WALLACE ROOFING COMPANY

OSHRC Docket No. 76-4844

Occupational Safety and Health Review Commission

May 30, 1980

  [*1]  

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

George D. Palmer, Assoc. Reg. Sol., USDOL

Alphonse Maples, Jr., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Cecil L. Cutler, Jr., is before the Commission for review under section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").

Respondent, Wallace Roofing Company, was engaged in the installation of a flat roof on a three story office building under construction in Mobile, Alabama.   An inspection of the worksite by a compliance officer of the Occupational Safety and Health Administration resulted in the issuance of one citation to Respondent by the Secretary of labor ("Secretary").   The citation alleged two serious violations of the Act for Respondent's failure to comply with 29 C.F.R. §   1926.28(a). n1 The first part of the citation alleged a violation for failure to require the wearing of appropriate personal protective equipment when employees were exposed to a fall hazard at the edge of the roof. The second part of the citation alleged a violation based on   [*2]   the exposure of an employee to the hazard of burns at the hot tar kettle. The Secretary proposed a single $750 penalty for the alleged violations.

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n1 The cited standard provides:

§   1926.28 Personal protective equipment.

(a) 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.

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After a hearing Judge Cutler vacated both parts of the citation.   As to the first part the judge found that the Secretary had failed to establish that employees were exposed to a fall hazard. Regarding the second part the judge concluded that Respondent "had done all that it could" to require the involved employee to wear appropriate protective equipment.   The Secretary filed a petition for discretionary review of the judge's decision concerning only his vacation of the second part of the citation.   Chairman Cleary [*3]   granted the Secretary's petition and directed review on the issues raised in the petition including:

Whether the Administrative Law Judge erred in vacating the alleged violation of 29 C.F.R. §   1926.28(a) by finding that Respondent had done all it reasonably could do to require its tar kettle operator to wear appropriate personal protective equipment (face shields)?

Respondent has filed a brief on review.   The Secretary has decided to rely on his petition for discretionary review and thus has not filed a brief.   For the reasons that follow we reverse the judge's vacation of the second part of the citation.

I

At the hearing, the compliance officer testified that Respondent had four employees on the roofing job on the day of the inspection. One employee was on the ground operating the hot tar kettle, and the other three employees were on the roof applying hot tar and tar paper.   The compliance officer testified that the hot tar kettle operator was cutting bulk tar with an axe and placing it in the kettle. We further testified that the operator was not wearing personal protective equipment in the form of a face shield and thus was exposed to the hazard of hot tar splashing on his [*4]   face when placing cold that chunks into the liquid hot tar in the kettle. The compliance officer estimated the tar to be of a very high temperature because it was melting, smoldering, and smoking.   The employee was supplied with a face shield, but at the time of the inspection the shield was in Respondent's truck parked pear the tar kettle. The compliance officer stated that Respondent's superintendent told him that this particular kettle operator had been burned previously from splashed tar when feeding the kettle and the the operator had been warned numerous times about not wearing the face shield, including a warning on the morning of the inspection. The compliance officer testified that there was no written record of the warnings.

Respondent's vice president, Mr. Wallace, testified that the kettle operator had been cautioned about wearing his face shield "almost on a daily basis." He testified that the employee was "fully aware" of Respondent's policy requiring the wearing of face shields while working near hot tar kettles. Mr. Wallace further testified that despite Respondent's instructions, the involved employee's use of the face shield was erratic.   He might use it on   [*5]   one day, but not the next.   Wallace ventured the opinion that "I can't help to feel that [the employee] has some mental handicaps." Wallace testified that the employees has never been disciplined for not wearing his face shield. In Mr. Wallace's view discipline would be inappropriate.   He believed that assessing a fine is not the way to treat employees, that discharge would be difficult because qualified kettle operators are hard to find, and that docking the employee's pay would be harsh and unfair because his roofers basically only work nine or ten months of the year.   Finally, Wallace testified that he was not at the worksite on the day of the inspection and therefore was not aware that the kettle operator was not wearing his face shield on that day.

Mr. McAlpine, Respondent's foreman at the worksite on the day of the inspection, also testified.   McAlpine testified that he tells his kettleman at the start of every day to "get your . . . face mask out." He testified that kettlemen are only required to wear a mask when placing cold tar in the kettle because "[t]here is danger of splashing, that's when he is in danger of getting burned. . . ." McAlpine further stated that he cannot [*6]   stand on the edge of the roof to see whether the kettleman has his face shield on every time cold tar is placed in the kettle.

Based on this evidence the Judge found that Respondent "had done all that it could to enforce its rules that employees use their face masks when working at the tar kettle." The judge stated that "an employer cannot in all circumstances be held to the strict standard of being an absolute guarantor or insurer that his employees will observe all the Secretary's standards at all times," quoting Standard Glass Co., Inc., 72 OSHARC 7/D7, 1 BNA OSHC 1045, 1046, 1971-1973 CCH OSHD P15,146 at p. 20,219 (No. 259, 1972).   The judge noted that Respondent was aware of the employee's failure to abide by its rules concerning the wearing of protective equipment and that the employee was told to wear his face shield on those occasions when he was observed without it.   He further noted Respondent's description of the employee as a "somewhat unique employee" with possible "mettal handicaps." The judge concluded that the "only options left", dismissal or docking of pay, "need not be taken as a last resort by an employer in order to insure compliance with the Act, particularly [*7]   in this case where only a non-serious violation is alleged." n2 The judge observed that "[w]hile the Act provides no penalty for intransigent employees, a continual disregard by an employee of the rules provided for his own safety is just as much violative of the Act as an employer's failure to abide by its provisions." For these reasons, the judge vacated the citation.

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n2 Contrary to the judge's statement, the violation was alleged and tried as a serious violation. Furthermore, the need to take effective measures to ensure compliance with the Act's provisions, as discussed infra, does not turn on whether a resulting violation would be serious or nonserious.

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II

On review the Secretary expresses his agreement with the judge's observations that the Act does not impose strict liability on an employer and that employees too have a role to play in the reduction of workplace hazards. The Secretary emphasizes, however, that the Act imposes on employers a duty of compliance which cannot be delegated to employees.    [*8]   The Secretary argues that an employer cannot defend against a citation on the basis of unpreventable employee misconduct unless he has established, communicated, and enforced a safety program.   The Secretary asserts that the Commission and the courts have required "relatively stringent efforts by employers to assure compliance with safety standards by employees, particularly where a pattern of noncompliance has been established." Furthermore, based on Respondent's failure to discipline in any manner the involved employee, the Secretary asserts that "it is not surprising that Respondent's almost daily instructions to [the employee] to wear his face shield had no lasting effect." Allowing the judge's decision to stand, argues the Secretary, would in effect grant the employee "an individual variance to set his own standard of care." The Secretary further contends that contrary to the judge's decision, the Act draws no distinction between the employer's duty to eliminate nonserious as well as serious hazards from the workplace.   Finally, the Secretary argues that to the extent the judge based his opinion on the employee's "mental handicaps" and "uniqueness," characterizations that the   [*9]   Secretary submits are unsupported, it is "particularly inappropriate" to allow such an employee, who had been burned previously, "to continue to expose himself to a hazard that is readily neutralized by a face shield." Based on the foregoing, the Secretary urges reversal of the judge's vacation of the citation.

Respondent argues that "the real issue in this case is whether, in order to avoid liability under the Act, an employer must suspend or discharge an offending employee for that employee's repeated failure to wear safety equipment in accordance with OSHA regulations and company rules." Respondent submits that under the facts of this case such a requirement "would go too far." Respondent argues that the present case is not analogous to cases involving a "pattern of non-compliance" by numerous employees on a company-wide or industry-wide basis, where "concerted work stoppages might result from enforcement." In the present case, Respondent asserts, there is only one employee involved whose insubordinate behavior stems from "mental" problems.   Respondent submits that its failure to discipline the employee stems from "sensitivity" to the employee's needs and should not provide a basis [*10]   for holding it responsible for the violation.   Respondent maintains that the present case is more analogous to cases where citations issued to employers have been vacated because the employee exposure to the cited hazards resulted from the employees' own idiosyncratic, demented, or suicidal behavior, citing Brennan v. OSHRC (Hanovia Lamp Division), 502 F.2d 946 (3rd Cir. 1974); and National Realty and Construction, Inc. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). To hold it responsible for the violation on the facts of this case, Respondent argues, is to impose strict liability.

III

The parties are in agreement on the essential facts in this case.   Respondent does not dispute that a hazard is posed to employees placing cold tar chunks in the hot tar, that the involved employee was exposed to the hazard, that a face shield is appropriate equipment to protect against the hazard, and that its employee was not wearing a face shield on the day of the inspection. The secretary does not dispute Respondent's assertions that it had a policy requiring the wearing of face shields when working near the kettle and that the employee had been directed to wear his face shield on those occasions [*11]   when he had been observed working without the shield. The disagreement between the parties is centered on whether Respondent was required to go further and take disciplinary action in an attempt to secure the employee's consistent compliance with its work rule. We agree with the Secretary that further action was required.

In order to defend successfully against a citation on the grounds that a violation of the Act arose from unpreventable employee misconduct, an employer must establish that the action of its employee was a departure from a uniformly and effectively communicated and enforced work rule. H.B. Zachry Co., 80 OSAHRC, 7 BNA OSHC 2202, 1980 CCH OSHD P24,196 (No. 76-1393, 1980), petition for review filed, No. 80-1357 (5th Cir. March 28, 1980).   The evidence establishes that although Respondent had a work rule designed to prevent the violation and had communicated this rule to the involved employee, Respondent was aware that the concerned employee persisted in failing to comply with its rule yet took no action beyond oral reprimands to enforce the rule.   As we stated in B.G. Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1284, 1976-77 CCH OSHD [*12]   P20,744 at p. 24,881 (No. 4713, 1976), an employer must make "a diligent effort to discourage, by discipline if necessary, violations of safety rules by employees." In view of Respondent's awareness of the ineffectiveness of oral reprimands in preventing the exposure of its employee to a known hazard, further disciplinary action on its part was required.   Compare Mountain States Tel. & Tel. 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), with Asplundh Tree Expert Co., 79 OSAHRC, 7 BNA OSHC 2074, 1980 CCH OSHD P24,147 (No. 16162, 1979).   We agree with the Secretary's observation in his petition for review that "without even a threat of discipline much less an actual willingness on Respondent's part to impose measures up to and including discharge, it is not surprising that Respondent's almost daily instructions to [the employee] to wear his face shield had no lasting effect."

We specifically reject Respondent's argument that its duty to enforce compliance with the Act's requirements is lessemed due to the purported "mental handicap" of the involved employee.   Even   [*13]   if we accepted Respondent's characterization of the concerned employee as fact, n3 it would in no way serve to lessen Respondent's duty to the employee under the Act.   "[U]nder the Act final responsibility for compliance with its requirements is placed on the employer." Iowa Southern Utilities Co., 77 OSAHRC 32/C10, 5 BNA OSHC 1138, 1141, 1977-78 CCH OSHD P21,612 at p. 25,946 (No. 9295, 1977); also Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 553-55 (3d Cir. 1976). This statutory responsibility is final and can for no reason be shifted from the employer.   Iowa Southern Utilities Co., supra. For these reasons we conclude that Respondent has failed to establish its affirmative defense and must be held responsible for the failure of its employee to wear required personal protective equipment.

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n3 The record is devoid of any evidence to support a conclusion that the employee was mentally impaired in any manner except for Mr. Wallace's statement that, "I might not be accurate in saying this, but I can't help to feel that he has some mental handicaps. . . ." We find this ambiguous statement to be a totally insufficient basis upon which to rest any finding regarding the mental competency of the employee involved.

  [*14]  

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IV

A.

In the citation, the Secretary alleged two serious violations of the Act, but proposed a single $750 penalty.   Inasmuch as the first part of the citation was vacated and is not at issue on review, and taking into account the penalty assessment criteria set forth in section 17(j) of the Act, 29 U.S.C. §   666(i), we find a $100 penalty to be appropriate for this violation.

B.

The judge's vacation of the second part of the citation alleging a serious violation of the Act for Respondent's failure to comply with the standard at 29 C.F.R. §   1926.28(a) is reversed.   The second part of the citation is reinstated, a serious violation of section 1926.28(a) is found, and a $100 penalty is assessed.

SO ORDERED.