane boarding accidents at the Aliquippa Works.

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n7 Judge Chodes refused to consider this testimony on the basis that it concerned a different plant. The Secretary argues that evidence of this fatality was of some relevance to this proceeding and should not have been excluded from evidence. We agree. See Bethlehem Steel Corp., 81 OSAHRC 86/A2, 9 BNA OSHC 2177, 1981 CCH OSHD P25,645 (No. 77-617, 1981) appeal docketed, No. 81-2802 (3d Cir. Oct. 30, 1981); York Heel of Maine, Inc., 81 OSAHRC 114/D14, 9 BNA OSHC 1803, 1981 CCH OSHD P25,011 (No. 78-5920, 1981). However, consideration of the Secretary's offer of proof about this incident does not affect our disposition. The occurrence of the fatality at the Pittsburgh facility must be balanced against the absence of crane boarding accidents and lack of management knowledge of crane boarding violations at the Aliquippa facility. At Aliquippa, where there were over one hundred cranes and numerous employees getting on and off cranes every day, there had been no prior crane boarding accidents similar to the incident at issue in this case. Therefore, we do not agree with the Secretary that the fatality at Pittsburgh should have provided notice to J&L of a need to change its safety program with respect to crane boarding at the Aliquippa facility.

[*12]

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II.

Judge Chodes found that the failure of an employee to notify a crane operator of his intention to board a crane was a hazardous practice and was recognized a hazardous by J&L in its crane boarding rules. However, the judge determined that J&L's employees were adequately instructed on proper crane boarding procedures, including the requirement of prior notice to the crane operator of intention to board a crane, and thus he concluded that J&L did not violate section 5(a)(1). The judge noted that all the employees who testified were aware of the hazards associated with crane boarding. While the rule requiring notice to the crane operator was occasionally disregarded, Judge Chodes found that such instances were not brought to the attention of any level of J&L's supervisory structure. The judge thus concluded that J&L with the exercise of reasonable diligence could not have known of breaches of its safety rules. Additionally, the judge determined that the accident resulting in Plonka's death "would not have occurred but for the action of two employees who had full knowledge that what they did was [*13] contrary to their own appreciation of the risks involved and in direct violation of the respondent's safety rules."

The judge determined that a specific program for monitoring employee adherence to crane boarding rules was not necessary as of the date of the accident since all J&L employees who worked around cranes were familiar with the rules and since no violations of these rules had come to the attention of supervisors. Additionally, the judge concluded that failure to implement a monitoring program was not shown to be a recognized hazard. The judge also noted that, while J&L disciplined employees who violated safety rules, no such disciplinary action had been taken with respect to crane boarding rules since no violations of those rules were known by J&L's supervisory personnel. Finally, the judge found that J&L's failure to conduct a job safety analysis study of crane No. 7 was not a recognized hazard.

III.

The Secretary contends that J&L failed to implement three feasible precautions that would have materially reduced the likelihood that J&L's employees would improperly board cranes, and that because it did not implement these three precautions, J&L violated section 5(a)(1) [*14] by failing to free its worksite of recognized hazards. n8 The Secretary maintains that J&L's safety program was deficient in that J&L should have distributed copies of safety rules to all employees, instituted a program of formal instruction or discussion of crane boarding rules, and systematically monitored employee compliance with crane boarding rules.

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n8 The Secretary argues that the judge also erred in requiring proof of industry recognition of feasible means of abating a hazard. In the Secretary's view, the relevant standard is whether such precautions are feasible, not whether they are recognized by the industry.

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In order to establish a section 5(a)(1) violation, the Secretary must prove: (1) the employer failed to render its workplace free of a hazard, (2) the hazard was recognized either by the cited employer or generally within the employer's industry, (3) the hazard was causing or was likely to cause death or serious physical harm, and (4) there was a feasible means by which the employer could have eliminated [*15] or materially reduced the hazard. Baroid Division of NL Industries, Inc. v. OSHRC, 660 F.2d 439 (10th Cir. 1981); St. Joe Mineral Corp. v. OSHRC, 647 F.2d 840 (9th Cir. 1981); National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973); Whirlpool Corp., 79 OSAHRC 32/A14, 7 BNA OSHC 1356, 1979 CCH OSHD P23,552 (No. 9224, 1979), rev'd on other grounds, 645 F.2d 1096 (D.C. Cir. 1981).

An employer's duty under section 5(a)(1) is to free its workplace -- to the extent feasible -- of recognized hazards that are likely to cause death or serious injury. When elimination of a particular hazard requires employees to follow certain procedures, the employer must take the steps necessary to assure that employees in fact follow those procedures. General Dynamics Corp., Quincy Shipbuilding Division v. OSHRC, 599 F.2d 453, 458 (1st Cir. 1979); National Realty & Construction Co., supra. An employer is not, however, a guarantor of its employees' safety and cannot be expected to guard against conduct that is so idiosyncratic that a reasonable safety program would not guard against it. National Realty & Construction Co., supra. [*16] An employer is not in violation of section 5(a)(1) if it has established workrules designed to prevent the violation, has adequately communicated workrules to its employees, has taken steps to discover violations of the rules, and has effectively enforced the rule in the event of infractions. See Mercer Well Service, Inc., 77 OSAHRC 178/C6, 5 BNA OSHC 1893, 1977-1978 CCH OSHD P22,210 (No. 76-2337, 1977). n9

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n9 Since the Secretary failed in this case to demonstrate that J&L had not taken adequate measures to implement its safety rules, Chairman Rowland does not find it necessary to consider at this time whether an employer may properly be required to enforce workrules which have been communicated to employees. For a discussion of the question whether an employer should be required to do anything more than give instructions to employees regarding proper safety procedures, see General Electric Co. v. OSHRC, 540 F.2d 67, 69 (2d Cir. 1976); Borton, Inc., 82 OSAHRC      , 10 BNA OSHC 1462, 1982 CCH OSHD P25,983 (No. 77-2115, 1982) (dissenting opinion).

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In this case, J&L was cited for failure to instruct its employees about hazards associated with crane boarding and for failure to implement a safety program that would compel employees to follow safe crane boarding procedures. The hazards associated with crane boarding are not in dispute, and the Secretary does not contend that J&L's crane boarding rules and procedures were themselves inadequate. Further, the evidence establishes that J&L's crane boarding rules were sufficient, if followed by employees, to protect against crane boarding hazards.

The Secretary, however, argues that J&L's crane boarding rules were not sufficiently communicated to employees because copies of written rules were not distributed to all employees and because formal instructions or discussion of crane boarding rules was infrequent or, according to some J&L employees, nonexistent. The Secretary maintains that such measures would assure that all employees knew the crane boarding rules, eliminate employee confusion about the application of such rules, and underscore the importance of complying with the rules.

We disagree. The Secretary's arguments [*18] overemphasize the formal aspects of J&L's safety program and fail to give proper significance to its substance. See Texland Drilling Corp., 80 OSAHRC 106/C13, 9 BNA OSHC 1023, 1980 CCH OSHD P24,954 (No. 76-5307, 1980). Six J&L employees who worked on overhead cranes testified at the hearing, and each of these employees was familiar with the basic elements of J&L's crane boarding rules, i.e., that employees boarding cranes were to notify the operator before boarding and that employees if possible were to board cranes from crane boarding platforms. n10 The employees also showed appreciation of the hazards associated with crane boarding. Further, testimony by several employees that reprimands or discipline would result if crane boarding violations were detected demonstrates the employees' understanding that compliance with crane boarding safety rules was viewed as important by management.

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n10 The Secretary takes exception to the judge's finding that Plonka knew proper crane boarding procedures, contending that Churney's testimony that Plonka knew the rules was "incompetent." However, Churney had not only worked with Plonka for a number of years but had been trained as a motor inspector by Plonka. In Churney's opinion, based on his experience, Plonka was very safety conscious. Thus Churney's statement that Plonka was familiar with crane boarding rules is not only admissible, but credible. In any event, our disposition here is not affected by whether it was shown that Plonka knew the crane boarding rules, since knowledge of the rules was exhibited by the other employees who testified.

[*19]

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There is no evidence that violations of J&L's crane boarding rules occurred inadvertently as a result of confusion about the meaning of the rules. Rather, the violations of the rules that were discussed in the testimony were committed by employees who knew they were violating the rules but were taking chances for reasons of convenience. n11 Therefore, we conclude that additional distribution of crane boarding rules and formal discussion of such rules would not have significantly improved employee safety awareness of crane boarding hazards, employee understanding of proper crane boarding procedures, or employee compliance with these procedures. See Champlin Petroleum Co. v. OSHRC, 593 F.2d 637 (5th Cir. 1979).

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n11 The Secretary contends that there was confusion even among J&L's supervisory employees about whether motor inspectors needed to obtain prior authorization from their supervisors each time they walked on the crane runways and about under what circumstances it was proper for employees to board cranes from the crane runways. However, the only employees who did not routinely obtain supervisory permission to walk on the runways were motor inspectors. The mill superintendent testified that it was not necessary for motor inspectors to obtain permission each time they walked on the runways because motor inspectors are authorized to perform all necessary repairs to cranes. Although both Gilberg, the safety administrator, and foreman D'Antonio testified that Plonka and Churney were not permitted under J&L's safety rules to go onto the crane runway in this instance, their opinion was based on the view that the crane was operative and thus could have been brought to the boarding station. Accordingly, the witnesses' testimony is not inconsistent as the Secretary contends. Similarly, with respect to the boarding of cranes from runways, the evidence shows that all such boardings that occurred at J&L's facility were the result of necessity or of a deliberate violation of J&L's safety rules. Therefore, the evidence does not establish that J&L's employees were confused about when they should board cranes from runways.

[*20]

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J&L did not have a formal program to monitor employee compliance with its crane boarding procedures. However, two supervisors, on the average, were present in the stripper yard, and J&L as part of its general safety program periodically monitored employee safety compliance. The Secretary argues that J&L's monitoring of employee crane boarding was inadequate and that J&L should have increased its supervision or directed its supervisors to increase their commitment to safety functions.

There is no evidence, however, that J&L should have perceived a need for additional monitoring of crane boarding or that such an effort would have led to the discovery of crane boarding violations. As the judge noted, prior to the fatality no J&L supervisor was aware of employee violations of its crane boarding rules. J&L's employees did not report crane boarding violations to management because they did not want to get their coworkers "in trouble." Additionally, it was difficult for supervisors to spot crane boarding violations if they were not reported, apparently because an employee's failure to notify a crane operator [*21] before boarding his crane could not be readily detected from observation and because it was permissible for employees to walk on the crane runways under some circumstances. Moreover, employees engaged in crane boarding would be standing on runways or boarding platforms above the large, busy floor of the stripping yard, thus making observation of them more difficult. In addition, the employees involved in crane boarding here were motor inspectors, the most senior and experienced employees in J&L's entire maintenance department. It was reasonable for J&L to expect that close monitoring of such experienced employees would not be necessary. Therefore, we conclude that under the circumstances of this case J&L's monitoring of employee crane boarding was not shown to be inadequate.

We therefore conclude that J&L did not violate section 5(a)(1) of the Act since the Secretary failed to show what further measures J&L could have taken to render its worksite free of the cited hazard. Accordingly, the judge's decision vacating the citation and proposed penalty is affirmed.

SO ORDERED.

DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

In their opinion my colleagues erroneously conclude that the [*22] Respondent could not have discovered the continuing, pervasive violations of its safety rule.

I

As the lead opinion states, "J & L admitted that it was a recognized hazard for an employee to board a crane without notifying the crane operator." J & L attempted to counteract the hazards associated with crane boarding by implementing workrules requiring employees to notify the crane operator before boarding and to board cranes from designated platforms unless repairs were to be performed on cranes in areas inaccessible from boarding platforms. Even in this circumstance, notification of the crane operator was required by J & L.

My colleagues recognize that violations of the crane boarding workrule were commonplace. However, they fail to focus on the routine pattern of workrule violations. The lead opinion accurately indicates that there were more than 100 cranes at the Aliquippa worksite and, "numerous employees getting on and off cranes every day . . . ." Lead opinion at n. 7. In its brief on review, J & L refers to the number of electrical overhead cranes at Aliquippa -- "over one hundred, at least." It also makes reference to the usual, everyday practice of boarding the cranes [*23] -- "the hundreds of people who have gotten on and off cranes day in and day out for years at this plant. . . ."

My colleagues further cite the testimony of several employees who stated that they knowingly violated the rule by boarding cranes without notifying the operators. The lead opinion also accurately states that two crane operators, Kozlina and Bielorucki, testified that violations of crane boarding rules occurred about 10% of the time. None of this evidence is rebutted. Thus the record evidence reveals that 10% of the hundreds of employees who board more than 100 cranes each day do so in a manner admitted by the Respondent to constitute a recognized hazard.

II

Incredibly, my colleagues conclude that a program to monitor for employee compliance was not required because J & L did not know about employee non-compliance. Of course, it did not know of employee non-compliance because it failed to adequately monitor compliance with the workrule.

The lead opinion attempts to support its conclusion that monitoring was not required by stating,

As the judge noted, prior to the fatality no J & L supervisor was aware of employee violations of its crane boarding rules. J & L's [*24] employees did not report crane boarding violations to management because they did not want to get their coworkers "in trouble."

Yet, the supervisors' ignorance of workrule violations was a direct result of their failure to monitor. Furthermore, the need for management monitoring is reinforced by the understandable failure of employees to report one another's workrule violations.

The lead opinion continues:

Additionally, it was difficult for supervisors to spot crane boarding violations if they were not reported, apparently because an employee's failure to notify a crane operator before boarding his crane could not be readily detected from observation and because it was permissible for employees to walk on the crane runways under some circumstances. Moreover, employees engaged in crane boarding would be standing on runways or boarding platforms above the large, busy floor of the stripping yard, thus making observation of them more difficult. (emphasis added.)

Encountering "difficulty" in spotting a violation does not negate the obligation to do so. As the lead opinion correctly states, "An employer is not in violation of section 5(a)(1) if among other things it . . . has [*25] taken steps to discover violations of [workrules]. . . . See Mercer Well Service, Inc., 77 OSAHRC 178/C6, 5 BNA OSHC 1898, 1977-78 CCH OSHD P22,210 (No. 76-2337, 1977)." Moreover, as my colleagues amply demonstrate through their equivocation ("apparently"), the record does not indicate why the workrule is even "difficult" to enforce. n1

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n1 Nor does the record reveal any evidence that it is difficult to observe activity above the work level because that work level is large and busy.

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The lead opinion's unsuccessful attempt to support its result continues:

In addition, the employees involved in crane boarding here were motor inspectors, the most senior and experienced employees in J & L's entire maintenance department. It was reasonable for J & L to expect that close monitoring of such experienced employees would not be necessary.

My colleagues ignore Commission precedent that would lead to a contrary conclusion. Well-settled Commission and courts of appeals precedent holds that an employer has responsibility [*26] for providing a safe and healthful workplace and delegation of that responsibility to employees is inconsistent with the purposes and policies of the Act. PBR, inc., 643 F.2d 890, 895 (1st Cir. 1981); Empire Detroit Steel Division v. OSHRC 579 F.2d 378, 385 (6th Cir. 1978); Atlantic & Gulf Stevedores, Inc. et al v. OSHRC, 534 F.2d 541, 553, 554 (3rd Cir. 1976). As the Commission has stated, "The fact that . . . employees in positions of responsibility thought that deviation from [a safety workrule] was acceptable conduct is persuasive evidence that a requirement to comply with the rule was not effectively . . . enforced by the company." Western Massachusetts Electric Co., 81 OSAHRC 63/B13, 9 BNA OSHC 1940, 1945, 1981 CCH OSHD P25,470 at p. 31,766 (No. 76-1174, 1981). See also Ted Wilkerson, Inc., 81 OSAHRC 70/D8, 9 BNA OSHC 2012, 2016, 1981 CCH OSHD P25,551 at p 31,856 (No. 13390, 1981) (violation occurring in presence of leadman results in rejection of defense to 5(a)(1) violation based on workrule because leadman could have known of violation); United Geophysical Corp., 81 OSAHRC 77/D6, 9 BNA OSHC 2117, 2123, 1981 CCH OSHD P25,579 at p. 31,907 [*27] (No. 78-6265, 1981), appeal filed, No. 81-4342 (5th Cir. 1981) (lax implementation of safety policy evidenced by supervisor breach). In addition, the Commission has consistently noted that, [E]xperienced as well as inexperienced workers may be subject to accidents resulting from inadequate operating procedures, poor training, and employee inadvertence (citations omitted).

Cornell & Company, Inc., 77 OSAHRC 164/F5, 5 BNA OSHC 1736, 1739, 1977-78 CCH OSHD P22,095 at p. 26,608 (No. 8721, 1977). See also Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1978 CCH OSHD P22,909 (No. 12523, 1978) and cases cited. Though the degree of supervision may vary, there is a minimum requirement to protect the health and safety of all employees regardless of their experience.

III

The lead opinion correctly states that,

When elimination of a particular hazard required employees to follow certain procedures, the employer must take the steps necessary to assure that employees in fact follow those procedures. General Dynamics Corp., Quincy Shipbuilding Div. v. OSHRC, 599 F.2d 453, 458 (1st Cir. 1979); National Realty & Construction, supra. n2

Under section 5(a)(1) [*28] the employer has the duty to take all feasible steps to eliminate hazardous conduct from its workplace. General Dynamics Corp., Quincy Shipbuilding Div. v. OSHRC, supra; National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1266-67 (D.C. Cir. 1973). Beaird-Poulan Div., Emerson Electric Co.,    OSAHRC   , 7 BNA OSHC 1225, 1230, 1979 CCH OSHD P23,493 at p. 28,460-6 (No. 12600, 1979); See Brennan v. Butler Lime and Cement Co., 520 F.2d 1011, 1017 (7th Cir. 1975).

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n2 It is not clear whether Chairman Rowland adheres to this view because he "does not find it necessary to consider at this time whether an employer may properly be required to enforce workrules. . . ." Lead op. at n. 9. He avoids the issue by concluding that the Secretary has failed to demonstrate that J & L failed to implement its safety rules.

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As the Commission recently stated, "The nature of an employer's duty to prevent hazardous conduct is the same whether the case arises under section 5(a)(1) or 5(a)(2). The elements [*29] of an effective safety program do not depend on the action [sic] of the Act that is allegedly violated." Western Massachusetts Electric Co., supra, 9 BNA OSHC at 1944-45, 1981 CCH OSHD at p. 31,765. The Commission emphasized that, under section 5(a)(2), when employee conduct has resulted in noncompliance with a standard, it is the employer's burden to plead and prove as an affirmative defense that it could not prevent the employee's misconduct. Under section 5(a)(1) the burden is on the Secretary to prove that the cited employer breached its duty to render the workplace free of a hazard and an employer may rebut on the basis that it took all necessary precautions to prevent the occurrence of the violation. 9 BNA OSHC at 1945, 1981 CCH OSHD at p. 31,765-66. As stated by the U.S. Court of Appeals for the 1st Circuit,

[w]hen the employer's defense is that the hazard occurred as a result of unauthorized and idiosyncratic behavior by its employees, the issue of an employer's training and supervision of its employees automatically arises as part of the employer's showing that it took all feasible steps to avoid the occurrence of the hazard.

General Dynamics, Corp., Quincy [*30] Shipbuilding Div. v. OSHRC, 599 F.2d at 459.

IV

In this case the unrebutted evidence that 10% of the hundreds of boardings that occur daily are in violation of J & L's safety rule establishes that the worksite has not been freed of the cited hazard. n3 The Secretary has thus sustained his burden of proof. J & L has totally failed to rebut this prima facie case. "There is no evidence that Respondent made any efforts to ascertain whether its safety rules were followed. Effective safety enforcement requires a diligent effort to discover and discourage violations of safety rules by employees." Paul Betty dba Betty Brothers, 81 OSAHRC 18/B11, 9 BNA 1379, 1383, 1981 CCH OSHD P25,219 at pp. 31,151-52 (No. 76-4271, 1981). Workrules must be enforced through supervision adequate to detect failures to comply with the rules. United Geophysical Corp., supra; Floyd S. Pike Electrical Contractor, Inc., 78 OSAHRC 50/E1, 6 BNA OSHC 1675, 1978 CCH OSHD P22,805 (No. 3069, 1978). J & L's failure in this regard is obvious. The violation should be affirmed because J & L failed to rebut the Secretary's evidence establishing a recognized hazard that could have been obviated by [*31] implementation of an adequately enforced workrule and because the hazard was likely to, and in fact did, result in death or serious physical injury to an employee.

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n3 In Marson Corp., No. 78-3491 (May 27, 1982), Chairman Rowland recently dissented to the majority's affirmance of a machine guarding violation. He stated that the employer's safety rule was violated "in only a fraction of one percent of the total production operations" and explained that, "Because of the extreme infrequency of the circumstances under which a violation may occur, it is patently unreasonable to expect Marson to predict and prevent every instance of its occurrence." In this case, the workrule violations were not extremely infrequent; they occurred in 10% of the hundreds of daily boardings.

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