UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 9224
WHIRLPOOL CORPORATION,
Respondent.

May 11, 1979

DECISION

Before CLEARY, Chairman, BARNAKO and COTTINE, Commissioners.

BARNAKO, Commissioner:

The primary issue in this case is whether Administrative Law Judge David H. Harris erred in vacating a citation alleging Respondent Whirlpool Corporation violated § 5(a)(1)[1] of the Occupational Safety and Health Act of 1970,[2] by maintaining an unsafe walking and working surface, because he concluded the Secretary failed to show there are feasible steps Whirlpool could have taken to eliminate the hazard. For the reasons that follow, we reverse the decision of the judge and affirm the citation. We set an abatement date of six months and assess a penalty of $600.

Whirlpool manufactures appliances and related parts at its plant in Marion, Ohio. To move the parts and partially-completed appliances through the manufacturing process and to store the parts and finished appliances, Whirlpool uses a system of conveyers located above the production floor. To protect the production employees working below them from falling parts and appliances, Whirlpool installed a guard screen at most points below the conveyers. The height of the screen above the floor varies up to twenty feet. The screen is comprised of thousands of angle-iron framed, four-by-eight foot panels of screen, bolted together along the sides. The panels are of three types: 16-gauge expanded steel mesh, reinforced with one metal strap across the width at the midpoint of the length (less reinforced mesh); steel mesh of the same thickness but further reinforced with three steel straps, two feet apart, along the length (more reinforced mesh); and heavy duty wire.

Although Whirlpool designed the guard screen primarily to catch parts and appliances, Whirlpool’s employees must work upon the screen for fifteen to thirty man hours per week to repair the screen and conveyers, remove fallen parts and appliances, and remove and replace paper used by Whirlpool on the screen to catch oil and grease that drip from the parts. Whirlpool instructs the employees to walk on the angleirons rather than on the screens, but on several occasions employees have slipped off the angle-irons and have broken through the screens. On most of these occasions, the employees fell only partially through; they caught themselves on a supporting part of the conveyer system or the guard screen system, or were caught on the still-intact portion of the screen itself. Nonetheless, one employee fell entirely through a screen to the floor six feet below at that point. All of these incidents occurred on panels of the 16-gauge steel mesh type.

The employees reported the incidents, written accident reports were filed for Whirlpool’s safety records, and Whirlpool instructed the maintenance employees to report and repair any damaged or defective portions of the screen. Whirlpool and been replacing the less reinforced mesh panels with those of the more reinforced mesh, as part of its program to improve the safety of the guard screen by systematically replacing weaker panels with those of a heavier, stronger material. In late 1973, Whirlpool began installing panels of the newest, strongest type, containing heavy duty wire screening. By early 1975, thirty-three percent of the panels were of heavy duty wire, forty-two percent were of the more reinforced mesh, and twenty-five percent remained of the less reinforced mesh.

In late June, 1974, a maintenance employee who was walking on panels of one of the steel mesh types fell to his death through an opening left between two panels because the bolts were unfastened. This fatality prompted the Secretary to inspect Whirlpool’s plant. Thereafter the Secretary issued a serious citation to Whirlpool alleging it violated § 5(a)(1) by failing to provide ‘a safe walking and working surface on the screen under the conveyer.’ The Secretary did not refer to the fatality or give any more particular description of the condition he considered made the screen unsafe. Immediate abatement was required. Whirlpool contested the citation and proposed penalty.

At the hearing the Secretary adduced evidence concerning the accident, but from the outset of his case he concentrated on showing the steel mesh types of panels were unsafe as a walking or working surface because they would not support the weight of a man. To specify the precise hazard and show Whirlpool’s recognition of it, the Secretary adduced testimony as follows. A civil engineer with experience with suspended catwalk systems and knowledge of materials of the type involved here testified that the 16-gauge expanded steel mesh used in panels having the same dimensions as Whirlpool’s would not adequately support the weight of a man. The compliance officer had given the same opinion when he was asked to describe the hazard. Moreover, specifically in reference to photographs showing panels of the mesh types, several of Whirlpool’s maintenance employees not only stated that they had broken through the mesh screen, but additionally testified that supervisors had instructed them to walk on the angle-irons rather than on the mesh screen, that defects in the mesh were discussed with supervisors, that one foreman saw an employee fall almost all the way through a mesh screen breaking under him, and that Whirlpool had been replacing the two mesh types of screen with the newer wire type to strengthen the screen throughout the plant. Whirlpool’s written safety reports of the incidents of employees breaking through the screen were introduced into evidence.

To dispute this evidence, Whirlpool’s Director of Manufacturing Engineering described his tests of the three types of panels, and testified that all three types of screen adequately supported three to six hundred pounds when this weight was suspended from it. He and a civil engineer with experience with guard screen systems in plants similar to Whirlpool’s testified that mesh guard screens of the type in Whirlpool’s plant are in general use throughout the industry. The engineer further stated that the industry views as sufficiently safe the use of mesh panels of the type used by Whirlpool. These two witnesses and several of the maintenance employees who testified at the request either of the Secretary or Whirlpool all opined that the screen, including panels of mesh, is sufficiently safe for maintenance work performed during as few hours as fifteen to thirty man hours per week. They all emphasized, nonetheless, the need to walk principally on the angle-irons, the occurrence of accidents on the mesh screen, and Whirlpool’s continuing and systematic efforts to detect damaged and defective screen and to repair or replace it with panels containing heavy duty wire.

Although the citation did not specify a method of abatement and required immediate abatement, evidence tending to show it would be feasible to abate the hazard by replacing all mesh panels with heavy duty wire panels was adduced by Whirlpool itself. Whirlpool’s Director of Manufacturing Engineering stated the following, in answer to a question asking him to describe Whirlpool’s history of installing and replacing screen:

Since I came to Marion, it seems we have continuously, we have replaced it, we have continuously tried to go to what we considered an improved type of guard screen from the standpoint of maintenance until we actually got what we call the new style. This not only gives us our safety factor we require but also easier to maintain unless there is damage due to falling parts. (Emphasis added). (Transcript at 513).

Whirlpool’s Superintendent of Maintenance acknowledged that heavy duty wire is a heavier type of material than the mesh, which, is why it has been used most recently in Whirlpool’s program of replacing the older types of panels. The same statements were made by several of Whirlpool’s maintenance employees on questioning both by the Secretary and by Whirlpool during the Secretary’s case, including the assertion of one employee, elicited by Whirlpool, that the wire panels are ‘[o]ne thousand percent better as far as I’m concerned.’ (Transcript at 182).[3] Whirlpool had initially cross-examined the compliance officer as to whether the heavy duty wire complied with § 5(a)(1)’s requirements, and, while he was reluctant to assert unequivocally that it did, he opined that it would. He noted it could support more weight than the mesh, and that he had told Whirlpool he would not have cited it for violation of § 5(a)(1) if all panels were of heavy duty wire.

The compliance officer emphasized the citation had not specified a particular method of abatement, and did not want to endorse any one method at the hearing, because the choice of abatement method should be Whirlpool’s. Thus, while eliciting testimony regarding Whirlpool’s use of heavy duty wire, the Secretary also presented evidence regarding use of ¼-inch expanded metal grating for catwalks in the areas where employees must perform maintenance. Whirlpool disputed this and presented evidence that the added weight of the grating, in the amounts needed to cover all areas, would require Whirlpool to redesign and reconstruct the plant to strengthen the footings, columns, and roof.

Judge Harris initially issued a decision in this case on July 14, 1975. In that decision, Judge Harris responded to an argument by Whirlpool that the citation and complaint were defective for lack of particularity. Although he stated that the description of the violation was terse, he concluded that Whirlpool was aware of the issues raised by the citation and was not prejudiced by any failure of the Secretary to more fully define the violation. On the merits, the judge concluded that Whirlpool’s industry did not recognize a hazard to employees who work on 16-gauge expanded steel mesh panels. Nonetheless based on the testimony of employees regarding accidents on mesh screening and Whirlpool’s instructions to them to walk on the angle-irons, the judge concluded that Whirlpool was itself aware of the hazard. Nevertheless the judge vacated the citation because he concluded the Secretary should have cited a particular industry standard, 29 CFR 1910.28(a)(6), rather than § 5(a)(1).

In a decision dated March 25, 1977, the Commission disagreed with the judge’s determination that 29 CFR 1910.28(a)(6) was applicable and accordingly reversed his decision. The case was remanded to the judge for findings of fact and conclusions of law with respect to the § 5(a)(1) violation. Whirlpool Corp., 77 OSAHRC 36/C11, 5 BNA OSHC 1173, 1977–78 CCH OSHD ¶21,659 (No. 9224, 1977).

In his decision on remand, the judge reiterated his earlier finding that Whirlpool recognized the hazard created by the use of mesh panels in its workplace. He vacated the citation, however, because he found the Secretary failed to show a feasible method by which Whirlpool could abate the hazard. He noted the compliance officer’s opinion that use of heavy duty wire would constitute compliance with the Act, but did not find the use of heavy duty wire feasible because the Secretary had made no tests of its strength and because the compliance officer was ultimately not sure it would comply. Relying on Whirlpool’s evidence that the plant would not support the additional weight of catwalks or a floor constructed of the heavier expanded metal grating, he found these suggestions infeasible.

In support of the judge’s vacation of the citation, Whirlpool argues that the Secretary failed to identify either in the citation, during discovery, or at the hearing any hazard present at its worksite. Specifically Whirlpool notes that in the citation the Secretary merely set forth that the guard screen was an unsafe walking and working surface, but failed to identify the precise condition making the guard screen unsafe. Whirlpool argues that the setting of an immediate abatement date in the citation is inconsistent with a conclusion the Secretary meant to focus on the type of screen as the hazard, and suggests he viewed the hazard as the failure of the bolts between panels of screen. Whirlpool also argues that subsequently, during discovery and at the hearing, the Secretary refused to identify the hazard and at the hearing did not introduce any evidence with respect to the specific hazard for which Whirlpool had been cited, relying instead upon proof of the general allegation that the screen was unsafe. In essence, therefore, Whirlpool argues that 1) the citation lacked particularity, in violation of § 9(a) of the Act, 29 U.S.C. § 658(a)[4] and 2) at the hearing the Secretary failed to prove the existence of any hazard because of his failure to identify the specific conditions constituting the hazard.

Whirlpool raised this argument previously when the case was before us, and our decision impliedly rejected its argument. We explicitly do so now.

Section 5(a)(1), which imposes a general duty on employers, is broadly worded and unlimited to any particular hazards or particular methods of abatement. However, when the Secretary cites an employer for violation of this section, he must comply with § 9(a) of the Act which requires that a citation ‘shall describe with particularity the nature of the violation. . . .’ (See footnote 4, supra). The purpose of the particularity requirement is to put the employer on notice as to the nature of the alleged violation so that he can make an informed choice on how to abate or whether to contest. See Del Monte Corp., 77 OSAHRC 17/D12, 4 BNA OSHC 2035, 1976–77 CCH OSHD ¶ 21,534 (No. 11865, 1977).

Although the employer was put on notice by the citation that its screen system was unsafe, Whirlpool was not informed what conditions rendered the screen unsafe. Since the citation was issued following the death of an employee who fell through an opening between two panels because the bolts were unfastened, Whirlpool may well have believed it was this condition for which the citation was issued and that it should direct its abatement toward fastening the bolts. In fact, however, the Secretary had issued the citation because he did not believe the screens themselves were of sufficient strength to support the employees who were working upon them. The citation failed to specify this and accordingly facially lacked particularity. However the Commission had held that the citation need not be declared void as a matter of law if the purposes of the particularity requirement are fulfilled in subsequent stages of the proceedings. Gannett Corp., 4 BNA OSHC 1383, 1976–77 CCH OSHD ¶20,915 (No. 6352, 1976). In this case any deficiency in the citation was cured during the hearing.

In reaching this result we note that the Secretary’s evidence at the hearing was not a model of precision in identifying the hazard. Although the Secretary did focus early in his case in chief on showing the hazard was the use of the mesh as a working surface, he devoted considerable attention to showing that one hazard contributing to the fatal accident was the failure of the bolts between the panels. Unfortunately, a foundation had been laid in the citation for his own confusion of focus and for Whirlpool’s possible misconception of his case, not only by the omission of a reference to the mesh as the hazard, but by the requirement of immediate abatement, which most readily suggested abatement by replacing the bolts rather than by replacing a substantial part of the guard screen system. Nonetheless, we disagree with Whirlpool that the Secretary ultimately failed satisfactorily to identify the hazard. From the outset of his case, the Secretary established that the screen was unsafe because the panels of 16-gauge expanded steel mesh would not adequately support the weight of the employees. At no time did Whirlpool object to this evidence on the ground that it was directed to an issue not raised by the pleadings. Moreover, as noted previously, Whirlpool presented evidence during its own case to dispute the Secretary’s evidence that the 16-gauge mesh created a hazard. Whirlpool did not ask for a continuance to better prepare its defense, and has not asserted that it suffered actual prejudice to its defense because of the lack of precision in the description of the violation in the pleadings. It thus appears that Whirlpool did actually receive fair notice the alleged hazard was the inadequacy of the mesh panels and that Whirlpool understood the relevance of evidence on this issue throughout the hearing.[5] Accordingly, we find no basis in Whirlpool’s arguments for vacation of the citation because the citation did not set forth the alleged violation with particularity and because the Secretary failed to identify the hazard at the hearing.

In order to establish a violation of § 5(a)(1), the Secretary must prove that: (1) the employer failed to render its workplace ‘free’ of a hazard which was (2) ‘recognized’ and (3) ‘causing or likely to cause death or serious physical harm.’ In the past, we have required the Secretary to specify the particular steps the employer should have taken to avoid the citation and to demonstrate the feasibility and likely utility of those measures. National Realty & Construction Co. v. OSHRC 489 F.2d 1257, 1265, 1268 (D.C. Cir. 1973). It is this last requirement, regarding the feasibility of abatement methods, to which the parties have directed their attention on review.[6]

The Secretary contends the judge erred in finding the evidence failed to establish the feasibility and likely utility of any particular steps to abate the hazard. The Secretary argues that the feasibility of panels of heavy duty wire to abate the hazard was established. In support of his assertion, he notes the compliance officer’s opinion that heavy duty wire would support more weight than the mesh, that heavy duty wire would comply with the requirements of the Act, and that, had it been used, the compliance officer would not have issued the citation. The Secretary also points to evidence that Whirlpool itself had chosen to abate the hazard created by the mesh by installing panels of heavy duty wire, and argues that its likely utility as a safe, or significantly safer, walking surface was shown through testimony of Whirlpool’s employees and the admission of Whirlpool’s management officials to the compliance officer during the inspection that heavy duty wire is significantly stronger than the mesh. A further showing of the likely utility of the heavy duty wire is unnecessary, in the Secretary’s view. Since the recognized hazard is the inadequate strength of the mesh, the Secretary argues it is obvious that the abatement is installation of panels of a material strong enough to support the employees. In any event, the Secretary asserts that even if he did not establish the feasibility and likely utility of a means of abatement, this proof should not be required. He reasons that National Realty & Construction Co. v. OSHRC, supra, was erroneously decided and has been erroneously applied by the Commission and asks that we now overrule that decision.

Whirlpool argues that the judge properly vacated the citation on the basis given by him: not only did the Secretary fail to show the feasibility of catwalks constructed of heavier metal grating, but he failed to show the feasibility of a guard screen consisting entirely of heavy duty wire panels. Whirlpool notes the lack of tests and the compliance officer’s reluctance to endorse heavy duty wire and asserts that its program of replacing older panels with those of heavy duty wire was only undertaken as a way to replace panels, not because the older ones were unsafe.

For the reasons that follow we conclude that the record as a whole supports a finding that the feasibility and likely utility of an abatement method was established. We do not reach the Secretary’s second argument that feasibility and likely utility need not be demonstrated.

To establish that abatement is feasible, the Secretary must formulate and defend his own theory of what particular steps the employer should have taken to abate the hazard. National Realty & Construction Co. v. OSAHRC, supra, at 1268. Accordingly the Secretary cannot merely assert that he intends to leave the choice of abatement to the employer. However once he establishes a means of abatement can be implemented, it is sufficient if that method materially reduces, even though it may not eliminate, the hazard. Noble Drilling Corp., —— OSAHRC ——, 6 BNA OSHC 2108, 1978 CCH OSHD ¶23,157 (No. 15405, 1978).

In the instant case, we conclude that heavy duty wire could have been utilized and that it would have significantly reduced the hazard created by working on the screens.[7] Although we agree with the judge that the Compliance Officer’s testimony concerning heavy duty wire screening was equivocal, we need not determine whether his testimony is sufficient to carry the Secretary’s burden. In determining whether feasibility has been established we will look to the record as a whole.[8] Although Whirlpool argues it replaced the mesh panels with heavy duty wire only as a way to replace damaged panels, Whirlpool elicited testimony from its own witnesses including its Director of Manufacturing Engineering and the Superintendent of Maintenance that the heavy duty wire satisfied the safety requirements for use in maintenance operations. Additionally Whirlpool’s employees testified that, to strengthen the screen system, heavy duty wire was used to replace the mesh when employees fell through, from which we conclude that Whirlpool used it for safety reasons. Because Whirlpool systematically was replacing the mesh panels with heavy duty wire throughout the plant, the feasibility of the heavy duty wire to eliminate the hazard and its likely utility in Whirlpool’s plant is apparent. We therefore find the use of heavy duty wire screening feasible, and reverse the judge insofar as he implicitly found it infeasible.

We turn now to the questions of setting a reasonable period of abatement and assessing an appropriate penalty. With respect to the first question, the record shows that, at the time of the hearing in early 1975, whirlpool had replaced thirty-three percent of the mesh panels with heavy duty wire. Since the replacement program using heavy duty wire began in late 1974, it appears that Whirlpool had replaced thirty-three percent of the mesh panels over a period of approximately one year and a few months. Although Whirlpool was substituting the heavy duty wire panels for those of mesh so as to strengthen the guard screen as a whole, the record shows that Whirlpool had been making the particular substitutions only as damage or defects were detected in the mesh screens. The compliance officer, having seen a substantial portion of the guard screen system, opined that the complete substitution of heavy duty wire would take six months. His testimony is uncontradicted. Based upon the compliance officer’s judgment of the time needed for compliance and because we infer from Whirlpool’s evidence that its replacement program had not been proceeding as fast as it could have if Whirlpool were replacing more panels than only those that were damaged or defective, we set six months from the entry of our order here as the abatement period.

We assess a penalty of $600. Whirlpool’s good faith toward compliance with safety requirements is evidenced by its program to improve the safety of the guard screen system, and the compliance officer’s testimony that Whirlpool corrected a number of earlier violations. Nevertheless, Whirlpool is a large employer, and the gravity of this violation is moderate to high. Not only does the record show Whirlpool employs 88 maintenance employees who are on the guard screen for up to 15 to 30 man hours per week, but the record shows that a number of accidents had already occurred involving a failure of the mesh screening.

Accordingly, we reverse the judge, affirm the serious citation alleging a violation of § 5(a)(1), set an abatement period of six months from the entry of this order, and assess a penalty of $600. SO ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: MAY 11, 1979

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 9224
WHIRLPOOL CORPORATION,
Respondent.

FINAL ORDER DATE: August 17, 1975

DECISION

Appearances:

T. J. Pethia, Esq. W. S. Kloepfer, Associate Regional Solicitor

1240 East Ninth Street

Cleveland, Ohio 44199

Attorneys for Complainant

Robert E. Mann, Esq. Seyfarth, Shaw, Fairweather & Geraldson

111 West Jackson Boulevard

Chicago, Illinois 60604

Attorneys for Respondent

Harris, Judge

Complainant, by means of a citation issued on July 9, 1974 pursuant to Section 658 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651–678, hereinafter the Act), charged that the Whirlpool Corporation, (hereinafter respondent) was in violation of Section 654(a)(1) of the Act which requires that 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 his employees.

The violation, alleged to be a serious violation under the Act, is set out in the citation as follows:

Failure to provide a safe walking and working surface on the screens under the conveyors.

The citation required immediate correction of the alleged violation and a Notification of Proposed Penalty, issued on the same date pursuant to Section 659(a), proposed a penalty of $600. The said citation and notice of proposed penalty were timely contested by the respondent and the matter was tried, on the issues raised, pursuant to Section 659(c).

Respondent raises two arguments which, if effective, would operate as pleas in bar. I find no merit in either argument.

As to the first (Respondent’s Brief, p. 25), respondent maintains that the citation and the complaint are defective for want of particularity and do not meet the requirement of Section 658(a) as to the citation and 29 CFR 1903(b) as to the complaint. Certainly, the respondent was aware that a conveyor system was in use at its installation at 1800 Marion Agosta Road in Marion, Ohio, and that screens had been installed under the said conveyors. That being so, although the description of the violation which appears in the citation cannot be described as verbose, the respondent is advised that its failure to provide a safe walking and working surface on the said screens is in violation of Section 5(a)(1) of the Act (29 U.S.C. 654(a)(1)). Further, in addition to an exchange of a list of prospective witnesses and summaries of their testimony pursuant to the court’s order for discovery dated October 15, 1974, the respondent served Interrogatories and a Request for Admissions and received answers thereon from the complainant. I do not find that respondent was in anywise prejudiced by the terse description of the violation which appears in the citation. On the contrary, I find that respondent was fully aware of the issues raised by the said citation. See, Secretary v. Dallas Hotel Company, 18 OSAHRC —— (Docket No. 5315, 1975). Were it necessary, respondent could have resorted to Federal Rule of Civil Procedure 12(e) and moved for a more definite statement prior to filing its answer herein.

As to the second argument, interposed by the respondent orally at the commencement of trial (Tr. 12), the respondent maintains that the complainant did not issue the citation herein with that ‘reasonable promptness’ required by Section 658(a) of the Act. The record demonstrates that an inspection of respondent’s premises took place on July 1, 1974. It was during this inspection, occasioned in part by a report of a fatality at respondent’s said plant (Tr. 19), that the compliance officer making the inspection noticed the screens which were suspended under the conveyor system (Tr. 21–22). This officer reported to his Area Director and was detailed to secure a sample of the screen (Tr. 25; 27; 86). He returned to the plant on July 8, 1974 and secured the desired sample (Tr. 87; 104; 117). The citation was issued under the Area Director’s order on July 9, 1974, a lapse, in all, of 9 days from initial inspection to issuance. I do not find that the Area Director, in this case, failed to act with reasonable promptness, Secretary v. Chicago Bridge and Iron Company, 7th Circuit, April 22, 1975, No. 74–1214.

However, for the reasons set out herein below, I am constrained to vacate the citation and the Notification of Proposed Penalty issued to the respondent.

The facts are, in the main, not disputed. Respondent, a Delaware corporation, maintains its principal office in Benton Harbor, Michigan. It is the largest producer of household appliances, including clothes driers, air conditioners, refrigerators and oven appliances, and sells and distributes its manufactured products throughout the United States. At its Marion, Ohio plant, the one wherein are located the screens in question, respondent daily employs some 1500 persons (Tr. 145; 146–148). Overhead conveyors are used to move unfinished parts from point to point within the plant and also to store parts and finished products (Tr. 522). In order to protect employees working beneath these overhead conveyors from parts which may become dislodged in movement and fall therefrom, a guard screen, coextensive with the overhead conveyors and about 20 feet above the plant floor is suspended from the plant ceiling (Tr. 21; 122; 369; 485). The original guard screen, the installation of which was completed in 1960 or 1961 (Tr. 459), consisted of 16-gauge expanded steel mesh in panels 4 feet by 8 feet (Exhibit C–3) framed in angle iron which was either 1 inch by 1 inch by 1/8 inch or 1 1/2 inch by 1 1/2 inch by 1/8 inch or 1 1/4 inch by 1 1/4 inch by 1/8 inch. The mesh was secured to the angle iron by welded metal clips at intervals of 15 or 20 inches (Tr. 159; 488–490; 493–494). These angle iron frames were bolted together on their 4-foot sides by means of three 3/8-inch round bolts (Tr. 492–493). Some of the angle iron framed 4-foot by 8-foot mesh panels, are reinforced by a metal strap, 1 inch wide by 1/8 inch in thickness, running across its center and fastened to the angle iron frame at the midpoint of the 8-foot sides (Tr. 448). Some of these panels are reinforced by the same type straps or 1/8-inch by 1/8-inch metal bars fastened at 2-foot intervals on the 8-foot sides of the panels (Tr. 488). These panels are hung from the ceiling of the plant in trapeze-type hangers made of welded angles of 2-inch by 2-inch by 1/4-inch or 4-inch by 4-inch by 3/8-inch steel, affixed to the structural steel of the building or in some places to the conveyor assembly (Tr. 488–489; 492).

Beginning in November or December 1973, respondent commenced a program under which it began to replace the original mesh panels with panels constructed of heavier gauge metal mesh having spiral wire connections (Tr. 459).

At the time of the inspection herein the guard screen covered 295,800 square feet hung under 65,000 linear feet of conveyor and was suspended over about 36% of the total plant floor area (Tr. 435; 522). Some 25% of this screen guard consisted of the original mesh panels having a center reinforcing strap, 42% consisted of the original mesh panels with reinforcing straps or bars on 2-foot centers and about 33% had been replaced by panels of the new type heavy wire mesh (Tr. 459; 452).

In addition to its protective function, the guard screen served as a support for paper which was placed thereon in order to catch oil or grease drippings from parts which were in the process of completion and hanging on the moving overhead conveyor (Tr. 179; 227; 256). This paper needed to be replaced about once each month (Tr. 256).

The maintenance and repair of the overhead conveyor system, the maintenance and repair of the guard screen, the removal of parts from the screen after they may have fallen from the conveyor and the placing and replacing of the paper to catch oil and grease drippings, are included among the duties assigned to maintenance employees (Tr. 155–156; 158; 173; 179; 209; 210; 212; 227; 252; 256; 268–270; 280–281; 468–469). No evidence was introduced that employees other than maintenance employees are required to go up on the guard screen in the performance of their assigned duties.

The respondent maintains a force of 88-hourly maintenance personnel, 52 of whom are classified as skilled (Tr. 457–458). The Superintendent of Maintenance and eleven maintenance workers appeared and gave testimony.[9] From their testimony it appears that during periods of high production, maintenance workers will be up on the guard screens in the performance of their duties for periods varying from two hours each night (Tr. 279), to one hour each night (Tr. 228; 239), to twice a week for 1/2 to one hour each time (Tr. 269) and an entire week in order to replace the paper to catch drippings (Tr. 188). On average, these employees will spend from 15 to 30 man hours per week on the guard screen (Tr. 458).

It is not disputed that the guard screen was intended to prevent objects, falling from the overhead conveyor monorail, from striking employees working below (Tr. 485), that it serves as a safety net and was neither designed nor intended as a catwalk or a working platform (Tr. 496–497; 502).

In addition to the testimony of complainant’s expert that the guard screen would not furnish adequate support to sustain the weight of a man working thereon (Tr. 309; 326) there is ample evidence to support a finding to the same effect. Maintenance employees were instructed to avoid stepping on the mesh proper and cautioned to place their feet on the angle iron frame supports whenever they were required to work on the guard screen (Tr. 158–159; 174–175; 189; 199; 205–206; 250–251; 273–274; 277; 474). Although the accident in which a maintenance employee fell through the guard screen and was killed, which was a causative factor in the inspection of July 1, 1974, was the only fatality in the maintenance department in 20 years (Tr. 416), there is considerable evidence of maintenance employees slipping from the angle iron and having their feet go through the mesh screen (Tr. 62; 163; 176–177; 180; 181; 200; 219–220; 230–231) and one incident in which the worker fell through to the floor below (Tr. 175).

However, it must be borne in mind, that there is no evidence in the record which will support a finding that the guard screen, per se, is in any way a hazard or known to be such in the industry in which the respondent is engaged. On the contrary, there is credible evidence, which is not disputed, that the guard screen in respondent’s plant is of the kind which is commonly used throughout industry generally (Tr. 483–485; 499; 521).

The proofs do, however, support a finding that the maintenance employees herein, when they are working on the guard screen as hereinbefore described, ‘are engaged in work that cannot be done safely from the ground or from solid construction,’, see, 29 C.F.R. 1910.28(a)(1), (37 FR 22121, October 18, 1972). Furthermore, the evidence supports a finding that the respondent was aware that the work required of its maintenance personnel on the guard screen was fraught with danger, and, again using the language of the standard 29 C.F.R. 1910.28(a)(1) supra, could not ‘be done safely from solid construction.’

That maintenance employees are employees who are covered by the Act is not open to question, Secretary v. Graysen Lumber Company, Inc., 3 OSAHRC 541 (1973); Secretary v. Spencer Foods, Inc., 3 OSAHRC 348 (1973); Secretary v. Pacific Gas & Electric Company, 16 OSAHRC 200 (1975).

There is testimony by the compliance officer that there is no applicable standard which will apply to the circumstances of this case (Tr. 25–26; 80–85). Complainant in his brief (Br. p. 14) makes the same argument. I do not agree.

Reference herein has already been made to the standard at 29 C.F.R. 1910.28(a)(1). The standard at 29 C.F.R. 1910.21(f), under Subpart D, Definitions, provides:

As used in § 1910.28, unless the context requires otherwise, scaffolding terms shall have the meaning ascribed in this paragraph.

(37 FR 22107, October 18, 1972),

subsection 27 thereunder reads as follows:

Scaffold. Any temporary elevated platform and its supporting structure used for supporting workmen or materials or both.

(37 FR 22107, October 18, 1972).

The standard at 29 C.F.R. 1910.28(a)(1) provides:

Scaffolds shall be furnished and erected in accordance with this standard for persons engaged in work that cannot be done safely from the ground or from solid construction, except that ladders used for such work shall conform to § 1910.25 and § 1910.26.

(37 FR 22121, October 18, 1972).

This standard, at 29 C.F.R. 1910.28(p)(3)(ii), fixes minimum requirements for interior hanging scaffolds and the planking to be used and it appears evident that the angle iron trapeze hangers supporting the framed mesh guard screen sections, described herein above, could well have served as supports for the scaffold planking referred to therein, to wit:

(ii) Planking 2 by 9 inches or 2 by 10 inches, with maximum span 7 feet for heavy duty and 10 feet for light duty or medium duty.

(37 FR 22127, October 18, 1972)

As the Occupational Safety and Health Review Commission in Secretary v. Bethlehem Steel Corporation, OSAHRC Docket No. 2384, April 3, 1975, speaking of the standard at 29 C.F.R. 1928.28(a)(1), said:

By its terms, the cited standard mandates that work be performed from scaffolds when it cannot be safely performed from the ground or solid construction. It also mandates that scaffolds be erected in accordance ‘with this standard,’ but it does not by its terms prescribe construction specifications for scaffolds. Accordingly, when cited alone it can only require that work be performed from scaffolds if it is not safe to work from the ground or solid construction.

See also, Secretary v. Daniel Construction Company, 10 OSAHRC 531 (1974).

I hold that the standard at 29 C.F.R. 1910.28(a)(1) is applicable and that the charge under Section 654(a)(1) of the Act is not appropriate and I do not, therefore, reach the issue of whether the respondent herein, with actual knowledge of the existence of a hazard which was causing or likely to cause death or serious physical harm, failed to take reasonable precautionary steps to protect its employees from that hazard in violation of the said Section 654(a)(1), Secretary v. Brisk Waterproofing Co., Inc., 3 OSAHRC 1132 (1973); Secretary v. Advance Air Conditioning, Inc., 7 OSAHRC 736 (1974), Secretary v. California Stevedore and Ballast Company, 16 OSAHRC 800 (1975).

Good cause therefore appearing and for the reasons expressed herein above, it is ORDERED that the citation and Notice of Proposed Penalty issued to the respondent herein be and the same are hereby vacated.

DAVID H. HARRIS

Judge, OSAHRC

Dated: July 14, 1975

Hyattsville, Maryland

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[1] 29 U.S.C. § 654(a)(1). The section provides that 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 his employees.’

[2] 29 U.S.C. § 651 et seq., hereinafter ‘the Act.’

[3] See also Transcript at 222–23 and 258–63, for additional supporting assertions elicited by Whirlpool on its cross-examination of the Secretary’s witnesses.

[4] 29 U.S.C. § 658(a) provides in pertinent part:

Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated.

[5] See Barker Brothers, Inc., 78 OSHRC 5/E7, 6 BNA OSHC 1282, 1977–78 OSHD para. 22,488 (No. 12964, 1978).

[6] Whirlpool also argues there can be no finding the guard screen system was recognized as a hazard because the judge had found, in his earlier decision, that Whirlpool’s industry did not recognize it as hazardous. We reject this argument. The Secretary may show a hazard is recognized by proof either of recognition of the hazard within the employer’s industry or of actual recognition of the hazard by the employer himself. United States Pipe and Foundry Company, 78 OSAHRC 8/D6, 6 BNA OSHC 1332, 1977–78 CCH OSHD para. 22,514 (No. 11739, 1978); H–30, Inc. 77 OSAHRC 156/A2, 6 BNA OSHC 1715, 1977–78 CCH OSHD para. 22,050 (No. 76–752, 1977). Here the latter proof exists. The judge properly determined that the hazard of working upon the mesh panels was recognized by Whirlpool as shown by its instructions for walking on the angle-irons, rather than on the mesh, and by the record of accidents on the mesh. Where the employer actually recognizes the hazard, § 5(a)(1) requires the implementation of any feasible steps to abate it, even if the employer’s industry does not also recognize the hazard.

[7] We agree with the judge that catwalks of ¼-inch expanded metal grating would be infeasible.

[8] See C. Kaufman, Inc., 78 OSHRC 3/C1, 6 BNA OSHC 1295, 1977–78 CCH OSHD ¶ 22,481 (No. 14249, 1978).

[9] Nine maintenance workers, including their foreman, were called as witnesses by complainant. The Superintendent and two workers appeared at the instance of the respondent.