MARSON CORPORATION

OSHRC Docket No. 78-3491

Occupational Safety and Health Review Commission

May 27, 1982

[*1]

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

COUNSEL:

Office of the Solicitor, USDOL

Albert Ross, Regional Solicitor, USDOL

Robert F. Sylvia, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge David J. Knight is before the Commission for review under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). Judge Knight vacated item 1 of a citation alleging that the Respondent, Marson Corporation ("Marson"), committed a serious violation of the Act by failing to comply with the machine guarding standard at 29 C.F.R. 1910.212(a)(1). n1 Commissioner Cleary directed review on the following issue:

Whether the administrative law judge erred in vacating the alleged serious violation of 29 C.F.R. 1910.212(a)(1) on the grounds that [Marson] exercised reasonable diligence and yet lacked knowledge of the presence of the violation?

For the reasons that follow we affirm item 1 of the citation.

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n1 The standard states:

1910.212 General requirements for all machines.

(a) Machine guarding -- (1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are -- barrier guards, two-hand tripping devices, electronic safety devices, etc.

[*2]

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I.

Marson, a manufacturer of autobody fillers, operates two Hockmeyer mixers at its Chelsea, Massachusetts plant. Following in incident in which a mixer operator, Soto, had his arm severed by the Hockmeyer no. 2 mixer, Marson was cited for failing to comply with 29 C.F.R. 1910.212(a)(1) by exposing operators to the unguarded rotating parts and shear points of that machine.

The Hockmeyer no. 2 mixer consists of a cylindrical tank 4 feet in length and 2 feet in diameter fitted with three rotating mixing blades. The tank rests horizontally on four legs. Because the opening of the mixer is about 5 feet above the ground, employees must stand on a 3 foot high platform next to the mixer to feed materials into it. The opening in the top of the tank through which materials are fed into the tank measures 22 inches by 48 inches. Below the opening are mixer blades that rotate with a torque great enough to amputate hands and arms. To protect employees from the moving blades, but permit them to feed materials while the blades are moving, the Hockmeyer no. 2 is equipped with a steel grate or screen over the [*3] opening. The grate is held in place by its own weight. Material can usually be added to the mixer through the grate, but a section of the grate can be raised or the entire grate can be removed.

Marson's employees did not remove the grate when the machine was on except when Marglass (a fiberglass filler) was produced out of, among other things, fiberglass. This occurred perhaps once every two months. The grate was removed because fiberglass did not readily pass through it. O'Connor, one of Marson's mixer-operators operated the mixer without the grate. Thiboult, another operator, testified that he did so until he concluded that the practice was unsafe. Soto, who had been employed by Marson for five days, did not use the grate and had his arm severed as he was emptying a bag of fiberglass into the mixer.

Both Fennessey, Marson's manufacturing manager and head of its safety committee, and Razzak, its technical director, testified that it was company policy that the grates be kept in place when the machine was in operation. Fennessey testified that the policy was enforced by the issuance of warning notices by foremen, and by holding regular safety meetings at which infractions [*4] of the policy could be brought to the attention of management by the employees. Fennessey also testified that he made safety tours of the plant. Razzak testified that he physically checked the plant at least once a day. Razzak also testified that technicians, such as Forman, were given a copy of a list of procedures entitled "Responsibilities of the Foreman in the Mixing Room Area" and were requested to write the instructions down as they understood them. n2 Marson introduced a written transcription of its work rules that Razzak testified had been copied by Forman. Forman testified that the procedures reflected his perception of Marson's procedures but he was not certain it was his transcription. This handwritten document included the following commands:

2) With mixer off and screen removed, the stirred paste is added to mixer.

3) Mixer is placed on slow speed, the screen is replaced, polyester in flow valve is opened and flow meter is started.

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n2 This document directs the foreman "[t]o check, [that] anybody working in the mixing room uses the safety equipment. ([I]f any mixer [operator] is working with chopped fiberglass he should be double checked for safety equipment)." It also states that the "[m]ixer [operator] should add the white paste when the machine is not running" and directs the foreman to conduct "[r]andom check[s] of the lab technician [to determine] that he is following the procedures." Marson also introduced into evidence a set of instructions governing the manufacture of a number of body fillers. These instructions included a command to "be sure . . . the screen of the mixer is clean and in position" before starting a batch and not to "put your hands in the mixer or do any scraping when the mixer is running . . . or add any powder into the running mixer without the screen."

[*5]

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Fennessey testified that O'Connor, a mixer, told him that he knew that operating the machine with the grate off was against company policy. A second employee, Thiboult, testified that he knew the practice was contrary to company policy but decided to comply with the rule because he realized the danger presented by the blades, not because of the policy. Forman, the technician in charge of training the mixer-operators and running the mixing room, testified that he observed employees adding material to the mixer with the grate off and the machine on. Soto, the injured employee, testified that he observed other employees pouring compounds into the Hockmeyer no. 2 while it was on and that he had never seen the Hockmeyer no. 2 with the grate on.

Judge Knight vacated the item. He found that Marson knew of the hazard presented by the machine, but did not know of the violative condition even though it exercised reasonable diligence. The judge credited the testimony of Razzak that Marson had a policy against running the machine with the grate on. He implicitly rejected Forman's testimony that he had never [*6] been told not to run the mixer with the grate off. He found that Forman and the other technicians, who were responsible for the training and supervision of the mixers, were aware of the dangers of operating a machine without a grate. The judge found nothing to indicate that Forman was inadequately trained. The judge also found that it had not been shown that Marson's safety program was inadequate and that the Secretary had not shown any specific action Marson could have taken to discover the violation.

II.

On review, the Secretary argues that Marson had actual knowledge of the violative condition through its supervisory employee Forman. The Secretary relies on Mercer Well Service, Inc., 77 OSAHRC 178/C6, 5 BNA OSHC 1893, 1977-78 CCH OSHD P22,210 (No. 76-2337, 1977). He contends that Forman was a supervisor because he was responsible for the training and supervision of employees in the mixing room and that if Forman had received proper instructions, he could have prevented the violations in this case. According to the Secretary, Marson's failure to provide proper instructions establishes a prima facie case of an employer's knowledge of its own acts or omissions.

The Secretary [*7] claims that in order to rebut such a prima facie case, Marson would be required to demonstrate that it had a consistently enforced safety program, supervisors adequately trained in safety matters and a mechanism for discovering safety violations. The Secretary argues that even if the command was given not to run the mixer with the screen off, the effectiveness of the rule's communication must be doubted because Marson's employees were either unaware of the rule or felt free to disregard it. Relying on Niagara Mohawk Power Corp., 79 OSAHRC 36/A2, 7 BNA OSHC 1447, 1979 CCH OSHD P23,670 (No. 76-2414, 1979), the Secretary also contends that because Marson had no mechanism to discover violations of its rules, it failed to enforce its safety program. He argues that detection of violations by the methods Marson employed -- safety meetings at which infractions could be pointed out by employees and inspections by Razzak during which he could not actually see whether the grate was in place -- would be only accidental.

In conclusion, the Secretary argues that even if the judge was correct in not imputing Forman's knowledge to Marson, he erred in concluding that the Secretary failed to [*8] prove a lack of reasonable diligence on Marson's part. The Secretary maintains that an employer "cannot fail to properly train and supervise its employees and then hide behind its lack of knowledge concerning their dangerous working practices," quoting Danco Construction Co. v. OSHRC, 586 F.2d 1243, 1247 (8th Cir. 1978).

On review, Marson urges us to affirm the judge's decision. It contends that it had no knowledge of a violation of the standard by its employees. Marson contends that its safety director and technical director, who conducted safety meetings and made tours of the plant, were unaware that the Hockmeyer #2 was operated without a grate. Marson also argues that because it was entitled to rely on Forman's knowledge of the requirement that no mixer be operated without its grate in place, it did not have constructive knowledge of the violation. To impute the knowledge of a non-management employee, such as Forman, of certain isolated violations of its rules, would Marson argues, amount to the imposition of strict liability.

Contrary to the Secretary's arguments, Marson contends that an ongoing, active safety program was in existence at its plant, and that it [*9] disciplined employees who violated its rules. Marson also argues, relying on the holding of the United States Court of Appeals for the Fifth Circuit in Floyd S. Pike Electrical Contractors, Inc. v. OSAHRC, 576 F.2d 72 (5th Cir. 1978), that it can only be held liable for an employee's conduct if that conduct "might have been precluded through feasible precautions concerning the hiring, training, and sanctioning of employees." Marson contends that it did everything it could have done to prevent the violations. It argues that it could not have been expected to discover the occasional violations of the standards unless a management level employee was present when the violation occurred. Thus, it claims that it exercised the degree of diligence required by the Act, and still did not know of the violation.

III.

Section 1910.212(a)(1) requires that employees be protected by a guarding method from the hazards of rotating blades. It is clearly applicable to the cited machine. On the day the alleged violation occurred, the standard was not complied with because the screen was off and Soto was unprotected from the hazard of the rotating blades. See A.E. Burgess Leather Co., [*10] 77 OSAHRC 25/D6, 5 BNA OSHC 1096, 1977-78 CCH OSHD P21,573 (No. 12501, 1977), aff'd, 576 F.2d 948 (1st Cir. 1978). n3

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n3 The judge did find that employees sometimes added fiberglass to the mixer when the screen was off and the mixer was in operation. Uowever, he made no specific finding that the condition presented a hazard, that the standard was not complied with, or that any violation was serious within the meaning of the Act. While a remand to the judge might be necessary in some circumstances in order for the judge to make such findings, here the parties had an opportunity to make a complete record before the judge. Because the Commission has the ultimate authority for making findings of fact, it can make the necessary findings of fact where as here, the record is sufficiently detailed and credibility is not an issue. Franklin R. Lacy (Aqua View Apartments), 81 OSAHRC 7/A2, 9 BNA OSHC 1253, 1254, 1981 CCH OSHD P25,171, p. 31,073 (No. 3701, 1981). We enter our findings here on the issues not reached by the judge.

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Marson claims that it did everything it could have reasonably done to prevent the violation. This claim raises the affirmative defense of unpreventable employee misconduct. In order to establish this defense, an employer must show that it has established workrules designed to prevent the violation, has adequately communicated these rules to its employees, has taken steps to discover violations, and has effectively enforced the rules when violations have been discovered. Jensen Construction Co., 79 OSAHRC 49/D3, 7 BNA OSHC 1477, 1479, 1979 CCH OSHD P23,664, p. 28,695 (No. 76-1538, 1979). Employees must be properly trained and supervised and must be made aware that the work rules will be enforced. See Danco Construction Co. v. OSHRC, 586 F.2d 1243, 1247 (8th Cir. 1978); see Daniel International Corp., 81 OSAHRC 57/A2, 9 BNA OSHC 1980, 1983, 1981 CCH OSHD P25,492, p. 31,790 (No. 15690, 1981), appeal filed, No. 81-7602 (5th Cir. July 21, 1981).

We conclude that Marson failed to establish that it adequately trained and supervised its employees and that its efforts to monitor compliance with its rule were adequate. Soto, a new employee, was [*12] not apprised of Marson's safety rule; and Forman, the technician in charge of training employees, was not shown to have been adequately supervised in his training duties. After Forman received his initial training, he apparently received no further supervision. Enforcement of the rule was problematic in other respects. Despite safety tours by Fennessey of unknown frequency and thoroughness, occasional visits to the mixing room by Razzak, and a requirement that foremen report rule violations to Razzak, mixeroperators regularly violated the rule when they poured fiberglass into the machine. When one of the operators decided to comply with the rule, he did so not out of fear that he would be observed or disciplined but out of fear of the danger of the unguarded blades. Marson's safety meetings could not be relied on because it was the employees who were expected to raise the matter. Although Razzak was asked by Marson's counsel what would occur if he found an employee violating the rule, Razzak did not testify that infractions would result in disciplinary action. In short, we find that Marson had ineffective means of determining if its rule was followed and that employees were [*13] not made aware that the rule would be enforced. n4

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n4 In view of our finding that Marson failed to adequately implement its safety rule we need not reach the issue of whether Forman was a supervisor.

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IV.

We also find that the violation was serious within the meaning of section 17(k) of the Act, 29 U.S.C. 666(j). n5 Marson failed to adequately implement its safety rule and thus could, with the exercise of reasonable diligence, have known of the violation. See Niagara Mohawk Power Corp., 7 BNA OSHC at 1450, 1979 CCH OSHD at p. 28,703. In addition, the compliance officer testified that an amputation could occur if the mixer opening was not covered. This unrebutted testimony, along with the fact that an amputation occurred, establish a substantial probability of serious physical harm within the meaning of the Act. See Ralston Purina Co., 79 OSAHRC 22/C11, 7 BNA OSHC 1302, 1979 CCH OSHD P23,507 (No. 76-2551, 1979).

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n5 That section 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.

[*14]

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In considering the appropriate penalty, we note that the gravity of this violation is moderately high. Under the circumstances of this case, we find that the $490 penalty recommended by the Secretary is appropriate.

Accordingly, the judge's decision is reversed. We affirm item 1 of the citation and find Marson in serious violation of the Act for failing to comply with 29 C.F.R. 1910.212(a)(1). We assess a penalty of $490.

SO ORDERED.

DISSENTBY: ROWLAND

DISSENT:

ROWLAND, Chairman, Dissenting:

I dissent from the majority's decision to reverse the judge and affirm the citation in issue. Under Commission precedent, a violation of the Act cannot be found unless the Secretary establishes as part of his case that the employer knew or with the exercise of reasonable diligence could have known of the presence of the violation. Prestressed Systems, Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD P25,358 (No. 16147, 1981); General Electric Co., 81 OSAHRC 42/A2, 9 BNA OSHC 1722, 1981 CCH OSHD P25,345 (No. 13732, 1981); and cases cited therein. See M. Rothstein, Occupational Safety and Health Law, [*15] 76-77 (1978). As the majority correctly observes, the violation in this case occurred when an employee, Soto, was injured by the rotating parts of a machine as a result of his operating the machine without using a guarding device, the metal grate which Marson has provided. n6 As explained more fully below, Marson did not have actual knowledge of this violation because its supervisory personnel were not present when Soto operated the mixer in this manner. Since the Secretary also failed to demonstrate any defect in Marson's safety program, he has not shown any circumstances sufficient to put Marson on prior notice that an employee might operate the mixer without the grate in place. Therefore, the Secretary has not shown that Marson either knew or reasonably could have known of the violation. The judge properly decided the case, and his decision should be affirmed.

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n6 The judge concluded that Marson provided an adequate guarding device, and he characterized the gravamen of the Secretary's charge as failure by Marson to require the use of this guard. Regardless whether, as the majority claims in note 3 of the lead opinion, the judge failed to make the necessary factual findings, the majority does not dispute the judge's characterization of the issue.

[*16]

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Review of the judge's decision was requested, and directed, on the issue whether the judge erred in finding that Marson lacked knowledge of the violation, and in their briefs both parties discuss whether or not the facts of record establish such knowledge. Therefore, the only issue properly before the Commission in this case is factual, and in deciding the issue the Commission need do no more than determine whether the evidence of record supports the judge's disposition. See E.I. duPont de Nemours & Co., 82 OSAHRC    , 10 BNA OSHC 1320, 1325, 1982 CCH OSHD P25,883 at 32,381 (No. 76-2400, 1982).

Nevertheless, the majority does not decide this case on the factual issue presented. Rather, the majority injects an issue not directed for review and not briefed by the parties; that is, whether Marson established a supposed affirmative defense of "unpreventable employee misconduct." By deciding the case on this issue, the majority shifts the burden of proof on an essential element of a violation from the Secretary to the employer. n7 Since this action is contrary to the precedents noted above, as [*17] well as to the fundamental principle that the Secretary has the burden of proof in our proceedings, n8 I must dissent.

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n7 The majority cursorily acknowledges the element of knowledge as a part of the Secretary's case by concluding that the violation was serious in nature under 29 U.S.C. 666(j) because Marson could have known of it, based on Marson's supposed failure to adequately implement its safety rule. However, at no point in the lead opinion does the majority consider whether the Secretary affirmatively demonstrated that Marson did in fact have knowledge of the violation. Rather, the majority's conclusion that Marson did not adequately implement its safety rule is based on the determination that Marson failed to prove as an affirmative defense that it had an adequate safety program. Since the majority applies the wrong legal test in resolving the question of employer knowledge, its finding must be rejected.

n8 See Commission rule 73(a), 29 C.F.R. 2200.73(a).

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I.

The above cited cases supporting the [*18] proposition that employer knowledge of a violation is an essential element of the Secretary's case are but a recent expression by the Commission of a long-established principle that the Act does not impose strict liability on employers. As was stated in Prestressed Systems, supra, "[t]he Commission has found the burden of proving knowledge to be on the Secretary in furtherance of the Congressional intent that employers only be held responsible for hazards they can reasonably be expected to prevent" (citing cases). 81 OSAHRC 43/D5, p. 11, 9 BNA OSHC at 1868-69, 1981 CCH OSHD P25,358 at 31,500. n9

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n9 As the court noted in Brennan v. OSHRC (Raymond Hendrix), 511 F.2d 1139, 1145 (9th Cir. 1975), "[f]undamental fairness [requires] that one charged with and penalized for violation [sic] be shown to have caused, or at least to have knowingly acquiesced in, that violation. Under our legal system . . . no man is held accountable, or subject to fine, for the totally independent act of another."

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The type of evidence [*19] which satisfies this burden will vary depending upon the nature of the violation in issue. In this case, the violation is not the result of any defect in the machinery used by Marson's employees or any failure by Marson to provide appropriate safety equipment. Rather, the violation is based on an employee's failure to use a safety device which Marson had provided. In this situation, the scope of Marson's duty must be measured according to the principle that the Act does not make Marson an insurer or guarantor of proper employee conduct. Brennan v. OSHRC (Raymond Hendrix), 511 F.2d 1139 (9th Cir. 1975). Accord, Horne Plumbing & Heating Co. v. OSHRC, 528 F.2d 564 (5th Cir. 1976). However, in view of the fact that an employer normally acts through its agents, the actions and knowledge of Marson's supervisory employees would be imputed to it, and Marson would be responsible if they have knowledge of the violation. E.g., Floyd S. Pike Electrical Contractor, Inc., 78 OSAHRC 50/E1, 6 BNA OSHC 1675, 1978 CCH OSHD P22,805 (No. 3069, 1978).

As a result, the Secretary could have established a prima facie case of employer knowledge by demonstrating that a supervisory [*20] employee personally observed or reasonably could have observed Soto's misconduct. Ted Wilkerson, Inc., 81 OSAHRC 70/D8, p. 9, 9 BNA OSHC 2012, 2016, 1981 CCH OSHD P25,551 at 31,856 (No. 13390, 1981); Minotte Contracting & Erection Corp., 78 OSAHRC 15/D4, 6 BNA OSHC 1369, 1978 CCH OSHD P22,551 (No. 15919, 1978). However, in order to avoid the imposition of strict liability, Marson could then rebut the Secretary's case by showing that it took all necessary precautions to prevent the hazardous misconduct by the employee. Floyd S. Pike, supra; Rothstein, supra, 78 (Supp. 1981). Indeed, this principle, that the employer may rebut the Secretary's showing based on the imputation of the knowledge of a supervisory employee, not only is acknowledged in the Secretary's brief filed in this case but was recently reaffirmed by a divided Commission in H.E. Weise, Inc., 82 OSAHRC    , 10 BNA OSHC 1499, 1982 CCH OSHD P25,985 (No. 78-204, 1982). n10

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n10 Unfortunately, in some cases the Commission has used the term "defense" in referring to the employer's introduction of evidence in rebuttal to the Secretary's showing. E.g., Floyd S. Pike Electrical Contractor, Inc., 78 OSAHRC 50/E1, 6 BNA OSHC 1675, 1978 CCH OSHD P22,805 (No. 3069, 1978). In other instances including the case now before us, the Commission has further expressly created and identified a specific "affirmative defense" for the characterization of the employer's introduction of such evidence. Use of the term "defense" is at best misleading; the identification and application of an actual "affirmative defense" is contrary to the fundamental rule imposing the burden of proof on the Secretary. Clearly, in presenting its evidence regarding the adequacy of its safety program the employer is not discharging a separate and distinct affirmative defense. Rather, the employer is simply assuming the burden of going forward with evidence in response to the Secretary's case-in-chief. See generally Raymond Hendrix, supra note 9. The difference between the burden of going forward with the evidence and the burden of proof of an affirmative defense is not one of mere semantics but rather can be one of substantive significance.

For example, as rebuttal to the Secretary's case, the employer's showing that it took reasonable steps to prevent the occurrence of the violation need not be specially pleaded. An "affirmative defense" of "unpreventable employee misconduct," however, under Fed. R. Civ. P. 8(c) must be raised in the employer's answer. Furthermore, since the burden of proof remains on the Secretary, the employer may move for dismissal without adducing any evidence if it feels that the Secretary's case-in-chief is insufficient to show knowledge. See former Commissioner Barnako's concurring opinion in Texland Drilling Corp., 80 OSAHRC 106/C13, 9 BNA OSHC 1023, 1980 CCH OSHD P24,954 (No. 76-5307, 1980).

[*21]

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In this case, however, as explained below, the violation was committed by nonsupervisory employees under circumstances where their supervisor did not observe and could not have reasonably observed the employee misconduct. Therefore, knowledge cannot be found unless there is specific evidence to demonstrate that the employer's safety program was inadequate. Howard P. Foley Co., 77 OSAHRC 90/A2, 5 BNA OSHC 1501, 1977-78 CCH OSHD P21,862 (No. 13244, 1977); Scheel Construction, Inc., 76 OSAHRC 138/B6, 4 BNA OSHC 1824, 1976-77 CCH OSHD P21,263 (No. 8687, 1976). n11

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n11 Indeed, the Commission has recognized that because the safety and health of employees is entrusted to their supervisors, an employer has a heightened duty to ensure the proper conduct of supervisory personnel. Floyd S. Pike, supra note 10. It necessarily follows that since the Secretary is unable to show that the violation occurred through the actions or with the knowledge of supervisory employees, he must present other evidence to demonstrate that Marson could have prevented the violation.

[*22]

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II.

I conclude that the Secretary has failed to satisfy his burden of proof that Marson knew or reasonably could have known that its employee, Soto, would operate the machine in an unsafe manner. Neither of Marson's supervisory personnel, Fennessey, its safety officer, nor Razzak, the technical director, observed Soto's actions, nor is there any evidence to show that at the time the violation occurred either Razzak or Fennessey were located in a position from which they reasonably could have observed Soto in the performance of his work.

The Secretary contends, however, that the knowledge of Forman, the technician, should be imputed to Marson. I disagree because in my view the Secretary has failed to show that Forman is a supervisory employee whose knowledge may properly be imputed. n12

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n12 The majority does not address the question of Forman's status, although they conclude that he was inadequately supervised in the execution of his training responsibilities.

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According to Razzak, Forman's duty is to assure quality control by periodically checking and testing the mixture in the tank. Documents describing Forman's duties in more detail state that in checking and correcting the mixture the technician is subject to the supervision of another employee designated as the "foreman." Razzak's testimony further shows that the foreman in the mixing room, rather than the technician, is responsible for informing Razzak of any employee violations of Marson's safety rules. Accordingly, while the technician has some authority to direct the performance of the work, this authority is very limited and is subject to the overall control of another employee. Since technician Forman was not shown to have any responsibility to control the work for purposes of safety or compliance with OSHA standards, he cannot be considered a supervisory employee under Commission precedent. n13

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n13 Whether an employee is a supervisor for the purpose of imputing his action or knowledge to his employer depends not on the employee's formal title or designation but rather on the actual duties discharged by the employee. In order for the employee to be considered a supervisor for this purpose he must have the responsibility to direct other employees in the performance or completion of the work. In making this inquiry, the Commission has indicated that it will consider the extent to which the employee is responsible for insuring that the work is performed safely. Mercer Well Service, Inc., 77 OSAHRC 176/C6, 5 BNA OSHC 1893, 1977-78 CCH OSHD P22,210 (No. 76-2337, 1977); Iowa Southern Utilities Co., 77 OSAHRC 32/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD P21,612 (No. 9295, 1977).

[*24]

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Thus, I cannot agree with the Secretary's argument that Forman should be considered a supervisory employee simply because he was responsible for giving instructions to mixer operators including Soto. Acceptance of the Secretary's argument would necessarily mean that any employee who gives on the job training to another automatically becomes a supervisor whose knowledge is imputed for purposes of the Act without regard to whether that employee has any responsibility to ensure compliance with the employer's safety rules. Since the record does not show that Forman had any authority to remove employees or take other appropriate action in the event employees were to disobey their instructions, I conclude that his knowledge should not be imputed to Marson. n14

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n14 I do not mean to suggest, however, that I would necessarily impose on an employer the burden to do anything more than give proper instructions to its employees. See note 16 infra. Nevertheless, so long as the Commission majority, as it does in this case, imposes on the employer a requirement to enforce compliance with established safety rules, I cannot agree to the imputation of knowledge to the employer unless it is shown that the employee whose knowledge is to be imputed is responsible for compliance with the safety rules on the part of other employees.

I further note that even assuming Forman were a supervisory employee whose knowledge may properly be imputed to Marson, the record fails to demonstrate that Forman knew of Soto's misconduct. Forman left the mixing room after having instructed Soto in the proper operation of the mixer. See the discussion in the text infra. There is no showing that Forman observed or reasonably could have observed Soto at the time the accident occurred.

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The record also does not establish that Marson otherwise should have been aware that Soto would operate the machine in a manner contrary to its work rules. As the majority opinion itself acknowledges, all of the employees who testified or whose statements appear in the record, with the arguable exception of Soto himself, were aware that material is not to be added to the machine when it is running without the grate in place. Insofar as Soto is concerned, Forman specifically testified that just prior to the accident he had explained to Soto step-by-step how the mixing operation was to be performed, and he had instructed Soto to turn the machine off at one particular point when material had to be added to the machine. Although it appears that Soto did not understand these instructions, Judge Knight nevertheless found that Marson could not reasonably have known that Soto was not sufficiently trained and supervised. The judge properly relied on the absence of any evidence to show that Forman himself was inadequately trained or was incapable of correctly instructing Soto. n15

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n15 While the majority claims that Soto was not "apprised" of Marson's safety rule, it does not directly address the judge's finding regarding the training and supervision of Forman. Rather, consistent with its erroneous view that the burden of proof in this case is on Marson, the majority requires that Marson affirmatively demonstrate that Forman was in fact properly trained and supervised.

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Nor does the record demonstrate that Marson's safety program is deficient in any other respect. Marson's safety rule was being violated in only a fraction of one percent of the total production operations performed in the facility, the production of Marglass, which occurs as infrequently as once every two months, whereas Marson's total production consists of 15 to 20 mixtures per day. 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. See Borton, Inc., 82 OSAHRC    , 10 BNA OSHC 1462, 1982 CCH OSHD P25,983 [*27] (No. 77-2115, 1982) (dissenting opinion). In these circumstances, Marson's regular safety meetings, the daily visits by Razzak into the mixing area, and Marson's practice of issuing warning notices to employees were sufficient measures to detect violations of the safety rules and enforce compliance with those rules. n16 In any event, the Secretary, who has the burden of proof on the issue, has presented no evidence of any circumstances which could reasonably be considered to put Marson on notice of a defect in its safety program. n17 Rather, the evidence demonstrates that Marson communicated safety rules to employees, the rules were understood by employees, and employees complied with the rules during the overwhelming majority of production operations. The judge so found, and I would affirm his decision to vacate the citation.

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n16 I do not mean to suggest, however, that I would necessarily place on an employer an obligation to do anything more in its safety program than establish and communicate safety rules to employees. Since I find Marson's mechanisms for detecting and imposing sanctions for violations of its safety rules adequate in the circumstances, I need not now consider whether an employer should be required to enforce as well as establish safety rules. See H.E. Weise, Inc., 82 OSAHRC    , 10 BNA OSHC 1499, 1982 CCH OSHD P25,985 (No. 78-204, 1982) (dissenting opinion).

n17 Fennessey stated that at none of the safety meetings with employees, which are conducted regularly every month, had any mention ever been made of machines being operated without their grates in place. The first time Fennessey became aware that employees were violating the safety rule was during a conversation with employee O'Connor after Soto's accident, at which time O'Connor admitted that he had been violating Marson's safety rules. Similarly, Razzak testified that during his daily visits to the mixing room he had never seen the machine being operated with the grate off. He explained that he can determine whether the grating is in place at any given time from the manner in which the employee holds the bag of material while emptying it into the machine and the case with which the material pours into the machine's tank. Finally, Matz, Marson's president, informed the compliance officer that he was unaware that the employees were removing the grate.

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