“SECRETARY OF LABOR,Complainant,v.CERRO METAL PRODUCTS DIVISION,MARMON GROUP, INC.,Respondent.UNITED AUTOMOBILE WORKERS OFAMERICA, LOCAL 1282,Authorized Employee Representative.OSHRC Docket No. 78-5159_DECISION_Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), 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. Seesection 10(c) of the Act, 29 U.S.C. ? 659(c).Following an accident, the Secretary conducted an inspection in theBellefonte, Pennsylvania plant where Cerro Metal Products Division ofthe Marmon Group, Inc. (\”Cerro\”) manufactured brass, bronze and otherfabricated parts. The accident occurred while two Cerro mechanics,Stover and Wenrick, were standing in the bed of an energized, 300- to350-foot, 5500-ton brass extrusion press. The mechanics were attemptingto repair a loader (an automated part of the press) when the loaderunexpectedly retracted and one of the mechanics, Wenrick, was fatallycrushed. On the morning of the accident Stover had properly deenergizedthe press, but later reenergize the press and kept it energized duringthe particular repairs leading to the accident. As a result of theinspection, the Secretary issued a citation to Cerro alleging a willfulviolation of the general duty clause (section 5(a)(1)) of the Act[[1]]for permitting employees to perform maintenance and repairs on the presswithout deenergizing it, thereby exposing them to inadvertent activationof the press.Administrative Law Judge William E. Brennan affirmed the citation on thebasis that Cerro was required to establish that it adequately enforced arule requiring the press to be deenergized before any repairs were made,and that Cerro failed to establish this. The judge concluded thatCerro’s enforcement of the rule was inadequate because employees hadviolated the rule prior to the accident. He emphasized that Stover waspermitted to work largely without close supervision. The judge did notaddress himself to the extensive evidence showing Cerro’s enforcementefforts, the training and experience level of employees, or Cerro’s lackof awareness of any prior violations of the rule.Cerro has petitioned the Commission for review of the decision. Thebasic issue to be addressed is whether the Secretary established thatCerro’s safety program prohibiting employees from working in the bed ofthe extrusion press when it was energized was inadequate to preventemployee exposure to crushing hazards. For the following reasons, wereverse the judge’s decision and vacate the citation.In order to establish a violation of section 5(a)(1) of the Act, theSecretary must prove that the cited employer failed to free theworkplace of a hazard that was recognized by the cited employer orgenerally by the employer’s industry, that was causing or likely tocause death or serious physical harm and that could have been materiallyreduced or eliminated by a feasible means of abatement. E.g., PhillipsPetroleum Co., 84 OSAHRC 2\/E7, 11 BNA OSHC 1776, 1779, 1983-84 CCH OSHD? 26,783, p. 34,254 (No. 78-1816, 1984). aff’d, No. 84-1425 (10th Cir.Sept. 10, 1985). In this case, the record indicates that Cerrorecognized the hazard of working in the bed of the energized press andthat the hazard was likely to cause serious physical harm or death.However, the question is whether the Secretary established that Cerro’sabatement methods were inadequate or that there was a more effectivemeans by which Cerro could have freed the workplace of the hazard.The Secretary has the burden of proving all elements of a 5(a)(1)violation including the existence of a feasible means of materiallyreducing or eliminating the likelihood of death or serious physical harmto employees. If an employer has a safety program designed to eliminatea recognized hazard, the burden is on the Secretary to \”specify the[additional] steps a cited employer should have taken to avoid citation,and to demonstrate the feasibility and likely utility of thosemeasures.\” National Realty & Construction Co. v. OSHRC, 489 F.2d 1257,1267-68 & n.40 (D.C. Cir. 1973).The evidence presented by the parties in this case established thatCerro had a safety rule requiring that the press be deenergized beforemaking any repairs. The Secretary’s proposed means of abatement was tomore effectively communicate and enforce a workrule like the one Cerrohad. The burden of proof on abatement cannot be met by simplyprescribing the very methods already undertaken by the employer. Theremust be evidence showing how the cited employer’s safety practices wereinadequate and how the safety policies could have been improved toprevent an accident. Id. In National Realty, the court reviewed thelegislative history of Section 5(a)(1) and concluded that Congress didnot intend to make employers liable for unpreventable hazards, orunpreventable instances of hazards even though the hazard itself isgenerally recognized. The court emphasized that Congress intended theemployer’s duty under section 5(a)(1) to be achievable–Congress did notintend this provision of the Act to be \”a mere vehicle for strictliability.\” Id. at 1266 n.36. The National Realty court was consideringa case in which, as in this case, the failure of an employee to followan employer work rule led to the employee’s death. The court held that\”[a]ctual occurrence of hazardous conduct is not, by itself, sufficientevidence of a violation, even when the conduct has led to injury. Therecord must additionally indicate that demonstrably feasible measureswould have materially reduced the likelihood that such misconduct wouldhave occurred.\” 489 F.2d at 1267.Further the Secretary must not only describe specific, feasible measuresfor reducing the hazard, but must present evidence that knowledgeablepersons familiar with the industry would regard the steps as necessaryand valuable for a sound safety program in the particular circumstancesexisting at the employer’s worksite. The National Realty court stated:Hazardous conduct is not preventable if it is so idiosyncratic andimplausible in motive or means that conscientious experts, familiar withthe industry, would not take it into account in prescribing a safetyprogram. Nor is misconduct preventable if its elimination would requiremethods of hiring, training, monitoring, or sanctioning workers whichare either so untested or so expensive that safety experts wouldsubstantially concur in thinking the methods infeasible.489 F.2d at 1266. Cf. Voegele Co. v. OSHRC, 625 F.2d 1075 (3d Cir. 1980)(holding that the Secretary has the burden to demonstrate thefeasibility and likely utility of particular measures under the generalpersonal protective equipment standard for construction, and noting that\”[t]he appropriate weight to be accorded to industry practice of whether[suggested methods of abatement] were feasible and whether a reasonableperson would have utilized them . . . is best summarized\” in NationalRealty).Thus, in this case, the judge’s suggestion that the burden is on theemployer to show the adequacy of its safety program is incorrect. Asstated above, the burden is on the Secretary to show that Cerro’s safetyprogram was inadequate. E.g. Babcock & Wilcox Co. v. OSHRC, 622 F.2d1160, 1164 (3d Cir. 1980) (the Secretary must demonstrate that feasiblemeasures can be taken to reduce materially the risk of harm); ChamplinPetroleum Co. v. OSHRC, 593 F.2d 637, 640 (5th Cir. 1979)(same); DaveyTree Expert Co., 84 OSAHRC 11\/D11, 11 BNA OSHC 1898, 1899-1900, 1983-84CCH OSHD ? 26,852, p. 34,400 (No. 77-2350, 1984) (the Secretary mustdemonstrate how particular measures could improve a safety program toreduce or eliminate a hazard); Jones & Laughlin Steel Corp., 82 OSAHRC34\/A2, 10 BNA OSHC 1778, 1781- 83, 1982 CCH OSHD ? 26,128, pp. 32,886-88(No. 76-2636, 1982) (same). We conclude from our examination of therecord that the Secretary failed to establish any preventable inadequacyin Cerro’s communication or enforcement of its workrule.It is clear from the record that Cerro had a work rule requiringdeenergization of the press before repairs were made and that had thisrule been followed the accident would not have occurred. The record alsoestablishes that the rule was included in a safety manual given to allemployees. In addition, documents referring to the rule were posted atthe press and in the repair office where the maintenance employeesreported and received their daily assignments. The Secretary argues,however, that the rule was not effectively communicated to eitherStover, the employee most directly involved with maintenance on thepress on the day of the accident, or Hines, a mechanic apprenticeassigned to assist Stover in the repair of the press. We cannot agree.Contrary to the Secretary’s assertion, Stover testified that he knew ofthe rule and had specifically seen a memo from superintendent ofmaintenance Bixel regarding deenergization.[[2]] He had also seen thestart-up and shut- down procedures posted around the press prior to theaccident. Further, several months before the accident, Stover andWenrick attended a safety meeting at which the rule was discussed.Stover’s conversation with Vice President Alexander several weeks afterthe accident also establishes that he knew the rule. In those meetings,as reflected in Alexander’s notes and confirmed by Stover underquestioning from the Judge, Stover stated that the normal way of doingrepairs is to shut down, drain and deenergize the system. Stovertestified that \”we all do some things we shouldn’t. I can’t believe wedid not cut the system off and secure the cylinder.\”[[3]] It istherefore clear that Cerro’s safety rule concerning deenergization wasadequately communicated to Stover.In asserting that the company did not adequately communicate its safetyrule to the other employee Hines, the Secretary relies upon Hines’statements that he was not given any safety instructions prior toassisting Stover and Wenrick on the press and that company policy didnot require the press to be deenergized at all times. We note, however,that Hines also testified he received a copy of the safety manual. Fromthis manual and the posted documents referring to the safety rule, Hineshad the opportunity to learn the requirement to deenergize. Moreover, asan apprentice, Hines was not responsible for deenergization of thepress. At the time of the accident, he was working with Stover, anexperienced first class mechanic with no history of accidents, whotestified that he trained other people in safety requirements. Based onthese factors, we are unable to say that the company failed toadequately communicate its rule to Hines.The Secretary argues that even if Cerro’s rule was adequatelycommunicated to its employees, Cerro failed to effectively enforce therule. The Secretary bases this argument on the testimony of Stover andHines that short repairs of 15 to 20 minutes had been done withoutdeenergizing the press and that no employee has ever been disciplinedfor a violation of the rule.However, there was no credible evidence that supervising personnel wereaware of such violations of the workrule. Rather, on the basis of therecord as a whole, we find Cerro had made considerable efforts tosupervise compliance with the rule. Shift foreman Ickes testified thatin general he had spent about one-third of his time during the previousfour years supervising maintenance and repairs on the press. In all ofthat time, he had never seen maintenance or repair work performed whilethe press was energized. Bixel testified that he had frequently observedStover at work on the press and did not know of any violations of therule. Indeed, on the morning of the accident maintenance superintendentBixel watched while Stover deenergized the press and had no reason tosuspect that Stover would reenergize the press before the repairs werecompleted. The vice president of manufacturing, Alexander, alsotestified that he was not aware of any violations of the rule requiringdeenergization and that, as the manager in charge of overseeingoperations on the press, he believed that the supervision of themaintenance employees working on the press was satisfactory. Thus, evenif Cerro’s rule previously had been violated for short repairs,supervisors uniformly testified that they were not aware of anyviolations. There was no reliable evidence that an employee had reporteda violation of the rule to a supervisor or that any supervisor knew thatthe rule was sometimes violated.[[4]]Moreover, there had been no previous accidents or injuries to indicatenon-compliance. Stover and Wenrick both had perfect safety records,meaning no previous accidents at Cerro. Stover had been permanentlyassigned to the 5,500-ton press for about nine years and Wenrick hadworked on the press for two years.The fact that Stover was supervised did not mean that the supervisorsconstantly watched him perform the repairs. They justifiably placed agreat deal of reliance in him due to his extensive training, longexperience and fine work record. Stover’s training included an8,000-hour apprenticeship before becoming a first-class mechanic. Theclassroom portion included, among other things, hydraulics, the readingof prints, machine structure, and assembling and moving machinery. Cerrosent Stover to a two-week course on hydraulics in Detroit (apparentlythe Vickers Hydraulics School). Stover also had taken a premanagementcourse over a 26-week period. He was considered completely knowledgeableabout what had to be done on the 5,500-ton press. Maintenancesuperintendent Bixel had observed Stover to be \”a key man on the job,\”\”tops as far as I’m concerned.\” Bixel also testified that Stover \”haddemonstrated to me that he has always worked safely . . . .\” In fact,both Stover and Wenrick were considered by their supervisors to becareful and capable workers.As to Cerro’s disciplinary program, Alexander testified that if aviolation of the deenergization rule had been discovered, the rule wouldhave been enforced with termination of the employee. He testified thatCerro had disciplined maintenance personnel when it learned ofviolations of other safety rules. The Secretary offered no evidence asto additional feasible supervisory measures that would have materiallyreduced the hazard.The record does not establish that supervisory personnel could haveforeseen the need for additional precautions at the time of theaccident. Around the time of the accident, there were several Cerrosupervisors in the vicinity of the press, but they were not aware thatit was energized. Alexander arrived at the press only shortly before theaccident. Bixel, maintenance manager Heaman, and shift foreman Thompsonwere in the general area earlier than Alexander, but, according to theirtestimony, they were preoccupied with other duties. Bixel–who hadearlier seen Stover deenergize the press–additionally testified that he\”felt [that] everything was off.\” Thus, they were not observing therepairs or controls of the press at the time. The control panel lightsof the press, which would indicate whether it was deenergized, could notbe seen from the press bed, and the sound of the power supply, if thepress were energized, would be drowned out by surrounding plant noise.The plant itself was very large–the building in which the press waslocated was nearly a quarter of a mile long–and there were otherpresses and equipment in the building.It is clear from this record detailing the oral and writtencommunication of the rule to the employees that all of the employees hadbeen instructed in Cerro’s workrule. It is plain from Stover’s testimonythat he knew the rule. Because Stover was a very experienced first classmechanic with no history of accidents in his 11 years at Cerro, thecompany could reasonably place a great deal of reliance on him. In viewof this, the evidence in the record as a whole does not show anyspecific, feasible additional step that Cerro should have taken toimprove communication of the workrule. It is impermissible to speculatein the face an empty record about what more an employer could have doneto abate recognized hazards. National Realty, 489 F.2d at 1267.The supervisors’ testimony is unrebutted that none of them ever saw anemployee in the press bed when they knew it was energized, and that theywould have enforced the rule if they had discovered a violation. Theevidence does not establish that there was inadequate supervision onCerro’s part. See Jones & Laughlin; see also Brennan v. OSHRC (AlseaLumber Co.), 511 F.2d 1139, 1141, 1144-45 (9th Cir. 1975)(absentevidence that the employer’s instructions were a sham or that theemployer had an on-going practice of permitting employees to disregardinstructions, knowledge was not established and the employeedisobedience was unpreventable).In conclusion, we hold that the Secretary has failed to show whatfurther, feasible measures Cerro could have taken to render itsworkplace free of the cited hazard under section 5(a)(1). Accordingly,the judge’s decision is reversed and the citation is vacated.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: MAY 7 1986————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386). FOOTNOTES:[[1]] 29 U.S.C. ? 654(a)(1). The section provides:Each employer…shall furnish to each of his employees employment and aplace of employment which are free from recognized hazards that arecausing or are likely to cause death or serious physical harm to hisemployees.[[2]] Bixel had previously sent notices to various press and servicepersonnel requiring that the press be deenergized and requestingsupervisors to assure this is done. He also posted the memo in themaintenance department and at the press. In addition, a memo detailingthe start-up and shut-down procedures for the 5,500-ton press was posted.[[3]] Stover also stated to Alexander shortly after the accident that hedid not know why he did not block and cut off the system. This seems tous to be a clear admission of employee misconduct. At the hearing Stoverfor the first time explained that he reenergized the press in order toprevent the container from creeping into the loader. Assuming this\”surprise\” explanation of the reason Stover reenergized the press iscredible, it does not evidence a lack of awareness by Stover of thecompany’s policy concerning deenergization. We note further that therecord establishes that the creep problem could have been eliminated bymeans other than leaving the press energized and that Stover knew this.Therefore, we conclude that the creep problem did not preventdeenergization far loader repair and that Cerro could not have foreseenStover’s disregard for its workrule.[[4]] Another employee witness, Kauffman, who was assigned to productionwork involving furnaces, in the vicinity of the press, testified thatsupervisors Thompson and Ickes had worked in the press bed while thepress was energized. He also asserted that he \”probably\” complained toforemen about work on the energized press. However, he latercontradicted himself in response to questions by the Judge, affirmingthat he had not complained because he did not want to slow downproduction and lose bonus pay. For this reason, he had not complained toany management employees, had never filed a complaint with OSHA, and,although he was once a member of the union grievance committee, had notfiled a grievance. As noted previously, the supervisors all testifiedthat so far as they knew, the workrule was adhered to and they were notaware of any violations.”