RICHMOND BLOCK, INC.
OSHRC Docket No. 82
Occupational Safety and Health Review Commission
January 11, 1974
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with my order directing review of a decision of Judge Herbert E. Bates. The Judge vacated Complainant's citation for an alleged 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").
We have reviewed the record in its entirety, and we affirm.
Through his citation and complaint filed herein, Complainant alleged that Respondent violated its general duty (section 5(a)(1)) because it allowed or permitted an employee to work inside a cement mixer without locking out the electrical power source for the mixer.
Judge Bates has adequately reviewed the evidence of record and we need not repeat his statement here. A summary is sufficient for our purposes. Respondent had a lock-out system, and it trained its employees to use the system. On employee. Hendricks, was occasionally assigned to clean cement mixers. He had been trained to use the lock-out system. Nevertheless, he entered a cement mixer for the purpose of cleaning it and did not lock-out its source [*2] of power. He was removed from such duty and retrained by two of Respondent's supervisors. Each of the supervisors concluded that Hendricks understood their instructions fully. Nevertheless, upon being reassigned to cleaning duties Hendricks failed to lock-out a mixer, and he was killed when the mixer was accidentally energized.
It was Complainant's theory that Respondent violated its general duty because, said Complainant, the lock-out system was ineffective. According to Complainant an effective system requires the use of mechanical means for locking out a power source and adequate supervision to insure use of the means.
We agree with Complainant in principle. However, as Judge Bates points out Complainant failed to prove an inadequacy n1 in Respondent's system. We agree. See National Realty and Construction Company, Inc., v. OSHRC, et al., 489 F.2nd 1257 (C.A.D.C. 1973).
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n1 A compliance officer testified that adequate supervision meant discharge of the offending employee. Discharge is, of course, a sanction that may be employed to avoid a violation. We, however, will not equate adequate supervision with discharge.
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Accordingly, Judge Bate's decision is affirmed in all respects, and it is so ORDERED.
CLEARY, COMMISSIONER, dissenting: I dissent from the decision of my colleagues in this case, because I believe that their disposition and the reasons therefor give excessive emphasis to the accident and death of the employee Hendricks.
True, the citation is drawn narrowly, and describes the fiolation solely in terms of this employee's injuries from working inside a mixer while the power source was not locked-out. The mixer was inadvertently started and the employee suffered multiple and extreme injuries. However, the complaint of the Secretary filed after the employer's contest of the citation does allege concern about the safety of the respondent's other employees engaged in the area involved who were subject to injury as a consequence of the allegedly faulty lock-out procedure. This constituted fair notice to the employer of the broader issue. National Realty and Construction Company, Inc. v. OSHRC, et al., supra 489 F.2d 1257, (C.A.C.D. 1973).
There is little or no doubt that the risk [*4] of the starting of a mixer while it is being cleaned as a "recognized hazard" within the meaning of section 5(a)(1) of the Act and that the hazard is "likely to cause death or serious physical harm." Also, it is accepted that the duty of the employer to have the workplace "free" of recognized hazards relates only to steps that are possible in eliminating the hazard. Section 5(a)(1) does not require the impossible, and it does not impose absolute liability upon an employer.
The evidence taken in the hearing establishes that there were employees assigned to cleaning the mixers who had not received instructions concerning the lock-out procedure. Also, employees had often cleaned the mixers without the power being locked-out. In my view, this evidence proves the inadequacy of the employers procedure. More widespread and effective instruction in the use of the lock-out system could be reasonably expected.
[The judge's decision referred to herein follows]
BATES, JUDGE, OSAHRC: This is a proceeding under section 10(c) of the Occupational Safety and Health Act, 29 U.S.C. 651, et seq. (hereinafter referred to as the Act) to review a citation issued by the Secretary of Labor (hereinafter [*5] the complainant) pursuant to section 9(a) of the Act and a proposed penalty thereon issued pursuant to section 10(c) of the Act.
The Citation for Serious Violation issued on September 17, 1971, alleges that Richmond Block, Incorporated, the employer (hereinafter the respondent), at a workplace under its ownership, operation or control, located at Ellen Road and Rosedale Avenue, Richmond, Virginia, was in violation of section 5(a)(1) of the Act. The citation sets forth the following description of the alleged violation that on August 28, 1971:
. . . the employer allowed an employee to clean cement residue from inside a mixer while the power source was not locked out. This hazardous condition resulted in the employee's death when the mixer was inadvertently started and the rotating blades caused multiple and extreme injuries.
A notification of proposed penalty also issued to the respondent on September 17, 1971, proposing the asessment of a penalty in the amount of $650.00 based upon the violation.
By letter dated September 30, 1971, from its counsel, addressed to the Acting Area Director and received by him on October 4, 1971, the respondent gave timely notice of its [*6] intention to contest the citation and the proposed penalty.
This matter was referred to the Occupational Safety and Health Review Commission (hereinafter the Commission) for hearing pursuant to section 10(c) of the Act. The undersigned was appointed and the case assigned to him on December 9, 1971, for hearing pursuant to section 12(e) of the Act.
On October 22, 1971, the complaint was filed with the Commission pursuant to 29 CFR 2200.7(d) and the respondent's answer thereto was filed on November 1, 1971 n1.
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n1 The complaint and answer were also served upon Local Union 322, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Richmond, Virginia, employee representative of some of the affected employees, by complainant, by mailing copies to said Local on November 29, 1971.
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Pursuant to notice, the hearing commenced at Richmond, Virginia, on February 17, 1972. Proper notice having been given to employees who may have been affected by the condition alleged in the citation, none chose [*7] to participate in said hearing. After an adjournment, the hearing was completed on March 23, 1972, at Richmond, the parties appearing by and through their respective counsel heretofore identified.
Having heard the testimony of the witnesses and having considered the same together with the exhibits, the pleadings, the representations, admissions and stipulations of the parties, and the Proposed Findings of Fact and Conclusions of Law submitted by the parties, it is concluded that on the entire record considered as a whole, substantial evidence supports the following Findings of Fact, Conclusions of Law and Order.
FINDINGS OF FACT
1. The respondent Richmond Block, Incorporated, is a Virginia corporation having its principal office and place of business at Ellen Road and Rosedale Avenue, Richmond, Virginia, where it is engaged in the manufacture of concrete blocks (Tr. 7; Complaint, par. I).
2. At all times hereinafter mentioned, respondent was manufacturing and producing concrete blocks, and other concrete products for use in construction. Many of the materials, supplies and equipment used in the production of these products were received directly from points outside the Commonwealth [*8] of Virginia, and the defendant's employees regularly receive, handle and use said materials, supplies and equipment (Tr. 7-8; Complain t, par. II). At all times involved in this case, respondent was the employer of the employees at this workplace and has conceded that it was engaged in a business affecting commerce at said workplace (Tr. 7-8; 10-11; Answer, par. II).
3. All equipment and machinery relevant to this proceeding on the premises of Richmond Block, Incorporated, as described herein and in the complaint, was and is operated under the control of the respondent, Richmond Block, Incorporated.
4. At this workplace respondent produced concrete blocks, lintels and other special concrete products. Concrete blocks were produced in one of the buildings at the workplace, referred to as the block department or section. Lintels and special products were produced in a separate building and the respondent's offices are housed in a third building on the premises (Tr. 8(a)). The events and circumstances giving rise to this proceeding all occurred in the building in which concrete blocks were (and are) produced (Tr. 43-44). In addition to other machinery used in producing [*9] concrete blocks, such as block machines and conveyor-type equipment, such as skip cables and buckets, the block section had five concrete mixers which were used in its operations (Tr. 42-44). These mixers are approximately five feet by eight feet, containing a shaft from which twisted metal arms extend, and the rotating motion of the shaft and arms mixes the ingredients. The mixers are installed in a pit about two feet deep on a carriage with wheels that permit the mixer to move back and forth from a mixing position to a loading to a dumping position (Tr. 71-76; Exhibit HE-2). The mixer in which the fatal accident occurred was designated No. 2-B (Tr. 70). Mixers are located alongside a corridor or walkway approximately three feet wide between the mixers and the wall. A small parts room or power room 10 or 12 feet by six or seven feet (Tr. 80-81) opens off the corridor opposite the mixers (Exhibit HE-2).
5. Arthur L. Hendricks was in the employment of the respondent on August 28, 1971, on which date he was fatally injured, and had been employed by the respondent since June 23, 1971, in the block production department or section.
6. On Saturday, August 28, 1971, employee [*10] Arthur Hendricks reported to work as instructed at 7:00 a.m. to participate in scheduled general clean-up operations, and was upon arrival directed by William L. Davis, the foreman, to clean the mixers (Tr. 43). No cleaning had been done the night before. The block plant was not in production on this day and only a small maintenance crew was working. After being directed by Davis to clean the mixers, Hendricks went directly to the 2-B mixer and without shutting off and locking out the power to the mixer, got into it and began cleaning, and Davis went in the direction of the third machine area, where he was working on a machine.
7. Davis admits that he made no check of any kind to see that Hendricks locked out the power to the mixer, but left the scene immediately to perform his own duties elsewhere (Tr. 210).
8. The cleaning of cement mixers is performed by an employee operating a pneumatic jackhammer carried into the mixer by the employee. The jackhammer is used to knock off residue concrete from the mixer blades, sides and shaft (Tr. 43, 44). In order to clean the cement mixers, and employee must place the major portion of his body inside the mixer (Tr. 76). All mixers [*11] are electrically powered and each mixer is equipped with a safety cut-out switch located approximately three to eight feet from the mixer (Tr. 63). When the safety cut-out switch is placed in the off position, it is impossible for electric current to activate the mixer motor (Tr. 64). Each such safety switch is equipped with a padlock to hold the switch in the off position. Prior to February 23, 1971, a clip mechanism was used to hold the switches in the off position (Tr. 63). after February 23, 1971, on the respondent's initiative, padlocks were installed for locking the safety switches in the off position, and such padlocks were on the safety switches at the time of Mr. Hendricks' death (Tr. 60, 64).
9. Employees of the respondent who clean mixers are instructed to padlock the safety switches in the off position and take the key to the padlock with them inside the mixers (Tr. 65). Instruction in the method of locking out mixers before cleaning them is given to employees of the respondent as a part of a safety program conducted by the respondent for its employees (Tr. 174, 231, 235), and such instruction is given regularly by a supervisor as part of job instruction [*12] (Tr. 174). Such instructions to employees consist of emphasizing the importance of the procedure to their own safety and showing the location of the applicable safety switch, the location of the keys, the location of the padlocks, and how to pull the handle to the safety switch down and lock it (Tr. 208). Supervisory personnel of the respondent make routine visual inspections to see if the safety lock out procedure is being followed by employees (Tr. 214).
10. A maintenance electrician mechanic, Richard A. Ashburn, had just completed greasing the Nos. 2-A and 2-B concrete mixers when Hendricks started cleaning the 2-B mixer. In greasing the skip hoist serving the 2-B mixer, his next duty, Ashburn encountered difficulty in getting a grease fitting in a cable pulley to accept grease, and concluded that he needed to lower the skip hoist by manually operating it, thus relieving the strain on the cable and pulley. He had done this on another skip hoist in the plant by manually engaging the magnetic relay switch for that skip hoist, and intending to perform the same operation on this skip hoist went to the magnetic relay switch boxes in the parts room. Not realizing that [*13] there were two magnetic relay switch boxes, he mistakenly engaged the relay switch for the No. 2-B mixer rather than the relay switch to the skip hoist, activating the mixer, causing the blades to crush and fatally injure Hendricks (Tr. 44-45, 111-113). The accident occurred at approximately 7:10 a.m. (Exhibit P-5). Hendricks, who was 38 years old, had been employed about two months (Exhibit P-5).
11. The two magnetic relay boxes in the parts room were equipped with covers which bore labels or markings showing which of the boxes operated the No. 2-B mixer and which operated the skip hoist (Tr. 45, 119-120). At the time of Hendricks' death, the covers on the two boxes had been removed before Ashburn entered the parts room and were lying on a bench underneath the boxes (Tr. 113). No identifying markings or labels appear on the relay boxes when the covers are removed (Tr. 45, 114). Ashburn testified that it was a common practice to remove covers from electrical boxes in the plant, especially magnetic relay boxes, in some cases to keep relays from heating up or to slow the heating process (Tr. 116). This practice is also indicated by the report of inspection by Virginia Safety [*14] Representative Robert E. Walthall, dated September 1, 1970, which reflects numerous covers not installed in place on "electric boxes" (Exhibit P-11).
12. One of the two magnetic relays can be engaged to activate the No. 2-B mixer but only if the safety or disconnect switch on the wall of the corridor is in the "on" or closed position. The mixer cannot be activated at all if the disconnect switch for it is in the "off" or open position, since this switch shuts out all power to the mixer (Tr. 44, 64).
13. At the time Arthur Hendricks was fatally injured, the power to the 2-B mixer which he was cleaning was not locked out. The main power switch was closed and the disconnect switch was closed (Stipulations, Tr. 7-9).
14. OSHA personnel investigated the fatality on September 3, 1971. They found that an adequate safety lock out device was present and determined that the sole cause of this accident was Arthur Hendricks' failure to follow the safety lock out procedure before entering the mixer for cleaning (Tr. 169, 170, 175).
15. Respondent had taken all reasonable measures to instruct and supervise Mr. Hendricks as to the safety lock out procedure in the normal course [*15] of his employment. In addition, when the aforesaid supervision resulted in Mr. Hendricks being observed, (some eight to ten days before his death) cleaning the insides of a mixer without having locked the power out, in accordance with instructions, Mr. Davis, the supervisor who observed this safety breach ordered the employee from the mixer, put the employee through the entire lock out procedure, and warned him that if he didn't continue to abide with the procedure implemented to eliminate the hazard he would be hurt or killed (Tr. 211, 212). Mr. Hendricks was a good and conscientious employee (Tr. 243). Mr. Hendricks did not seem to have any difficulty in understanding the instructions given to him by Mr. Davis, (Tr. 212) and there was no reason to believe the instructions were beyond his capabilities or that he would fail to follow them in the future. In view of the above incident, the next time Hendricks was assigned to clean the mixers, he was put through the lock out procedure again by Mr. Todd, the plant superintendant, as an additional precaution, and again he did not seem to have any difficulty in understanding the instructions given to him (Tr. 244).
16. The work conducted [*16] at Richmond Block, Incorporated, is inherently dangerous, due to the large amount of power-driven, unguarded machinery about which the employees are required to work. It is generally recognized that failure to follow and adhere to lock out procedures in a place of employment while servicing and cleaning power-driven machinery creates a substantial probability that death or serious physical harm to employees could result. Such recognition is indicated by numerous established standards cited by the Compliance Officer (Tr. 24A-30A, Ex. HE-1), including the following sections of 29 CFR 1910, Occupational Safety and Health Standards: 29 CFR 1910.217, 1910.218, 1910.261(b), as well as the additional authorities cited in the Secretary's trial memorandum filed at the hearing, and the respondent knew of the presence of the hazardous condition at the workplace here involved (Tr. 58, 211, 223-224).
17. The Acting Area Director proposed a monetary penalty in the amount of $650 for a serious violation of the Act. The penalty was arrived at by a standard procedure after the gravity of the violation was considered in determining that the violation was serious within the meaning of [*17] section 5(a)(1) of the Act.
18. Richmond Block is one of three approximately equal sized block manufacturers serving the Richmond area. The net worth of the company was $541,512 on December 31, 1970, and net sales for the calendar year 1970 were $1,361,608. Total employment at the workplace is 52 employees, five clerical and 47 production employees (Tr. 8), approximately 16 to 18 of whom work in the block production section of the plant (Tr. 8, 205A, 206).
19. During the approximately 13 months preceding the Hendricks' fatality, two other fatal accidents occurred in the block department of respondent's plant. On November 17, 1970, Joseph R. Davis was crushed to death while servicing a block machine. He was astraddle the head beam of the block machine, attempting to attach a chain hook to a chute weighing 70-80 pounds. In trying to do this his foot struck a hydraulic switch which activated the hydraulic system on the machine, raising the beam two feet and crushing the employee fatally against a cross-beam directly above (Tr. 52-53, Exhibit P-9). There existed at the time a switch which would have cut off the hydraulic system completely, but it was not cut off (Tr. [*18] 53). The circumstances were reported as a violation of state safety requirements by Safety Representative Walthall (Tr. 93, 94, Exhibit P-9). After the accident the switch was revamped by respondent so that it could not be accidentally hit and activated (Tr. 53, 54).
20. On August 13, 1970, some two months prior to the Davis accident, employee Grady Thomas was crushed to death when caught between a mixer on which he was greasing and a power-driven traveling lorry or "batcher" which travels on a track from one of the plants to the other. There were no warning signs at the location, and nothing to prevent an employee from getting into the exposed position (Tr. 60). State Safety Representative Walthall described the location of the mixer in relation to the lorry as a "perfect trap for anyone in the area" (Exhibit P-10).
21. The injury frequency rate at this respondent's plant was 41.8 for approximately six years to August 1970, compared to a national average for this type of industry of 40 (Tr. 98, 99; Exhibit P-10).
22. The penalty was assessed and computed without any knowledge on the part of the Acting Area Director or of the Compliance Officer of the two previous accidents [*19] referred to in paragraphs 19 and 20 (Tr. 193-195).
At the very outset, it must be pointed out that the issue here is not whether the employer, is or is not liable for the unfortunate death of the deceased employee, but whether the employer violated the general duty clause of the Act by failing to furnish to each of its employees (including the deceased) employment and a place of employment free from recognized hazards that are causing or are likely to cause death or physical harm to said employees.
Specifically, the burden of proof is on the Secretary in this case to prove that the respondent violated section 5(a)(1) of the Act, in that the respondent permitted an employee to work inside a cement mixer while the power source for that mixer was not locked out. The complaint alleges, "Said hazardous condition resulted in the employee's death when the power source was accidentally activated."
Summarizing the evidence, as set forth in the appropriate section above, the tragic accident occurred when the respondent's employee, Arthur L. Hendricks entered an electrically powered concrete mixer in the course of his employment, to chip cement residue from the interior [*20] thereof. The mixer was operated by an electric motor energized by power flowing from the main power system of the plant, the power to the mixer being controlled by two switches located in the wall opposite the mixer. One switch is a safety "lock out" or disconnect switch which is used to cut off the power to the machine for cleaning, maintenance work and other purposes, said switch being located three to eight feet from the mixer. When this switch is placed in the "off" position, it is impossible for electric current to activate the mixer motor. The safety switch is equipped with a padlock to secure it in the off position if it is desired that the mixer motor not be activated.
The standard operating procedure implemented by the respondent to be followed by employees desiring to lock out electrical current from driving the mixer motor was to cut off the incoming current by pulling the safety cut-out switch to "off," locking the said switch in the "off" position with the padlock, and keeping the padlock key on the person so that the switch could not be turned to the "on" position by anyone else.
At the time of the employee's death on August 28, 1971, the above procedure [*21] was in effect, having been initiated by the respondent on or about February 23, 1971, but for reasons unknown the employee chose to enter the mixer to perform his cleaning work, without "locking out" (through the key and padlock procedure above) the flow of electrical power to the mixer. While Mr. Hendricks was so engaged within the mixer, a co-worker, Richard Ashburn, wishing to operate a skip hoist which served the mixer which Hendrix was cleaning, inadvertantly manually engaged the relay switch for the mixer rather than the one to the skip hoist, which (in the absence of the safeguard which would have been provided by padlocked safety cut out switch provided specifically to prevent such occurrences) caused the mixer blades to crush and fatally injure the unfortunate Hendricks.
The evidence, as outlined in the "Findings of Fact" above, reflects that respondent's employees who clean mixers are instructed to follow the safety procedure described above, padlock the safety switches in the "off" position and take the padlock key with them inside the mixers. Instruction in the method of locking out mixers before cleaning them is given to such employees as part of a safety program which [*22] the respondent conducts for its employees, and such instruction is regularly given by a supervisor as part of job instruction. Such instructions to employees consist of emphasizing the importance of the procedure to their own safety, and includes showing the location of the applicable safety switch, the location of the key and padlock, and the method used in pulling the safety switch handle down and locking it. Testimony was adduced that supervisory personnel of the respondent make routine visual inspections to insure that the safety lock procedure is being followed by employees.
Some evidence was adduced that the respondent had no "formal" safety program or posted safety rules, that the supervisory employers in the plant had other duties which kept them occupied, that a "safety rule book" had not been completed. In regard to the deceased employee, there appeared to be no dispute as to the fact that the record clearly establishes that the respondent had taken more then normal measures to instruct and supervise him as to the safety lock out procedure, not only in the normal course of his employment but on two separate occasions within the eight to ten days prior to his [*23] accident, he was manually put through the safety lock out procedure by supervisory personnel of the respondent, which re-instructions were occasioned by the fact that Foreman Davis had observed him inside a mixer working without having locked out the power to the mixer in accordance with the standard operating procedure described above. In addition, Mr. Davis warned Mr. Hendricks that such disregard for safety procedures may result in his injury or death. After this incident was reported to Mr. Todd, the plant superintendant, as Mr. Davis had also done, took Mr. Hendricks to the mixer location and in some detail redemonstrated to him the lock out switch safety procedure. There was no evidence adduced that Mr. Hendricks, (who was described as a good and conscientious employee), had any difficulty in understanding the instructions, According to Mr. Todd, Mr. Hendricks apparently understood the gravity of the overall situation, the risks involved, and Mr. Todd gave as an explanation for Mr. Hendricks' non-conformance with the safety procedure that "he just didn't think." There was no evidence that the respondent contemplated, or advised Mr. Hendricks, that he would be fired [*24] if he continued to disregard the lock out safety procedure in the future.
As described in the "Findings of Fact," the record reflects that during the approximately 13 months preceding the Hendricks' fatality, two other fatal accidents occurred in the block department of the respondent's plant, one involving the accidental actuation of a foot switch by an employee (which possibility was afterwards eliminated by an engineering modification) and the other fatal accident resulting from an employee being crushed to death when caught between a mixer he was greasing and a power-driven "batcher" on tracks. At the hearing it was also brought out that the injury frequency rate at the respondent's plant was 41.8 for approximately six years to August 1970, compared to a national average for this type of industry of 40. Despite these accidents, the record did not reflect on the respondent's part, a lack of good faith, safety consciousness, or concerne for the welfare of its employees, a fact which is partially evidenced by the respondent's procurement and installation of a competent lock out safety device on its concrete mixers some six months before the fatal accident occurred in the captioned [*25] case.
The facts alluded to above seem to convincingly demonstrate that had the deceased utilized the convenient and simple lock out procedure, which had been explained to him in detail on several occasions, (the last time as recent as eight to ten days before his tragic death), the accidental energizing of the mixer motor which crushed the employee to death could not have occurred.
It is clear that prior to the institution and implementation of the safety lock out procedure involved here, the un-modified concrete mixers constituted a recognized hazard causing or likely to cause death or serious physical harm to affected employees. It is also clear that had the employee, Mr. Hendricks, met his death prior to the date when the hazard was engineered out by the power lock out modification, the respondent here, all other facts equal, would have been in violation of the general duty it owed to its employees under section 5(a) of the Act, to furnish them employment and a place of employment free from such recognized hazards.
But the facts are otherwise, the respondent did not "allow" or "permit" the continued existence of such an obvious "condition" or recognized hazard [*26] in the workplace under its control. It took steps six months before any intra-mixer accident herein involved, occurred, to "engineer out" the inherent hazard by means of procurement and installation of a safety lockout device and procedure, simple in operation, easy to understand, and on the evidence, understood by the deceased, which when used would completely and effectively block out electrical current from the mixer motor, and thus render the electrically powered mixer parts immobile and safe from the standpoint of any employee working in or about those parts.
The respondent, in addition, communicated the safety procedure to those employees engaged in work relative to the mixers, and enforced the procedure by visual supervisory means, to the extent feasibly and reasonably possible, although not on a "one on one" basis.
Complainant essentially urges that because of the respondent's failure to provide adequate supervision of its employees, it in fact permitted the aforementioned hazardous condition to exist and that the respondent cannot divest itself of the responsibility therefor, by proposing that the deceased employee's misconduct, or failure to follow safety instructions [*27] caused the fatal injuries. With this argument I can not agree. As noted above, the facts show that, [absent a "one on one" supervisory surveillance, which even the complainant does not urge as being feasible, or reasonably called for under either the spirit or letter of the Act], the respondent provided reasonable and adequate orientation and supervision to employees who worked in and around the concrete mixers one of which is involved in this case. Indeed, in the case of the deceased employee whose death triggered the Secretary's citation, the respondent's orientation and supervision may be described as over and above "adequate" or "reasonable" levels.
Recalling my caution at the very commencement of this discussion that the issue here is not one of tort liability, nevertheless to dispose of one of the complainant's contentions the following comment is necessary.
The complainant in its trial memorandum (Exhibit HE-1) urges that the negligence of an employee is not a defense to a violation under the Act, and the principle of respondeat superior, making the employer liable for the acts of his employees, is the applicable principle under the general duty clause as regards the [*28] matter at issue. To urge this principle, it seems to me, is to urge an interpretation of section 5(a)(1) which Congress never intended, i.e., that an employer is liable for every industrial accident occurring within the work place he controls, a proposition referred to as the strict or absolute liability rule, in the law of torts, and of course, if complainant is to prevail in this case, it would have to demonstrate that this was Congress' intention when it enacted the general duty clause into law.
A review of the legislative history, however, shows that Congress in enacting the general duty clause did not impose the principle of respondeat superior or strict liability on employers, and Congress' intent in this regard is most clearly reflected not only in the unambiguous wording of the clause itself, but in the expression of its intent infra:
The Senate Committee on Labor and Public Welfare, reporting on S. 2193, stated as follows in regard to the general duty clause:
S. Rep. No. 91-1282, 91st Cong., 2nd Sess. (1970); United States Code Congressional and Administrative News, 91st Cong., 2d Sess. (1970) at 5186.
"The committee has concluded that such a provision [*29] is based on sound and reasonable policy. Under principles of common law, individuals are obliged to refrain from actions which cause harm to others. Courts often refer to this as a general duty to others. Statutes usually increase but sometimes modify this duty. The committee believes that employers are equally bound by this general and common duty to bring no adverse effects to the life and health of their employees throughout the course of their employment. Employers have primary control of the work environment and should insure that it is safe and healthful. Section 5(a), in providing that employers must furnish employment 'which is free from recognized hazards so as to provide safe and healthful working conditions,' merely restates that each employer shall furnish this degree of care" (Emphasis added).
As noted immediately above, the Committee did no more than merely restate the common law principles commanding individuals to refrain from actions which cause harm to others, as expanded in section 4, Restatement of Torts (2d., 1965). This "general duty" is a far cry from the duty imposed under the principle of respondeat superior, which the [*30] complainant urges as the duty and liability section 5(a) imposes on employers under the Act.
The general duty Congress intended as restated in the aforementioned treatise requires the actor to conduct or not conduct himself in a particular manner at the risk that if he does not do so he becomes subject to liability. This duty imposes no obligation which is not within the actor's ability to perform, since it relates only to the actor's conduct over which as such he has control (Emphasis added).
In view of the foregoing it should be clear that in section 5(a) Congress did not impose on employers a strict liability or a liability "without fault" as the complainant suggests. The general duty to others, does not give rise to liability without fault, or liability without breach of any antecedent duty, and the general duty clause of the Act is not susceptible to an interpretation that the employer is "strictly liable" for every accident occurring in the workplace he controls.
Other provisions of the Act serve to further demonstrate that in section 5(a) Congress did not intend to place absolute duties and responsibilities on the employer.
In section 2(b)(2) of the Act, Congress set [*31] forth as a means of assuring every working man and woman in the Nation safe and healthful working conditions, a provision that employers and employees have separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions (emphasis added).
Section 5(b) requires each employee to comply with occupational safety and health standards and all rules, regulations and orders issued pursuant to this Act which are applicable to his own actions and conduct.
In referring to those sections of the Act, I am not unaware of the fact that the Senate Committee in its report (S. Rpt. 9-1282, 91st Cong. 2d Sess., p. 11) stated that the employee duty required in section 5(b) of the Act, as noted above, was not intended to diminish the employer's compliance responsibilities or his responsibility to assure compliance by his employees. "Final responsibility for compliance with the requirements of this Act remains with the employer," but this statement does not transfer to the shoulders of the employer strict accountability for every accident occurring in the workplace he controls.
Congress in enacting the employee-duty clause (section 5(b)) [*32] recognized that accomplishment of the Act's purposes could not be totally achieved without the fullest cooperation of employees and the employee-duty clause indicates only that an employer who violates the general duty clause, may not escape or diminish his responsibility therefor by attempting to transfer his own negligent non-compliance on the shoulders of an accident victim also found to be in violation of the Act.
Section 5(b) means exactly what it says, and it nowhere places a higher degree of duty, liability or responsibility on a complying employer for the conduct of a non-complying employee, or employees, than the general duty clause (as discussed above) calls for.
A succinct summarization of Congressional intent that the employer's duties and responsibilities under the Act are not to be construed as unilateral or one-sided as noted in sections 2(b)(2) and 5(b) of the Act is embodied in a slogan currently being used in the Occupational Safety and Health Administration's spot messages on radio, "Remember, job safety is everyone's job" (Emphasis added).
Despite the mutuality of responsibility which the Act imposes on employer and employee, it is clearly apparent [*33] that because the employer controls the work environment, the standard of care he owes to his employees under the general duty clause of the Act is high, but not so high, as the complainant urges, that the employer becomes a virtual insurer of the conduct of his employees, and thus absolutely liable for all their acts of commission and omission.
As previously noted, there is no dispute that an employer, who permitted a condition to exist in a workplace under his control, (which condition included a concrete mixer incapable of being positively rendered inoperative by an employee assigned to work within said mixer) would be in violation of the general duty clause, having failed to meet the standard of care which that clause requires.
Nor is there any dispute that the existence of such a condition would constitute a "recognized hazard" to employees assigned to such duties, and a "serious" violation within the meaning of section 17(k) of the Act. [In this regard see the Secretary's Trial Memorandum, Exhibit HE-1].
It must be also recognized, that eliminating the mechanical hazard alone, would not eliminate the unsafe "condition" as a whole, since the condition in the case [*34] at bar involves components other than mere mechanical ones.
The hazardous condition can not be adjudged as fully corrected or effectively eliminated until various non-mechanical factors, including but not limited to employees' ignorance, misconduct or habitual carelessness are overcome to the extent possible by educational techniques, supervision and observation. Only when an employer has met his obligations in these respects, in both the mechanical and human areas which together form the "condition," may it be held that he has met the standard of care which the Act imposes on employers subject to its jurisdiction.
Unless the general duty clause is susceptible to an interpretation that it is a "strict liability" statute (and from the foregoing it appears that it may not be so construed) the evidence in the instant record taken as a whole compels a determination that the respondent met the high standard of care which the Act requires of him. In line with the remedial nature of the Act, six months prior to the fatal accident and continuing to the present, the respondent effectively eliminated the recognized hazard which had existed, and in addition to rectifying this mechanical [*35] deficiency, also met the duty imposed upon him regarding the non-mechanical factors, alluded to above.
On the evidence, the unfortunate accident resulting in the Citation herein, was not the consequence of a breach of the standard of care imposed on the employer by the Act, but was rather, beyond the employer's control. The casual factor being the employee's disregard of a simple safety rule and procedure, clearly and recently communicated to the employee, which he apparently understood. Nor was the employee's past violation of the safety procedure tolerated, condoned or encouraged by the respondent, who took all adequate and reasonable measures to insure that the deceased avail himself of the simple and convenient safeguards which the respondent had instituted for the welfare of the deceased employee and his fellow workers.
CONCLUSIONS OF LAW
Based upon all of the foregoing, and on the preponderance of the evidence in the record as a whole, the undersigned concludes that:
1. At all times mentioned, the respondent was, and still is, an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act.
2. The deceased worker, Arthur [*36] Hendricks, was an "employee" of the respondent within the meaning of section 3(6) of the Act.
3. The respondent is, and at all times material hereto was, subject to the provisions and requirements of the Act, and the standards promulgated thereunder.
4. The complainant has failed to establish that the respondent violated section 5(a)(1) of the Occupational Safety and Health Act of 1970, as alleged in the Complaint.
In view of the foregoing, and upon the entire record considered as a whole, it is ORDERED that the citation and notice of proposed penalty issued herein on September 17, 1971, be, and the same, are dismissed.