“Docket No. 78-5159 SECRETARY OF LABOR, Complainant, v.CERRO METAL PRODUCTS DIVISION, MARMON GROUP, INC., Respondent.UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL 1282,Authorized Employee Representative.OSHRC Docket No. 78-5159DECISIONBefore: BUCKLEY, Chairman; RADER and WALL, Commissioners. BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commission under 29 U.S.C.? 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651-678 (\”the Act\”). The Commission is an adjudicatory agency, independent ofthe Department of Labor and the Occupational Safety and Health Administration.\u00a0 Itwas established to resolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. See section 10(c) of theAct, 29 U.S.C. ? 659(c).Following an accident, the Secretary conducted an inspection in the Bellefonte,Pennsylvania plant where Cerro Metal Products Division of the Marmon Group, Inc.(\”Cerro\”) manufactured brass, bronze and other fabricated parts. The accidentoccurred while two Cerro mechanics, Stover and Wenrick, were standing in the bed of anenergized, 300- to 350-foot, 5500-ton brass extrusion press. The mechanics were attemptingto repair a loader (an automated part of the press) when the loader unexpectedly retractedand one of the mechanics, Wenrick, was fatally crushed. On the morning of the accidentStover had properly deenergized the press, but later reenergize the press and kept itenergized during the particular repairs leading to the accident. As a result of theinspection, the Secretary issued a citation to Cerro alleging a willful violation of thegeneral duty clause (section 5(a)(1)) of the Act[[1]] for permitting employees to performmaintenance and repairs on the press without deenergizing it, thereby exposing them toinadvertent activation of the press.Administrative Law Judge William E. Brennan affirmed the citation on the basis that Cerrowas required to establish that it adequately enforced a rule requiring the press to bedeenergized before any repairs were made, and that Cerro failed to establish this. Thejudge concluded that Cerro’s enforcement of the rule was inadequate because employees hadviolated the rule prior to the accident. He emphasized that Stover was permitted to worklargely without close supervision. The judge did not address himself to the extensiveevidence showing Cerro’s enforcement efforts, the training and experience level ofemployees, or Cerro’s lack of awareness of any prior violations of the rule.Cerro has petitioned the Commission for review of the decision. The basic issue to beaddressed is whether the Secretary established that Cerro’s safety program prohibitingemployees from working in the bed of the extrusion press when it was energized wasinadequate to prevent employee 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, the Secretary must provethat the cited employer failed to free the workplace of a hazard that was recognized bythe cited employer or generally by the employer’s industry, that was causing or likely tocause death or serious physical harm and that could have been materially reduced oreliminated by a feasible means of abatement. E.g., Phillips Petroleum 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 and that the hazard waslikely to cause serious physical harm or death. However, the question is whether theSecretary established that Cerro’s abatement methods were inadequate or that there was amore effective means 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 theexistence of a feasible means of materially reducing or eliminating the likelihood ofdeath or serious physical harm to employees. If an employer has a safety program designedto eliminate a recognized hazard, the burden is on the Secretary to \”specify the[additional] steps a cited employer should have taken to avoid citation, and todemonstrate the feasibility and likely utility of those measures.\” 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 that Cerro had a safetyrule requiring that the press be deenergized before making any repairs. The Secretary’sproposed means of abatement was to more effectively communicate and enforce a workrulelike the one Cerro had. The burden of proof on abatement cannot be met by simplyprescribing the very methods already undertaken by the employer. There must be evidenceshowing how the cited employer’s safety practices were inadequate and how the safetypolicies could have been improved to prevent an accident. Id. In National Realty, thecourt reviewed the legislative history of Section 5(a)(1) and concluded that Congress didnot intend to make employers liable for unpreventable hazards, or unpreventable instancesof hazards even though the hazard itself is generally recognized. The court emphasizedthat Congress intended the employer’s duty under section 5(a)(1) to beachievable–Congress did not intend this provision of the Act to be \”a mere vehiclefor strict liability.\” Id. at 1266 n.36. The National Realty court was considering acase in which, as in this case, the failure of an employee to follow an employer work ruleled to the employee’s death. The court held that \”[a]ctual occurrence of hazardousconduct is not, by itself, sufficient evidence of a violation, even when the conduct hasled to injury. The record must additionally indicate that demonstrably feasible measureswould have materially reduced the likelihood that such misconduct would haveoccurred.\” 489 F.2d at 1267.Further the Secretary must not only describe specific, feasible measures for reducing thehazard, but must present evidence that knowledgeable persons familiar with the industrywould regard the steps as necessary and valuable for a sound safety program in theparticular circumstances existing at the employer’s worksite. The National Realty courtstated:Hazardous conduct is not preventable if it is so idiosyncratic and implausible in motiveor means that conscientious experts, familiar with the industry, would not take it intoaccount in prescribing a safety program. Nor is misconduct preventable if its eliminationwould require methods of hiring, training, monitoring, or sanctioning workers which areeither so untested or so expensive that safety experts would substantially concur inthinking the methods infeasible.489 F.2d at 1266. Cf. Voegele Co. v. OSHRC, 625 F.2d 1075 (3d Cir. 1980) (holdingthat the Secretary has the burden to demonstrate the feasibility and likely utility ofparticular measures under the general personal protective equipment standard forconstruction, and noting that \”[t]he appropriate weight to be accorded to industrypractice of whether [suggested methods of abatement] were feasible and whether areasonable person would have utilized them . . . is best summarized\” in NationalRealty).Thus, in this case, the judge’s suggestion that the burden is on the employer to show theadequacy of its safety program is incorrect. As stated above, the burden is on theSecretary to show that Cerro’s safety program was inadequate. E.g. Babcock & WilcoxCo. v. OSHRC, 622 F.2d 1160, 1164 (3d Cir. 1980) (the Secretary must demonstrate thatfeasible measures can be taken to reduce materially the risk of harm); Champlin PetroleumCo. v. OSHRC, 593 F.2d 637, 640 (5th Cir. 1979)(same); Davey Tree Expert Co., 84 OSAHRC11\/D11, 11 BNA OSHC 1898, 1899-1900, 1983-84 CCH OSHD ? 26,852, p. 34,400 (No. 77-2350,1984) (the Secretary must demonstrate how particular measures could improve a safetyprogram to reduce 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 the record that the Secretary failed toestablish any preventable inadequacy in Cerro’s communication or enforcement of itsworkrule.It is clear from the record that Cerro had a work rule requiring deenergization of thepress before repairs were made and that had this rule been followed the accident would nothave occurred. The record also establishes that the rule was included in a safety manualgiven to all employees. In addition, documents referring to the rule were posted at thepress and in the repair office where the maintenance employees reported and received theirdaily assignments. The Secretary argues, however, that the rule was not effectivelycommunicated to either Stover, the employee most directly involved with maintenance on thepress on the day of the accident, or Hines, a mechanic apprentice assigned to assistStover in the repair of the press. We cannot agree.Contrary to the Secretary’s assertion, Stover testified that he knew of the rule and hadspecifically seen a memo from superintendent of maintenance Bixel regardingdeenergization.[[2]] He had also seen the start-up and shut- down procedures posted aroundthe press prior to the accident. Further, several months before the accident, Stover andWenrick attended a safety meeting at which the rule was discussed. Stover’s conversationwith Vice President Alexander several weeks after the accident also establishes that heknew the rule. In those meetings, as reflected in Alexander’s notes and confirmed byStover under questioning from the Judge, Stover stated that the normal way of doingrepairs is to shut down, drain and deenergize the system. Stover testified that \”weall do some things we shouldn’t. I can’t believe we did not cut the system off and securethe cylinder.\”[[3]] It is therefore clear that Cerro’s safety rule concerningdeenergization was adequately communicated to Stover.In asserting that the company did not adequately communicate its safety rule to the otheremployee Hines, the Secretary relies upon Hines’ statements that he was not given anysafety instructions prior to assisting Stover and Wenrick on the press and that companypolicy did not require the press to be deenergized at all times. We note, however, thatHines also testified he received a copy of the safety manual. From this manual and theposted documents referring to the safety rule, Hines had the opportunity to learn therequirement to deenergize. Moreover, as an apprentice, Hines was not responsible fordeenergization of the press. At the time of the accident, he was working with Stover, anexperienced first class mechanic with no history of accidents, who testified that hetrained other people in safety requirements. Based on these factors, we are unable to saythat the company failed to adequately communicate its rule to Hines.The Secretary argues that even if Cerro’s rule was adequately communicated to itsemployees, Cerro failed to effectively enforce the rule. The Secretary bases this argumenton the testimony of Stover and Hines that short repairs of 15 to 20 minutes had been donewithout deenergizing the press and that no employee has ever been disciplined for aviolation of the rule.However, there was no credible evidence that supervising personnel were aware of suchviolations of the workrule. Rather, on the basis of the record as a whole, we find Cerrohad made considerable efforts to supervise compliance with the rule. Shift foreman Ickestestified that in general he had spent about one-third of his time during the previousfour years supervising maintenance and repairs on the press. In all of that time, he hadnever seen maintenance or repair work performed while the press was energized. Bixeltestified that he had frequently observed Stover at work on the press and did not know ofany violations of the rule. Indeed, on the morning of the accident maintenancesuperintendent Bixel watched while Stover deenergized the press and had no reason tosuspect that Stover would reenergize the press before the repairs were completed. The vicepresident of manufacturing, Alexander, also testified that he was not aware of anyviolations of the rule requiring deenergization and that, as the manager in charge ofoverseeing operations on the press, he believed that the supervision of the maintenanceemployees working on the press was satisfactory. Thus, even if Cerro’s rule previously hadbeen violated for short repairs, supervisors uniformly testified that they were not awareof any violations. There was no reliable evidence that an employee had reported aviolation of the rule to a supervisor or that any supervisor knew that the rule wassometimes violated.[[4]]Moreover, there had been no previous accidents or injuries to indicate non-compliance.Stover and Wenrick both had perfect safety records, meaning no previous accidents atCerro. Stover had been permanently assigned to the 5,500-ton press for about nine yearsand Wenrick had worked on the press for two years.The fact that Stover was supervised did not mean that the supervisors constantly watchedhim perform the repairs. They justifiably placed a great deal of reliance in him due tohis extensive training, long experience and fine work record. Stover’s training includedan 8,000-hour apprenticeship before becoming a first-class mechanic. The classroom portionincluded, among other things, hydraulics, the reading of prints, machine structure, andassembling and moving machinery. Cerro sent Stover to a two-week course on hydraulics inDetroit (apparently the Vickers Hydraulics School). Stover also had taken a premanagementcourse over a 26-week period. He was considered completely knowledgeable about what had tobe done on the 5,500-ton press. Maintenance superintendent Bixel had observed Stover to be\”a key man on the job,\” \”tops as far as I’m concerned.\” Bixel alsotestified that Stover \”had demonstrated 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 a violation of thedeenergization rule had been discovered, the rule would have been enforced withtermination of the employee. He testified that Cerro had disciplined maintenance personnelwhen it learned of violations of other safety rules. The Secretary offered no evidence asto additional feasible supervisory measures that would have materially reduced the hazard.The record does not establish that supervisory personnel could have foreseen the need foradditional precautions at the time of the accident. Around the time of the accident, therewere several Cerro supervisors in the vicinity of the press, but they were not aware thatit was energized. Alexander arrived at the press only shortly before the accident. Bixel,maintenance manager Heaman, and shift foreman Thompson were in the general area earlierthan Alexander, but, according to their testimony, they were preoccupied with otherduties. Bixel–who had earlier seen Stover deenergize the press–additionally testifiedthat he \”felt [that] everything was off.\” Thus, they were not observing therepairs or controls of the press at the time. The control panel lights of the press, whichwould indicate whether it was deenergized, could not be seen from the press bed, and thesound of the power supply, if the press were energized, would be drowned out bysurrounding plant noise. The plant itself was very large–the building in which the presswas located was nearly a quarter of a mile long–and there were other presses andequipment in the building.It is clear from this record detailing the oral and written communication of the rule tothe employees that all of the employees had been instructed in Cerro’s workrule. It isplain from Stover’s testimony that he knew the rule. Because Stover was a very experiencedfirst class mechanic with no history of accidents in his 11 years at Cerro, the companycould reasonably place a great deal of reliance on him. In view of this, the evidence inthe record as a whole does not show any specific, feasible additional step that Cerroshould have taken to improve communication of the workrule. It is impermissible tospeculate in the face an empty record about what more an employer could have done to abaterecognized hazards. National Realty, 489 F.2d at 1267.The supervisors’ testimony is unrebutted that none of them ever saw an employee in thepress bed when they knew it was energized, and that they would have enforced the rule ifthey had discovered a violation. The evidence does not establish that there was inadequatesupervision on Cerro’s part. See Jones & Laughlin; see also Brennan v. OSHRC (AlseaLumber Co.), 511 F.2d 1139, 1141, 1144-45 (9th Cir. 1975)(absent evidence that theemployer’s instructions were a sham or that the employer had an on-going practice ofpermitting employees to disregard instructions, knowledge was not established and theemployee disobedience was unpreventable). In conclusion, we hold that the Secretary has failed to show what further, feasiblemeasures Cerro could have taken to render its workplace free of the cited hazard undersection 5(a)(1). Accordingly, the judge’s decision is reversed and the citation isvacated.FOR THE COMMISSIONRay H. Darling, Jr. Executive Secretary DATED: MAY 7 1986The Administrative LawJudge decision in this matter is unavailable in this format. To obtain a copy of thisdocument, please request one from our Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).\u00a0FOOTNOTES: [[1]] 29 U.S.C. ? 654(a)(1). The section provides:Each employer…shall furnish to each of his employees employment and a place ofemployment which are free from recognized hazards that are causing or are likely to causedeath or serious physical harm to his employees.[[2]] Bixel had previously sent notices to various press and service personnel requiringthat the press be deenergized and requesting supervisors to assure this is done. He alsoposted the memo in the maintenance department and at the press. In addition, a memodetailing the 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 he did not know whyhe did not block and cut off the system. This seems to us to be a clear admission ofemployee misconduct. At the hearing Stover for the first time explained that hereenergized the press in order to prevent the container from creeping into the loader.Assuming this \”surprise\” explanation of the reason Stover reenergized the pressis credible, it does not evidence a lack of awareness by Stover of the company’s policyconcerning deenergization. We note further that the record establishes that the creepproblem could have been eliminated by means other than leaving the press energized andthat Stover knew this. Therefore, we conclude that the creep problem did not preventdeenergization far loader repair and that Cerro could not have foreseen Stover’s disregardfor its workrule.[[4]] Another employee witness, Kauffman, who was assigned to production work involvingfurnaces, in the vicinity of the press, testified that supervisors Thompson and Ickes hadworked in the press bed while the press was energized. He also asserted that he\”probably\” complained to foremen about work on the energized press. However, helater contradicted himself in response to questions by the Judge, affirming that he hadnot complained because he did not want to slow down production and lose bonus pay. Forthis reason, he had not complained to any management employees, had never filed acomplaint with OSHA, and, although he was once a member of the union grievance committee,had not filed a grievance. As noted previously, the supervisors all testified that so faras they knew, the workrule was adhered to and they were not aware of any violations.”