“Docket No. 81-0748 SECRETARY OF LABOR, Complainant,v.DRAVO ENGINEERS AND CONSTRUCTORS,Respondent.OSHRC Docket No. 81-0748DECISIONBefore:\u00a0 ROWLAND, Chairman; CLEARY and BUCKLEY, 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 and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration.\u00a0 It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor under the Act and has no regulatoryfunctions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).In this case, Administrative Law Judge Edwin G. Salyers affirmed a citationalleging that Dravo Engineers and Constructors violated 29 C.F.R. ? 1926.21 (b) (2),[[1]] which requires that an employer instruct its employees in the recognition andavoidance of unsafe conditions.\u00a0 Although the judge found that Dravo gave itsemployees adequate instructions, he concluded that the company violated the standardbecause it did not enforce the instructions.\u00a0 We reverse the judge’s decision andvacate the citation.Dravo oversaw a construction site in Racine, Ohio.\u00a0 At the site, therewas a wooden trestle with a large crawler crane situated in the middle of the trestle.In 1980, Dravo was cited for violating 29 C.F.R. ? 1926.550(a)(9)[[2]]because it had failed to barricade the area of trestle where the crane was located. \u00a0To bring itself into compliance with the barricade standard, Dravo built recessed walkwaysalongside the trestle and barricaded the sides of the trestle with nylon rope. \u00a0Dravo also posted signs cautioning employees to \”watch counterweight.\” \u00a0 Inaddition, the employees were instructed at tool box meetings about the hazard of theswinging counterweight.In February, 1981, an OSHA compliance officer conducted a follow-upinspection of the Dravo construction site.\u00a0 At the hearing, the compliance officertestified that Dravo was in compliance with section 1926.550(a)(9) at the time of thefollow-up inspection. The officer observed three Dravo employees in the span of fifteen totwenty minutes enter the barricaded area to cross the trestle. As a result, the Secretarycited Dravo for a serious violation of 29 C.F.R. ? 1926.21(b)(2) and proposed a penaltyof $490.Judge Salyers found that Dravo had violated the instruction standard. \u00a0Judge Salyers found that implicit in the cited standard was a duty for Dravo to enforcethe safety instructions it gave to its employees.\u00a0 Concerning the hazard of theswinging counterweight, the judge stated, I find as a fact that Respondent made an honesteffort to warn employees of the hazard and instruct them in ways to avoid it. \u00a0 WhatI cannot find in the record of this case is an honest effort by Respondent and itssupervisory employees to carry out enforcement of the announced policy.Dravo contends that the judge erred in finding a violation based on itsfailure to enforce the instructions it gave employees.\u00a0 The company argues that thestandard requires only that instructions be given and that it complied with thatrequirement.\u00a0 We agree.\u00a0 The clear language of the standard requires only thatan employer instruct its employees.In Sawnee Electric Membership Corp.,77 OSAHRC 24\/C10, 5 BNA OSHC 1059,1977-78 CCH OSHD ? 21,560 (No. 10277, 1977), the Commission found that the employer’smonthly safety meetings and on the job training were sufficient to comply with section1926.21(b)(2).\u00a0 The Commission held that the standard only required that the employerinstruct its employees of hazards. See also Marshall v. M.W. Watson, Inc.,652 F.2d 977 (10th Cir. 1981); H.C. Nutting Co., v. OSHRC, 8 BNA OSHC 1241, 1980CCH OSHD ? 24,548 (6th Cir. 1980).The undisputed facts of this case establish that Dravo complied with thestandard.\u00a0 Judge Salyers found and both parties agree that Dravo instructed itsemployees about the dangers of the swinging counterweight.\u00a0 Dravo supervisorsconducted regular tool box meetings in which workplace hazards, including the hazard ofthe counterweight, were discussed.\u00a0 Dravo instructed its employees not to go on thetrestle without a legitimate work-related purpose.\u00a0 The trestle was properlybarricaded and signs warned employees to \”watch counterweight.\”The Secretary argues that the Commission has held that employers must effectively enforcetheir work rules to avoid being found in violation of standards, and that the Commissionshould therefore uphold the judge’s decision in this case and find a violation based onthe lack of enforcement of Dravo’s instructions.\u00a0 The Secretary relies in support oncases concerning the unpreventable employee misconduct defense.\u00a0 These cases areinapposite since they deal with a defense raised by employers in arguing that they shouldnot be held responsible for failing to prevent their employees’ misconduct.\u00a0 Thiscase, on the other hand, involves the burden of the Secretary to prove a violation of aparticular standard which imposes the duty to instruct employees.\u00a0 This duty was notbreached. The Secretary would read into the standard the additional duty to enforce theinstructions.\u00a0 We decline to rewrite the standard to impose a duty not otherwiserequired.\u00a0 See Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157, 161 (3dCir. 1978) (Commission should not strain the plain and natural meaning of words in astandard).The Secretary also argues that Dravo supervisors should have continued towarn their employees about the danger of the counterweight whenever they saw employees upon the trestle.\u00a0 The record reflects that the trestle was a work area requiringemployees to enter the barricaded space on occasion, and it is not clear that Dravosupervisors ever saw employees on the trestle who did not have legitimate reason to bethere.\u00a0 In any event, the course of action which the Secretary suggests would havenecessitated that Dravo post a guard to identify and warn away unauthorized workers.\u00a0 The standard does not require this.Since the standard only requires that the employer instruct its employees ofworkplace hazards and the facts establish that Dravo did so, Dravo complied with 29 C.F.R.? 1926.21(b)(2). [[3]]Judge Salyers’ decision is reversed and the citation is vacated. FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:\u00a0 JUN 12 1984CLEARY, Commissioner, dissenting:The Judge decided this case in a manner consistent with the design of boththe Act and the cited standard and his decision should be affirmed.The cited standard, 29 C.F.R. ? 1926.21(b)(2) states that: The employer shall instruct each employee in the recognition and avoidance ofunsafe conditions and the regulations applicable to his work environment to control oreliminate any hazards or other exposure to illness or injury.The evidence establishes that Respondent instructed its employees about thedangers of the swinging counterweight.\u00a0 Nevertheless, the record also establishesthat Dravo took no measures to enforce those instructions.\u00a0 During the inspection,the compliance officer observed three different employees in the crane area of the trestlein the span of ten to fifteen minutes.\u00a0 Moreover, the union safety representativetestified that walking on the trestle was common, and that it was done several times aday.\u00a0 He further testified that Dravo employees even took lunch breaks on thetrestle.\u00a0 The Judge’s decision concluded that employees routinely used the cranetrestle as a walkway without warnings or reprimands from Dravo supervisors (Findings ofFact No. 6).The majority decision vacates the citation on the grounds that the citedstandard requires only that the employer instruct employees of workplace hazards, with noconcomitant requirement that the employer undertake reasonable efforts to ensure thatthose instructions are obeyed.\u00a0 I concede that the language of section 1926.21(b)(2)reads as the majority recites, that employers must instruct each employee in therecognition and avoidance of unsafe conditions.\u00a0 The majority then would apply thestandard according to its literal term, i.e., perhaps one instruction will suffice.\u00a0 At this point the employer is then free to disregard an unsafe condition even ifhis supervisors observe employees in a zone of danger.\u00a0 The employer’s duty iscomplete; the potential for actual injury is irrelevant once the employer has recitedcertain catchwords to employees.\u00a0 However, one would have to ask if an employee hadbeen adequately instructed if he is observed entering a dangerous area after he had been\”instructed\” previously to avoid that area.\u00a0 He obviously does not\”recognize\” the unsafe condition, or has not avoided it as contemplated by thestandard.\u00a0 Or, should he not be \”instructed\” again if he is observed inproximity to a hazard?\u00a0 I do not think a standard need be or should be interpretedwoodenly and mechanically in disregard of the intent of the standard which is,essentially, to cause employees to avoid unsafe conditions.\u00a0 It is a familiar rulethat \”A thing may be within the letter of the statute and yet not within its spirit,nor within the intention of its makers.\”\u00a0 Un. Steelworkers, Etc., v. Weber,443 U.S. 192, 99 S. Ct. 2721 (1979); United Housing Foundation, Inc. v. Forman,421 U.S. 837, 95 S. Ct. 2051 (1975).In a case directly in point, the Eighth Circuit concluded that ?1926.21(b)(2) requires supervisory personnel, when they observe activity that is hazardousor violative of a regulation, to instruct workers accordingly.\u00a0 NationalIndustrial Constructors, Inc., v. OSAHRC, 583 F.2d 1048 (8th Cir. 1978). \u00a0In that case, Respondent was cited under 29 C.F.R. ? 1926.21(b)(2) for permittingemployees to climb diagonal beams to gain access to their work area.\u00a0 The courtagreed with the Administrative Law Judge’s factual findings that employees were instructedduring an orientation program, as well as at weekly safety meetings, not to climb diagonalbeams.\u00a0 Nevertheless, a foreman was aware of the activity, but did not instruct theemployees to cease.\u00a0 The court held that,Reasonably applied, the standard requires supervisory personnel to adviseemployees, especially new employees, of the hazards associated with actual dangerousconduct in which they are presently engaging.583 F.2d at 1056.The objective of 29 C.F.R. ? 1926.21(b)(2) is to ensure that employees are instructed inthe detection and avoidance of hazards that may be encountered in their work.\u00a0 Tointerpret the standard as not requiring employers to take steps to enforce thoseinstructions improperly shifts responsibility for occupational safety and health from theemployer to the employee.\u00a0 See Brennan v. OSAHRC and Gerosa, Inc.,491 F.2d 1342 (2d Cir. 1974).I would also find that the other exceptions taken by Respondent are withoutmerit.First, Respondent argues that the citation should be vacated because thecompliance officer talked to Dravo employees in private, in violation of its rights undersection 8(e) of the Act to accompany the compliance officer.\u00a0 Private interviews are,however, specifically authorized under section 8(a)(2) of the Act and do not conflict withthe employer’s statutory right to accompany the inspector.\u00a0 Wollaston Alloys,Inc., v. Donovan, 695 F.2d, 1, 8-9 (1st Cir. 1982).Second, Respondent argues that the citation should be vacated because 29C.F.R. ? 1926.550(a)(9) is a more specifically applicable standard and it was incompliance with that standard.\u00a0 The Commission has held that the failure to instructemployees in the detection and avoidance of hazards, as required by ? 1926.21(b), is aviolation separate and distinct from the violation created by a failure to abate theunderlying hazard, and may be separately cited.\u00a0 H. H. Hall Construction Co.,81 OSAHRC 91\/D12, 10 BNA 1042, 1049, 1981 CCH OSHD ? 25,711 (No. 76-4765, 1981).The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation Office by e-mail ( [email protected]), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).FOOTNOTES: [[1]] 29 C.F.R. ? 1926.21(b)(2) provides as follows:The employer shall instruct each employee in the recognition and avoidance ofunsafe conditions and the regulations applicable to his work environment to control oreliminate any hazards or other exposure to illness or injury.[[2]] 29 C.F.R. ? 1926.550(a)(9) provides:Accessible areas within the swing radius of the rear of the rotatingsuperstructure of the crane, either permanently or temporarily mounted, shall bebarricaded in such a manner as to prevent an employee from being struck or crushed by thecrane.[[3]] Because the Commission finds that Dravo complied with 29 C.F.R. ?1926.21(b)(2), it is unnecessary to address whether 29 C.F.R. ? 1926.550(a) (9) is themore specifically applicable standard or whether the citation should be vacated becausethe compliance officer spoke to Dravo employees without management representativespresent.”