NATIONAL REALTY & CONSTRUCTION COMPANY, INC.

OSHRC Docket No. 85

Occupational Safety and Health Review Commission

September 6, 1972

[*1]

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINIONBY: BURCH

OPINION:

BURCH, COMMISSIONER: On December 29, 1971, Judge Harold A. Kennedy issued his decision in the above captioned matter dismissing the Secretary's citation and notification of proposed penalty.

On January 20, 1972, the Secretary filed a petition for discretionary review and, on January 21 I directed that the report of the Judge be reviewed by the Commission in acordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act").

The Commission has reviewed the entire record in this case and the briefs and exceptions filed by the parties following the direction of review. We do not adopt the Judge's conclusions of law for the reasons set forth below. We do adopt the Judge's findings of fact to the extent that they are consistent with the following.

Briefly, the undisputed circumstances of this case are as follows. On September 16, 1971, respondent's foreman was riding on the "running board" of a front-end loader which was towing an air compressor down a dirt ramp at the site of a construction project. The engine [*2] of the front-end loader stalled, the loader began to accelerate down the ramp, control of the vehicle became difficult and the equipment overturned as it left the ramp, inflicting fatal injury upon the foreman who had been riding.

Thereafter, on September 24, 1971, the Secretary issued to respondent a citation for a serious violation, alleging, in part, that respondent violated section 5(a)(1) of the Act by permitting an employee "to stand as a passenger on the running board of an Allis-Chalmers' 645, front-end loader while the loader was in motion." On the same day, the Secretary issued the notification of proposed penalty in the amount of $800. Respondent filed a timely notice of contest and proceedings were held before this Commission. At the hearing, respondent did not dispute the proposition that allowing an employee to ride on the step of construction equipment not designed for the carrying of passengers is a recognized hazard likely to cause death or serious physical harm. The severity of the likely injury must be measured by experience and expertise. Because of the proximity of unguarded wheels, we conclude that the degree of injury reasonably likely to result [*3] from falling from the step of a moving front-end loader ranges from bone fracture to death. We agree with the Secretary that the design as well as the use of construction equipment renders carrying passengers a hazardous activity. We believe the dangers inherent in falling from such equipment onto wheels which have no mud guards or under the wheels when travelling on uneven terrain common on construction sites, is not only a recognized, but an obvious hazard.

Respondent's defense, credited by the Judge, was that it had not "permitted" its foreman to ride on the step of the equipment, but that an unwritten rule known to the deceased employee forbade carrying passengers on construction equipment.

Permission of the employer need not be shown in order to find a serious violation of the Act, as defined in section 17(k). It is only necessary to show that the employer knew or, with the exercise of reasonable diligence, could have known of the forbidden practice.

The individual Members of this Commission, being acquainted with industrial realties n1, are aware of the recurrent need for persons occupying first line supervisory positions at construction sites to travel from [*4] one part of the site to another. Absent the provision of suitable means of transportation or the effectuation and positive enforcement of a rule forbidding persons to ride on equipment not designed for passengers, it is reasonable to anticipate that persons in the position of the deceased employee in this case will repeatedly ride upon construction equipment. The testimony of record indicating the infrequency of such transportation is incredible on its face in light of these circumstances. In any case, the employer, in whom "final responsibility for compliance with requirements of this Act" n2 reposes, cannot shrive itself of responsibility for the maintenance and enforcement of safety regulations by asserting an unwritten rule -- the breach of which is attested to by the death of an employee -- in any but the most unusual of circumstances. cf., Secretary of Labor v. General Tire Service,

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n1 29 U.S.C.A. 661(a).

n2 S. Rep. No. 91-1282, 91st Cong., 2d Sess. 11 (1970).

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The Judge concluded [*5] that because the employee involved in the incident which precipitated the inspection resulting in the Secretary's citation is a foreman, respondent's "duty" to him under the act is less than that owed other employees. While the reasoning is not entirely clear, we do not read this to mean that the Judge believes that the employer must maintain a place of employment free of recognized hazards only for its non-supervisory employees. Rather, the Judge would seem to be suggesting that because the violation of the Act is based upon the violation of the employer's unwritten work rule by a supervisory employee, respondent has had placed upon it the unfair burden of exercising close supervision over an employee whom it has hired for the purpose of himself supervising.

The record in this case demonstrates that there was at least one employee on the job site at a level of supervision above that of the deceased employee. Accordingly, the Judge's discussion of and reliance upon "principles of common law" is misplaced. Responsibility for the violation alleged cannot be determined on the basis of comparative duty or of "fault," a concept irrelevant to the administration of this Act. [*6] In common law, an employer's liability for injury to employees is subject to three defenses, viz., contributory negligence, fellow servant negligence and assumption of risk. Rosebear v. Anderson, 143 F. Supp. 721, 723 (N.D. 1956), affirmed, Anderson v. Rosebear, 245 F. 2d 673 (8th Cir. 1957). We cannot perceive that Congress intended any of these defenses to be available to employers charged with violation of this Act. In point of fact, this legislation was intended to supercede and remove these vestiges of the industrial revolution from the field of occupational safety and health. Indeed, the very term "master and servant" (Judge's decision, p. 10) calls to mind concepts and attitudes long ago replaced by humane legislation rooted in concern for the safety and health of those ill-equipped to demand workplaces free from recognized hazards likely to cause death or serious physical harm.

Accordingly, we find that the evidence on the record as a whole supports the Secretary's allegation that respondent has violated section 5(a)(1) of the Act by permitting, or failing to prevent an employee from, riding as a passenger on construction equipment in motion. [*7]

We turn now to the assessment of an appropriate penalty, a matter in which evidence unrelated to the immediate circumstances of the violation is germane and may be dispositive.

Section 17(j) of the Act (29 U.S.C.A. 666(i)) provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations. [Emphasis added.]

The record shows that the Secretary, in arriving at the proposed penalty of $800, considered three of the four factors set forth above. The proposed penalty was reached by taking the maximum unadjusted penalty of $1000 and reducing it in accordance with weighted credit allowed for the several factors considered.

We do not feel these factors are necessarily to be accorded equal weight in a given case, nor do we feel that a particular factor must be given the same weight under different factual situations. Secretary of Labor v. Lacirema Operating Company, Secretary [*8] of Labor v. Hidden Valley Corporation of Virginia, Secretary of Labor v. J.E. Chilton Millwork & Lumber Co., Inc.,

The Commission finds no error in the weight accorded respondent's size, history of previous violations, and good faith. However, the record fails to reveal what, if any, consideration was given by the Secretary to the gravity of the violation, a consideration specifically required by the Act. In determining the gravity of a violation, several elements must be considered: (1) the number of employees exposed to the risk of injury; (2) the duration of the exposure; (3) the precautions taken against injury, if any; and (4) the degree of probability of occurrence of an injury. n3

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n3 The Commission is aware that within the context of a given case other elements may enter into determination of the gravity of a violation. The elements set forth herein are not intended to be exclusive.

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In this case, only one employee was briefly exposed to the [*9] hazard. Respondent did not take steps to prevent the violation other than to rely on its unwritten "policy."

The final element of gravity which we consider herein is the degree of probability of an injury occurring to an employee riding on moving construction equipment. Construction equipment moves slowly. An employee riding on this equipment is aware of the rough terrain upon which it travels and can reasonably be expected to be braced against falling. We find the probability of a rider falling to be minimal.

Weighing all of these factors, we conclude that the gravity of the violation is low and accordingly, the Secretary's proposed penalty is high. We find a reasonable and appropriate penalty is $300.

The Commission notes that the record in this case is restricted to evidence concerning a matter which we believe to be of peripheral import to the circumstances giving rise to the citation. The employee whose death triggered the Secretary's inspection was not killed by falling from the step of the equipment on which he had been riding. Nevertheless, because an employee, who had been riding on the step of a front-end loader, was killed when the equipment overturned, the Secretary [*10] cited this respondent for allowing its employee to ride on the step. The entire treatment of the case by the Secretary and the Solicitor thus illustrates the classic fallacy of post hoc, ergo propter hoc. Elementary logic dictates that the employee who died would have died in the same manner had he walked to the position where the equipment overturned. That he arrived at the place of his death at that precise moment by riding on the equipment is not causation but circumstance. The far more important questions concerning the condition of the equipment (specifically, braking and steering mechanism), the manner of operation of the equipment and the condition and slope of the ramp where the accident occurred are matters to which the record does not address itself. The reason, of course, is plain -- the employer received a citation for a violation having little or nothing to do with the tragic accident which impelled the Secretary to inspect. In short, the question properly presented in the circumstances of this case is, "why did the equipment overturn?" On the other hand, the issued litigated was, "how did the employee, killed by the equipment when it overturned, arrive [*11] at the place of his death?" The procedural and legal questions and issues which would be presented by a remand for a proper hearing this case outweigh, at this time, any possibility that the purposes of the Act might best be served by such action.

Accordingly, the foregoing dictum is included in this decision for the purpose of assisting the Secretary's agents in the future. In light of the fact that this case represents an erroneous approach to industrial safety which has occurred all too frequently before this Commission, we respectfully suggest to the Secretary that the decision, or at least this portion of the decision, be given the widest possible circulation to persons responsible for inspection of workplaces under the Act.

We find that the appropriate penalty for this violation, considering the evidence of record with respect to the size of respondent's business, the gravity of the violation, the good faith of respondent, and respondent's history of previous violations to be $300.

Accordingly, it is ORDERED that the citation issued by the Secretary in this case be affirmed and we assess a penalty of $300.

CONCURBY: VAN NAMEE

CONCUR:

VAN NAMEE, COMMISSIONER, concurring: [*12] I concur that Respondent is in serious violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651, et seq., 84 Stat. 1590, hereinafter referred to as "the Act"). Similarly, I concur that a penalty of $300 is appropriate in the circumstances of this case.

I do not, however, believe that the first conclusion can be achieved in this case without first determining whether an employer is strictly liable for a violation of section 5(a)(1) or whether he is held to a lesser standard.

Section 5(a)(1) provides:

Each employer -- (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees . . .

The provision was enacted for the reason that Congress recognized ". . . that precise [occupational safety and health] standards to cover every conceivable situation will not always exist", and it concluded that the Act would be "seriously deficient" absent a legislatively imposed standard. n4 Although the path to enactment was pitted with legislative hazards as presented by three different proposed general duty [*13] provisions n5 the congressional intent concerning the standard of liability to be imposed on employers was always clear.

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n4 1970 U.S. Code Cons. & Ad News 5158.

n5 In the Senate, the Committee on Labor and Public Welfare proposed that: "Each employer -- (1) shall furnish to each of his employees employment and a place of employment free from recognized hazards so as to provide safe and healthful working conditions . . ." (S2193, Cal. No. 1300, 91st Cong., 2d Sess. 5(a)(1) (1970)).

Two proposals were made in the House of Representatives. The Committee on Education and Labor proposed that "Each employer -- (1) shall furnish to each of his employees employment and a place of employment which is safe and healthful . . ." (H.R. 16785, Union Cal. No. 614, 91st Cong. 2d Sess. 5(1) (1970)). The following language was proposed in the Steiger-Sikes substitute for the Committee bill: "Each employer -- (a) shall furnish to each of his employees employment and a place of employment which are free from any hazards which are readily apparent and are causing or are likely to cause death or serious physical harm to his employees . . ." (H.R. 19200, 91st Cong. 2d Sess. 5(a) (1970)).

[*14]

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Thus, in reporting a general duty provision to the Senate, the committee on Labor and Public Welfare said as follows:

. . . 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 . . . 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 . . . Section 5(a) . . . merely restates that each employer shall furnish this degree of care. (Emphasis added) (1970 U.S. Code Cong. & Ad News 5186)

The Committee on Education and Labor of the House of Representatives made this same statement n6 in explanation of its proposed general duty provision. n7 The Committee statements restate the common law principles as presently defined in section 4, Restatement (Second) Torts (1965). Accordingly, it is concluded that section 5(a)(1) of the Act requires each employer to conduct himself in a particular manner regarding each recognized hazard at the risk that if he does not do so he will become [*15] liable for a violation of the Act's requirements. Obviously, the particular manner of conduct may require, as determined by the nature of the recognized hazard involved, one or more actions. The duty imposes no obligation which is not within the employer's ability to perform, since it relates only to his conduct over which, as such, he has control.

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n6 H. Rep. No. 91-1291, 91st Cong. 2d Sess. 21 (1970).

n7 Congressman William Steiger, while arguing against the Committee provision (H.R. 16785, note 2, supra ) and in favor of his substitute (H.R. 19200, note 2, supra ) referred to the argument that the committee version is comparable to the general duty imposed in the law of torts. Staff of the Senate Subcommittee on Labor, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, pgs. 991, 992 (Committee Print, 1971). The Secretary construes these remarks as supporting his theory that employers are strictly liable for violations of section 5(a)(1). The remarks do not support the theory. They were made as part of an argument that the Committee provision was vague and very broadly worded.

[*16]

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It does not follow, however, that an employer who has breached the statutory duty may evade liability by invoking common law defenses. Those defenses are employed to determine, as between private parties, the question of liability for damages arising as the consequence of and after the occurrence of injury. Our concern under this Act is not with respect to post-injury consequences. Rather, we are concerned with determining whether an employer has conducted himself in the appropriate manner to prevent the existence of a recognized hazard which could result in the occurrence of an occupational injury or illness. The employer's liability in this respect runs to the United States. Under such circumstances it would be absolutely inconsistent with the avowed legislative purpose of this Act n8 to allow an offending employer to escape liability by raising defenses predicated on the actions or inactions of his employees. n9 Accordingly, I concur in Commissioner Burch's conclusion that common law defenses are unavailable under this Act.

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n8 The primary purpose of this legislation is to ". . . assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources . . ." (29 USCA 651(b)).

n9 In this regard the Senate Committee said: "The committee does not intend the employee-duty provided in section 5(b) to diminish in any way the employer's compliance responsibilities or his responsibility to assure compliance by his own employees. Final responsibility for compliance with the requirements of this Act remains with the employer." (S. Rep. No. 91-1282, 91st Cong., 2d Sess. 10 (1970)).

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Having so concluded, the question in this case becomes: did this respondent discharge its general duty obligation to its employees? It is uncontroverted that respondent has and enforces a policy forbidding employees from riding on construction equipment not designed for the carriage of passengers. This, according to respondent, was enough to satisfy its general duty obligation under the Act.

A safety policy standing by itself cannot completely satisfy the [*18] duty requirement imposed by section 5(a)(1). This is so because a safety policy obtains effectiveness only through implementation. Consequently, we must look to both the policy and the employer's implementation of same in order to determine whether the totality of the employers' conduct has, in the circumstances, satisfied the general duty obligation.

The facts of this case are not in dispute. Respondent's foreman, O. C. Smith, violated company policy by riding on the step of a front end loader which was not designed for carrying passengers. Smith was a management employee responsible for supervising 150 employees and responsible for enforcing company safety policy. In addition to Smith's violation of the policy, the record indicates that it had been violated on 4 or 5 other occasions n10 during the two-year period preceding this case. On these facts, Judge Harold A. Kennedy concluded that infractions of company policy were rare and isolated occurrences and therefore concluded that respondent was not in violation of the general duty requirement. I disagree with this conclusion.

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n10 The record is silent as to the manner by which respondent obtains information concerning violations of its policy. If it relies only on management personnel to both discover and report violations then the figures 4 or 5 may well understate the actual number of violations that occurred in the period.

[*19]

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It may be that the violations of company policy did not occur with sufficient frequency to constitute a continuing practice. The question, however, is whether they occurred on enough occasions to put respondent on notice that more was required of it to obtain effective implementation of its safety policy. In this regard it is most significant that management, acting through its foreman Smith, violated the policy. Clearly, when management violates its own safety rules, it must be concluded that management was on notice that its policy had not been effectively implemented. Indeed, it must be concluded that the policy itself had not been effectively implemented. Management personnel, in positions such as that held by Smith, necessarily lead their employees by the examples they set in matters of safety. In this case, Smith's example clearly demonstrates the nature of respondent's failure with respect to its safety policy.

I might have been sympathetic to respondent's defense had the violation been a single infraction of policy by a non-management employee. The record, however, discloses [*20] several such occurrences over a two-year period. Under such circumstances, a holding that each occurrence is an isolated event will necessarily lead to a conclusion under the general duty that an employer can expose his employees to recognized hazards so long as he can mathematically show that each exposure is an isolated event. That conclusion must be rejected. It is contrary to the avowed purpose of this Act, and it would encourage employers to gamble with the lives of their employees.

I find that the several occurrences of violations of the employer's safety policy, especially with Smith's example, constituted sufficient notice to respondent that additional action n11 on its part was necessary in order to effectively implement its policy and therefore come into compliance with the requirements of section 5(a)(1). Respondent did not take such action. Accordingly, I would set aside Judge Kennedy's order and decision, affirm the Secretary's citation, and assess a penalty of $300 which is appropriate in the circumstances of this case.

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n11 Given the record in this case, it is inappropriate to state the specific action(s) respondent should have taken. Certainly, the specific violation would not have occurred had Smith been given appropriate transportation as Commissioner Burch points out. Respondent might also have issued binding instructions on equipment operators the violation of which would have been on the pain of discharge. Other safety techniques or devices, such as warning signs, might have been employed.

[*21]

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DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: The record in this case does not establish that respondent is in violation of Section 5(a)(1) of the Act as charged by the Secretary.

I therefore cannot concur in the opinion of the Commission.

Section 10(c) provides that:

If an employer . . . contest[s] a citation . . . the Commission shall [conduct] . . . a hearing . . . . The Commission shall thereafter issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation . . . [emphasis supplied].

In this case, the hearing required by the above-quoted section was conducted by Review Commission Judge Harold A. Kennedy. He concluded, in his opinion, that "The Secretary has failed to establish" that the respondent violated the Act as charged.

There are no findings of fact available to this Commission except those contained in Judge Kennedy's opinion.

I have searched the record of this hearing, the decision of Judge Kennedy and the opinions of my colleagues for the findings of fact which could sustain the latters' conclusion that this record establishes [*22] a violation of the Act as charged. I have found none.

The decision of the Commission in this case is founded on assumptions -- not facts, i.e., "it is reasonable to anticipate that persons in the position of the deceased employee in this case will repeatedly ride upon construction equipment" (Commission decision, p. 3). This, of course, is not a finding of fact nor is it based on anything developed at the hearing.

The concurring opinion is based on findings of fact, but they do not establish a violation of the matter with which the respondent was charged in the Secretary's citation, and which was the basis upon which he conducted his defense to the allegations.

The Secretary charged that the respondent violated Section 5(a)(1) because:

. . an employee was permitted to stand as a passenger on the running board of an Allis Chalmers 645 Front end loader while the loader was in motion. . . .

The concurring opinion does not find that the quoted portion of the citation constituted a violation of Section 5(a)(1). It finds a violation because the respondent did not take "additional action" to effectively implement a company policy against "riding on the step of a front [*23] end loader which was not designed for carrying passengers" (concurring opinion, p. 6).

Had the respondent been so charged, he may well have introduced additional evidence to show what action he took in this regard. On the other hand, he may not have had any such evidence to produce. On the basis of the facts before us, we can only speculate on this. In any event, a respondent cannot be held for a violation with which he was not charged in the citation and, consequently, had no opportunity to prepare a defense against. ( Engineers & Fabricators, Inc., v. N.L.R.B., 5 Cir., 376 F.2d 482 and N.L.R.B. v. I.B.S. Mfg. Co., 5 Cir., 210 F.2d 634.)

The decision of the Commission is similarly culpable in this respect. It concludes that "the evidence on the record as a whole supports the Secretary's allegation that respondent has violated Section 5(a)(1) by permitting, or failing to prevent an employee from, riding as a passenger on construction equipment in motion" [emphasis mine]. I respectfully submit that there is a vast difference in the quantum of evidence needed to establish the affirmative act of "permitting an employee to ride as a passenger and that needed to establish [*24] the negative act of "failing to prevent" an employee from so riding. The facts are clear that respondent "failed to prevent" but he was not cited for that.

The respondent was charged only with the former. He was not charged in the alternative. I know of no precedent for a holding so stated.

It seems to me that a violation can be established here only if the record before this Commission establishes an affirmative answer to two essential questions:

First. Did respondent permit an employee to stand as a passenger on the running board of an Allis Chalmers 645 Front end loader while the loader was in motion?

In reaching an answer to this question, one must closely analyze the evidence of record n12 which can be related as follows:

Employee CLYDE WILLIAMS. . . . the incidence of employees riding the running boards of loaders is extremely rare.

Employee WILLIAM COMBS. . . . never seen men other than O. C. Smith riding on the running board of a loader. . . .

Job Superintendent JERRY IRWIN. Riding on moving equipment has occurred four or five times during the last two years. . . he . . . and others . . . stopped the occurrence when discovered . . . he has never seen [*25] men riding on a loader other than as operator.

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n12 The witnesses did not testify in person. Their testimony was admitted by stipulation of counsel with the approval of the Judge. The only exception to this was the evidence of the Secretary's compliance officer who conducted the inspection of the respondent's job site and this evidence was confined to testimony on the proposed penalty, the abatement of the alleged violation, and the abatement date proposed by the Secretary.

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The above-quoted testimony is the evidence most favorable to the Secretary's case. It is on Irwin's testimony that the concurring opinion in this case concludes that there was a violation because the company's policy against riding construction equipment "had been violated on 4 or 5 other occasions" [concurring opinion, p. 5]. The opinion fails to notice the difference between "moving equipment" which can be many different things and a "loader." Irwin clearly states "he has never seen men riding on a loader other than as operator" [*26] [emphasis mine].

The citation does not charge respondent with permitting employees to ride the running board of moving equipment. It specifies that " An employee was permitted to stand on the running board of an Allis Chalmers 645 Front end loader " [emphasis mine].

In addition, the respondent was not charged with a practice or pattern of permitting employ ees to ride as passengers on loaders. He was very specifically charged with permitting an employ ee. The evidece further reveals very clearly that the employee who was permitted to ride on the loader was one O. C. Smith who was killed when a loader toppled over on him shortly after he had jumped from its running board.

To reach an affirmative answer to the question stated above, there must be evidence, therefore, that respondent permitted O. C. Smith to stand as a passenger on the running board of an Allis Chalmers 645 Front end loader while the loader was in motion.

O. C. Smith was a foreman on the respondent's job site. The only other representative of the respondent in a position of authority superior to O. C. Smith was Mr. Irwin. His uncontroverted testimony was that he has never seen men riding on [*27] a loader other than as operator.

How then can it be said that respondent permitted O. C. Smith to ride on the loader? Irwin, his only supervisor, did not see O. C. Smith so riding and never saw anyone else so riding. There was a company policy against it and there was no evidence that anyone ever before had ridden as a passenger on an Allis Chalmers 645 Front end loader.

Both the decision of the Commission in this case and the concurring opinion overlook the fact that respondent was charged with permitting only one specific employee to ride on a specified piece of equipment. A violation is found because management did not have an effective means to forbid "persons to ride on equipment not designed for persons" [emphasis mine] (Commission decision p. 3). This is not what was charged in the Secretary's citation.

My colleagues have missed the mark. There is no direct evidence in this record to establish that respondent permitted O. C. Smith to ride on this loader as a passenger, nor is there any evidence of any kind from which one can infer that respondent so permitted O. C. Smith. His supervisor did not see the incident or know of it until after it was history. [*28] He had no advance knowledge that it was going to happen. I can think of no way he could have prevented it except to constantly follow O. C. Smith around during his working hours.

I turn now to the second of the two essential questions, an affirmative answer to which must be found in the record before a violation can be established in this case:

Does the act of permitting an employee to stand as a passenger on the running board of an Allis Chalmers 645 Front end loader while the loader is in motion constitute a recognized hazard under the provisions of Section 5(a)(1) of the Act?

The only evidence on this point is a stipulation of the testimony of the Secretary's compliance officer, who inspected the respondent's job site and which was admitted into evidence by the Judge. His complete statement on this point is as follows:

". . . the general safety requirements of the Corps of Engineers prohibited riding on equipment . . . ."

By this decision, the Commission is saying that if the general safety requirements of the Corps of Engineers prohibit an act, then that act is a recognized hazard causing or likely to cause death or serious physical harm to employees. I cannot [*29] accept such a policy nor did Congress intend anything of this kind. There are many acts prohibited in the interests of safety of employees by the general safety requirements of the Corps of Engineers, the occupational safety and health standards promulgated by the Secretary of Labor, and many others. Each and every one of such acts, however, cannot be said to constitute a recognized hazard causing or likely to cause death or serious physical harm to employees. n13

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n13 Another of the general safety requirements of the Corps of Engineers prohibits persons less than 21 years of age from operating a motor vehicle engaged in the transportation of personnel. If the Commission is to be consistent, it would seem that an employer would violate Section 5(a)(1) of the Act if a 20 year old employee were to drive some of his fellow employees in a station wagon from one point to another.

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The essence of the charge against the respondent is that he failed to provide O. C. Smith with employment "free from recognized hazards which [*30] caused and were likely to cause death or serious physical harm" because said O. C. Smith "was permitted to stand as a passenger on the running board of an Allis Chalmers 645 Front end loader while the loader was in motion."

What was the hazard involved? The record does not say. Was it that the employee would be very likely to fall from the running board of the moving loader? The Commission decision answers "no." The decision of this Commission (p. 6) states "We find that the probability of a rider falling to be minimal," and "Elementary logic dictates that the employee who died would have died in the same manner had he walked to the position where the equipment overturned."

In my opinion, the record in this case requires a negative answer to both of the questions posed. There is no evidence that respondent permitted O. C. Smith to ride as a passenger on the loader and there is no evidence that riding on the running board of a moving loader is a recognized hazard within the meaning of Section 5(a)(1) of the Act.

This Commission recently affirmed a decision of one of its Judges which included the statement "A citation is issued to force correction of an unsafe or unhealthful [*31] working condition." [ Secretary of Labor v. Koppers Company, Incorporated,

I do not think we are implementing that purpose in this case. The Commission has determined that there was an unsafe working condition on the job site of this respondent. In my opinion, it has not told him precisely what that unsafe condition was nor what he must do to prevent its continuance or recurrence.

I would sustain the decision of the Judge who heard the evidence in this case and hold that the alleged violation of the Act has not been established.

[The Judge's decision referred to herein follows]

KENNEDY, JUDGE, OSAHRC: A citation alleging "serious" violation of the Occupational Safety and Health Act of 1970 (84 Stat. 1601; 29 U.S.C. 651 et seq. ) was issued against Respondent National Realty and Construction Company, Inc. by the Secretary of Labor on September 24, 1971. The citation alleges that on or about September 16, 1971, Respondent failed to provide employment "free from recognized hazards" as required by such Act at its workplace at 2399 Jefferson Davis Highway, Arlington, Virginia, known as the construction site of Stouffers National Inn. [*32] Specifically, the citation asserts that "an employee was permitted to stand as a passenger on the running board of an Allis Chalmers 645 front end loader" while in motion, that it went out of control and that "the employee-passenger jumped from the loader and was fatally injured when the loader rolled over on him." Notice of contest, notification of proposed penalty, complaint and answer were thereafter filed as provided by the Review Commission's Interim Rules of Procedure (published August 31, 1971, 36 Fed. Reg. 17,409 et seq. ).

The allegations of the Secretary's complaint, filed on October 19, 1971, follow the allegations of the citation and notification of proposed penalty and pray for the affirmation of the citation and assessment of an $800 penalty. Respondent's answer admits jurisdiction, asserts certain affirmative defenses and denies violation of the Act. Pursuant to due notice, which was posted at Respondent's said workplace, a hearing was held in Washington, D.C. on November 18, 1971. The Secretary of Labor and Respondent were represented at the hearing by counsel and were afforded opportunity to present evidence, examine and cross-examine witnesses. No affected [*33] employee or representative thereof sought to participate in the hearing, although given opportunity to do so. Proposed findings, conclusions and order, as well as reply findings, have been submitted by counsel.

Upon the entire record in the case, the Hearing Examiner makes the following:

FINDINGS OF FACT

I. JURISDICTION

Respondent National Realty and Construction Company, Inc., is a Virginia Corporation with its principal office and place of business located at 1800 North Kent Street, Arlington, Virginia. Respondent is engaged in the construction business and currently employs approximately 1150 employees.

Respondent receives construction supplies, materials and equipment from outside of Virginia which are regularly used and handled by its employees. Respondent is at present involved in construction projects in the District of Columbia valued at several million dollars.

Respondent is, and has been, engaged in the construction of a twelve-story motel, referred to as Stouffers National Inn, at 2399 Jefferson Davis Highway, Arlington, Virginia. Upon the foregoing undisputed facts, the Hearing Examiner finds Respondent is an "employer" and "a person engaged in a business [*34] affecting commerce who has employees" as defined in Section 3 of the Act.

II. THE ALLEGED VIOLATIONS OF THE ACT

A. The Issues Presented

The case arises out of the death of Respondent's foreman, O. C. Smith. According to the complaint, Mr. Smith's death was a result of a "condition which constituted a recognized hazard" that Respondent "permitted" to exist on September 16, 1971. The hazardous condition allegedly "arose when Smith stood as a passenger on the running board of a piece of construction equipment which was in motion." The complaint charges that the maintenance of such condition subjected its 1150 construction employees to possible death or serious physical injury and constituted a "serious violation" of Section 5(a)(1) of the Act, requiring immediate abatement. The complaint further avers that the proposed penalty of $800 was reasonable under Section 17 of the Act and prays affirmation of the citation and assessment of the penalty as proposed.

Section 5(a)(1) of the Act, the so-called general duty clause, provides: Section 17(b) of the Act reads:

Any employer who has received a citation for a serious violation of the requirements of section 5 of [*35] this Act, of any standard, rule, or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, shall be assessed a civil penalty of up to $1,000 for each such violation.

Sub-sections (j) and (k) of Section 17 read:

(j) The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

(k) 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.

The Secretary does not contend that the alleged hazard has not been abated. Thus, these issues are presented: (1) [*36] whether the Respondent maintained, or permitted to exist, a condition that constituted a recognized hazard that caused, or was likely to cause, death or serious physical harm to its employees so that Section 5(a)(1) of the Act was violated; (2) if such a violation did occur, whether there was such a substantial probability of death or serious physical harm so that a serious violation occurred; and (3) if a serious violation did occur, whether the proposed penalty of $800 was appropriate under the Act.

B. The Evidence

The stipulated testimony of five witnesses was received at the hearing. The testimony of Clyde Williams was as follows (Tr. 20-21):

On September 16, 1971, Clyde Williams, a loader operator for a company which is a subsidiary of the Respondent company, was under the direction of O. C. Smith, a foreman for the Respondent, engaged in towing an air compressor to an excavation at the site construction of Stouffers Inn Motel in Arlington, Virginia.

At the direction of Mr. Smith, Mr. Williams began to descend an earthen ramp with the compressor in tow. The towing device was an Allis Chalmers 645 front end loader. Mr. Smith was riding on the left running [*37] board of the loader looking forward.

After he had started the descent, the engine of the loader stalled, and the loader began to roll down the ramp at an increasing rate of speed. Because the engine was not running the steering became more difficult. The loader drifted to the left side of the ramp as one looks down the ramp and went over the left side of the ramp about halfway down. O. C. Smith jumped from the loader before it went over the ramp. The loader toppled over and landed on Mr. Smith upside down. O. C. Smith was killed.

Further, . . . that he did not order O. C. Smith off the loader because O. C. Smith is a foreman and he, Williams, is not. Also . . . that the incidence of employees riding the running boards of loaders is extremely rare.

The testimony of William Combs was (Tr. 21):

He was present at the Arlington, Virginia, jobsite on September 16, 1971, that he observed the loader driven by Clyde Williams as it began to descend the ramp rapidly, that O. C. Smith was riding on the left running board as it descended, that he observed it as it went over the edge of the ramp and that he saw it crush O. C. Smith.

That construction practice and company policy [*38] prohibit riding on loaders or any comparable equipment and that he has never seen men other than O. C. Smith riding on the running board of a loader or comparable equipment at the construction site of respondent.

According to the stipulation, the superintendent in overall charge of the Stouffer Jobsite, Jerry Irwin, testified that he did not see the accident but that (Tr. 22):

Riding on any moving equipment is prohibited by the Respondent, that riding on moving equipment has occurred four or five times during the last two years, that he has, and others have, stopped the occurrence when discovered, and that he has never seen men riding on a loader other than as an operator.

O. C. Smith was a highly experienced Foreman of 9 to 10 years' experience with the Respondent and was the labor foreman in charge of construction at the site and that he was responsible for directing the work of up to 150 men, depending on the project, that his duties would also have included the enforcement of the Respondent's safety policy, and that O. C. Smith was an excellent and experienced foreman with an outstanding safety record.

William Simms, a Compliance Officer for the Occupational Safety and Health [*39] Administration, testified pursuant to the stipulation that (Tr. 23):

In the next preceding four or five years he was employed as safety director for the Defense Supply Agency Support Center in Alexandria, Virginia, and that in the 8 years prior to that he was employed as a construction inspector for the United States Army Corps of Engineers in Washington, D.C.

That the general safety requirements of the Corps of Engineers prohibited riding on equipment or loads (sic) throughout out the time of his employment by the Corps of Engineers and at the time of the September 16, 1971 accident.

The stipulation also included this testimony of Respondent's superintendent, David Bunnell (Tr. 24):

He is an experienced Superintendent of the Respondent, that he is familiar with the Respondent's safety policies, that those policies include a prohibition against riding on equipment of any kind in a capacity other than operator, that he has personally reprimanded violators of that policy, that it is further Respondent's policy to fire serious second offenders, but that to date, there has been no necessity to so fire persons because there has no second offense. He would further testify [*40] that he has not seen others riding on loaders or comparable equipment at the Respondent's construction sites.

Compliance Officer Simms took the stand to explain how the proposed penalty of $800 was calculated on the Secretary's penalty worksheet (Tr. 31-41; Secretary's Exhibit 1). According to Mr. Simms, Respondent was given a 20% reduction from a $1000 "unadjusted penalty for a serious violation" on the basis of Respondent's past safety record. He indicated that he gave Respondent no reduction for "good faith" for the reason that he found seven or eight other non-serious "violations" of standards, even though the standards were not yet effective. He testified that no reduction was given for "size" as Respondent employed over 100 employees. Mr. Simms also testified that the abatement date (September 27, 1971) indicated in the worksheet was changed to "immediately" after he conferred with a supervisor, the Acting Area Director. According to Mr. Simms, the hazard in question had been abated and only required an oral direction to Respondent's equipment operators on the job not to permit anyone to ride on the equipment.

C. Discussion

The facts of record are scanty. [*41] The record discloses that an experienced labor foreman, in charge of a construction site and responsible for the work and safety of a number of workers, undertook to ride as a passenger on the running board of a front end loader as it pulled an air compressor down a dirt ramp; the engine stalled with the result that the loader increased in speed and became difficult to steer; the foreman jumped and the loader toppled over, landing on him and causing his death. A company safety policy, conveyed orally but known to the workmen, prohibited anyone riding moving equipment such as loaders except as an operator. The safety policy has been observed by employees, although workmen have violated the policy and ridden on moving equipment as passengers four or five times in the past two years. The superintendent in charge, and others, have stopped each occurrence on discovery with a reprimand, and there has been no second offense by any worker. The record also shows that there is a policy of the United States Army Corps of Engineers that forbids persons riding as passengers on moving equipment such as loaders. Do these facts include that Respondent breached a duty, imposed upon it by the [*42] Occupational Safety and Health Act of 1970 to the deceased foreman or any other worker? Careful consideration of the whole record and the briefs submitted has convinced the Hearing Examiner that it did not.

An employer (master) at common law was liable to his employees (servants) for injuries arising out of the course of employment on the ground of negligence, but such defenses as contributory negligence and assumption of risk could be relied upon by him to avoid liability for most industrial accidents. The employer's responsibility for furnishing a safe place to work and safe tools and equipment has been considerably altered by workmen's compensation acts, employer liability statutes and other legislation. Some of these laws, as in the case of workmen's compensation acts, are founded upon strict liability, and generally provide for compensation as a sole remedy to any employee injuried by an accident "arising out of and in the course of employment." Other statutes, frequently providing the employee with an elective remedy, preserv negligence as a basis of employer liability but also relieve the injured worker from having to overcome comon law defenses. See, for example, [*43] Arizona Employers' Liability Cases, 250 U.S. 400 (1919); Kernan v. American Dredging Co., 355 U.S. 426 (1958); Smith v. Baker, 11 P. 2d 132 (Okla. 1932).

The record is silent as to the details of the occasions when workmen (other than O. C. Smith) have ridden construction equipment -- i.e., as to distance, duration or place of travel; persons involved, etc. It can only be inferred that such occasions have been rare and isolated. The record shows that the loader's engine stalled and that steering became difficult, but the alleged violation of the Act is not predicated on there being any defective machinery or equipment.

The basic objective of the Occupational Safety and Health Act is to "assure so far as possible every working man and woman in the Nation safe and healthful working conditions" (Sec. 2(b)). It seems clear, therefore, that the law is to be liberally construed in favor of broadly protecting any employee. Cf. Feffer v. Bowman 365 P. 2d 472 (Ariz. 1961).

There can be no question but what Foreman Smith was an "employee" within the meaning of the Act. He was an experienced, mature worker and held a supervisory position. The duty [*44] of care imposed by the Act as to him was undoubtedly less than one owed to an inexperienced employee, but he was unquestionably within the class of persons that the Act sought to protect (see Ashby v. Luttrell, 213 S.W. 2d 77 (Tex., 1948)). Respondent is admittedly an "employer" in a business affecting commerce, and the Hearing Examiner finds O. C. Smith was among its "employees." See Powell v. United States Cartridge Co., 339 U.S. 497 (1950).

Nor can there be any question about the fact that riding a moving loader as a passenger is dangerous and a hazard. The record shows that the Army Corps of Engineers considers it to be. Respondent acknowledges such fact, and has prohibited it.

It must be determined whether Respondent did all it was required to do under the Act to keep it employment and place of employment for its employees "free" of the hazard.

Respondent contends that the Secretary has proved only that O. C. Smith rode on the running board and died -- that it could be held to have violated the Act only on a theory of strict liability. The record does show something more than this, but not enough, in the Hearing Examiner's view to establish violation of [*45] the Act.

The Hearing Examiner does not understand the Secretary to argue for employer responsibility under the Act irrespective of fault. n1

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n1 As Respondent points out (Resp's Br. pp. 14 et seq. ) it seems clear enough that Congress did not intend for the general duty clause to impose strict liability on employers. The Senate Committee on Labor and Public Welfare in reporting favorably on job safety bill S. 2193 on October 6, 1971 (October 5 Legislative Day) commented as follows on the bill's general duty clause (S. Rep. No. 91-1282, 91st Cong., 2d Sess. (1970)):

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. 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.

[*46]

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The Secretary's position, as set forth in the citation and in Paragraph III of the Complaint (H. E. Exhibits 1 and 6), is that riding construction machinery such as a loader in a capacity other than as an operator is a dangerous "condition" constituting a "recognized hazard" likely to cause death or serious physical harm. Respondent allegedly "permitted" such condition to exist so that its workmen, and O. C. Smith in particular, to do so, with Mr. Smith's death occurring as a result. In response to the Secretary's pleading, Respondent asserts that it did not "permit" existence of such a condition. According to Respondent, it did not know, and could not have known, that the deceased foreman was riding on the loader as a passenger and, therefore, had no opportunity to prevent the hazard or the injury (H. E. Exhibit 10).

Violation of the Act in this instance surely would not require proof by the Secretary that express permission was given to Foreman Smith to ride the loader -- or, as Respondent suggests, that there be "evidence to show that Respondent, or anyone on behalf of Respondent, actually [*47] gave Mr. Smith permission . . . to ride on the loader" (Resp's Br. pp. 12-13). Certainly, if passenger riding on Respondent's construction equipment had been occurring on a regular basis it would be apparent that its prohibition was not enforced or effective. In that event, there would be a "practice" of passenger riding, and Respondent would be bound to be on notice that it was occurring. It could, therefore, be inferred under such circumstances that Respondent had "permitted" its workmen to ride such moving equipment as passengers. How frequently such passenger riding needs to occur to put Respondent on notice is difficult to determine in the abstract. The Hearing Examiner is not required to make the determination here. This record does indicate that passenger riding of construction machinery by Respondent's workmen has been an isolated and a rare occurrence.

Thus, no inference can be drawn that Respondent permitted Foreman Smith, or any other worker, to ride a loader or other construction machinery in a capacity other than as an operator.

The Secretary's own pleading in alleging that Respondent "permitted the existence of a condition," suggests that the Department [*48] of Labor does not consider a rare or isolated act of passenger riding of construction equipment a violation of the Act. It is to be noted that Section 17(k) of the Act in defining a "serious violation" specifically requires:

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 (emphasis added).

In the Hearing Examiner's view, four or five occurrences in two years constitute only rare and isolated instances and could not constitute a "practice," much less a "condition." See McClure v. E.A. Blackshere Co., 231 F. Supp. 678 (D.C. Md., 1964) and cases cited therein at 682; Guenther v. Morehead, 272 F. Supp. 721, 727 (S.D. Ia., 1967). That a dangerous condition need not be permanent in nature, however, see Mengelkamp v. Consolidated Coal Co., 102 N.E. 756 (Ill., 1913).

Further, it is to be noted that Respondent's safety policy of [*49] prohibiting riding on any moving construction equipment is very close to what the Secretary's Compliance Officer considered to be compliance with the Act. Mr. Simms testified that abatement of the hazard meant to him that the employer should tell the "few operators on the job" that "under no circumstances are you to allow anyone to ride on your equipment" (Tr. 40-41). The Secretary argues in his reply findings (Secy's Reply Br., p. 2) that the testimony of Mr. Simms requires more than Respondent's safety policy does -- that Respondent's operators are not to allow riders on construction equipment. However, Respondent's safety policy not only forbids each employee from riding construction equipment as a passenger; it presumably also requires operators not to operate equipment while a passenger is aboard. The prohibition against equipment riding was undoubtedly known and understood by loader operator Clyde Williams as well as Foreman Smith. The testimony was that Mr. Smith was not ordered off because he was a superior (Tr. 21). If the Secretary's view of compliance with the Act is more strict than Respondent's safety policy, it could not have had any different effect. The loader [*50] operator would not have issued an order to his superior.

Based on the record before him, the Hearing Examiner has concluded that the death of Foreman Smith was not the result of any breach of duty owed him by Respondent under the Occupational Safety and Health Act of 1970. It arose out a violation of a known company safety rule made for the protection and safety of workmen, including Foreman Smith. It was an unavoidable accident as far as employer Respondent was concerned. Nor was there a violation of the Act as to any other employee.

Accordingly, the Hearing Examiner finds that the Secretary has not established a violation of Section 5(a)(1) of the Act as charged. n2 Without proof of a violation of Section 5(a)(1) of the Act there can not, of course, be a "serious violation" as defined in Section 17(k). Further, the Hearing Examiner does not reach the questions raised concerning the propriety of a proposed penalty of $800.

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n2 The Commission's Interim Rules provide in part that "the burden of proof shall be on the Secretary in all proceedings to sustain the assertions contained in his citation. . . ." (Sec. 2200.33).

[*51]

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Upon the basis of the foregoing, the Hearing Examiner makes the following:

CONCLUSIONS OF LAW

1. Respondent is an "employer" engaged in a business affecting commerce who has employees within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2. Respondent's deceased Foreman O. C. Smith was an "employee' within the meaning of Section 3(6) of the Act.

3. The Secertary has failed to establish that Respondent committed a "serious violation" within the meaning of Section 17(k) of the Act, or that Respondent failed to furnish O. C. Smith, or to any other employee, employment or a place of employment free from recognized hazards within the meaning of Section 5(a)(1) of the Act.

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is ORDERED that the citation and notice of proposed penalty issued herein on September 24, 1971 be, and the same are, dismissed.