“Docket No. 84-0357 SECRETARY OF LABOR, Complainant, v. ALABAMA POWER COMPANY, Respondent.OSHRC Docket No. 84-0357DECISIONBefore:\u00a0 BUCKLEY, Chairman, and WALL,Commissioner.BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(j), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration.\u00a0 It was established to resolvedisputes arising out of enforcement actions brought by the Secretary of Labor under theAct and has no regulatory functions.\u00a0 See section 10(c) of the Act, 29 U.S.C.? 659(c).Administrative Law Judge Edwin G. Salyers affirmedthe Secretary’s citation alleging that Alabama Power Company (\”APCo\”) violatedsection 5(a)(1) of the Act, 29 U.S.C. ? 654(a)(1).[[1]]\u00a0 The judge determined thatAPCo had not taken adequate precautions to protect its employees receiving deliveries ofcoal from being crushed by an overturning coal truck.\u00a0 We reverse the judge’sdecision and vacate the citation.I.APCo operates a coal-fired generating plant, known asthe Gorgas steam plant, in Parrish, Alabama.\u00a0 This facility receives between 5 and 6million tons of coal annually, delivered by rail, barge, and truck.\u00a0 To determinewhether the coal conforms to its specifications, APCo analyzes a sample of coal from eachshipment.\u00a0 Employees known as \”lab helpers\” take the samples from the twolocations where coal is delivered by truck–a coal pile, and a hopper that supplies coalto the pile by conveyor belt.\u00a0 The sampling operation requires that the employeescome within close proximity to the trucks.\u00a0 The inspection that resulted in theSecretary’s citation was conducted the day after a lab helper was killed when a truckoverturned at the coal pile.\u00a0 The parties agree, and APCo was aware, that trucks canand do overturn while unloading at the coal pile.\u00a0 The coil hopper, however, does notpresent this problem; trucks do not overturn at the hopper because it is surrounded by alevel and smooth concrete surface.\u00a0 The Secretary alleges that APCo failed to protectits employees from the hazard of trucks overturning at the coal pile.\u00a0 The Secretarydoes not allege that any hazard exists at the coal hopper.\u00a0 Although the citation didnot distinguish between the two locations, at the hearing the Secretary’s counsel statedthat the hopper is not involved in the case.The trucks in question are owned and\/or operated by independent contractors who are paidby APCo on the basis of weight and grade of the coal delivered.\u00a0 Deliveries are madeby tractor-trailers that have a hydraulic dump mechanism.\u00a0 Approximately 400 to 500truckloads are delivered per day; approximately 5-10 truck overturnings occur at the coalpile each year.The hydraulic dump mechanism raises the trailer bedand dumps the coal out of the rear of the trailer.\u00a0 A truck can overture at the pileonly when the trailer bed is raised for dumping, because the load of coal may shift.\u00a0The Secretary’s compliance officer, Starika, was concerned with the distance anemployee at the coal pile would have to be from a truck with a raised trailer in order tobe clear of the trailer should the truck overturn.\u00a0 According to Starika, the safeclearance distance would be determined by adding the height of the trailer above theground when lowered (6 feet) and the depth of the trailer body (10 feet) to the height atwhich the trailer has been elevated; since the elevating mechanism consists of five 4-footsections, the maximum extension is 20 feet, and the closest an employee could safely cometo a truck whose trailer bed was at that height would be 30-35 feet.In investigating the fatality, Starika determinedthat the deceased, Mallory, had walked between two trucks when they were 15 feet apart,and that the bed of the truck that overturned had been raised as much as 12 feet.\u00a0Starika did not conclude that a lab helper would necessarily be in danger of being struckshould the truck overturn while the employee was at the rear of the truck taking thesample.\u00a0 Rather, Starika felt that a hazard existed when the lab helper walkedalongside or approached a truck in preparation for taking the sample.\u00a0 In heropinion, employees could continue to walk past the truck as it was dumping so long as theymaintained a safe clearance distance.\u00a0 Otherwise, lab helpers should not sample untilafter the truck had dumped, lowered its bed, and moved away.\u00a0 If a safe clearancedistance could not be assured, they should remain in front of the truck or behind wherethey could be seen by the driver when the bed when the bed was being raised or lowered.APCo informs its employees that trucks can overturnduring dumping.\u00a0 APCo also has two safety rules for the sampling operation, onespecific, the other more general.\u00a0 First, employees are prohibited from taking asample of any load until after that load has been fully dumped and the trailer bed loweredback down.[[2]]\u00a0 More generally, APCo’s written procedures for the sampling operationstate that \”[a] safety precaution to observe while monitoring the unloading is not toget too close to the trailer while it is in the air, as it may turn over.\”\u00a0 Alllab helpers receive a copy of these procedures, which is dated and acknowledged onreceipt.\u00a0 In addition, Laye, APCo’s superintendent, conducts an orientation with allnew lab technicians.\u00a0 This orientation normally includes a caution against standing\”close\” to a dumping truck.\u00a0 APCo also has told employees in safetymeetings generally to \”watch\” trucks and \”stay away\” from them, andnot to stand \”beside\” trucks while they are dumping.\u00a0 Although APCo did notspecify a particular distance that employees should remain away from trucks, two labhelpers, Nixon and Tucker, testified that they were expected to keep a sufficient distanceaway from a truck during unloading so that they could not be struck should the truckoverturn.\u00a0 They further were aware that the minimum safe distance would depend uponthe height to which the trailer bed had been elevated.The Secretary attempted to prove that APCo’ssupervisors were aware that lab helpers routinely failed to maintain a safe distance fromthe trucks and failed to take adequate steps to prevent such hazardous behavior.\u00a0Both Nixon and Tucker testified that they had been within close proximity of truckswith elevated trailer’ beds, and Nixon further testified that his foreman, Mullin, hadaccompanied or observed him when he came close to or was beside trucks.\u00a0 However,although Nixon and Tucker had worked at both the coal hopper and the coal pile, neitheremployee specified at which location he was taking samples when he came close to trucksthat were unloading.\u00a0 Mullin, on the other hand, specifically denied that he had everaccompanied or observed Nixon within an unsafe distance of a truck dumping on the coalpile.\u00a0 According to Mullin, the instances to which Nixon referred took place at thehopper, where no danger of overturning existed, and not at the coal pile.\u00a0 Mullinalso testified that he observed Nixon close to trucks only at the hopper.There was evidence of one incident in which anemployee came too close to an elevated truck on the coal pile.\u00a0 In that instance,Mullin pulled another lab helper, Bruner, away from a truck.[[3]]\u00a0 Except for theincident involving Bruner and the fatal accident involving Mallory, there is no specificevidence that lab helpers came too close to elevated trucks at the coal pile.\u00a0 Mullindid concede that employees went within an unsafe distance of trucks\”occasionally\” but felt that it was not a \”common practice\” for themto do so.\u00a0 Mullin stated that he realized the danger of an overturning truck and didnot and would not permit an employee to come close enough to a truck to be struck in theevent the truck were to turn over.\u00a0 Although Mullin’s other duties precluded him fromspending all his time at the coal pile, whenever he did observe an employee standing orwalking too close to a truck during dumping at the pile, he would call to the employer orphysically remove him from the area of the truck, as he did in the case of employeeBruner.APCo maintains a safety enforcement system thatprogresses from initial oral warnings to written warnings for second offenses throughadditional disciplinary measures and, finally, discharge.\u00a0 APCo has disciplinedemployees at the Gorgas plant for safety violations in coal handling operations, includingone instance in which Tucker received a written reprimand for running on the coal pile.\u00a0Mullin admitted that he had never given more than an oral reprimand to an employeewho went too close to a truck on the coal pile and that he had never been told to applythe more severe forms of discipline required for repeated violations under APCo’s safetyprogram.\u00a0 However, there is no indication that any employee supervised by Mullin hadever violated APCo’s truck clearance rules on more than one occasion.Although the Gorgas plant receives between 400 and500 truckloads of coal daily, only 5 to 10 trucks overturn each year.\u00a0 Until theaccident occurred that resulted in the Secretary’s inspection, the plant had operated forat least 24 years without any injuries resulting from overturned trucks.Judge Salyers concluded that both APCo and itsindustry are aware that coal trucks are unstable and subject to overturning when dumpingtheir loads of coal.\u00a0 The judge further concluded that APCo had not taken adequatemeasures to protect its employees from overturning trucks.\u00a0 The judge did not findany deficiency in the content of APCo’s safety rules; rather, the judge determined thatAPCo’s rules for the sampling operation were not effective because its employees were notproperly supervised.\u00a0 Specifically, the judge found that APCo’s supervisors wereaware that its employees \”routinely\” placed themselves in close proximity totrucks during dumping operations.\u00a0 The judge also found that APCo’s supervisorseither ignored these infractions of its rules or gave only oral reprimands when theseviolations occurred.\u00a0 The judge faulted APCo for not having implemented \”asystem of progressive discipline\” to ensure employee compliance with its safetyrules.The Secretary generally argues in support of thejudge’s findings, except that the Secretary also contends that APCo’s safety rules are notadequate because they are not sufficiently specific.\u00a0 The Secretary argues that APCoshould have prescribed an exact distance that its employees were to keep away from trucksduring dumping operations.\u00a0 APCo contends that the evidence does not establish anypractical way to define a safe clearance distance other than a general admonition thatemployees are to stay clear of or avoid trucks during dumping operations.\u00a0 APCo alsoasserts that the judge’s finding that its supervisor’s routinely permitted employees tocome within an unsafe distance to trucks is contrary to the record.\u00a0 APCo contendsthat the evidence establishes that it did not tolerate employees going too close to trucksduring dumping operations and that the Secretary failed to show any repeated violations ofits safety rules or any prior injuries from overturning trucks sufficient to give APConotice that it had not adequately implemented its safety rules.To prove a violation of section 5(a)(1) of the Act, the Secretary must show that the citedemployer failed to free its workplace of a hazard that was recognized by the citedemployer or its industry, that was causing or likely to cause death or serious physicalharm, and that could have been materially reduced or eliminated by a feasible means ofabatement.\u00a0 E.g., Pelron Corp., 86 OSAHRC ________,12 BNA OSHC 1833,1835, 1986 CCH OSHD ? 27,605, p. 35,871 (No. 82-368, 1986).\u00a0 There is no disputethat employees who come too close to trucks dumping coal at the coal pile are exposed tothe hazard of being struck by an overturning truck, a hazard likely to cause seriousphysical harm or death.\u00a0 The parties also agree that this hazard can be materiallyreduced or eliminated by measures to insure that employees will remain a safe distanceaway from trucks during dumping operations.\u00a0 The question is whether the Secretaryproved that APCo’s abatement methods were inadequate or that there was a more effectivefeasible means by which APCo could have freed its workplace of the hazard.[[4]]\u00a0 SeeCerro Metal Products Division, Marmon Group, Inc., 86 OSAHRC ___, 12 BNA OSHC1821, 1822, 1986 CCH OSHD ? 27,579, p. 35,829 (No. 78-5159, 1986).III.In determining whether APCo’s safety program wassufficient to protect its employees from exposure to the hazard, we must consider whetherAPCo has established workrules designed to prevent exposure, has properly communicatedthose rules to its employees, has taken steps to discover noncompliance with the rules,and has effectively enforced its rules in the event of noncompliance.\u00a0 InlandSteel Co., 86 OSAHRC ____, 12 BNA OSHC 1968, 1976, 1986 CCH OSHD ? 27,647, p. 36,003(No. 79-3286, 1986).\u00a0 We reject the Secretary’s contention that APCo’s safety ruleswere inadequate because APCo did not specify a particular clearance distance.As the Secretary correctly notes, general admonitionsto employees to avoid a hazard or to act in a safe manner do not afford adequateguidance.\u00a0 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).\u00a0 On the other hand, asafety rule is not inadequate merely because it requires employees to exercise a certaindegree of judgment and discretion.\u00a0 In determining whether a work rule issufficiently specific to protect employees, the nature of the hazard and the overallcircumstances of the work operation must be considered.\u00a0 In certain situations aspecific and detailed safety rule may be necessary, whereas in other situations suchdetail may be impractical, and it may be necessary to rely on employee judgment.\u00a0 SeePennsylvania Power & Light Co. v. OSHRC, 737 F.2d, 350, 357 (3d Cir. 1984); CapitalElectric Line Builders of Kansas, Inc. v. Marshall, 678 F.2d 128, 131, (10th Cir.1982).Contrary to the Secretary’s contention, APCo’s rulethat lab helpers are to avoid or keep clear of trucks during dumping operations is not amere generalized caution to employees to work safely.\u00a0 APCo’s rule directs itsemployees to avoid the area which could be struck by an elevated truck bed should thetruck overturn.\u00a0 This rule is sufficiently specific considering the fluid and dynamicnature of the work environment at the coal pile.\u00a0 Conditions at the coal pile areconstantly fluctuating as trucks move in and out.\u00a0 The extent of the hazardous areaalso continuously varies since it depends upon the height to which each trailer bed hasbeen elevated. APCo’s employees were aware of the hazard that trucks could overturn whendumping coal and understood the correlation between the height of the truck bed and thesafe area.\u00a0 There is no evidence to show that employees could not evaluate the properclearance distance for any particular dumping operation.\u00a0 In these circumstances,APCo’s reliance on its lab helpers to make a judgment as to how far to remain away fromeach truck does not impermissibly shift responsibility for compliance with the Act fromAPCo to its employees.\u00a0 See Capital Electric Line Builders, 678 F.2d at 131.In fact, APCo did not rely solely on the judgment ofits lab helpers to ascertain and avoid the hazardous area.\u00a0 It also had a specificrule prohibiting employees from taking any samples while the trailer bed waselevated.\u00a0 APCo’s employees understood that the sampling operation could not beconducted safely when the trailer was in an elevated position.\u00a0 We conclude thatAPCo’s existing rules were adequate to free APCo’s worksite of the hazard.IV.The Secretary further argues in support of thejudge’s conclusion that APCo had not been adequately enforcing its safety rules.\u00a0 TheJudge relied on Nixon’s testimony that he had been observed or even accompanied by hisforeman, Mullin, in close proximity to trucks during dumping operations without anyenforcement action being taken.\u00a0 The judge also based his conclusion on Tucker’stestimony that he had been \”permitted\” or \”allowed\” to come within anunsafe distance of trucks that were unloading coal.\u00a0 We agree with APCo that thejudge’s conclusion is not supported by the record evidence.As APCo correctly points out, the judge overlookedthe difference between the coal hopper and the coal pile.\u00a0 The judge thereforeerroneously disregarded Mullin’s unrebutted testimony that the instances described byNixon did not occur at the coal pile but rather only at the coal hopper. \u00a0Since nohazard of trucks overturning existed at the hopper, APCo had no need to insure compliancewith its rules at that location.[[5]]\u00a0 The judge also did not consider Mullin’stestimony that he was cognizant of the hazard presented when a truck overturns and wouldnot permit employees to expose themselves to that hazard.\u00a0 The record provides noreason to disbelieve this testimony.The record does not directly establish whether Tuckerwas working at the coal pile when he came within close proximity to trucks unloadingcoal.\u00a0 Even if we assume that Tucker was taking samples at the coal pile on theseoccasions rather than at the hopper, we find that the judge erred in concluding fromTucker’s testimony that APCo did not properly enforce its rules.\u00a0 Unlike Nixon,Tucker did not testify that supervisors were aware that he had approached near trucksengaged in unloading.\u00a0 Tucker simply answered in the affirmative when the Secretary’scounsel asked if he had been \”permitted\” and \”allowed\” to come overlyclose to trucks.\u00a0 This testimony does not establish that APCo’s management acquiescedin Tucker’s actions.\u00a0 Broad terms such as \”permit\” and \”allow\”may convey a variety of meanings.\u00a0 See National Realty & Construction Co. v.OSHRC, 489 F.2d 1257, 1263-64 & nn. 26-27 (D.C. Cir. 1973).[[6]]\u00a0 The onlyspecific evidence of the attitude of APCo’s supervisors is that APCo did not condoneviolations of its clearance or other safety requirements.The judge made no specific finding on whether APCotook adequate measures to detect violations of its safety rules.\u00a0 The evidence isthat foreman Mullin was at the coal pile some but not all of the time and that Mullin didobserve the lab helpers when he was in that area.\u00a0 Neither Nixon nor Tucker statedhow frequently they may have come within close proximity to trucks whereas Mullintestified that employees did so only \”occasionally.\”In evaluating the adequacy of an employer’s efforts to implement a safety program, theCommission must consider all the circumstances of the employer’s work environment,including the degree of compliance with its safety rules.\u00a0 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).\u00a0The Secretary has presented no evidence from which we could conclude that APCo’smeasures to monitor employee compliance were inadequate or that additional efforts wouldhave been more effective. Compare Jones & Laughlin, 10 BNA OSHC at 1780,1982 CCH OSHD at p. 32,885 (safety program adequate even where violations occurred 10percent of the time), with K-Mart, 82 OSAHRC 49\/A2, 10 BNA OSHC 2202, 2203,2205, 1982 CCH OSHD ? 26,333, pp. 33,343, 33,345 (No. 77-270, 1982) (monitoring effortsinadequate where violations occurred daily for two months preceding an accident). \u00a0For the same reason, we disagree with the judge’s conclusion that APCo should have imposeda \”progressive\” disciplinary system prior to the accident.\u00a0 APCo was notaware of any repeated violations of its safety rules.\u00a0 Absent evidence thatviolations occurred with greater regularity than is shown here, an employer would have noreason to impose discipline on an employee beyond an initial oral warning.V.Although the Secretary primarily argues that APCo’ssafety rules and their enforcement were inadequate to protect employees, he also contendsin his review brief that, under the procedures followed before the accident, work rulesalone could not have adequately prevented employees from being too close to dumpingtrucks.\u00a0 In the Secretary’s view, lab helpers could not maintain a safe clearancedistance when a large number of trucks were dumping coal at one time.He contends that it was only after the accident that APCo gave the lab helpers controlover the number of trucks at the pile.\u00a0 Thus, the Secretary argues that APCo had nottaken sufficient feasible measures to free its worksite of the hazard because at the timeof the accident APCo had not authorized the lab helpers to control the activity at thepile.We reject the Secretary’s argument that placing thetrucks under the control of the lab helpers is a feasible means of reducing the hazardbecause the issue was not raised in the pleadings nor was it tried by the consent of theparties.\u00a0 McWilliams Forge Co., 84 OSAHRC 36\/C12, 11 BNA OSHC 2128, 1984-85CCH OSHD ? 26,979 (No. 80-5868, 1984).\u00a0 The Secretary’s citation and complaint didnot allege that giving the lab helpers control over the activity at the pile was a meansof abatement, and the parties did not try it by consent because they did not squarelyrecognize it as an issue at the hearing.\u00a0 The Secretary’s compliance officer, whoinvestigated the accident and offered the opinion that a feasible means of abatement wasfor APCo to improve its safety program, did not mention control of the trucks.\u00a0 Thetwo lab helpers called as witnesses by the Secretary, Nixon and Tucker, were notquestioned about control on direct examination.\u00a0 Nor did the Secretary pursue thepoint when Nixon briefly mentioned it on cross-examination and on examination by thejudge.\u00a0 The only other witness who testified as to control was Laye, and he did so inresponding to questions by the judge, not the parties.\u00a0 Laye simply remarked in acursory fashion that lab helpers had \”always\” had control.\u00a0 Finally,neither party mentioned the issue in argument at the hearing or in their post-hearingbriefs; the point was first raised by the Secretary in his brief on review.\u00a0 Themeagerness of the record that was developed on the matter of control and the lack ofargument on the point demonstrates that the parties did not squarely recognize it to be inissue as a feasible abatement method.\u00a0 See McWilliams Forge, 11 BNA OSHC at2129-30, 1984-85 CCH OSHD at pp. 34,669-70.\u00a0 As the D.C. Circuit stated in anothercase arising under section 5(a)(1), the Secretary’s theory of what the employer shouldhave done to avoid citation must be developed at the hearing, not after it.\u00a0 NationalRealty, 489 F.2d at 1267-68 & nn. 40-41.\u00a0 It clearly would be unfair for usto find APCo in violation for failing to institute an abatement method that was not raisednor litigated below.\u00a0 Id. at 1267.In any event, even if we were to address the meritsof the Secretary’s argument, the evidence of record does not establish that the labhelpers could not control the number of trucks at the pile before the accident.\u00a0Nixon’s testimony, even if viewed in the manner most favorable to the Secretary, isat best ambiguous as to whether the lab helpers had such control before the accident.\u00a0 Although at one point Nixon stated they did not, other testimony he gave suggeststhey did. [[7]]\u00a0 Moreover, when Nixon was first asked on direct examination to statethe changes that had been made at the pile after the accident, he did not mention anythingabout the lab helpers being able to control the trucks after the accident but not before.Nixon’s failure to mention control over the number of trucks dumping when specificallyasked to describe any changes APCo had made indicates that he did not regard the degree ofactivity at the coal pile as a significant factor prior to the accident.\u00a0 On theother hand, Laye testified that the lab helpers could control the trucks both before andafter the accident.\u00a0 The preponderance of the evidence of record does not establishthat the lab helpers did not have control over the trucks before the accident occurred.Our conclusion that APCo took the necessary steps tofree its workplace of the hazard is supported by the fact that despite the rate at whichtruck coal is delivered (400 to 500 truck loads each day), APCo had experienced noinjuries front overturning trucks during at least a 24-year period prior to thefatality.\u00a0 The Secretary presented no evidence from which we can conclude that APCoshould have more effectively protected its employees from the hazard.Accordingly, the judge’s decision is reversed and thecitation vacated. FOR THE COMMISSIONRAY H. DARLING, JR.Executive SecretaryDATED:\u00a0 APR 17 1987SECRETARY 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. Department of Labor, Birmingham, Alabama, on behalf of complainantJohn Richard Carrigan, Esquire, Birmingham, Alabama,on behalf of respondentMr. Jeff Blanton, International Brotherhood ofElectrical Workers, Birmingham, Alabama, on behalf of employee representativeDECISION AND ORDERSALYERS, Judge:\u00a0 The respondent, Alabama PowerCompany, is a public utility engaged in the generation and distribution ofelectricity.\u00a0 On February 7, 1984, one of its employees, Arlene Mallory, was crushedto death when a coal truck overturned while dumping coal at respondent’s Gorgas SteamPlant located in Walker County, Alabama.\u00a0 As a result of this accident, theOccupational Safety and Health Administration conducted an inspection of respondent’soperations and charged respondent with a serious violation of the Occupational Safety andHealth Act. (29 U.S.C. ? 651, et seq.).\u00a0 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 HealthAct of 1970:\u00a0 The employer did not furnish employment and a place of employment whichwere free from recognized hazards that were causing or likely to cause death or seriousphysical harm to employees in that employees were exposed to:(a) On February 16, [[1\/]] at 2:30 pm, laboratoryhelpers were exposed to being struck by or crushed by large coal trucks which were backingand dumping coal.\u00a0 These trucks are subject to overturning.\u00a0 Among othermethods, one feasible and acceptable method to correct the hazard is to establish andenforce a safe job procedure such as sampling the coal after the truck has dumped thecoal, lowered the trailer bed and pulled away from the dump area to prevent employees fromever being in the near proximity 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 citationcharges respondent violated the Act’s general duty clause by exposing employees to arecognized hazard (being crushed by an overturning truck).\u00a0 The Secretary urged thishazard could and should have been obviated by instructing employees concerning the hazardand implementing a program to prevent employee exposure.\u00a0 Respondent counters thatemployees were made aware of the hazard through respondent’s safety program and wereinstructed and advised to stay clear of trucks while coal was being dumped. \u00a0Respondent also asserts the action of employee, Arlene Mallory, on the day of the accidentwas an isolated incident of employee misconduct for which respondent should not be heldaccountable.Both parties agree it is well known in the coalhandling industry that coal trucks when in the process of dumping become unstable andsubject to overturning.\u00a0 This hazard is emphasized in respondent’s safety manual (Ex.C-2, page 119) and in the operator manual published by the truck manufacturer (Ex. C-1,page 26).\u00a0 The serious consequences which flow from exposing employees to thisrecognized hazard are all too well demonstrated by the tragic turn of events whichoccurred at respondent’s facility on February 7, 1984.On the day of the accident, the deceased employee wasengaged in duties as a \”laboratory helper.\”\u00a0 One of these duties requiredthe employee to take a sample of coal from loads dumped at respondent’s yard by trucksdriven by independent contractors.\u00a0 The samples were obtained at the time eachdelivery was made by removing a shovelful of coal at random from the pile formed as eachload was dumped.\u00a0 This sample was placed in a receptacle identified with the vendor’sname and was subsequently analyzed in the laboratory to assure proper quality control andfor other purposes.\u00a0 The helper also signed a delivery ticket presented by eachdriver at the time the coal was dumped.\u00a0 Activity at the coal yard was maintained ata high level since four to five hundred loads of coal were received daily (Tr. 58), andeach delivery required the sampling procedure as just described.The Secretary recognizes that respondent has a\”well developed safety program encompassing many areas\” but argues that thesampling procedure performed by the lab helpers \”was not regulated at the time of thefatality\” nor when the procedure was observed by the Secretary’s compliance officerduring the inspection conducted on the day following the accident (Secretary’s Brief, page2).\u00a0 In support of this charge, the Secretary cites the testimony of two lab helperswho indicate before the accident they were allowed or permitted by supervisors to be inclose proximity to coal trucks engaged in dumping operations and were not restricted frombeing near the sides of trailer beds as they were raised or lowered (Tr. 107-108,121-122).The record also discloses that, on the day followingthe accident, the Secretary’s compliance officer observed and photographed this procedureduring the course of her inspection (Ex. C-3; Tr. 34-35).\u00a0 The Secretary arguesfurther that respondent took no disciplinary action to deter employees from the practiceeven though the practice was observed by respondent’s supervisory personnel.Respondent contends employees were exposed to ahazard only when they were in an area immediately adjacent to a truck while dumping was inprogress and that employees were \”trained and repeatedly advised to stay clear ofdumping trucks\” (Respondent’s Brief, page 5).\u00a0 To support this assertion,respondent refers to its safety manual and to respondent’s Exhibit 1 which indicatesArlene Mallory was warned during her indoctrination to \”watch trucks on coalpiles.\”\u00a0 Reference is also made to respondent’s Exhibit 2, which is a summary ofa safety meeting conducted 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.\”\u00a0 Respondent also argues theevidence fails to show the deceased had engaged in the hazardous practice prior to theaccident or that respondent knew or should have known the deceased or other employees werestanding in close proximity to dumping trucks.The question posed for resolution is whether theevidence reflects the respondent in this case acted in a responsible manner or that itacted or failed to act in such a fashion as to constitute a culpable disregard for itsemployees’ safety.The Act does not impose strict liability upon anemployer.\u00a0 National Realty 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).\u00a0 The imposed duty relates only to those hazards which are foreseeable and canbe prevented through the employer’s exercise of reasonable diligence.\u00a0 Id.\u00a0 As these cases make clear, an employer cannot anticipate or reasonably foreseereckless acts of employees which may occur despite well conceived and vigorously enforcedsafety programs.\u00a0 On the other hand, an employer cannot use an ineffective safetyprogram as a shield to circumvent its clear-cut duty to furnish employees with adanger-free work environment.\u00a0 Brennan v. Butler Lime and Cement Co.,520 F.2d 1011 (7th Cir. 1975).In the instant case, respondent had a safety programconsisting of written rules which were called to the attention of employees at periodicsafety meetings.\u00a0 The Secretary concedes the safety program worked in many areas butwas virtually ignored with respect to the work practices of the lab helpers. \u00a0 Thetestimony of witnesses appearing on behalf of both parties support the conclusion thatminimal supervision was provided at the dumping sites to oversee the work practices of labhelpers and that these employees, in performing their duties, routinely placed themselvesin close proximity to dumping trucks (Tr. 107, 121-122, 125-126, 129-131, 152, 154-155,163-164, 169-170).\u00a0 The evidence also supports a conclusion that the practice, whenobserved by supervisors, was either ignored or was met with oral reprimands but withoutthe implementation of a system of progressive discipline to deter future acts oftransgression.The Secretary relied heavily on the testimony ofCompliance Officer Starika to establish the basic elements of the Secretary’s case.Starika inspected respondent’s premises on the day following the accident, observed labhelpers performing their duties, and concluded these employees were exposed to the hazardof overturning trucks.\u00a0 While her testimony was of some value to the Secretary’scase, it was largely hearsay and was not conclusive of the ultimate issue; i.e., anongoing, hazardous practice which continued unabated despite actual or constructiveknowledge by respondent’s management employees.\u00a0 The Secretary called two witnesseswho were engaged as lab helpers before and after the accident who gave clear andconvincing testimony concerning the practice.\u00a0 Richard Tucker worked with thedeceased on the day of the accident and described the procedure:A.\u00a0 Well, when a truck would pull in, at thattime we would go up to its door.\u00a0 They’d always stick their tickets out on the door.That way you would have something to write on.\u00a0 We’d put our initials on it. \u00a0We would read the numbers on the tickets, make sure it’s at the right location,everything, sign it and let the man dump and just get the sample.Q.\u00a0 Were you permitted to sample before the bed of the truck–while it was eithergoing up or while it was coming down? A.\u00a0 Yes, ma’am.Q.\u00a0 Were you allowed to walk by the truck whileit was being moved up or down?A.\u00a0 Yes, ma’am.Fred Nixon, employed as a lab helper for over sixyears, confirmed the long-standing practice and verified knowledge of the practice bysupervisory employees:Q.\u00a0 Did Management ever come down on you forbeing too close to trucks?A.\u00a0 No, ma’am.Q.\u00a0 Are you aware of either yourself or anybodyelse being progressively disciplined for being too close to dumping trucks?A.\u00a0 No, ma’am.Q.\u00a0 Have you ever been close to the truck, priorto the accident–Prior to the accident or the day after, February 7th or 8th, have youyourself even been close to a truck when the bed was going up?A.\u00a0 Yes, ma’am.Q.\u00a0 Have you walked beside it? A.\u00a0 Yes, ma’am.Q.\u00a0 Has any Management Official ever walkedbeside it with you or –A.\u00a0 Yes, ma’am.Q.\u00a0 — or that you’ve observed?A.\u00a0 Yes, ma’am.Q.\u00a0 Can you name some of the ones that you’veobserved or walked with?A.\u00a0 Mr. Mullin.\u00a0 There’s another man that was in our department.\u00a0 He’s notthere now.\u00a0 That was a Mr. Hudson who used to be Lab Foreman.\u00a0 Most all the LabForemen back prior to the accident, if they were on the pile talking to us and we weredoing our sampling, they were either with us, beside our truck or around the truck.Q.\u00a0 Are the Management people aware that trucksturn over? A.\u00a0 Yes, ma’am.Q.\u00a0 Since the time of Ms. Mallory’s death, hasthe sampling procedure changed?A.\u00a0 Yes, ma’am.Q.\u00a0 What are the differences before and afterthe accident?A.\u00a0 Well, before there were no stipulations setabout how close to get to the truck or walking beside it.\u00a0 And after the accidentthey have come up and now they want to take disciplinary action if a person is caughtsigning a ticket before the bed goes down, walking around it.\u00a0 You’re not supposed toclimb up on the cab or the bed and talk to the truck driver.\u00a0 Several differentthings have changed.The testimony of these two witnesses was notcontroverted by other evidence and fully supports a conclusion that the practicecomplained of by the Secretary was an everyday occurrence which, if not condoned byrespondent’s supervisory personnel, was ignored.\u00a0 Respondent’s failure to deal withthis problem in a positive fashion constituted a failure to meet obligations imposed uponrespondent by the Act.In summary, the Secretary has establishedrespondent’s breach of the Act’s general duty clause by a preponderance of the evidence,and respondent has failed to establish a defense of unpreventable employee misconduct.\u00a0 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 and Cement Co., supra.FINDINGS OF FACT1.\u00a0 The respondent, Alabama Power Company, is apublic utility engaged in the generation and distribution of electricity.\u00a0 OnFebruary 7, 1984, one of its employees, a laboratory helper, was fatally injured when acoal truck overturned while dumping coal at respondent’s Gorgas Steam Plant located inWalker County, Alabama.\u00a0 This accident precipitated an inspection of respondent’soperations by the Occupational Safety and Health Administration which resulted in a chargethat respondent had seriously violated the provisions of the Occupational Safety andHealth Act (29 U.S.C. ? 651, et seq.).2.\u00a0 During the period preceding the accident,respondent engaged a number of employees as laboratory helpers whose principal duty was tosample coal as it was delivered to respondent’s coal yard by independent truckers.\u00a0In performing the sampling procedures, these employees were allowed and permitted byrespondent to come in close proximity to trucks which were engaged in the dumpingprocess.\u00a0 This practice was an everyday occurrence and was ignored by respondent’ssupervisory personnel.3.\u00a0 It is well known and recognized in the coalhandling industry that coal trucks when in the dumping process become unstable and subjectto overturning.\u00a0 Employees working in close proximity to trucks engaged in thedumping process are exposed to a hazard which may result in death or serious bodilyinjury.4.\u00a0 Respondent has a safety program consistingof written rules and periodic safety meetings.\u00a0 In general, this program is effectiveas it relates to most areas of respondent’s operations.\u00a0 However, the practiceengaged in by the laboratory helpers was not effectively abated by respondent’s safetyprogram as it operated on and prior to the date of the accident.5.\u00a0 The penalty proposed by the Secretary in theamount of $640.00 is reasonable under the circumstances of this case.CONCLUSIONS OF LAW1.\u00a0 Respondent is engaged in an industryaffecting commerce and is subject to the jurisdiction of the Occupational Safety andHealth Review Commission.2.\u00a0 Respondent has seriously violated section5(a)(1) of the Occupational Safety and Health Act through its failure to furnishemployment and a place of employment which were free from recognized hazards.3.\u00a0 Respondent has not sustained its burden ofproof that the practice complained of was an isolated incident of employee misconduct.\u00a0 ORDERIt is hereby ORDERED:1.\u00a0 Serious Citation No. 1 is hereby affirmed.2.\u00a0 A civil penalty in the amount of $640.00 ishereby assessed.EDWIN G. SALYERSJudgeDate:\u00a0 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 of employment which arefree from recognized hazards that are causing or are likely to cause death or seriousphysical harm to his employees.[[2]] The Secretary contends that this rule was notin effect at the time of the fatality.\u00a0 The testimony is to the contrary. \u00a0 TheSecretary’s brief confuses this rule with another rule, which was not instituted untilafter the inspection, requiring that a lab helper not take the truck driver’s deliveryticket until after the load is dumped.[[3]] According to Mullin, the truck would havefallen over onto Bruner because it was \”up on a bank\” above where Bruner wasstanding.\u00a0 Shortly after Mullin directed Bruner to move away, the truck overturned.[[4]] There is some disagreement between theSecretary and APCo as to precisely how the hazard at issue should be described for thepurpose of satisfying the requirement of section 5(a)(1) that the hazard be\”recognized.\”\u00a0 APCo concedes that it was aware that employees would beexposed to a hazard if they came excessively close to trucks dumping coal.\u00a0 Itcontends that the recognized hazard must be defined as employees approaching within anunsafe distance of trucks during dumping operations.\u00a0 The Secretary argues in supportof a broader definition of the recognized hazard as simply the hazard that trucks couldover-turn.\u00a0 However, in his trial and argument of the case the Secretary implicitlyaccepted APCo’s definition.\u00a0 He did not argue that APCo could prevent trucks fromoverturning, but that it should have taken further measures to prevent employees fromapproaching too close to trucks during dumping operations.In any event, since we find that the safety measuresthe Secretary contends APCo should have taken either were in effect at the time of thealleged violation or were not necessary in the circumstances, the citation is properlyvacated for failure of proof regardless of how the recognized hazard at issue isdefined.\u00a0 See Inland Steel Co., 86 OSAHRC, 12 BNA OSHC 1968, 1971, 1986 CCHOSHD ? 27,647 p. 35,997 (No. 79-3286, 1986).[[5]] Nixon testified that another foreman, Hudson,had also observed him in close proximity to trucks during dumping operations withoutenforcing APCo’s rules.\u00a0 We note, as does the Secretary, that unlike the instancesinvolving foreman Mullin, Nixon specifically stated that he had been working at the coalpile when observed by Hudson.\u00a0 However, Hudson was not a lab foreman and was notworking in the lab department at the time of the accident.\u00a0 Nixon, who had been a labhelper for 6 1\/2 years, did not specify when the observations by Hudson occurred butindicated that they could have taken place any time within the preceding five years.\u00a0 Because Hudson’s actions are remote in time and he was not a supervisor at the timeof the accident, we do not find his conduct to be convincing evidence of APCo’senforcement practices at the time the alleged violation occurred.[[6]] Since counsel did not ask any follow-upquestions to clarify Tucker’s testimony, we cannot determine what meaning the Secretary’scounsel intended to convey or how Tucker may have interpreted counsel’s inquiry.[[7]] For instance, Nixon also testified that thetrucks are weighed before they dump and that, before the accident, the lab helper wouldtell the employee at the scale how many trucks can be handled at the pile. \u00a0 Nixonconcluded his testimony on this point by saying that before the accident, control over thenumber of trucks dumping depended \”on who was up on the pile.\”[[1\/]] The date used in the original citation was a clerical error.\u00a0 The inspectionwas conducted on February 8, 1984, the day following the accident.\u00a0 Althoughrespondent objected to the Secretary’s motion to amend, no showing was made thatrespondent was prejudiced by the motion, and the motion was granted (Tr. 9) subject torenewal upon a showing of surprise.\u00a0 No renewal objection was made by respondent.”