“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-2777 ARMSTRONG CORK COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0February 29, 1980DECISIONBEFORE, CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? The issuein this case is whether Armstrong Cork Company (?Armstrong?) violated thegeneral duty clause, section 5(a)(1) of the Act,[1] by failing to protect itsemployees from the hazard of being crushed by the operation of certainpapermaking machinery. Judge Abraham Gold concluded that Armstrong violatedsection 5(a)(1) as alleged and assessed a $400 penalty.[2] We affirm his decision.I.??????????? Armstrongoperates a plant in Fulton, New York, for the production of ?hydrocord,? a typeof heavy paper used as backing for vinyl flooring. The plant contains a ?No. 1paper machine,? installed in 1971 or 1972, which winds large rolls of finishedpaper onto reels, cuts them into smaller rolls of various widths, and rewindsthe smaller rolls. Finished rolls, which weigh about 5,000 pounds, are loweredfrom the rewinder to the floor by use of a large, heavy metal ?tilt table.? Thetilt table is located adjacent to the rewinder and is hydraulically powered.When the tilt table is in the ?up? position, one edge is flush against therewinder and the table top is horizontal, except for the edge away from therewinder, which is curved. To lower a roll of paper, the roll first is movedfrom the rewinder onto the table. Then the table is lowered, moving away fromthe rewinder and tilting by pivoting on its base as the paper rolls to thefloor. When the table is in the lowered position, the curved edge touches the groundthe there is a space of several feet between the rewinder and the edge of thetable closest to the rewinder. Employees stand in this space while performingvarious tasks at the rewinder, such as starting a roll of paper or splicing abreak in the paper. In the course of a normal shift, employees operating thepaper machine must stand in this location 15 to 30 times.??????????? Priorto December 1975 or January 1976, the tilt table was operated by athree-position ?maintain? switch, which was located on a console four or fivefeet away from the machine. When the switch was straight up, it was in theneutral position; when it was turned to the right the table would rise; when itwas turned to the left the table would lower. Employees often placed the switchin the ?raise? position before the rewinder completed its cycle; this was moreconvenient for them, as they could then attend to other tasks as the rewindercompleted winding a roll. Even with the switch in the ?raise? position, thetable would not rise until a safety gate in front of the rewinder was lowered.Thus, after the rewinder completed its operation, an employee would lower thegate, and the table, whose switch was already in the ?raise? position, wouldrise. The lever controlling the safety gate was located at the right end of therewinder.??????????? Asthe result of a safety suggestion submitted by an employee at the prompting ofsupervisor Donald Powers, the switch was replaced by a spring-loadedthree-position switch in December 1975 or January 1976. The new switch wassimilar to the old one, except it had to be continuously held in the raise orlower position in order for the table to move; the moment the new switch wasreleased, it would spring back to the neutral position. However, the new switchbroke and had to be repaired several times shortly after it was installed. Itthen broke again in February or March 1976 and was not repaired until May 18,1976. When the spring-loaded switch was broken, it operated just like the oneit had replaced; i.e., it remained in whatever position it was placed ratherthan springing back to the neutral position.??????????? Earlyin the morning of May 18, 1976, Joseph Castiglia, who was working on the nightshift as their hand on the No. 1 paper machine, went to the side of therewinder opposite the tilt table to splice a break in the roll of paper. As hewas facing the rewinder, the tilt table was activated and began to rise behindhim. He was crushed between the rising table and the side of the rewinder. Hedied as a result. After the accident the switch which controls the tilt tablewas found in the ?raise? position.??????????? AnOSHA compliance officer inspected the accident scene on the same day, as aresult of Armstrong?s prompt reporting of the fatality. Armstrong thereafterreceived a citation and a proposed penalty of $600. The citation stated:The employer failed to provide employmentand a place of employment free from recognized hazards, in that aconstant-pressure three-position switch, mounted in a console by the No. 1paper machine, located in Bldg. No. 2, and designed to function as a safetydevice for the lowering and raising of an elevating table, which, when in theraised position, is at the same level, and makes contact with the discharge endof the rewinder, was defective, thereby exposing an employee, when required tobe in the danger zone, to death or serious physical harm, should the tablemechanism become activated.???????????? Armstrong?ssupervisory personnel testified that they had no knowledge that the switch wasbroker until the accident occurred. Armstrong employees are required to reportbroken or defective equipment to their supervisors. None of them reported thebroken switch, however, either because they assumed that management alreadyknew about it, they did not consider it to be broken, or they preferred usingit in its broken condition.??????????? Supervisorsobserved the No. 1 paper machine operations four to eight times a shift andmore often if the machine was not operating properly. According to employeeswho operated the machine, supervisors routinely observed its operations attimes when the tilt table was rising and no one was at the console to hold downthe switch which activated the table. However, two employees, when questioned,could cite no specific instance of this particular phase of the operation beingobserved. Also, department supervisor Donald Powers testified that he had notnoticed employees being away from the console while the tilt table was rising.He thought that the spring-loaded switch had broken once or twice following itsinstallation, but could not remember ever inspecting the switch thereafter tosee if it was still functioning properly.??????????? Followingthe accident, Armstrong repaired the broken switch so that it had to be helddown in order for the tilt table to move. Also, a buzzer was installed on thetable which buzzed continually when the table was rising to warn anyonestanding at the rewinder with his back to the table.II.??????????? Onthe basis of these facts, Administrative Law Judge Abraham Gold upheld thegeneral duty clause citation and assessed a penalty of $400. He found thatArmstrong recognized that a single-action switch on the paper machineconstituted a hazard, as evidenced by Armstrong?s decision, prompted by asafety suggestion, to replace that switch with a spring-loaded one. He alsofound there was no proof that Armstrong?s supervisors had actual knowledge ofits employees? practice of turning the switch to the ?raise? position andleaving it unattended. He noted, however, that supervisors observed theseemployees fairly often. He also found that Armstrong?s own safety inspectionsand the failure of its employees to comply with Armstrong?s rules requiringthem to notify management of a hazard did not suffice to show that Armstrongtook all reasonable precautions to protect its employees. The judge further foundthat Armstrong?s supervisors knew that the spring loaded switch had notfunctioned on previous occasions and, therefore, should have been on notice tocheck the switch themselves. Additionally, the judge found that the hazard waslikely to cause death or serious physical harm to an employee. The judge alsoruled that Armstrong had abated the hazard by repairing the switch andinstalling a buzzer which sounded when the tilt table was rising. Finally, thejudge rejected Armstrong?s contention that the general duty clause wasinapplicable because Armstrong was covered by the pulp and paper manufacturingstandards set forth in 29 C.F.R. ?\u00a01910.261.III.??????????? Armstrongargues for reversal of the judge?s decision on two grounds. First, it arguesthat section 5(a)(1) is not an appropriate basis for the citation because 29C.F.R. ?? 1910.261(k)(22) and (24) and ?? 1910.261(1)(9) and (10) apply to thecited condition. Section 1910.261 concerns pulp, paper, and paperboard mills.The specific provisions cited by Armstrong are as follows:? ? 1910.261 Pulp, paper, and paperboardmills.?(k) Machine room(22) Control panels. Floor stand panelsshould be protected from being hit by moving equipment. All control panelhandles and buttons shall be protected from accidental contact.?(24) Lifting reels. (i) The reels shallstop rotating before being lifted from bearings.(ii) All lifting equipment (clamps,cables, and slings) shall be maintained in a safe condition and inspectedregularly.?(iii) Reel shafts with square block endsshall be guarded.?(1) Finishing room(9) Finishing room rewinders.(iii) Mechanical lifting devices shall beprovided for placing and removing rolls from the machine.?(10) Control panels. The requirements ofparagraph (k)(22) of this section shall apply.???????????? Second,Armstrong argues that the hazard was not reasonably foreseeable and that ittook reasonable precautionary steps under the circumstances to protect itsemployees. Armstrong contends that to have foreseen the hazard, it would havehad to foresee the following sequence of events: 1. The spring-loaded switchwould break; 2. Armstrong?s inspection program of the plant would not detectthe broke switch; 3. The machine employees would not report the broken switchto management, contrary to a company rule; and 4. An employee would activatethe table and then place himself between the table and the rewinder. Armstrongcontends that it is not reasonably foreseeable that all four of thesecontingencies would occur. Additionally, the fact that the switch broke severaltimes within a month after it was installed did not make its latermalfunctioning reasonably foreseeable because ?it is not uncommon to havetrouble with newly installed equipment as the ?bugs are ironed out.? Further,after the switch was fixed, it functioned properly from January throughmid-April, Armstrong asserts. Moreover, the fact that Armstong installed asafety switch should not decide the foreseeability issue, since that wouldpenalize employers who take safety precautions and reward those who do not.??????????? Armstrongfurther argues that it took reasonable precautions to protect its employees byinstalling the spring-loaded switch, inspecting the switch after installation,maintaining a program of overlapping plant inspections and requiring employeesto report unsafe conditions. Armstrong also points to testimony that it tookonly three seconds for the tilt table to rise, so that the fact that the switchwas broken would be noticeable to a supervisor only if he noticed that during thethree seconds the table was rising no employee was standing at the switchconsole. Armstrong suggests that when supervisors were present, employees stoodby the console as the table was rising to conceal the fact that the switch wasbroken. Armstrong blames its lack of knowledge of the broken switch on itsemployees? failure to report the switch and characterizes this failure asunpreventable employee misconduct.IV.??????????? TheCommission has held that an applicable standard preempts application of thegeneral duty clause. Isseks Brothers, Inc., 76 OSAHRC 8\/B9, 3 BNA OSHC1964, 1975?76 CCH OSHD ? 20,361 (No. 6415, 1976); Sun Shipbuilding andDrydock Co., 73 OSAHRC 44\/A9, 1 BNA OSHC 1381, 1973?74 CCH OSHD ?16, 725(No. 161, 1973). In order for a specific standard to preempt the general dutyclause, however, the standard must be addressed to the particular hazard forwhich the employer has been cited under the general duty clause. UnitedStates Pipe and Foundry Co., 78 OSAHRC 8\/D6, 6 BNA OSHC 1332, 1978 CCH OSHD? 22, 514 (No. 11739, 1978). The standards which Armstrong asserts areapplicable do not address the hazards created by the possibility of the tilttable rising while an employee is positioned between the table and therewinder. Sections 1910.261(k)(22) and (1)(10) address the hazard of accidentalcontact with control panels. Section 1910.261(k)(24) concerns lifting reels andequipment such as slings, not lowering equipment such as tilt tables. Section1910.261(1)(9)(iii) similarly concerns mechanical lifting devices. None ofthese standards purport to address defective switches or the hazard ofemployees becoming pinned or crushed by a tilt table or similar machinery.Thus, they do not render the application of the general duty clauseinappropriate under the circumstances.V.??????????? Inorder to establish a violation of the general duty clause, the Secretary mustshow that an employer failed to render its workplace free from a hazard that isrecognized and that is causing or likely to cause death or serious physicalharm to his employees. The Secretary also must show the feasibility and likelyutility of a means to eliminate or materially reduce the alleged hazard. WhirlpoolCorp., 79 OSAHRC 32\/A14, 7 BNA OSHC 1356, 1979 CCH OSHD ? 23,552 (No. 9224,1979), appeal filed, No. 79?1692 (D.C. Cir. July 3, 1979). NationalRealty and Construction Co., v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).??????????? Here,the hazard was the possibility that the tilt table would rise and crush anemployee working between it and the rewinder. Armstrong itself recognized thehazard,[3] as evidenced by itsefforts to reduce the hazard by installation of a spring-loaded switch inresponse to an employee?s safety suggestion.[4] Owens-Corning FiberglasCorp., 79 OSAHRC 26\/D6, 7 BNA OSHC 1291, 1979 CCH OSHD ?23,509 (No.76?4990, 1979), appeal filed, No. 79?2516 (5th Cir. June 26, 1979).Moreover, there is no dispute that the result of an accident would likely bedeath or serious harm.??????????? Therecord also demonstrates a feasible method of abatement, since a properlyfunctioning spring-loaded switch would have materially reduced the hazard byrequiring the employee?s presence at the console while the tilt table wasrising.[5] Armstrong argues, however,that it had installed a switch and had taken all reasonable precautions toguard against inadvertent operation of the tilt table.??????????? Whena workplace contains a recognized hazard that is likely to cause death orserious harm, and employer?s duty under the Act is to take all feasible stepsto eliminate or materially reduce the hazard. General Dynamics Corp., QuincyShipbuilding Division v. OSHRC, 599 F.2d 453 (1st Cir. 1979); Beaird-Poulan,A Division of Emerson Electric Co., 79 OSAHRC 21\/D11, 7 BNA OSHC 1225, 1979CCH OSHD ?23,493 (No. 12600, 1979). Here, Armstrong attempted to eliminate thehazard by installing a spring-loaded switch. However, installation of safetyequipment is not itself sufficient to fulfill an employer?s duty under the Actto take all feasible steps to eliminate the hazard from its workplace. Suchsteps include exercising reasonable diligence to assure that defects ormalfunctions in safety equipment are expeditiously detected and corrected.??????????? DespiteArmstrong?s early problems with the spring-loaded switch, which demonstratedthat the switch was prone to break and operate like the unsafe ?maintain?switch it had replaced, the company did not periodically inspect the switch tosee if it was working properly. Instead, Armstrong chose to view themalfunctioning of the switch as a temporary ?break-in? problem that had beenresolved. Thus, Armstrong failed to discover the fact that the switch wasbroken during the period of at least one month prior to the accident.??????????? Underthe circumstances, Armstrong failed to exercise reasonable diligence. Whereelimination of a hazard depends on the proper operation of safety equipment,the employer must periodically inspect such equipment to assure its continuedeffectiveness. The required frequency of such inspections will depend on avariety of factors, but one important consideration is any known tendency ofthe equipment to malfunction. Here, Armstrong knew that the spring-loadedswitch had broken on prior occasions, and its failure to inspect the switch inthe month prior to the accident demonstrates a lack of reasonable diligence toassure that the method it had installed to eliminate the hazard caused by therising tilt table remained effective. Moreover, Armstrong?s supervisorsobserved the operation of the tilt table several times each shift. If they hadexercised reasonable diligence, they would have noticed that the table wasrising with no one holding down the switch, and would have realized that theswitch was broken. See Combustion Engineering, Inc., 77 OSAHRC 182\/A2, 5BNA OSHC 1943, 1977?78 CCH OSHD ? 22,241 (No. 76?2210, 1977) (constructiveknowledge found because violative condition existed for days and numerousemployees engaged in conduct evincing violative condition.)??????????? Armstrongasserts that it would have known the switch was broken if its hourly employeesreported the malfunction, as they were supposed to do. The duty to comply withsection 5(a)(1), however, rests with the employer. An employer cannot shiftthis responsibility to its employees by relying on them to, in effect,determine whether the conditions under which they are working are unsafe. J.H. Mackay Electric Co., 78 OSAHRC 77\/B10, 6 BNA OSHC 1947, 1978 CCH OSHD ? 23,026(No. 16110, 1978); Alder Electric Co., 77 OSAHRC 49\/C8, 5 BNA OSHC 1303,1977?78 CCH OSHD ? 21,748 (No. 13573, 1977). Armstrong could not fulfill itsduty to render its workplace free of the hazard by relying on its employees toreport that the switch was broken.[6]??????????? Armstrong?scontention that it should not be found in violation of section 5(a)(1) becauseit could not foresee the precise sequence of events that led to the fatalinjury is without merit. Although reasonable foreseeability is properlyconsidered in a section 5(a)(1) violation, this inquiry does not extend towhether the employer could have foreseen the exact sequence of events leadingto the occurrence of injury or death. Rather, a section 5(a)(1) violation mustbe predicated on the reasonably foreseeable occurrence of an accident, theprobable result of which is death or serious physical injury. Here, Armstrong foresawthe possibility that the tilt table could crush an employee between it and therewinder since it installed the spring-loaded switch in an effort to preventthe fatal injury from occurring. Moreover, Armstrong could have foreseen thatthe switch would break because the switch had broken in the past. Therefore byfailing to exercise reasonable diligence to assure the continuing effectivenessof its abatement method, the spring-loaded switch, Armstrong failed to renderits workplace free of the hazard.??????????? Accordingly,we conclude that Armstrong violated section 5(a)(1) as alleged. We also affirmthe $400 penalty assessed by the judge for the reasons he assigned.?The Judge?s decision is affirmed.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: FEB 29, 1980?CLEARY, Chairman, concurring:??????????? Whilemy colleagues reach the correct result in this case, I disassociate myself fromthe majority opinion to the extent it attempts, albeit in dictum, to qualifythe recognized hazard element of a section 5(a)(1) violation by use of the term?reasonably forseeable.?\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-2777 ARMSTRONG CORK COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 April 27, 1977APPEARANCES:Helen Huyler, Atty, For Complainant\u00a0A. Earl Mays, Esq., and Jon Tryon, Esq.,For Respondent?DECISION AND ORDER??????????? Thiscase arose under Section 10(c) of the Occupational Safety and Health Act, 29U.S.C. ? 659(c), and came on for hearing on October 27, 1976, at Syracuse, NewYork.??????????? OnMay 28, 1976, Respondent was issued a serious citation, for which a penalty of$600 was proposed by the Secretary. Respondent duly filed a timely notice ofintent to contest the citation and proposed penalty.??????????? Respondentis a large corporation, organized in Pennsylvania, maintaining a plant atFulton, New York, where it manufactures floor backing paper and felt (Ans. II,Tr. 4); many of the materials and supplies used by Respondent were manufacturedoutside the State of New York, and Respondent thereby engages in a businessaffecting commerce, within the meaning of Sections 3(3) and 3(5) of the Act(Ans. III). Jurisdiction over the parties and the subject matter is vested inthe Commission (Ans. I), and it is so found.??????????? UnderSection 5(a)(1) of the Act, 29 U.S.C. ? 654(a)(1), each employer ?shall furnishto each of his employees employment and a place of employment which are freefrom recognized hazards that are causing or are likely to cause death orserious physical harm to his employees.???????????? 29U.S.C. ? 654(a)(2) requires that each employer comply with occupational safetyand health standards promulgated under the Act.??????????? Pursuantto 29 U.S.C. ? 666(b), an employer shall be assessed a civil penalty of up to$1,000 for each serious violation.??????????? Section666(c) provides that an employer may be assessed a civil penalty of up to$1,000 for each nonserious violation.??????????? 29U.S.C. ? 666(j) declares that ?a serious violation shall be deemed to exist ina place of employment if there is a substantial probability that death orserious physical harm could result from a condition that exists, or from one ormore practices, means, methods, operations, or processes which have beenadopted or are in use, in such place of employment unless the employer did not,and could not with the exercise of reasonable diligence, know of the presenceof the violation.???????????? Civilpenalties can be imposed under the Act only after considering the size of thebusiness of the employer, the gravity of the violation, good faith of theemployer, and history of previous violations. 29 U.S.C. ? 666(i).??????????? Respondentis charged with a serious violation of 29 U.S.C. ? 654(a)(1), the so-calledgeneral duty clause, because of a defective constant pressure three-positionswitch which was designed to function as a safety device for its #1 papermachine.??????????? Theprimary product of Respondent?s 68-acre Fulton plant is Hydrocord, Armstrong?strade name for a material resembling paper or felt, which is used as a backingfor resilient vinyl flooring (Tr. 101, Exh. J?8).??????????? The#1 paper machine named in the citation winds rolls of finished product ontoreels; normally the rolls are 36 inches in diameter and 1,200 yards in length,and weigh about 5,000 pounds; the reels usually accumulate three rolls for atotal length of about 3,300 yards and total weight of about 15,000 pounds (Tr.111). The machine then slits the paper into different widths (Tr. 10), and therewinder, which is part of the machine (Tr. 153), rewinds the Hydrocord intosmaller rolls (Tr. 111). Three men make up the crew of the #1 machine: a 3rdhand, 4th hand, and back tender (Tr. 112).??????????? Finishedrolls are lowered from the machine onto a tilt table which is a roll-loweringdevice consisting of a heavy metallic table with a flat top and three angledextensions (Exh. J?1); it is used to remove finished rolls from the rewinderunit to floor level, an operation performed by the 3rd hand with the assistanceof the 4th hand (Tr. 113).??????????? Whenthe tilt table is lowered (titled back to the floor) there is a space ofapproximately two feet between the table and machine (Tr. 17, Exh. J?1). Anemployee would have to stand between the table and machine prior to the windingof a roll in order to tape the paper, and would also have to stand therewhenever necessary to make a splice because of a break in the paper (Tr. 19,Exh. J?4). During the course of a shift an employee might be required to workin the space between table and machine 15 to 30 times (Tr. 19?20).??????????? Thetable is raised or lowered hydraulically (Tr. 18) by means of a three-positionselector switch located on a console about four feet high; the console is aboutfour or five feet from the machine; the switch has three positions: ?raise,??lower,? and ?off? (Tr. 126. 157); when the switch is in the center theelectrical circuitry is off, when turned to the right the system raises thetable, when turned to the left it lowers the table (Tr. 13, 126, 157).??????????? Originally,when the rewinder was installed at the plant, the table was activated by asingle-action, fixed switch (Tr. 136, 157) that did not require the employee tokeep his hand on the switch; he merely turned the switch to ?raise? and thetable automatically raised itself until it met the rewinder (Tr. 126).??????????? InDecember 1965 or January 1966, for safety reasons (Tr. 15, 27, 122, 137) andupon the suggestion of an employee (Tr. 27, 88, 98, 116) a three-positionspring-loaded, momentary, pressure switch was installed in replacement of thesingle-action, fixed switch (Tr. 136). The spring switch requires the employeeto hold the switch to complete the operation of raising or lowering the table;if the employee lets go, the switch snaps back to the neutral or ?off? positionand the table stops (Tr. 52, 127, 137, 142).??????????? JosephCastiglia, 3rd hand on the #1 paper machine, died after being trapped betweenthe table and the rewinder frame on the morning of May 18, 1976 (Tr. 9?11,42?43, 63?64, 134). There had been a tear in the paper, and the deceased was inthe process of making a splice (Tr. 43?46). It was customary for the 3rd handto be standing there when splicing was necessary (Tr. 46); he would stand withhis back to the table, and would not know if the table were rising (Tr. 68), asit moves quietly (Tr. 92). It takes only about three seconds for the table tobe fully raised to a position flush with the frame of the rewinder (Tr. 18).??????????? Examinationof the switch after the accident disclosed that the spring device was notfunctioning; apparently the casing had sprung (Tr. 161). With the springbroken, the switch acted in the same manner as the original single-actionswitch did, i.e., if the 3rd hand turned the switch to ?raise? or ?lower? andwalked away, the table was raised or lowered automatically (Tr. 127).??????????? Thespring required repairs on two or three occasions during the first month afterits installation (Tr. 16?17), and had not been functioning for about a monthprior to the accident (Tr. 15).??????????? Theback tender on the machine at the time of the accident testified that he hasperformed the duties of 3rd hand and 4th hand (Tr. 11, 24); that it had beencommon practice for the 3rd hands to turn the broken switch to the ?raise?position during the operation of the rewinder, then leave the switch and ?doother things,? thereby saving a little time (Tr. 20, 23). He asserted that thiswas his practice, and that he had observed others doing the same thing (Tr.20?21). The back tender did not report the defect in the switch to supervisorypersonnel (Tr. 33, 36), claiming that he did not consider it ?that dangerous?(Tr. 36, 39, 40), and that in fact he preferred working with the switch in thatcondition because ?it made it a lot easier for myself. It allowed me to doother things while that table was coming up,? such as setting up for the nextroll of paper coming off (Tr. 37).??????????? The4th hand on the #1 paper machine at that time also said that he had seen 3rdhands turn the switch to ?raise? prior to the completion of the rewindingoperation (Tr. 49).??????????? Thereis no evidence that any person, including the back tender and 4th hand,witnessed the conduct of the deceased just prior to his being trapped betweenthe raised table and rewinder (Tr. 10?11, 43).??????????? Undersection 5(a)(1) of the Act, Complainant must prove (1) that the employer failedto render its workplace free of a hazard which was (2) recognized and (3)causing or likely to cause death or serious physical harm. Actual occurrence ofhazardous conduct is not, by itself, sufficient to sustain a violation. Section5(a)(1) only requires the elimination of preventable hazards. NationalRealty and Construction Company, Inc. v. Occupational Safety and Health ReviewCommission, 489 F. 2d 1257, 1266 (D.C. Cir. 1973). Actual knowledge of ahazard on the part of an employer satisfies the general duty clause requirementof recognition. Secretary of Labor v. Occupational Safety and Health ReviewCommission and Vy Lactos Laboratories, Inc., 494 F. 2d 460, 464 (8th Cir.1974).??????????? Onthe basis of this record I find that Respondent recognized that a single-actionswitch on the #1 paper machine constituted a hazard. The supervisor of the feltmanufacturing department testified that he and ?another fellow? recognized theoriginal (fixed) switch as a hazard (Tr. 137) and he had advised the otherperson to put in a suggestion that a spring switch be installed (Tr. 137). Thesuggestion was adopted by management (Tr. 136). The superintendent of feltmanufacturing said that the suggestion came from an employee working on themachine (Tr. 116). The instrument control and electrical supervisor declaredthat he definitely regarded the suggestion as a safety measure, and that heunderstood that the employee who made the suggestion got paid for a safetysuggestion (Tr. 166). The foregoing clearly demonstrates that Respondent?ssupervisory personnel, acting for Respondent, recognized that a single-action(non-spring) switch was a hazard, and it is so found.??????????? Next,it is necessary to determine whether Respondent took reasonable precautionarysteps to protect its employees from a reasonably foreseeable recognized hazard.??????????? Acopy of ?Rules of Employment? (Exh. R?1) is issued to all employees (Tr. 102).At Page 8, Item N, it is stated. ?Report to your supervisor any condition thatyou consider unsafe or dangerous.? The rules contained therein are also postedon bulletin boards at the plant (Tr. 103, Exh. R?2).??????????? Thespring had not functioned for about a month prior to the accident, but noemployee reported the defect to management (Tr. 36, 75, 115?116, 137?138, 159).There is no proof that supervisors had actual knowledge of the practice of the3rd hands to turn the switch to the ?raise? position and leave the switchunattended while they did other work. However, supervisors were observed by the4th hand in the vicinity of the operation every 30?60 minutes (Tr. 52); thesupervisor of the department noted that he conducted personal safetyinspections; and safety inspection tours of the plant were made monthly by agroup consisting of two members of management and two Union members (Tr.106?107). The failure of employees to comply with Respondent?s rules requiringthem to notify management of a hazard and Respondent?s safety inspections donot suffice to show that Respondent took all reasonable precautionary measuresto protect its employees. It is not enough merely to post a rule on bulletinboards, and issue a copy to employees, advising them to notify supervisors ofhazards; there is no showing that Respondent exerted strong and persistentefforts to impress upon its employees their duty to do so, and that a failureto comply could lead to disciplinary action. Respondent?s supervisors knew thatthe spring switch had not functioned on previous occasions; this should haveput Respondent on notice to check the switch rather than rely on employees toinform it of a malfunction. A thorough inspection would have disclosed thefaulty spring. The superintendent of felt manufacturing at the plant admittedthat it should have been checked during the safety inspections (Tr. 124).Instead, he depended on his 12 supervisors and 120 employees to report anyabnormal conditions (Tr. 129). I find that in light of the history of brokensprings the malfunctioning of the switch was reasonably foreseeable hazard, andthat Respondent failed to take all reasonable precautionary measures to protectits employees therefrom.??????????? Anotherelement in the general duty clause is proof that the hazard is causing or islikely to cause death or serious physical harm to an employee. Since the hazarddid cause the death of an employee, it is found that this point has beenestablished by the Secretary.??????????? Respondenthas been charged with a serious violation. It is obvious that there was asubstantial probability that death or serious physical harm could result from amishap caused by the violative condition. In fact, a death did result.Respondent, through its supervisory personnel, with the exercise of reasonablediligence could have known of the violation. Based on the foregoing, it isfound that the violation was of a serious nature.??????????? Respondentcontends that since it engages in the manufacture of paper its business is coveredby the standards set forth in 29 CFR 1910.261, which ?applies to establishmentswhere pulp, paper, and paperboard are manufactured and converted,? andtherefore Respondent is not citable under Section 5(a)(1) of the Act.??????????? Under29 CFR 1910.5(f), ?(a)n employer who is in compliance with any standard in thispart shall be deemed to be in compliance with the requirement of section5(a)(1) of the Act, but only to the extent of the condition, practice, means,method, operation, or process covered by the standard.? Inasmuch as none of thepaper industry standards specifically covers the ?condition, practice, means,method, operation, or process? involved in the instant case, Respondent wasproperly cited under the general duty clause.??????????? Uponconsideration of the entire record, it is concluded that on May 18, 1976,Respondent was in violation of Section 5(a)(1) of the Act, 29 U.S.C. ?654(a)(1), for failure to furnish to each of its employees employment and aplace of employment free of a recognized hazard that was causing or was likelyto cause death or serious physical harm to its employees. It is furtherconcluded that this violation was of a serious nature, within the contemplationof 29 U.S.C. ? 666(j).??????????? TheSecretary has proposed a penalty of $ 600. Respondent operates a rather largeenterprise. The cited plant employs about 400. This establishment was issued acitation in 1971 which became a final order of the Commission (Tr. 4). Theviolation was of a high level of gravity, as evidenced by the death of anemployee which resulted from the infraction. While the employer has a safetyprogram, the supervisors entrusted to carry it out have failed to make it aseffective as it should be. As of the date of the trial Respondent had abatedthe cited hazard; the spring switch was functioning properly, and Respondenthad installed an alarm system which buzzes continually while the tilt table isrising (Tr. 68). Taking into account the factors listed in 29 U.S.C. ? 666(i),it is found that a penalty of $400 is appropriate.??????????? Accordingly,it is ordered that the serious citation of May 28, 1976, be affirmed, and thata penalty of $400 be assessed within the meaning of Sections 3(3) and 3(5) ofthe Act.??????????? Section5(a)(2) of the Act, 29 U.S.C. ? 654(a)(2), requires that each employer complywith occupational safety and health standards promulgated under the Act.??????????? Pursuantto 29 U.S.C. ? 666(b), an employer shall be assessed a civil penalty of up to$1,000 for each serious violation.??????????? Section666(c) of Title 29 provides that an employer may be assessed a civil penalty ofup to $1,000 for each nonserious violation.??????????? 29U.S.C. ? 666(j) declares that ?a serious violation shall be deemed to exist ina place of employment if there is a substantial probability that death or seriousphysical harm could result from a condition that exists, or from one or morepractices, means, methods, operations, or processes which have been adopted orare in use, in such place of employment unless the employer did not, and couldnot with the exercise of reasonable diligence, knew of the presence of theviolation.???????????? Civilpenalties can be imposed under the Act only after considering the size thebusiness of the employer, the gravity of the violation, good faith of theemployer, and history of previous violations. 29 U.S.C. ? 666(i).??????????? OnAugust 11, 1976, a compliance officer of the Department of Labor inspected aworksite at the intersection of Salinas and Washington Streets, Syracuse, NewYork (Tr. 22?23), where Respondent was engaged in the construction of a roofover a pedestrian walkway or bridge connecting the Syracuse Mall and a parkinggarage across the street from the Mall (Tr. 18?19, 23). The walkway, runningparallel to the ground (Tr. 29), was about 89 feet long and 9?1\/2 feet wide;the roof measured 26 feet, 11 inches above sidewalk level, and 27 feet, 5inches above road level (Tr. 24?25). The roof was about 10 feet above thewalkway (Tr. 27). It was a flat roof (Tr. 73, 287).??????????? Fouremployees of Respondent were working at the site at the time of the inspection,two on the roof and the other two on the ground; at other times as many asthree worked on the roof (Tr. 18, 26). The job lasted about two workdays (Tr.42).??????????? Thenonserious charge, which will be dealt with first, is based on Section 1926.100(a),which states:? Subpart E?Personal Protective and LifeSaving Equipment? ? 1926.100 Head protection.?(a) Employees working in areas where thereis a possible danger of head injury from impact, or from falling or flyingobjects, or from electrical shock and burns, shall be protected by protectivehelmets.???????????? Theinspecting officer observed the two employees working at ground level; one washoisting rolls of tar paper which were stacked along the edge of the roof;other materials on the roof included roofshingling, buckets, mops, and hammers(Tr. 45?46$. These two employees of Respondent were not wearing hard hats toprotect them from the possible danger of head injury from falling objects (Tr.45?47). The foregoing sustains the nonserious charge.??????????? Theviolation was of a low level of gravity. The probability of injury was low.Respondent has eight employees usually, but at the time of the inspectionemployed 15 (Tr. 18). The record contains no evidence of prior safetyviolations (Tr. 18). Upon consideration of the entire record, I am convincedthat Respondent is safety-oriented. Taking into account the factors listed in29 U.S.C. ? 666(i), it is found that no penalty should be assessed for thisinfraction.??????????? Weturn to the serious citation. Originally, it alleged a violation of Section1926.500(d)(1). The complaint amended the citation by substituting Section1926.28(a) or, in the alternative, Section 1926.105(a). The latter sectionsread:? Subpart C?General Safety and HealthProvisions? ? 1926.28 Personal protective equipment.?(a) The employer is responsible forrequiring the wearing of appropriate personal protective equipment in alloperations where there is an exposure to hazardous conditions or where thispart indicates the need for using such equipment to reduce the hazards to theemployees.?Subpart E?Personal Protective and LifeSaving Equipment? ? 1926.105 Safety nets.?(a) Safety nets shall be provided whenworkplaces are more than 25 feet above the ground or water surface, or othersurfaces where the use of ladders, scaffolds, catch platforms, temporaryfloors, safety lines, or safety belts is impractical.???????????? Respondenthad contracted to apply the roofing upon a prefabricated metal deck already inplace (Tr. 279, 302?304), by first putting down a layer of insulation board,one inch thick, in sections two feet by four feet; the insulation was bonded tothe metal deck with a special adhesive material, then hot asphalt was applied,Then a roll of base felt three times heavier than normal felt, acting as acushion; after that came three layers of 15-pound felt bathed in hot asphalt,and finally a layer of aluminum exterior coating (Tr. 303?304). The asphalt waspumped to the roof (Tr. 292) from a kettle on the ground (Exh. C?3, Tr. 58?59).??????????? Itwas the testimony of John Amie, the roofers? local union businessrepresentative, that the roof was hand-mopped (Tr. 248) with hot bituminousasphalt heated to about 400?500 degrees (Tr. 250). The mop is long-handled (Tr.250), the handle varying in length from 6 to 10 feet (Tr. 251). The mop isabout two feet long (Tr. 251). It weighs 25 pounds (Tr. 287).??????????? LouisDeStefano, Secretary of Respondent corporation, described it as a two-manoperation on the roof, with one employee rolling the felt while the othermopped (Tr. 287).??????????? Mr.Amie testified that the mopper would be ?nowhere near the edge of the roof?(Tr. 251), but ?would always be working from the inside of the roof no matterwhat he was doing? (Tr. 251). Mr. DeStefano asserted that at no time duringthis operation is a man closer than 3?1\/2 feet from the edge of the roof (Tr.287). However, the inspecting officer said that he observed two employeesworking approximately six inches from the edge of the roof (Tr. 293-31).??????????? It isundisputed that Respondent?s employees on the roof did not use safety nets,safety belts, safety lines, ladders, scaffolds, or catch platforms, and thatthere was no standard railing guarding the open sides of the roof.??????????? Asfar as the charge under Section 1926.28(a) is concerned, that regulation hasbeen ruled ineffective as a standard due to vagueness. Hoffman ConstructionCo. v. OSHRC and Secretary of Labor, 546 F.2d 281, 283 (9 Cir. 1976). In Hoffmanthe Court reversed the Commission, holding that 1926.28(a) ?created no specificstandard, a violation of which would give rise to liability.? In any event,1926.28(a) contains only general wording; it appears under the heading of?General Safety and Health Provisions;? it does not specify either the personalprotective equipment required for compliance or the particular circumstances orconditions requiring such protection. Under 1910.5(c), when a particularstandard is specifically applicable, it shall prevail over any differentgeneral standard which might otherwise apply. Section 1926.105(a) is aparticular standard which is specifically applicable to the facts in this case;hence, 1926.105(a) preempts 1926.28(a), and the charge laid under Section1926.28(a) must, and will, be vacated.??????????? Thisleaves us with 1926.105(a). This poorly worded regulation has been interpretedjudicially as requiring an employer to utilize one of the safety devices listedherein. Secretary of Labor v. Fiegen 513 F.2d 713 (8 Cir. 1975). Secretaryof Labor v. Southern Contractors Service, 492 F.2d 498, 501 (5 Cir. 1974). Secretaryof Labor v. The Verne-Woodrow Company, 494 F.2d 1181 (5 Cir. 1974). Secretaryof Labor v. J. W. Bounds (Pearl Steel Construction Co.), 488 F.2d 337 (5Cir. 1973).??????????? Oneof the protective measures satisfying the requirements of 1926.105(a) is atemporary floor. In the instant case, Respondent?s employees on the roof wereworking on metal decking, which was a solid, permanent surface; in my view,that deck was at least as safe as a temporary floor, and perhaps safer. It ismy finding that Respondent met, or surpassed, the safety requirements of1926.105(a). Hence, the charge based on 1926.105(a) has not been sustained, andit is so found. It will be ordered vacated.??????????? Ifind that the Secretary has not established a violation of either standardnamed in the amended serious citation; as to 1926.28(a) the failure was as amatter of law, while as to 1926.105(a) the basis of the failure was factual.??????????? Sincethe serious citation will be vacated for the reasons stated above, I see nopurpose to delve into and pass upon the various contentions raised byRespondent in seeking dismissal of this citation on other grounds.??????????? It isORDERED that the amended serious citation and the penalty proposed therefor bevacated; that the nonserious citation be affirmed, and that no penalty beimposed therefor.?ABRAHAM GOLDJudge, OSHRCDated: May 16, 1977?Boston, Massachusetts[1] The OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651?678. The general duty clause,29 U.S.C. ? 654(a)(1), provides:Sec.5(a) Each employer?(1)shall furnish to each of his employees employment and a place of employmentwhich are free from recognized hazards that are causing or are likely to causedeath or serious physical harm to his employees.[2] The judge?sdecision is before the Commission for review pursuant to a direction for reviewissued under 29 U.S.C. ? 661(i).[3] An employer?s ownrecognition of a hazard is sufficient to establish that the hazard is?recognized? within the meaning of ? 5(a)(1). See Empire Detroit Steel Div.,Detroit Steel Corp. v. OSHRC, 579 F.2d 378, 383 (6th Cir. 1978), and casescited therein.[4] AlthoughArmstrong made some effort to abate the hazard, we reject Armstrong?s argumentthat its actions cannot be the basis to find that Armstrong recognized thehazard. See Owens-Corning Fiberglas Corp., supra at note 7. We do notagree that employers will be discouraged from attempting to eliminaterecognized hazards if a conclusion that the employer was aware of the hazard isbased on evidence that the employer took partial but inadequate steps to abatethe hazard. Instead, employers will be encouraged to take those precautionsthat are necessary to eliminate the hazard to the extent feasible, i.e., toprovide ?a place of employment . . . free from recognized hazards? as requiredby ? 5(a)(1).[5] After theaccident, Armstrong also installed a buzzer system that further reduces thehazard by providing a warning to an employee in the danger zone that the tableis rising.[6] Armstrongsuggests that its employees purposely concealed the fact that the switch wasbroken when supervisors were present. However, this argument is based solely onconjecture and is not supported by the record. While Armstrong?s supervisorstestified that they did not know before the accident that the switch wasbroken, none affirmatively stated that they always observed employees holdingdown the operated the table was rising. The testimony of the employees whooperated the tilt table makes clear that they did not take the trouble to holddown the switch or remain by the console to operate the table to hold downnecessary to do so. The only employee who was asked if he remained by theconsole when supervisors were present to conceal the broken switch denied doingso.”