HANOVIA LAMP DIVISION, CANRAD PRECISION INDUSTRIES, INC.
OSHRC Docket No. 89
Occupational Safety and Health Review Commission
December 13, 1972
Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners
BURCH, COMMISSIONER: On July 21, Judge David G. Oringer issued his recommended decision and order in the instant case, affirming the Secretary's citation for a serious violation and proposed penalty of $800.
On August 1, 1972, I directed that the proposed decision and order be reviewed by the Commission pursuant to 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 briefs filed by the parties and has considered the entire record. We do not adopt the Judge's recommended decision and order.
Review was directed and submissions were invited on the issues of (1) whether the employer knew or reasonably should have known of the existence of the hazardous condition, and (2) whether the hazardous condition resulted from circumstances over which the employer had no control.
Respondent, a manufacturer of lamps, was issued a citation on September 15, 1971, that alleged a serious violation of section 5(a)(1) of the Act. This section provides:
Section 5(a) Each employer --
(1) shall furnish [*2] 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;
Respondent was cited for an alleged failure to enclose the energized terminals of capacitators in one of its research laboratories. A penalty of $800 was proposed by the Secretary.
The facts in the case are uncontroverted. On August 6, 1971, one of respondent's employees was conducting tests alone in his laboratory. This was not unusual. The employee was an experienced technician and did not require constant supervision. He had no prior accidents in 21 years of work for respondent and reportedly never did anything in an unsafe manner. He was described by his supervisor as "able and meticulous."
Nevertheless, for unexplained reasons on August 6, the normally safe condition of the laboratory was changed into an unsafe condition that "shocked" the deceased's supervisor. Respondent admits that this unsafe condition was a recognized hazard within the meaning of section 5(a)(1). In fact, there is expert testimony that the resulting condition was "almost a classical, fundamental, [*3] basic illustration as to what not to do, and it couldn't have been done better [sic] had you tried."
Section 17(k) of the Act provides:
(k) . . . a serious violation shall be deemed to exist . . . unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
It is clear that in the present case, respondent did not know of the hazardous condition. The only question that remains is whether or not respondent could with the exercise of reasonable diligence, know of the presence of the violation. The Secretary maintains that the violation could not have take place if the decedent had been adequately supervised. We find no merit to this argument. While close supervision may be required in some cases to avoid accidents, it is unrealistic to expect an experienced and well-qualified laboratory technician to be under constant scrutiny. Such a holding by the Commission, requiring that each employee be constantly watched by a supervisor, would be totally impractical and in all but the most unusual circumstances, an unnecessary burden.
The hazardous condition in this case resulted from circumstances over which respondent [*4] had no control. As we have often stated, just as each violation need not result in an accident, neither does the mere fact that an accident occurred indicate that there was a violation.
Accordingly, it is ORDERED that the Judge's decision and order be set aside and that the Secretary's citation for serious violation and the notification of proposed penalty be vacated.
[The Judge's decision referred to herein follows]
ORINGER, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 28 U.S.C. 651 et seq. (hereinafter referred to as "the Act") to review a citation alleging "serious violation" issued by the Secretary of Labor (hereinafter referred to as "the Secretary"), pursuant of Section 9(a) of the Act, and a proposed assessment of penalties thereon issued pursuant to Section 10(a) of the said Act.
The Secretary issued a citation, dated September 15, 1971, alleging a serious violation of Section 5(a)(1) of the Act to the Respondent Hanovia Lamp Division, Canrad Precision Industries, Inc., incorrectly referred to in the citation as "Conrad," (hereinafter referred to as "Hanovia"). The citation related that the Respondent [*5] allegedly violated Section 5(a)(1) of Public Law 9-596 (O.S.H.A.) and described the violation as follows:
Testing laboratory -- transformer on bench adjacent to ultraviolet lamp testing jig:
(a) All live parts of electrical equipment shall be guarded against accident (sic) contact by approved cabinets or other forms of approved enclosures.
(b) Conductors entering service boxes shall be protected from abrasion, and all openings' through which conductors enter boxes shall be adequately closed.
(c) All pull boxes, Junction boxes and fittings shall be provided with covers approved for the purpose. Pull boxes shall not be left open while box is in service.
The citation required abatement by September 25, 1971. The penalty proposed was in the sum of $800.00, and the notification thereof was dated September 15, 1971.
The Respondent timely served notice to contest the citation and proposed penalty on the Secretary's employee, by letter dated September 28, 1971.
This cause was received by the Occupational Safety and Health Review Commission pursuant to Section 10(c) of the Act, on October 18, 1971, and, after dismissal of the notice of contest for failure to comply with the Commission's [*6] rules, and subsequent restoration to the Commission docket after petition for reconsideration was granted, the case was assigned to Judge David G. Oringer on December 22, 1971, pursuant to Section 12(e) of the Act.
The Secretary, on or about January 15, 1972, issued its complaint, alleging therein that the respondent violated the provisions of Section 5(a)(1) by failing to furnish its employees at the workplace with employment and a place of employment free from recognized hazards that were causing or likely to cause death or serious physical injury, in that employees were permitted to work in close proximity to, and to handle and test high voltage equipment without guarding all live parts of electrical equipment; without protecting from abrasion all conductors entering service boxes, without having all openings entering boxes adequately closed; without other protective and safety devices; allowing pull boxes to be left open while box is in service; and failing to follow proper and established methods and procedures in working with high voltage equipment.
The respondent filed his answer circa January 15, 1972. Pursuant to notice, a hearing was held on January 31, 1972, [*7] at 26 Federal Plaza, New York, N.Y.
At the commencement of the hearing the parties stipulated that the citation and the notice of hearing were properly posted on the employees' bulletin board, and that the Engelhard Hanovia Independent Union, the representative of the employees, was notified by both parties concerning the date of hearing and was furnished all documents issued up to the date of trial.
Having heard the testimony and observed the demeanor of the witnesses, and having considered the same, together with the citation, notification of proposed penalty, notice of contest, pleadings, representations, stipulations and admissions of the parties, it is concluded that substantial evidence on the record considered as a whole, supports the following
FINDINGS OF FACT
1. The respondent is a New York Corporation, with its principle office located at 100 Chestnut Street, Newark, New Jersey. (T-4) n1
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n1 The references hereinafter made have the following meanings: T -- TRANSCRIPT.
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2. The respondent manufactures [*8] and sells high energy lamps and associated equipment, the latter sales being made in interstate commerce. (T-5)
3. The respondent's gross annual volume of sales during 1970 amounted to approximately $3,250,000.00. This respondent is a competitor of General Electric, Sylvania, and Westinghouse, whose sales are reputed to be in the hundreds of millions of dollars annually. The net worth of the respondent, Canrad Precision Industries, Inc., at the end of 1970, was approximately four million dollars. (T-5)
4. The respondent corporation employed 291 employees during the year in question, of which 201 were employed in the Hanovia's Lamp Division. (T-6)
5. The late Orville L. Galligher, at the time complained of, had been employed by Hanovia, and the equipment used by Galligher at the time of his death was the property of the respondent. (T-5, 105)
6. On or about August 18, 1971, compliance officer, Richard J. Palmieri, an employee of the Secretary, inspected the respondent's laboratory, including the exact workplace wherein Mr. Galligher was employed at the time of his death. (T-17, 18)
7. At the time of the inspection, the equipment in the laboratory that constituted the [*9] late Mr. Galligher's workplace at the time of his death was in the same condition as seen immediately after the accident as none of the equipment therein had been touched since the accident. (T-18)
8. The photograph marked "Plaintiff's Exhibit #2" is an accurate representation of a portion of the workplace wherein the late Mr. Galligher was employed at the time of the accident, as seen at the time of the inspection. (T-21)
9. The inspection disclosed that on August 6, 1971 the late Orville L. Galligher was working in proximity to high voltage with the cover on the service box open and wires tapped into the service box. In addition thereto, the terminals of the capacitators in the workplace referred to, were not covered and metal parts were not grounded. (Plaintiff's Exhibits 2 and 3; T-22, 23, 24)
10. The late Mr. Galligher worked in a test laboratory which constituted the workplace furnished him by the employer, alone, and without a co-worker. (T-28, T-151)
11. The conditions described in Finding #9, at the place of employment of the late Mr. Galligher, were hazards that were causing or were likely to cause death or serious physical harm to Hanovia's employee [*10] Galligher. (T-25, 26, 73, 74, 77, 184, 186, 187)
12. The respondent recognized the hazards contained in the workplace wherein Mr. Galligher was employed at the time of the accident. (T-184, 187, 136, 138)
13. Compliance officer Bynoe is a qualified expert in the field of electrical and safety equipment. (T-70, 72)
14. The conditions above described existing at the workplace furnished Mr. Galligher on August 6, 1971, contained violations of the National Electrical Safety Code, a code of regulations set by a committee of industry knowledgeable persons for the information of, and which code was followed by, the entire electrical industry, and the Judge takes judicial notice thereof. (T-73, 74)
15. Both the complainant and the respondent agree that the place of employment wherein the late Mr. Galligher was employed, to wit, the testing laboratory, on the day in question, contained recognized hazards that were causing or were likely to cause death or serious physical harm to the employee, Galligher. (T-25, 26, 73, 74, 77, 136, 138, 184, 186, 187)
16. On August 6, 1971, Hanovia failed to furnish its employee, the late Orville L. Galligher, employment and a place [*11] of employment free from recognized hazards that were causing or likely to cause death or serious physical harm to its employee, when it allowed him to work in proximity to, and with, high voltage, with the cover of the service box open, with wires tapped into the service box; with the terminals of the capacitators not covered; and metal parts ungrounded, in a workplace as shown in Plaintiff's Exhibit #2; and Galligher was left to work alone, without proper supervision. (T-22, 23, 24, 74, 75, 136, 138, 184, 187)
17. The respondent alleges and the Judge believes that the late Mr. Galligher personally installed those conditions that made the workplace hazardous. (T-186)
18. The recognized hazards, described in paragraphs 9 and 16, constituted a serious violation within the purview of Section 17(k) of the Act, as the violation was such that there was substantial probability that death or serious physical harm could result to employees working in proximity to high voltage current in and around conditions as described in paragraphs 9 and 16, which the employer could have ascertained by utilization of reasonable diligence. (T-80, 81)
19. The safety director of Hanovia issued a memorandum, [*12] dated June 5, 1970, which memorandum set up a safety program recognizing that high voltage and high electric power was used in experiments in testing. The direction contained therein to an employee to conduct monthly inspections of all the engineering facilities and render written reports thereon was not followed. (Plaintiff's Exhibit #4, T-175)
20. The transformer in the place of employment wherein Mr. Galligher worked could use as high as 2200 volts of electrical current. (T-159)
21. It would take at least 45 minutes of work for the late Mr. Galligher to have created the condition which constituted the employment hazard. (T-106) In addition thereto, the materials used in creating the hazardous condition were transported from the respondent's other premises some distance away, in the stockroom at 100 Chestnut Street. He would have had to travel through the corridor and would have had to sign a requisition for the equipment used. (T-117, 118, 119)
The respondent is a manufacturer and seller of high energy lamps and associated equipment. The respondent employed the late Orville L. Galligher, an employee who, as part of his duties, ran tests in the laboratory [*13] wherein he worked in proximity to high voltage current and high voltage electrical equipment. On August 6, 1971, the respondent's employee Galligher was electrocuted while working in the laboratory furnished for his working experiments.
After the accident occurred, on entering the laboratory, the late Galligher's supervisor, other employees, and eventually the Safety Director, discovered that Galligher had converted the workplace by creating special conditions that were extremely hazardous, and which are shown in Plaintiff's Exhibit 2. In order so to do, Mr. Galligher would have needed at least 45 minutes of work to set up the conditions, and would have had to transport materials from the respondent's other premises and also sign a requisition therefor. Respondent did not adduce evidence demonstrating when the capacitators or any of the equipment, all of which was company equipment, was obtained by Galligher.
The respondent urgently contends that it is absolved from blame because Galligher created the hazardous condition after the company had given him a safe place in which to work.
The evidence reveals that Galligher was allowed to work alone without proper supervision. [*14] Dr. Lienhardt, the deceased's supervisor, had not been in the laboratory in a position in which he could see the high voltage equipment with which Galligher worked, for a considerable period of time. No clear answer was obtained concerning when, for the last time, Galligher's superior or any other employee saw the inside of the laboratory wherein the hazardous equipment was contained, within a period of approximately five days.
The Occupational Safety and Health Act of 1970 places the primary responsibility for the safety of its employees on the employer.
The employer has the primary responsibility to furnish safe employment and a safe place of employment. The employer must guard even those employees who carelessly disregard their own safety, from themselves, if reasonably and prudently possible with the exercise of reasonable diligence.
The Judge is of the opinion that if reasonable diligence was utilized, the conditions, existing at the workplace wherein Galligher worked, should have been ascertained by the employer even if such condition was created by the employee himself. The workplace was that of the employer, and allowing suffering and permitting its employee to render [*15] it hazardous and unsafe, did not absolve the respondent of its responsibility under the Act to furnish his employee with employment and a place of employment free from recognized hazards that were causing and were likely to cause (and did cause) death or serious physical harm to his employee.
Based upon all the foregoing, and the record in its entirety, the Judge makes the following.
CONCLUSIONS OF LAW
1. At all the times herein mentioned, the Respondent employer was and still is an employer engaged in a business affecting Commerce, within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and of the subject matter herein.
2. At the time herein concerned, Hanovia furnished its late employee, Galligher, employment and a place of employment, located in a testing laboratory on its premises in Newark, New Jersey.
3. The citation, notification of proposed penalty, and notice of contest, were served by and upon the respective parties hereto in conformity with the provisions of Section 10 of the Act.
4. The Act, in Section 5(a)(1), 29 (USC 654(a)(1)), imposes a General Duty Requirement that [*16] each employer "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 its employees."
5. Hanovia violated the General Duty Clause of the Act (Section 5(a)(1) thereof), by providing its late employee Galligher employment and a place of employment that contained recognized hazards that were likely to cause death or serious physical harm in a manner described in Findings #9 and #16, and which is Exhibited in Plaintiff's Exhibits #2 and #3.
6. Hanovia was cited under Section 9(a) of the Act (29 U.S.C. 658(a)), for a serious violation of the Act in allegedly violating the General Duty Clause Requirement. Section 17(k) of the Act (29 U.S.C. 66(j)), deems a serious violation to exist (1) if there is 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 in use or adopted in such work place (in the instant cause, the aforesaid violation of Section 5(a)(1) of the Act); and (2) unless the employer did not and could not with the [*17] exercise of reasonable diligence, know of the presence of the violation.
7. Hanovia's violation of the General Duty Clause (5(a)(1) of the Act) constituted a serious violation within the meaning of Section 17(k) of the Act, as the violation was such that there was substantial probability that death or serious physical harm could result to an employee working alone in proximity to high voltage equipment in a workplace containing the hazards described in Findings of Facts #9 and #16 and shown in Plaintiff's Exhibits #2 and #3.
8. The penalty proposed for this violation by the Secretary amounts to $800.00. The Judge finds the penalty reasonable and appropriate considering the size of the respondent's business, the gravity of the violations, and the presence or absence of good faith of the respondent. The Judge notes that, although the respondent circulated a memorandum concerning safety, the memorandum was ignored insofar as inspections and written reports were concerned.
Based upon the foregoing findings of fact, conclusions of law, and the entire record; having given due consideration to the size of the respondent's business, the gravity of the violation, the presence or absence [*18] of good faith of the respondent, and its history, and good cause appearing therefor, it is ORDERED THAT
1. The citation issued for serious violation be, and the same, is hereby affirmed.
2. The penalty in the sum of $800.00, proposed by the complainant for the citation referred to in (1) above, be and the same, is hereby affirmed.