E.S. ALBRECHT COMPANY

OSHRC Docket No. 9313

Occupational Safety and Health Review Commission

March 8, 1977

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

L. A. Pross, Vice President, E. J. Albrecht Company, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge David H. Harris, dated February 18, 1975, is before this Commission for review pursuant to 29 U.S.C. 661(i).

Having examined the record in its entirety, the Commission finds that the Judge properly decided the case and adopts his decision which is attached hereto as Appendix A. n1 Accordingly, the Judge's decision is hereby affirmed.

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n1 Chairman Barnako does not agree to this attachment.

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CONCURBY: BARNAKO

CONCUR:

BARNAKO, Chairman, Concurring:

I concur in affirming the Judge's decision. Concerning the Judge's disposition of the alleged violation of 29 C.F.R. 1926.201(a)(4), however, I think additional comment is necessary. n1

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n1 Review was also directed on whether the citation was issued with reasonable promptness, and the legality of the Secretary's inspection procedures. Respondent neither petitioned for review nor otherwise indicated dissatisfaction with the Judge's decision. The Secretary argues that the Judge properly resolved these issues. As no exception has been taken to the Judge's resolution of these issues, I express no opinion concerning them. State, Inc., No. 5740, BNA 4 OSHC 1806, CCH OSHD para. 21,209 (1976).

[*2]

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At the time in question, two of Respondent's employees were working in an aerial lift attached to the boom of a truck. The truck was parked on the right lane of a divided highway. The side of the highway on which the truck was parked normally carried two lanes of traffic, but the truck partially obstructed one lane. Barricades with flashing lights were positioned on the highway to warn oncoming traffic of the truck's presence. Signal cones were also located in the vicinity of the truck. A third employee, whose duty on the site was to act as a cement finisher helper, stood on the road behind the truck waving oncoming traffic around the truck.

Section 1926.201(a)(4) requires that a "flagman" be provided with and wear and orange or red garment while flagging. It is undisputed that the employee directing traffic did not wear such a garment. The Judge vacated, however, on the basis that the Secretary failed to prove that the employee was assigned to act as a flagman.

As noted above, Respondent provided signals and barricades for the purpose of warning oncoming traffic. The Secretary's standards [*3] require that a flagman be provided only when such devices are inadequate. 29 C.F.R. 1926.201(a)(1). In this case, the evidence of record indicates that the signals and barricades were adequate. n2 Accordingly, Respondent was not required to provide a flagman, and the Secretary does not argue otherwise.

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n2 Respondent's project manager testified that, in his opinion, the signals and barricades were adequate. There was no contradictory evidence.

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The Secretary contends, however, that Respondent should nevertheless have foreseen that its employee would take it upon himself to act as a flagman, and should either have specifically instructed him not to do so or should have supplied him with the required garments. I do not agree. When an employer has provided signals and barricades sufficient to negate the need for a flagman, it has fulfilled its responsibility under the standards. There is no evidence that, on prior occasions, employees had directed traffic when adequate signals and barricades were provided. It therefore [*4] cannot be concluded that Respondent should have foreseen that the employee on this particular site would act as a flagman. Since Respondent could not have reasonably foreseen the violation, the citation is properly vacated. Green Const. Co. and Massman Const. Co., No. 5356, BNA 4 OSHC 1808, CCH OSHD para. 21,235 (1976).

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

I respectfully dissent from the disposition reached by the majority. In my opinion, the separate rationale relied upon by each of my colleagues is in error.

According to Commissioner Moran, the Judge properly vacated the alleged violation of 1926.201(a)(4) n3 on the ground that the Secretary failed to prove that the employee standing in the road directing traffic around the truck was assigned to act as a flagman. There is, however, no text in the cited standard limiting its application to persons formally designated by their employers to act as flagmen. In this case, the employee performed the duties of a flagman and should be considered a flagman for purposes of the standard. Cf. Felton Constr. Co., 4 BNA OSHC 1817, 1976-77 CCH OSHD para. 21,258 (No. 6759, 1976) (Cleary, dissenting).

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n3 1926.201 Signaling.

(a) Flagmen.

* * *

(4) Flagmen shall be provided with and shall weara red or orange warning garment while flagging. Warning garments worn at night shall be of reflectorized material.

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Chairman Barnako concurs in the disposition reached by Commissioner Moran on the ground that there is no evidence upon which it can be concluded that respondent should have foreseen that the employee would act as a flagman. However, an employer is generally responsible under the Act for employee actions in contravention of the standard's requirements. The Commission has often stated that an employer's lack of knowledge of an employee's violative conduct is an element of the "isolated incident" affirmative defense. n4 To establish the defense the employer must establish that the actions constituting non-compliance with the standard were: (a) unknown to the employer and (b) contrary to both the employer's instructions and a uniformly enforced company work rule. The Weatherhead Co., 4 BNA OSHC 1296, 1976-77 CCH [*6] OSHD para. 20,784 (No. 8862, 1976); B-G Maintenance Management, Inc., 4 BNA OSHC 1282, 1976-77 CCH OSHD para. 20,744 (No. 4713, 1976).

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n4 The "isolated incident" defense is a corollary to the principle that the employer has a duty to accomplish what is preventable in the way of job safety and health. See National Realty & Constr. Co. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973). I read the majority opinion in Green Constr. Co. and Massman Constr. Co., supra, as applying only to an employer's lack of knowledge of such things as defects in equipment which are not readily detectable. Thus, in Green Constr. Co. and Massman Constr. Co., the Commission vacated a nonserious citation involving a walkway which was improperly nailed to a trestle on the grounds that the employer could not with reasonable diligence have discovered the defective condition. As I stated in my concurring opinion, when a violation could not have been prevented because the hazardous condition was not discoverable, the question is whether an order can issue requiring an employer to do something more than it has done. When, however, a case concerns an employer's knowledge of his employees' conduct, the issue is whether the violative act was an isolated instance of employee disobedience of a uniformly enforced work rule. See Scheel Constr., Inc., 4 BNA OSHC 1825, 1976-77 CCH OSHD para. 21,263 (No. 8687, 1976) (Clearly, dissenting).

[*7]

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While it is undisputed that the employee was not assigned to act as a flagman, there is no evidence indicating that respondent had instructed employees in safety procedures for working near vehicular traffic. As the Secretary suggests in his brief, if the conditions did not require a flagman, the employees should have been so instructed. Respondent's failure to establish that the actions of its employee were contrary to an enforced work rule should result in affirmance on the basis of the Secretary's proof.

Indeed, under the Chairman's own theory, ". . . when a compliance officer observes a violation in the course of a routine inspection, the fact that the violation is visible and occurs on a worksite which is under the employer's control is sufficient to give rise to such a presumption [of knowledge]." Green Constr. Co. and Massman Constr. Co., supra (Barnako, concurring). This dicta rather than the Chairman's holding in Green and Massman is applicable to the instant case. See note 4 supra. The presumption of knowledge has not been rebutted and accordingly the violation [*8] should be affirmed. As stated, I would affirm the violation under my similar theory because respondent has not sustained its affirmative defense.

APPENDIX A

DECISION

Thomas H. Tobin and Louis Weiner, Regional Solicitor, For the Secretary of Labor

Mr. L. A. Pross, Vice President, E.J. Albrecht Company, For the Respondent

Harris, Judge, OSAHRC

The citation in the captioned matter issued to the E.J. Albrecht Company (respondent) on July 17, 1974. It alleges two non-serious violations of the complainant's standards. Item 1 charges a violation of 29 CFR 1926.556(b)(2)(v) in that:

"Two employees working in the basket of an aerial lift being used at the above worksite, were not wearing a body belt with the lanyard attached to the boom or basket."

This standard provides:

A body belt shall be worn and a lanyard attached to the boom or basket when working from an aerial lift.

(37 FR 27549, December 16, 1972).

Item 2 charges a violation of the standard at 29 CFR 1926.201(a)(4) in that:

"One employee (Flagman) who was directing traffic at the above worksite, was not wearing a red or orange warning garment while flagging.""

This standard provides:

Flagmen shall be provided [*9] with and shall wear a read or orange warning garment while flagging. Warning garments worn at night shall be of reflectorized material.

(37 FR 27520, December 16, 1972).

Respondent, appearing by its vice-president Mr. L.A. Pross, is a corporation of the State of Illinois, engaged in heavy and highway construction. The workplace in question was located on Route 65 in Northside, Pittsburgh, Pennsylnania. The company has 26 employees, has gross sales of approximately $5.5 million annually and is relatively small to medium among similar business organizations. It is admitted that two of the company's employees were in the elevated basket of an aerial lift truck and that neither had on a safety belt with lanyard attached to the boom or basket. Respondent also concedes that the penalty proposed therefore by complainant is reasonable and proper * (Stip. C-1).

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* The Notice of Proposed Penalty proposes a penalty of $70 for violation of Item 1. A penalty in the sum of $30 is proposed for the alleged violation of Item 2.

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Respondent timely contends (1) that the citation was not issued with the reasonable promptness required by law and (2) that the citation was not signed by the Area Director and is fatally defective and should be dismissed for these reasons (Tr. 61-62; 63), Sec. v. Grebb Electric Co., OSAHRC Docket No. 3552 (September 4, 1974).

The facts are not seriously disputed. The lift truck in question had been leased by respondent some 6 months prior to June 19, 1974, the date of the inspection (Tr. 57). The employees in question had been specifically instructed to use their belts when aloft in the basket (Tr. 52-53). No written instructions had been issued by respondent (Tr. 58). Respondent's project manager made follow-up inspections and whenever he did so he would look to see if the men wore their safety belts and said "And if I ever saw them without them, I would mention it to them. Just about every time I saw them they had it on." (Tr. 57-58). However, when he was asked if any employees were ever disciplined for not wearing safety belts he said: "If you mean fired, or such as that, no. We had a lot of conversations about it." (Tr. 58). I am not satisfied that the efforts [*11] to enforce the standard described by the project manager satisfy the standard required for a finding of "isolated occurrence" under the ruling in Sec. v. Standard Glass Co., Inc.; 1 OSAHRC 594 (1972). See also, Sec. v. Murphy Pacific Marine Salvage Company, OSAHRC Docket No. 2082 (January 13, 1975), and I must perforce find that respondent violated the standard at 29 CFR 1926.556(b)(2)(v) as alleged in Item 1 of the citation herein. The proposed penalty in the sum of $70.00 is, under the circumstances of this case, reasonable and appropriate.

With reference to the allegation of violation in Item 2 of the citation herein, the employee in question was working as a cement finisher helper who was assigned to supply the workmen in the aerial lift and had not been detailed as a flagman (Tr. 49). At the point where the aerial lift truck was positioned, the road consisted of two lanes running in each direction (Tr. 33). The truck's outriggers extended for some distance into the right-hand lane (Tr. 32-33) and the truck had been outlined by traffic cones (Tr. 35). The automobile containing the complainant's compliance officers approached the lift truck and was waved around [*12] by the aforesaid employee who wore a hard hat but no vest and carried no flag (Tr. 23). One compliance officer stated that the said employee was waving traffic around the lift truck (Tr. 16-17). However, the other compliance officer stated that it was because the aerial lift truck projected "a good bit" into the right-hand lane, "That was the reason I felt the flagman was there flagging them around." (Tr. 28). Complainant has not established that the helper had been assigned as and was acting as a flagman.

We come now to respondent's motions to dismiss. First, as to the defense that the citation was not issued with reasonable promptness required by law, the compliance officer's report and the "evidence" was considered and reviewed on June 26, 1974. However, the photographs taken by the compliance officers were considered necessary "to make this decision a fair decision" and the actual issuance of the citation was delayed so that the said photographs could be developed and taken into consideration. Upon receipt thereof the citation was issued (Tr. 41-42). Under the circumstances, I cannot find that the delay from June 26 to July 17, 1974 was an unreasonable one. As for the [*13] second defense, it appears that the citation and the Notice of Proposed Penalty were signed by a duly appointed assistant to the Area Director in the absence of the Area Director after the said Area Director considered the evidence and determined to issue the said citation and Notice of Proposed Penalty (Tr. 39; 44). I find no irregularity here and therefore, dismiss both said motions of the respondent.

For the foregoing reasons, good cause appearing, it is ORDERED that:

1. Item 1 of the citation herein, alleging that respondent violated the standard at 29 CFR 2926.556(b)(2)(v) be and the same is hereby affirmed and the said respondent be and it is hereby assessed and required to pay therefore a penalty of $70.00.

2. Item 2 of the citation herein, alleging that respondent violated the standard at 29 CFR 1926.201(a)(4) be and the same is hereby vacated.

Dated: February 16, 1975

Hyattsville, Maryland

DAVID H. HARRIS, Judge, OSAHRC