“SECRETARY OF LABOR,Complainant,v.ALABAMA POWER COMPANY,Respondent.OSHRC Docket No. 84-0357_DECISION_Before: BUCKLEY, Chairman, and WALL, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).Administrative Law Judge Edwin G. Salyers affirmed the Secretary’scitation alleging that Alabama Power Company (\”APCo\”) violated section5(a)(1) of the Act, 29 U.S.C. ? 654(a)(1).[[1]] The judge determinedthat APCo had not taken adequate precautions to protect its employeesreceiving deliveries of coal from being crushed by an overturning coaltruck. We reverse the judge’s decision and vacate the citation.I.APCo operates a coal-fired generating plant, known as the Gorgas steamplant, in Parrish, Alabama. This facility receives between 5 and 6million tons of coal annually, delivered by rail, barge, and truck. Todetermine whether the coal conforms to its specifications, APCo analyzesa sample of coal from each shipment. Employees known as \”lab helpers\”take the samples from the two locations where coal is delivered bytruck–a coal pile, and a hopper that supplies coal to the pile byconveyor belt. The sampling operation requires that the employees comewithin close proximity to the trucks. The inspection that resulted inthe Secretary’s citation was conducted the day after a lab helper waskilled when a truck overturned at the coal pile. The parties agree, andAPCo was aware, that trucks can and do overturn while unloading at thecoal pile. The coil hopper, however, does not present this problem;trucks do not overturn at the hopper because it is surrounded by a leveland smooth concrete surface. The Secretary alleges that APCo failed toprotect its employees from the hazard of trucks overturning at the coalpile. The Secretary does not allege that any hazard exists at the coalhopper. Although the citation did not distinguish between the twolocations, at the hearing the Secretary’s counsel stated that the hopperis not involved in the case.The trucks in question are owned and\/or operated by independentcontractors who are paid by APCo on the basis of weight and grade of thecoal delivered. Deliveries are made by tractor-trailers that have ahydraulic dump mechanism. Approximately 400 to 500 truckloads aredelivered per day; approximately 5-10 truck overturnings occur at thecoal pile each year.The hydraulic dump mechanism raises the trailer bed and dumps the coalout of the rear of the trailer. A truck can overture at the pile onlywhen the trailer bed is raised for dumping, because the load of coal mayshift. The Secretary’s compliance officer, Starika, was concerned withthe distance an employee at the coal pile would have to be from a truckwith a raised trailer in order to be clear of the trailer should thetruck overturn. According to Starika, the safe clearance distance wouldbe determined by adding the height of the trailer above the ground whenlowered (6 feet) and the depth of the trailer body (10 feet) to theheight at which the trailer has been elevated; since the elevatingmechanism consists of five 4-foot sections, the maximum extension is 20feet, and the closest an employee could safely come to a truck whosetrailer bed was at that height would be 30-35 feet.In investigating the fatality, Starika determined that the deceased,Mallory, had walked between two trucks when they were 15 feet apart, andthat the bed of the truck that overturned had been raised as much as 12feet. Starika did not conclude that a lab helper would necessarily bein danger of being struck should the truck overturn while the employeewas at the rear of the truck taking the sample. Rather, Starika feltthat a hazard existed when the lab helper walked alongside or approacheda truck in preparation for taking the sample. In her opinion, employeescould continue to walk past the truck as it was dumping so long as theymaintained a safe clearance distance. Otherwise, lab helpers should notsample until after the truck had dumped, lowered its bed, and movedaway. If a safe clearance distance could not be assured, they shouldremain in front of the truck or behind where they could be seen by thedriver when the bed when the bed was being raised or lowered.APCo informs its employees that trucks can overturn during dumping. APCo also has two safety rules for the sampling operation, one specific,the other more general. First, employees are prohibited from taking asample of any load until after that load has been fully dumped and thetrailer bed lowered back down.[[2]] More generally, APCo’s writtenprocedures for the sampling operation state that \”[a] safety precautionto observe while monitoring the unloading is not to get too close to thetrailer while it is in the air, as it may turn over.\” All lab helpersreceive a copy of these procedures, which is dated and acknowledged onreceipt. In addition, Laye, APCo’s superintendent, conducts anorientation with all new lab technicians. This orientation normallyincludes a caution against standing \”close\” to a dumping truck. APCoalso has told employees in safety meetings generally to \”watch\” trucksand \”stay away\” from them, and not to stand \”beside\” trucks while theyare dumping. Although APCo did not specify a particular distance thatemployees should remain away from trucks, two lab helpers, Nixon andTucker, testified that they were expected to keep a sufficient distanceaway from a truck during unloading so that they could not be struckshould the truck overturn. They further were aware that the minimumsafe distance would depend upon the height to which the trailer bed hadbeen elevated.The Secretary attempted to prove that APCo’s supervisors were aware thatlab helpers routinely failed to maintain a safe distance from the trucksand failed to take adequate steps to prevent such hazardous behavior. Both Nixon and Tucker testified that they had been within closeproximity of trucks with elevated trailer’ beds, and Nixon furthertestified that his foreman, Mullin, had accompanied or observed him whenhe came close to or was beside trucks. However, although Nixon andTucker had worked at both the coal hopper and the coal pile, neitheremployee specified at which location he was taking samples when he cameclose to trucks that were unloading. Mullin, on the other hand,specifically denied that he had ever accompanied or observed Nixonwithin an unsafe distance of a truck dumping on the coal pile. According to Mullin, the instances to which Nixon referred took place atthe hopper, where no danger of overturning existed, and not at the coalpile. Mullin also testified that he observed Nixon close to trucks onlyat the hopper.There was evidence of one incident in which an employee came too closeto an elevated truck on the coal pile. In that instance, Mullin pulledanother lab helper, Bruner, away from a truck.[[3]] Except for theincident involving Bruner and the fatal accident involving Mallory,there is no specific evidence that lab helpers came too close toelevated trucks at the coal pile. Mullin did concede that employeeswent within an unsafe distance of trucks \”occasionally\” but felt that itwas not a \”common practice\” for them to do so. Mullin stated that herealized the danger of an overturning truck and did not and would notpermit an employee to come close enough to a truck to be struck in theevent the truck were to turn over. Although Mullin’s other dutiesprecluded him from spending all his time at the coal pile, whenever hedid observe an employee standing or walking too close to a truck duringdumping at the pile, he would call to the employer or physically removehim from the area of the truck, as he did in the case of employee Bruner.APCo maintains a safety enforcement system that progresses from initialoral warnings to written warnings for second offenses through additionaldisciplinary measures and, finally, discharge. APCo has disciplinedemployees at the Gorgas plant for safety violations in coal handlingoperations, including one instance in which Tucker received a writtenreprimand for running on the coal pile. Mullin admitted that he hadnever given more than an oral reprimand to an employee who went tooclose to a truck on the coal pile and that he had never been told toapply the more severe forms of discipline required for repeatedviolations under APCo’s safety program. However, there is no indicationthat any employee supervised by Mullin had ever violated APCo’s truckclearance rules on more than one occasion.Although the Gorgas plant receives between 400 and 500 truckloads ofcoal daily, only 5 to 10 trucks overturn each year. Until the accidentoccurred that resulted in the Secretary’s inspection, the plant hadoperated for at least 24 years without any injuries resulting fromoverturned trucks.Judge Salyers concluded that both APCo and its industry are aware thatcoal trucks are unstable and subject to overturning when dumping theirloads of coal. The judge further concluded that APCo had not takenadequate measures to protect its employees from overturning trucks. Thejudge did not find any deficiency in the content of APCo’s safety rules;rather, the judge determined that APCo’s rules for the samplingoperation were not effective because its employees were not properlysupervised. Specifically, the judge found that APCo’s supervisors wereaware that its employees \”routinely\” placed themselves in closeproximity to trucks during dumping operations. The judge also foundthat APCo’s supervisors either ignored these infractions of its rules orgave only oral reprimands when these violations occurred. The judgefaulted APCo for not having implemented \”a system of progressivediscipline\” to ensure employee compliance with its safety rules.The Secretary generally argues in support of the judge’s findings,except that the Secretary also contends that APCo’s safety rules are notadequate because they are not sufficiently specific. The Secretaryargues that APCo should have prescribed an exact distance that itsemployees were to keep away from trucks during dumping operations. APCocontends that the evidence does not establish any practical way todefine a safe clearance distance other than a general admonition thatemployees are to stay clear of or avoid trucks during dumpingoperations. APCo also asserts that the judge’s finding that itssupervisor’s routinely permitted employees to come within an unsafedistance to trucks is contrary to the record. APCo contends that theevidence establishes that it did not tolerate employees going too closeto trucks during dumping operations and that the Secretary failed toshow any repeated violations of its safety rules or any prior injuriesfrom overturning trucks sufficient to give APCo notice that it had notadequately implemented its safety rules.To prove a violation of section 5(a)(1) of the Act, the Secretary mustshow that the cited employer failed to free its workplace of a hazardthat was recognized by the cited employer or its industry, that wascausing or likely to cause death or serious physical harm, and thatcould have been materially reduced or eliminated by a feasible means ofabatement. _E.g_., _Pelron Corp_., 86 OSAHRC ________,12 BNA OSHC 1833,1835, 1986 CCH OSHD ? 27,605, p. 35,871 (No. 82-368, 1986). There is nodispute that employees who come too close to trucks dumping coal at thecoal pile are exposed to the hazard of being struck by an overturningtruck, a hazard likely to cause serious physical harm or death. Theparties also agree that this hazard can be materially reduced oreliminated by measures to insure that employees will remain a safedistance away from trucks during dumping operations. The question iswhether the Secretary proved that APCo’s abatement methods wereinadequate or that there was a more effective feasible means by whichAPCo could have freed its workplace of the hazard.[[4]] _See CerroMetal Products Division, Marmon_ _Group, Inc_., 86 OSAHRC ___, 12 BNAOSHC 1821, 1822, 1986 CCH OSHD ? 27,579, p. 35,829 (No. 78-5159, 1986).III.In determining whether APCo’s safety program was sufficient to protectits employees from exposure to the hazard, we must consider whether APCohas established workrules designed to prevent exposure, has properlycommunicated those rules to its employees, has taken steps to discovernoncompliance with the rules, and has effectively enforced its rules inthe event of noncompliance. _Inland Steel Co_., 86 OSAHRC ____, 12 BNAOSHC 1968, 1976, 1986 CCH OSHD ? 27,647, p. 36,003 (No. 79-3286, 1986). We reject the Secretary’s contention that APCo’s safety rules wereinadequate because APCo did not specify a particular clearance distance.As the Secretary correctly notes, general admonitions to employees toavoid a hazard or to act in a safe manner do not afford adequateguidance. _Brown & Root, Inc_., 80 OSAHRC 97\/A2, 8 BNA OSHC 2140, 2144,1980 CCH OSHD ? 24,853, pp. 30,656-57 (No. 76-1296, 1980). On the otherhand, a safety rule is not inadequate merely because it requiresemployees to exercise a certain degree of judgment and discretion. Indetermining whether a work rule is sufficiently specific to protectemployees, the nature of the hazard and the overall circumstances of thework operation must be considered. In certain situations a specific anddetailed safety rule may be necessary, whereas in other situations suchdetail may be impractical, and it may be necessary to rely on employeejudgment. _See Pennsylvania Power & Light Co. v. OSHRC_, 737 F.2d, 350,357 (3d Cir. 1984); _Capital Electric Line Builders of Kansas, Inc. v.Marshall_, 678 F.2d 128, 131, (10th Cir. 1982).Contrary to the Secretary’s contention, APCo’s rule that lab helpers areto avoid or keep clear of trucks during dumping operations is not a meregeneralized caution to employees to work safely. APCo’s rule directsits employees to avoid the area which could be struck by an elevatedtruck bed should the truck overturn. This rule is sufficiently specificconsidering the fluid and dynamic nature of the work environment at thecoal pile. Conditions at the coal pile are constantly fluctuating astrucks move in and out. The extent of the hazardous area alsocontinuously varies since it depends upon the height to which eachtrailer bed has been elevated. APCo’s employees were aware of the hazardthat trucks could overturn when dumping coal and understood thecorrelation between the height of the truck bed and the safe area. There is no evidence to show that employees could not evaluate theproper clearance distance for any particular dumping operation. Inthese circumstances, APCo’s reliance on its lab helpers to make ajudgment as to how far to remain away from each truck does notimpermissibly shift responsibility for compliance with the Act from APCoto its employees. _See Capital Electric Line Builders_, 678 F.2d at 131.In fact, APCo did not rely solely on the judgment of its lab helpers toascertain and avoid the hazardous area. It also had a specific ruleprohibiting employees from taking any samples while the trailer bed waselevated. APCo’s employees understood that the sampling operation couldnot be conducted safely when the trailer was in an elevated position. We conclude that APCo’s existing rules were adequate to free APCo’sworksite of the hazard.IV.The Secretary further argues in support of the judge’s conclusion thatAPCo had not been adequately enforcing its safety rules. The Judgerelied on Nixon’s testimony that he had been observed or evenaccompanied by his foreman, Mullin, in close proximity to trucks duringdumping operations without any enforcement action being taken. Thejudge also based his conclusion on Tucker’s testimony that he had been\”permitted\” or \”allowed\” to come within an unsafe distance of trucksthat were unloading coal. We agree with APCo that the judge’sconclusion is not supported by the record evidence.As APCo correctly points out, the judge overlooked the differencebetween the coal hopper and the coal pile. The judge thereforeerroneously disregarded Mullin’s unrebutted testimony that the instancesdescribed by Nixon did not occur at the coal pile but rather only at thecoal hopper. Since no hazard of trucks overturning existed at thehopper, APCo had no need to insure compliance with its rules at thatlocation.[[5]] The judge also did not consider Mullin’s testimony thathe was cognizant of the hazard presented when a truck overturns andwould not permit employees to expose themselves to that hazard. Therecord provides no reason to disbelieve this testimony.The record does not directly establish whether Tucker was working at thecoal pile when he came within close proximity to trucks unloading coal. Even if we assume that Tucker was taking samples at the coal pile onthese occasions rather than at the hopper, we find that the judge erredin concluding from Tucker’s testimony that APCo did not properly enforceits rules. Unlike Nixon, Tucker did not testify that supervisors wereaware that he had approached near trucks engaged in unloading. Tuckersimply answered in the affirmative when the Secretary’s counsel asked ifhe had been \”permitted\” and \”allowed\” to come overly close to trucks. This testimony does not establish that APCo’s management acquiesced inTucker’s actions. Broad terms such as \”permit\” and \”allow\” may convey avariety of meanings. _See National Realty & Construction Co. v. OSHRC_,489 F.2d 1257, 1263-64 & nn. 26-27 (D.C. Cir. 1973).[[6]] The onlyspecific evidence of the attitude of APCo’s supervisors is that APCo didnot condone violations of its clearance or other safety requirements.The judge made no specific finding on whether APCo took adequatemeasures to detect violations of its safety rules. The evidence is thatforeman Mullin was at the coal pile some but not all of the time andthat Mullin did observe the lab helpers when he was in that area. Neither Nixon nor Tucker stated how frequently they may have come withinclose proximity to trucks whereas Mullin testified that employees did soonly \”occasionally.\”In evaluating the adequacy of an employer’s efforts to implement asafety program, the Commission must consider all the circumstances ofthe employer’s work environment, including the degree of compliance withits safety rules. _See Jones & Laughlin_ _Steel Corp_. 82 OSAHRC 34\/A2,10 BNA OSHC 1778, 1782, 1982 CCH OSHD ? 26,128, p. 32,887 (No. 76-2636,1982) (employer is not a guarantor of employer safety). The Secretaryhas presented no evidence from which we could conclude that APCo’smeasures to monitor employee compliance were inadequate or thatadditional efforts would have been more effective. _Compare_ _Jones &Laughlin_, 10 BNA OSHC at 1780, 1982 CCH OSHD at p. 32,885 (safetyprogram adequate even where violations occurred 10 percent of the time),_with_ _K-Mart_, 82 OSAHRC 49\/A2, 10 BNA OSHC 2202, 2203, 2205, 1982 CCHOSHD ? 26,333, pp. 33,343, 33,345 (No. 77-270, 1982) (monitoring effortsinadequate where violations occurred daily for two months preceding anaccident). For the same reason, we disagree with the judge’sconclusion that APCo should have imposed a \”progressive\” disciplinarysystem prior to the accident. APCo was not aware of any repeatedviolations of its safety rules. Absent evidence that violationsoccurred with greater regularity than is shown here, an employer wouldhave no reason to impose discipline on an employee beyond an initialoral warning.V.Although the Secretary primarily argues that APCo’s safety rules andtheir enforcement were inadequate to protect employees, he also contendsin his review brief that, under the procedures followed before theaccident, work rules alone could not have adequately prevented employeesfrom being too close to dumping trucks. In the Secretary’s view, labhelpers could not maintain a safe clearance distance when a large numberof trucks were dumping coal at one time.He contends that it was only after the accident that APCo gave the labhelpers control over the number of trucks at the pile. Thus, theSecretary argues that APCo had not taken sufficient feasible measures tofree its worksite of the hazard because at the time of the accident APCohad not authorized the lab helpers to control the activity at the pile.We reject the Secretary’s argument that placing the trucks under thecontrol of the lab helpers is a feasible means of reducing the hazardbecause the issue was not raised in the pleadings nor was it tried bythe consent of the parties. _McWilliams Forge Co_., 84 OSAHRC 36\/C12,11 BNA OSHC 2128, 1984-85 CCH OSHD ? 26,979 (No. 80-5868, 1984). TheSecretary’s citation and complaint did not allege that giving the labhelpers control over the activity at the pile was a means of abatement,and the parties did not try it by consent because they did not squarelyrecognize it as an issue at the hearing. The Secretary’s complianceofficer, who investigated the accident and offered the opinion that afeasible means of abatement was for APCo to improve its safety program,did not mention control of the trucks. The two lab helpers called aswitnesses by the Secretary, Nixon and Tucker, were not questioned aboutcontrol on direct examination. Nor did the Secretary pursue the pointwhen Nixon briefly mentioned it on cross-examination and on examinationby the judge. The only other witness who testified as to control wasLaye, and he did so in responding to questions by the judge, not theparties. Laye simply remarked in a cursory fashion that lab helpers had\”always\” had control. Finally, neither party mentioned the issue inargument at the hearing or in their post-hearing briefs; the point wasfirst raised by the Secretary in his brief on review. The meagerness ofthe record that was developed on the matter of control and the lack ofargument on the point demonstrates that the parties did not squarelyrecognize it to be in issue as a feasible abatement method. _SeeMcWilliams Forge_, 11 BNA OSHC at 2129-30, 1984-85 CCH OSHD at pp.34,669-70. As the D.C. Circuit stated in another case arising undersection 5(a)(1), the Secretary’s theory of what the employer should havedone to avoid citation must be developed at the hearing, not after it. _National Realty_, 489 F.2d at 1267-68 & nn. 40-41. It clearly would beunfair for us to find APCo in violation for failing to institute anabatement method that was not raised nor litigated below. _Id_. at 1267.In any event, even if we were to address the merits of the Secretary’sargument, the evidence of record does not establish that the lab helperscould not control the number of trucks at the pile before the accident. Nixon’s testimony, even if viewed in the manner most favorable to theSecretary, is at best ambiguous as to whether the lab helpers had suchcontrol before the accident. Although at one point Nixon stated theydid not, other testimony he gave suggests they did. [[7]] Moreover,when Nixon was first asked on direct examination to state the changesthat had been made at the pile after the accident, he did not mentionanything about the lab helpers being able to control the trucks afterthe accident but not before. Nixon’s failure to mention control over thenumber of trucks dumping when specifically asked to describe any changesAPCo had made indicates that he did not regard the degree of activity atthe coal pile as a significant factor prior to the accident. On theother hand, Laye testified that the lab helpers could control the trucksboth before and after the accident. The preponderance of the evidenceof record does not establish that the lab helpers did not have controlover the trucks before the accident occurred.Our conclusion that APCo took the necessary steps to free its workplaceof the hazard is supported by the fact that despite the rate at whichtruck coal is delivered (400 to 500 truck loads each day), APCo hadexperienced no injuries front overturning trucks during at least a24-year period prior to the fatality. The Secretary presented noevidence from which we can conclude that APCo should have moreeffectively protected its employees from the hazard.Accordingly, the judge’s decision is reversed and the citation vacated.FOR THE COMMISSIONRAY H. DARLING, JR.Executive SecretaryDATED: APR 17 1987————————————————————————SECRETARY OF LABOR,Complainant,v.ALABAMA POWER COMPANY,GORGAS STEAM PLANT,Respondent.OSHRC Docket No. 84-0357APPEARANCES:Debra H. Goldstein, Esquire, Office of the Solicitor, U. S. Departmentof Labor, Birmingham, Alabama, on behalf of complainantJohn Richard Carrigan, Esquire, Birmingham, Alabama, on behalf of respondentMr. Jeff Blanton, International Brotherhood of Electrical Workers,Birmingham, Alabama, on behalf of employee representative_DECISION AND ORDER_SALYERS, Judge: The respondent, Alabama Power Company, is a publicutility engaged in the generation and distribution of electricity. OnFebruary 7, 1984, one of its employees, Arlene Mallory, was crushed todeath when a coal truck overturned while dumping coal at respondent’sGorgas Steam Plant located in Walker County, Alabama. As a result ofthis accident, the Occupational Safety and Health Administrationconducted an inspection of respondent’s operations and chargedrespondent with a serious violation of the Occupational Safety andHealth Act. (29 U.S.C. ? 651, _et_ _seq_.). The charge was lodged undersection 5(a)(1) of the Act, and the citation reads as follows:Section 5(a)(1) of the Occupational Safety and Health Act of 1970: Theemployer did not furnish employment and a place of employment which werefree from recognized hazards that were causing or likely to cause deathor serious physical harm to employees in that employees were exposed to:(a) On February 16, [[1\/]] at 2:30 pm, laboratory helpers were exposedto being struck by or crushed by large coal trucks which were backingand dumping coal. These trucks are subject to overturning. Among othermethods, one feasible and acceptable method to correct the hazard is toestablish and enforce a safe job procedure such as sampling the coalafter the truck has dumped the coal, lowered the trailer bed and pulledaway from the dump area to prevent employees from ever being in the nearproximity of the coal trucks as they back or dump.The Secretary proposes a penalty of $640.00.Reduced to its basic terms, the Secretary’s citation charges respondentviolated the Act’s general duty clause by exposing employees to arecognized hazard (being crushed by an overturning truck). TheSecretary urged this hazard could and should have been obviated byinstructing employees concerning the hazard and implementing a programto prevent employee exposure. Respondent counters that employees weremade aware of the hazard through respondent’s safety program and wereinstructed and advised to stay clear of trucks while coal was beingdumped. Respondent also asserts the action of employee, ArleneMallory, on the day of the accident was an isolated incident of employeemisconduct for which respondent should not be held accountable.Both parties agree it is well known in the coal handling industry thatcoal trucks when in the process of dumping become unstable and subjectto overturning. This hazard is emphasized in respondent’s safety manual(Ex. C-2, page 119) and in the operator manual published by the truckmanufacturer (Ex. C-1, page 26). The serious consequences which flowfrom exposing employees to this recognized hazard are all too welldemonstrated by the tragic turn of events which occurred at respondent’sfacility on February 7, 1984.On the day of the accident, the deceased employee was engaged in dutiesas a \”laboratory helper.\” One of these duties required the employee totake a sample of coal from loads dumped at respondent’s yard by trucksdriven by independent contractors. The samples were obtained at thetime each delivery was made by removing a shovelful of coal at randomfrom the pile formed as each load was dumped. This sample was placed ina receptacle identified with the vendor’s name and was subsequentlyanalyzed in the laboratory to assure proper quality control and forother purposes. The helper also signed a delivery ticket presented byeach driver at the time the coal was dumped. Activity at the coal yardwas maintained at a high level since four to five hundred loads of coalwere received daily (Tr. 58), and each delivery required the samplingprocedure as just described.The Secretary recognizes that respondent has a \”well developed safetyprogram encompassing many areas\” but argues that the sampling procedureperformed by the lab helpers \”was not regulated at the time of thefatality\” nor when the procedure was observed by the Secretary’scompliance officer during the inspection conducted on the day followingthe accident (Secretary’s Brief, page 2). In support of this charge,the Secretary cites the testimony of two lab helpers who indicate beforethe accident they were allowed or permitted by supervisors to be inclose proximity to coal trucks engaged in dumping operations and werenot restricted from being near the sides of trailer beds as they wereraised or lowered (Tr. 107-108, 121-122).The record also discloses that, on the day following the accident, theSecretary’s compliance officer observed and photographed this procedureduring the course of her inspection (Ex. C-3; Tr. 34-35). The Secretaryargues further that respondent took no disciplinary action to deteremployees from the practice even though the practice was observed byrespondent’s supervisory personnel.Respondent contends employees were exposed to a hazard only when theywere in an area immediately adjacent to a truck while dumping was inprogress and that employees were \”trained and repeatedly advised to stayclear of dumping trucks\” (Respondent’s Brief, page 5). To support thisassertion, respondent refers to its safety manual and to respondent’sExhibit 1 which indicates Arlene Mallory was warned during herindoctrination to \”watch trucks on coal piles.\” Reference is also madeto respondent’s Exhibit 2, which is a summary of a safety meetingconducted on January 5, 1984, wherein the deceased employee and otherswere advised to \”watch ‘raised’ truck beds and stay clear of them\” and\”never turn your back to a coal truck.\” Respondent also argues theevidence fails to show the deceased had engaged in the hazardouspractice prior to the accident or that respondent knew or should haveknown the deceased or other employees were standing in close proximityto dumping trucks.The question posed for resolution is whether the evidence reflects therespondent in this case acted in a responsible manner or that it actedor failed to act in such a fashion as to constitute a culpable disregardfor its employees’ safety.The Act does not impose strict liability upon an employer. _NationalRealty and Construction Co., Inc. v. OSHRC_, 489 F.2d 1257 (D.C. Cir.1973); _Home Plumbing and Heating Co. v. OSHRC_, 528 F.2d 564 (5th Cir.1976). The imposed duty relates only to those hazards which areforeseeable and can be prevented through the employer’s exercise ofreasonable diligence. _Id_. As these cases make clear, an employercannot anticipate or reasonably foresee reckless acts of employees whichmay occur despite well conceived and vigorously enforced safetyprograms. On the other hand, an employer cannot use an ineffectivesafety program as a shield to circumvent its clear-cut duty to furnishemployees with a danger-free work environment. _Brennan v. Butler Limeand_ _Cement Co_., 520 F.2d 1011 (7th Cir. 1975).In the instant case, respondent had a safety program consisting ofwritten rules which were called to the attention of employees atperiodic safety meetings. The Secretary concedes the safety programworked in many areas but was virtually ignored with respect to the workpractices of the lab helpers. The testimony of witnesses appearing onbehalf of both parties support the conclusion that minimal supervisionwas provided at the dumping sites to oversee the work practices of labhelpers and that these employees, in performing their duties, routinelyplaced themselves in close proximity to dumping trucks (Tr. 107,121-122, 125-126, 129-131, 152, 154-155, 163-164, 169-170). Theevidence also supports a conclusion that the practice, when observed bysupervisors, was either ignored or was met with oral reprimands butwithout the implementation of a system of progressive discipline todeter future acts of transgression.The Secretary relied heavily on the testimony of Compliance OfficerStarika to establish the basic elements of the Secretary’s case. Starikainspected respondent’s premises on the day following the accident,observed lab helpers performing their duties, and concluded theseemployees were exposed to the hazard of overturning trucks. While hertestimony was of some value to the Secretary’s case, it was largelyhearsay and was not conclusive of the ultimate issue; _i.e_., anongoing, hazardous practice which continued unabated despite actual orconstructive knowledge by respondent’s management employees. TheSecretary called two witnesses who were engaged as lab helpers beforeand after the accident who gave clear and convincing testimonyconcerning the practice. Richard Tucker worked with the deceased on theday of the accident and described the procedure:A. Well, when a truck would pull in, at that time we would go up to itsdoor. They’d always stick their tickets out on the door. That way youwould have something to write on. We’d put our initials on it. Wewould read the numbers on the tickets, make sure it’s at the rightlocation, everything, sign it and let the man dump and just get the sample.Q. Were you permitted to sample before the bed of the truck–while itwas either going up or while it was coming down?A. Yes, ma’am.Q. Were you allowed to walk by the truck while it was being moved up ordown?A. Yes, ma’am.Fred Nixon, employed as a lab helper for over six years, confirmed thelong-standing practice and verified knowledge of the practice bysupervisory employees:Q. Did Management ever come down on you for being too close to trucks?A. No, ma’am.Q. Are you aware of either yourself or anybody else being progressivelydisciplined for being too close to dumping trucks?A. No, ma’am.Q. Have you ever been close to the truck, prior to the accident–Priorto the accident or the day after, February 7th or 8th, have you yourselfeven been close to a truck when the bed was going up?A. Yes, ma’am.Q. Have you walked beside it?A. Yes, ma’am.Q. Has any Management Official ever walked beside it with you or –A. Yes, ma’am.Q. — or that you’ve observed?A. Yes, ma’am.Q. Can you name some of the ones that you’ve observed or walked with?A. Mr. Mullin. There’s another man that was in our department. He’snot there now. That was a Mr. Hudson who used to be Lab Foreman. Mostall the Lab Foremen back prior to the accident, if they were on the piletalking to us and we were doing our sampling, they were either with us,beside our truck or around the truck.Q. Are the Management people aware that trucks turn over?A. Yes, ma’am.Q. Since the time of Ms. Mallory’s death, has the sampling procedurechanged?A. Yes, ma’am.Q. What are the differences before and after the accident?A. Well, before there were no stipulations set about how close to getto the truck or walking beside it. And after the accident they havecome up and now they want to take disciplinary action if a person iscaught signing a ticket before the bed goes down, walking around it. You’re not supposed to climb up on the cab or the bed and talk to thetruck driver. Several different things have changed.The testimony of these two witnesses was not controverted by otherevidence and fully supports a conclusion that the practice complained ofby the Secretary was an everyday occurrence which, if not condoned byrespondent’s supervisory personnel, was ignored. Respondent’s failureto deal with this problem in a positive fashion constituted a failure tomeet obligations imposed upon respondent by the Act.In summary, the Secretary has established respondent’s breach of theAct’s general duty clause by a preponderance of the evidence, andrespondent has failed to establish a defense of unpreventable employeemisconduct. _H. B. Zachry Company_, 80 OSAHRC 9\/D8, 7 BNA OSHC 2202,1980 CCH OSHD ? 24,196 (No. 76-1393, 1980); _Brennan v. Butler Lime andCement Co_., _supra_._FINDINGS OF FACT_1. The respondent, Alabama Power Company, is a public utility engagedin the generation and distribution of electricity. On February 7, 1984,one of its employees, a laboratory helper, was fatally injured when acoal truck overturned while dumping coal at respondent’s Gorgas SteamPlant located in Walker County, Alabama. This accident precipitated aninspection of respondent’s operations by the Occupational Safety andHealth Administration which resulted in a charge that respondent hadseriously violated the provisions of the Occupational Safety and HealthAct (29 U.S.C. ? 651, _et_ _seq_.).2. During the period preceding the accident, respondent engaged anumber of employees as laboratory helpers whose principal duty was tosample coal as it was delivered to respondent’s coal yard by independenttruckers. In performing the sampling procedures, these employees wereallowed and permitted by respondent to come in close proximity to truckswhich were engaged in the dumping process. This practice was aneveryday occurrence and was ignored by respondent’s supervisory personnel.3. It is well known and recognized in the coal handling industry thatcoal trucks when in the dumping process become unstable and subject tooverturning. Employees working in close proximity to trucks engaged inthe dumping process are exposed to a hazard which may result in death orserious bodily injury.4. Respondent has a safety program consisting of written rules andperiodic safety meetings. In general, this program is effective as itrelates to most areas of respondent’s operations. However, the practiceengaged in by the laboratory helpers was not effectively abated byrespondent’s safety program as it operated on and prior to the date ofthe accident.5. The penalty proposed by the Secretary in the amount of $640.00 isreasonable under the circumstances of this case._CONCLUSIONS OF LAW_1. Respondent is engaged in an industry affecting commerce and issubject to the jurisdiction of the Occupational Safety and Health ReviewCommission.2. Respondent has seriously violated section 5(a)(1) of theOccupational Safety and Health Act through its failure to furnishemployment and a place of employment which were free from recognizedhazards.3. Respondent has not sustained its burden of proof that the practicecomplained of was an isolated incident of employee misconduct. _ORDER_It is hereby ORDERED:1. Serious Citation No. 1 is hereby affirmed.2. A civil penalty in the amount of $640.00 is hereby assessed.EDWIN G. SALYERSJudgeDate: February 7, 1985FOOTNOTES:[[1]] This provision requires as follows:Sec. 5. (a) Each employer–(1) shall furnish to each of his employees employment and a place ofemployment which are free from recognized hazards that are causing orare likely to cause death or serious physical harm to his employees.[[2]] The Secretary contends that this rule was not in effect at thetime of the fatality. The testimony is to the contrary. TheSecretary’s brief confuses this rule with another rule, which was notinstituted until after the inspection, requiring that a lab helper nottake the truck driver’s delivery ticket until after the load is dumped.[[3]] According to Mullin, the truck would have fallen over onto Brunerbecause it was \”up on a bank\” above where Bruner was standing. Shortlyafter Mullin directed Bruner to move away, the truck overturned.[[4]] There is some disagreement between the Secretary and APCo as toprecisely how the hazard at issue should be described for the purpose ofsatisfying the requirement of section 5(a)(1) that the hazard be\”recognized.\” APCo concedes that it was aware that employees would beexposed to a hazard if they came excessively close to trucks dumpingcoal. It contends that the recognized hazard must be defined asemployees approaching within an unsafe distance of trucks during dumpingoperations. The Secretary argues in support of a broader definition ofthe recognized hazard as simply the hazard that trucks could over-turn. However, in his trial and argument of the case the Secretary implicitlyaccepted APCo’s definition. He did not argue that APCo could preventtrucks from overturning, but that it should have taken further measuresto prevent employees from approaching too close to trucks during dumpingoperations.In any event, since we find that the safety measures the Secretarycontends APCo should have taken either were in effect at the time of thealleged violation or were not necessary in the circumstances, thecitation is properly vacated for failure of proof regardless of how therecognized hazard at issue is defined. _See Inland Steel Co_., 86OSAHRC, 12 BNA OSHC 1968, 1971, 1986 CCH OSHD ? 27,647 p. 35,997 (No.79-3286, 1986).[[5]] Nixon testified that another foreman, Hudson, had also observedhim in close proximity to trucks during dumping operations withoutenforcing APCo’s rules. We note, as does the Secretary, that unlike theinstances involving foreman Mullin, Nixon specifically stated that hehad been working at the coal pile when observed by Hudson. However,Hudson was not a lab foreman and was not working in the lab departmentat the time of the accident. Nixon, who had been a lab helper for 6 1\/2years, did not specify when the observations by Hudson occurred butindicated that they could have taken place any time within the precedingfive years. Because Hudson’s actions are remote in time and he was nota supervisor at the time of the accident, we do not find his conduct tobe convincing evidence of APCo’s enforcement practices at the time thealleged violation occurred.[[6]] Since counsel did not ask any follow-up questions to clarifyTucker’s testimony, we cannot determine what meaning the Secretary’scounsel intended to convey or how Tucker may have interpreted counsel’sinquiry.[[7]] For instance, Nixon also testified that the trucks are weighedbefore they dump and that, before the accident, the lab helper wouldtell the employee at the scale how many trucks can be handled at thepile. Nixon concluded his testimony on this point by saying thatbefore the accident, control over the number of trucks dumping depended\”on who was up on the pile.\”[[1\/]] The date used in the original citation was a clerical error. Theinspection was conducted on February 8, 1984, the day following theaccident. Although respondent objected to the Secretary’s motion toamend, no showing was made that respondent was prejudiced by the motion,and the motion was granted (Tr. 9) subject to renewal upon a showing ofsurprise. No renewal objection was made by respondent.”