YOUNG SALES CORPORATION
OSHRC Docket No. 8184
Occupational Safety and Health Review Commission
May 1, 1979
[*1]
Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Herman Grant, Regional Solicitor
Ira J. Smotherman, Jr., for the employer
Carpenters District Counsel of Milwaukee County & Vicinity, for the employees
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Chairman:
This case is before the Commission on remand from the United States Court of Appeals for the District of Columbia for a clarification of the abatement order in our earlier opinion. Young Sales Corp. v. O.S.H.R.C., No. 77-1612 (D.C. Cir., May 2, 1978).
The case arose out of a fatal accident that occurred on April 29, 1974, when an employee of respondent fell through the corrugated asbestors sheeting that respondent was installing on the roof of the Ladish Company in Cudahy, Wisconsin. Following an inspection of the accident site, respondent was issued a citation for a violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter the Act]. The citation alleged that:
Employer failed to furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing, or [*2] are likely to cause death or serious physical harm to his employees, e.g. employer failed to follow the manufacturer of the corrugated asbestos sheets recommendation to use chicken ladders and walk boards on all roof work.
The Secretary proposed a $600 penalty for the violation.
The evidence established that the corrugated asbestos sheeting was extremely impact sensitive. The major manufacturers of the material, GAF Corporation, Johns-Manville Corporation and National Gypsum Company, all provided written instructions with the sheeting warning that employees not be allowed to walk directly on the material, but rather to provide walking surfaces such as chicken ladders and walkboards. n1 Respondent used the product manufactured by GAF.
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n1 For example, the GAF warning reads as follows: "While Ruberoid Corrugated Asbestos possesses ample strength, like any other building material it should not be subjected to overloading or undue shock. Workmen must use proper chicken ladders and walk boards on all roofing work."
That of Johns-Manville reads as follows: "WARNING! Care should be taken never to walk on an exposed corrugated transite roof. Always use planks, chicken ladders, or catwalks when working on the roof. Johns-Manville takes no responsibility for any physical or property damage resulting from workmen walking on a transite roof."
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Respondent's division manager, Fred Howe, testified that he had read the manufacturer's brochure. Both Howe and Raymond Slifer, respondent's foreman at the jobsite, testified that employees were constantly warned to walk on the purlins and laps, rather than directly on the sheeting. Despite these instructions, the evidence estabished that there were occasions when the employees would have to walk on the sheeting, and that even the foreman felt free to jump on the material.
In our earlier decision, the Commission, at that time composed of Commissioner Barnako and myself, held that respondent violated section 5(a)(1). The members split, however, over the nature of the recognized hazard, and the steps respondent should have taken to eliminate it. Young Sales Corp., 77 OSAHRC 122/B1, 5 BNA OSHC 1564, 1977-78 CCH OSHD P21,883 (No. 8184, 1977).
I stated in Young Sales that,
"[T]he extreme impact sensitivity of the corrugated asbestos sheeting presents a recognized hazard to employees using the material in roofing work. Furthermore, walking directly on the sheeting could create an impact sufficient [*4] to fracture the roofing material and respondent recognized this danger."
5 BNA OSHC at 1566.
Noting that all the manufacturers of the product warned that it was dangerous to walk on the sheets, and that respondent's supervisory personnel read the GAF brochure containing the warning and instructed its employees not to walk on the material, I found that respondent had actual knowledge of the hazard. I also found that respondent's instructions requiring employees to walk on the purlins and laps were insufficient to free the workplace of the hazard. I noted that employees had to be reminded periodically to stay on the purlins and laps, that the nature of their work at times requires them to step on the sheets, and that even the foreman felt free to jump on the material. Finally, I held that the Secretary established that placing chicken laddersn or walkboards over the sheeting was an appropriate form of abatement.
Commissioner Barnako, on the other hand, relied on respondent's admission that the sheeting cannot resist impacts such as jumps and on respondent's workrule prohibiting jumping. He held that jumping on the sheeting was a recognized hazard, and that a properly implemented [*5] and enforced safety rule prohibiting jumping on the sheeting would have been sufficient to free the workplace of the hazard. Commissioner Barnako found, however, that although respondent had such a rule, its safety program was not effective in preventing the hazard.
Having decided the case on the basis of whether jumping constituted the recognized hazard, Commissioner Barnako declined to decide whether walking as well as jumping on the sheets was recognized as a hazard, and, if so, whether respondent, who was a roofing installer, was bound by the recommendations of the industry that manufactures asbestos sheeting to use chicken ladders and walkboards.
After respondent appealed the Commission's decision to the U.S. Court of Appeals for the District of Columbia, the Secretary moved the court to remand the case to the Commission for a clarification of the abatement order. The Secretary stated that the Commission's failure to agree on a method of abatement left him unable to either defend the Commission order before the court or ensure the company's abatement of the hazard, and respondent unable to determine what is required of it. Accordingly, the District of Columbia Circuit Court [*6] remanded the case in order for the Commission to decide exactly what abatement is required.
We hold, for reasons set out in my earlier opinion, that walking on the corrugated asbestos sheets is a recognized hazard, and that the use of chicken ladders or walkboards constitutes an appropriate means of abatement. n2 The notices on the manufacturers' brochures are not merely recommendations not to walk on the sheeting, but rather are warnings informing the users that walking on the sheeting without the use of safety devices is dangerous. Respondent not only read the brochures, but warned its employees not to walk directly on the sheeting. Clearly, respondent had actual knowledge of the hazard involved in walking on the sheeting. To allow employers to ignore manufacturers' warnings of the potential dangers inherent in the use of a product would undermine the general duty clause, which requires employers to eliminate recognized hazards from the workplace.
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n2 Commissioner Cottine became a Member of the Commission after our initial decision in this case. He has fully reviewed the record and considered the remand by the court of appeals in this case. Consistent with his statutory responsibilities, he is participating in this decision. Perini Corp., 78 OSAHRC 43/C5, 6 BNA OSHC 1609, 1978 CCH OSHD P22,772 (No. 13029, 1978) (sep. opin.); see Gearhart & Otis, Inc. v. S.E.C., 348 F.2d 798, 802 (D.C. Cir. 1965); Western Airlines v. C.A.B., 351 F.2d 778 (D.C. Cir. 1965).
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Moreover, we find that it is not sufficient to decide this case on the basis of whether jumping as opposed to walking is the recognized hazard. The citation alleged that respondent violated section 5(a)(1) by failing to follow the manufacturer's "recommendation" n3 to use chicken ladders and walkboards. At the hearing, the Secretary was clearly pursuing the case on the theory that walking on the sheets constituted a hazard. Thus, the issue presented to the Commission is whether walking on the asbestos sheets is a recognized hazard, and whether the use of chicken ladders and walkboards constitutes an appropriate means of abatement.
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n3 The citation uses the term "recommendation." It is clear, however, that the manufacturer was doing more than merely recommending the use of chicken ladders and walkboards but was, in fact, warning the users of the material the the use of those devices was necessary for safety.
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As noted above, we find [*8] that walking on the sheeting is a recognized hazard, and that the use of chicken ladders or walkboards is an appropriate means of abatement. Respondent failed to free its workplace of the hazard, and, therefore, was in violation of section 5(a)(1) of the Act. For reasons given in my earlier opinion, we assess a penalty of $600.
So ORDERED.
CONCURBY: COTTINE
CONCUR:
COTTINE, Commissioner, Concurring:
I concur in the conclusion reached in Chairman Cleary's opinion that walking on corrugated asbestos sheeting is a recognized hazard and the use of chicken ladders or walkboards constitutes a feasible means of abatement. n1 The manufacturer of a product is in a unique position to determine the physical and chemical properties of a product and to evaluate the hazards involved in its intended and forseeable uses. The manufacturer's safety warnings and directors for use provide an employer who purchases a product with obvious information concerning hazards associated with the product and its uses. See generally Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir. 1973), cert. denied, 419 U.S. 869 (1974); 2 L. Frumer & M. Freidman, Products Liability § 8.05[1] (1978) [*9] and cases cited therein. Once a manufacturer has communicated this information, the employer is properly chargeable with actual knowledge under the general duty clause n2 because it knew or should have known of the hazard involved with the intended or foreseeable use of this product. In this case, a safety warning concerning the use of asbestos sheets was provided by the manufacturer. In addition, the manufacturer supplied directions for use including work practices that constituted feasible means for abating the hazardous condition. Accordingly, I conclude that the manufacturers' warning about the impact hazard associated with the use of corrugated asbestos sheeting establishes the existence of a recognized hazard in the use of this product. Moreover, I conclude that in this case the specific directions for use supplied by the manufacturers, which included work practice recommendations, are sufficient to satisfy the Secretary's burden of persuasion with respect to a feasible means of abatement.
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n1 This case was remanded from the Court of Appeals after the court granted the Secretary's motion for clarification of the Commission's abatement order. The use of chicken ladders and walk-boards would abate the combined hazards of walking and jumping on the asbestos sheets. Therefore, we need not reach the issues of whether independent evidence establishes that jumping on the sheeting is a recognized hazard or whether the Respondent adequately enforced its workrule prohibiting jumping on the sheeting.
n2 See, e.g., Titanium Metals Corp. of America v. Usery & OSHRC, 579 F.2d 536 (9th Cir. 1978); Brennan v. OSHRC & Vy Lactos Laboratories, Inc., 494 F.2d 460 (8th Cir. 1974); Mercer Well Service, Inc., 77 OSAHRC 178/C6, 5 BNA OSHC 1893, 1977-78 CCH OSHD P22,210 (No. 76-2337, 1977); Sugar Cane Growers Cooperative of Florida, 76 OSAHRC 62/E4, 4 BNA OSHC 1320, 1976-77 CCH OSHD P20,795 (No. 7673, 1976).
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The reasoning of the Court of Appeals in Marshall v. L.E. Meyers, Co., 589 F.2d 270 (7th Cir. 1978), does not require a contrary result. In that case, the court reaffirmed its interpretation of the general duty clause to require either actual knowledge or industry practice as the preconditions for recognition. Under review was the administrative law judge's finding that the employer's use of a gripping device in contravention of the manufacturer's "application procedures" did not constitute a recognized hazard. The court concluded that these directions for use packaged with some of the grips did not satisfy the Secretary's burden to prove "that the dangerous potential of this particular activity was known either to Meyers or within the industry." Id. at 272. In essence, a safety warning as distinguished from directions for use had not been supplied to the employer by the manufacturer. Moreover, the manufacturer's direction for use was a simple prohibition -- it provided no affirmative guidance on the hazard or the means of abating the hazard. The court concluded that the Secretary had failed [*11] to demonstrate a feasible means of abatement. n3
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n3 The court also endorsed the judge's ruling that the accident resulted from the deceased employee's negligence and was not preventable by the employer.
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In this case, the Respondent had actual knowledge that walking on the asbestos sheeting was hazardous based on the explicit safety warnings and directions for use supplied by the sheeting manufacturers. In addition, the employer's instructions to his employees to walk on the purlins and laps rather than on the sheeting affirmatively supports actual knowledge. n4 See Larkan Steel Erectors, 77 OSAHRC 167/B12, 5 BNA OSHC 1783, 1977-78 CCH OSHD P22,100 (No. 15016, 1977). Furthermore, the evidence in this case clearly establishes that feasible measures were available to protect against the recognized hazard and that these measures were known to the Respondent.
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n4 Finding hazard recognition based in part on an employer's own workrule is not inconsistent with the view expressed by the Sixth Circuit in Diebold, Inc. v. OSHRC & Marshall, 585 F.2d 1327 (6th Cir. 1978). In Diebold, the court rejected reliance on the employer's efforts to devise a press brake point of operation guard to establish employer awareness of the guarding requirement. However, the issue was not whether the employer was aware of the existence of a point of operation hazard. The issue was whether the employer had adequate notice, in the face of arguably inconsistent standards, that point of operation guards for press brakes were required.
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Although the record indicates that the industry engaged in the installation of asbestos sheeting did not consider the use of chicken ladders or walkboards to be necessary, industry custom and practice are not controlling. See generally, The T. J. Hooper, 60 F.2d 737 (2d Cir. 1932) (L. Hand, J.). Compliance with the Act may require methods of protection of a higher standard than industry practice. Continental Oil Company, 78 OSAHRC 63/E1, 6 BNA OSHC 1814, 1978 CCH OSHD P22,903 No. 1839, 1978); Southern Railway Co., 75 OSAHRC 88/C2, 3 BNA OSHC 1657, 1975-76 CCH OSHD P20,091 No. 5960, 1975), appeal withdrawn, No. 75-2493 (6th Cir. June 4, 1976). As the court in National Realty & Construction Co., Inc. v. OSHRC, 489 F.2d 1257, 1266 n. 37 (D.C. Cir. 1973), recognized:
This is not to say that a safety precaution must find general usage in an industry before its absence gives rise to a general duty violation. The question is whether a precaution is recognized by safety experts as feasible, not whether the precaution's use had become customary.
Clearly, the use of chicken [*13] ladders and walkboards was proven to be a feasible means of abatement.
DISSENTBY: BARNAKO
DISSENT:
BARNAKO, Commissioner; Dissenting:
I adhere to the views expressed in my prior opinion in this case and would affirm the citation only to the extent that Respondent failed to prohibit its employees from jumping on corrugated asbestos sheets while installing those sheets.
As did Chairman Cleary in his prior opinion, the majority conclude that the citation should be affirmed because Respondent's employees walked on the asbestos sheets without the use of chicken ladders and walkboards. In their view, the manufacturers' brochures establish a standard of care for Respondent. They further conclude that Respondent in addition has actual knowledge that walking on the sheeting without the use of safety devices such as those suggested by the manufacturers is hazardous. They base this latter conclusion on Respondent's supervisor having read the manufacturers' literature and on Respondent's workrule.
I have carefully considered the rationale on which the lead opinion is based, as well as the additional reasoning advanced in the concurring opinion. For the reasons that follow, I do not regard the manufacturers' [*14] recommendations as controlling in the circumstances of this case. And the fact that Respondent may have actual knowledge of the contents of the manufacturers' literature does not give those recommendations any greater significance. Nor does the existence of Respondent's workrule require the result reached by the majority.
In order to establish a violation of 29 U.S.C. § 654(a)(1), the Secretary must first establish that the employer failed to render its workplace "free" of a "recognized" hazard causing or likely to cause death or serious physical harm. If the Secretary meets that burden, he must also show that feasible measures exist which would have materially reduced the likelihood that the conditions recognized as hazardous would have occurred. National Realty & Construction Co. v. OSHRC, 489, F.2d 1257, 1265-67 (D.C. Cir. 1973). Because the Secretary failed to show that walking on the sheeting is recognized as hazardous, there is no need even to consider whether use of chicken ladders or walkboards would have been feasible. See Beard-Poulin, Division of Emerson Electric Co., No. 12600 (April 6, 1979), slip op. at 10.
Furthermore, to constitute a recognized [*15] hazard, the dangerous potential of a condition or activity must be known either to the particular employer or generally in the industry. Brennan v. OSHRC (Vy Lactos Laboratories, Inc.), 494 F.2d 460, 463-64 (8th Cir. 1974); National Realty, supra, 489 F.2d at 1265 n. 32. 29 U.S.C. § 654(a)(1) does not impose a requirement that an industry improve or upgrade its practices beyond what has been customary in that industry unless the Secretary has demonstrated that the practice is seen as hazardous by the industry or by employers in the industry. See Continental Oil Co., 78 OSAHRC 63/E1, 6 BNA OSHC 1814, 1978 CCH OSHD P22,903 (No. 1829, 1978, appeal filed, No. 78-3445 (6th Cir. Aug. 22, 1978); Southern Railway Co., 78 OSAHRC 88/C2, 3 BNA OSHC 1657, 1975-76 CCH OSHD P20,091 (No. 5960, 1975). Neither the employer in this case nor its industry perceive walking on the sheeting to be hazardous.
The significance of the manufacturers' recommendations in establishing recognition of the hazard is hardly as obvious as the majority suggest. As Administrative Law Judge George W. Otto noted in his decision, the Secretary's own witness, Paul W. Earle, n1 could not recall any [*16] instance where chicken ladders had been used in the construction of a roof with corrugated asbestos sheeting in the United States as opposed to European countries where they are routinely used. However, the sheeting manufactured in the United States is normally almost twice as thick as that produced and used in Europe, and has a greater ability to withstand loads imposed both by walking and by impact. This witness further stated that the sheets are strongest where they are lapped and that because purlins are the supporting structure, n2 walking on the purlins places no load on the sheets. When he inspects a roof as he does often, he himself does not use a chicken ladder or any other device but rather walks on the purlins and laps, as Respondent instructs its employees. Earle also stated that in his opinion the material will support his weight even if he walks in the center of the sheeting. n3 The testimony, therefore, indicates that even the manufacturing industry does not regard walking on the sheets as hazardous. In any event, as I pointed out in my prior opinion, Judge Otto distinguished the manufacturing from the installation industry; he properly found that in the United [*17] States the latter neither perceives a need for nor uses chicken ladders or walkboards on a virtually flat roof as in this case.
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n1 Earle is senior research associate for Johns-Manville Corporation, which under a licensing arrangement markets sheeting manufactured by GAF.
n2 Purlins are the metal structural members to which the sheeting is bolted. Adjacent sheets are overlapped from 4 to 6 inches so that in some places the bolts extend through two thicknesses of sheeting.
n3 To the same effect, the vice-president and manager of manufacturing for the owner of the building where Respondent was working testified that tests of the sheeting material demonstrated that the material is safe to walk on but cannot withstand any impacts. According to the product manager for GAF Corporation, walking on the sheeting is not considered an "undue shock" within the meaning of the GAF brochure warning that the sheeting should not be subjected to such shocks.
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Similarly, Respondent's workrule that employees are to walk on the sheeting [*18] only where it is supported by purlins and laps does not establish actual recognition by Respondent that walking on the sheeting without the use of safety devices is hazardous. Indeed Respondent's own workrule does not apply in all situations since Respondent's normal work duties at times require employees to walk on unsupported sheeting. Moreover, Respondent's field foreman and division manager had never known the sheeting to break during installation or a worker to fall through sheeting even though Respondent's employees walk on unsupported sheeting.
Judge Otto found the record insufficient to establish that merely walking on the material, even away from the purlins and laps, would cause a fracture. This finding is supported by the testimony of those familiar with the manufacturing as well as the installation industry. Therefore, the fact that Respondent had a workrule with respect to walking on sheeting only where it is supported does not, contrary to the majority opinion, establish employer recognition of any hazard created by walking on the sheeting. Since Respondent itself recognizes exceptions to its own rule, the workrule is an additional measure that, perhaps out of [*19] an abundance of caution, Respondent had taken to assure its employees' safety. See Diebold, Inc. v. Marshall, No. 76-1278, slip op. at 19 (6th Cir. Nov. 3, 1978); Goodyear Tire and Rubber Co., 77 OSAHRC 82/A2, p.5 n.3, 5 BNA OSHC 1473, 1475 n.3 (No. 13442, 1977).
Moreover, in a recent case virtually identical to this, the Seventh Circuit affirmed our Administrative Law Judge's conclusion that a recognized hazard was not shown to exist where an employer constructing power lines used a gripping device in a manner contrary to the recommendations of the manufacturer of the device. The court found substantial evidence to support the judge's findings that gripping devices used in this manner had never previously been known to fail and that such use was preferred in Respondent's industry to other methods of performing the same work. Based on such findings, the court specifically concluded that the citation was properly vacated for failure of the Secretary to show that the danger of using the device in the manner in issue was known either to the employer or within its industry. Marshall v. L.E. Myers Co., 589 F.2d 270 (7th Cir. 1978). I would follow the court's well-reasoned [*20] opinion in L. E. Myers, supra, and would not find walking on the asbestos sheets to be a recognized hazard.
Lastly, I am constrained to comment on the majority's assertion that their result is compelled because the Secretary's citation was predicated on Respondent's failure to follow the manufacturer's recommendation and because counsel at trial pursued that theory. The Commission, however, is not bound by the language of a citation or the legal theory presented in a citation or by counsel at the hearing. National Realty, supra, 489 F.2d at 1263-64; Kaiser Aluminum and Chemical Corp., 76 OSAHRC 52/C10, p.10, 4 BNA OSHC 1162, 1165, 1975-76 CCH OSHD P20,675 at 24,768 (No. 3685, 1976). See Western Steel Manufacturing Co., 76 OSAHRC 44/C11, 4 BNA OSHC 1107, 1975-76 CCH OSHD P20,584 (supplemental briefing order), 76 OSAHRC 112/E2, p.2 n.2, 4 BNA OSHC 1640, 1641 n.2, 1976-77 CCH OSHD P21,054 at 25,340 n.2 (No. 3528, 1976) (decision following supplemental briefs). My colleagues themselves have stated that the Commission should and indeed must decide issues raised by the evidence regardless of whether such issues constitute a change in the legal theory of the case. [*21] In such instances, my colleagues have not considered themselves bound by either the citation or the theories of counsel. See, e.g., John & Roy Carlstrom, d/b/a Carlstrom Brothers Construction, 78 OSAHRC 96/A2, 6 BNA OSHC 2101, 1978 CCH OSHD P23,155 (No. 13502, 1978); McLean-Behm Steel Erectors, Inc., 78 OSAHRC 93/A9, 6 BNA OSHC 2081, 1978 CCH OSHD P23,139 (No. 15582, 1978), petition for review filed, No. 79-1073 (5th Cir. Jan. 9, 1979).
In this case, the parties actually litigated the question whether jumping on the sheeting is recognized as hazardous and whether Respondent's safety rule prohibiting jumping was adequately enforced. n4 Because the evidence shows that jumping is such a hazard and that Respondent's rule as to jumping was not properly enforced, the citation should be affirmed on these grounds regardless of whether counsel may have had another theory of the case.
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n4 The concurring opinion states that chicken ladders and walkboards would abate the hazard of jumping as well as walking on the sheeting but cites no evidence in support of this conclusion. The record indeed suggests to the contrary, for even the Secretary's inspector conceded that the roof cannot be totally covered with chicken ladders or walkboards. Obviously the effectiveness of chicken ladders or walkboards as a protection against the hazards associated with jumping depends entirely upon whether the jump happens to occur in an area where chicken ladders or walkboards had been placed. It is equally likely that an employee who chooses to jump may do so in an area without chicken ladders or walkboards. Accordingly I conclude that a feasible means of abating the hazard of jumping on the asbestos sheets is through enforcement of a workrule intended to eliminate jumping in the first instance.
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