“Docket No. 83-0540 SECRETARY OF LABOR,Complainant, v.DU-MOR ENTERPRISES, ACTION UTILITY COMPANY, INC., DU-MOR DRILLING AND BLASTING,Respondent.OSHRC Docket No. 83-0540DECISION Before: BUCKLEY, Chairman, and CLEARY, Commissioner.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. It wasestablished to resolve disputes arising out of enforcement actions brought. by theSecretary of Labor (\”Secretary\”) under the Act and has no regulatory functions.See section 10(c) of the Act, 29 U.S.C. ? 659(c).Following an inspection by a compliance officer of the Occupational Safety and HealthAdministration, a citation was issued to Du-Mor Enterprises (\”Du-Mor\”) by theSecretary for a violation of 29 C.F.R. ? 1926.21(b)(2).[[1]] The citation alleged asfollows:The employer did not instruct each employee in the recognition and avoidance of unsafecondition[s] and the regulation[s] applicable to his work environment to control oreliminate any hazard[s] or other exposure to illness or injury:(a) Employees gauged trench depth walking immediately posing behind trenching machinesconveyer’ [sic] chain, exposing them to hazards of revolving chain, dislodged rocks anddirt.(b) Employees used trenching machines’ conveyer chain as means of egress for trench,exposing them to hazards of unintentional movement of chain.(c) Trenching machine operator operated conveyer chain without determining that employeeswere not in proximity to hazardous moving parts of the machine.The citation was issued following an accident involving Kenneth Hampton, a laborer who hadworked for Du-Mor for one week. At the time of the accident, Du-Mor was using a VermeerT-800 to dig a trench for a sewer and water line in Boerne, Texas. The machine excavated aditch by using a power driven conveyer chain extended vertically into the ditch. It wasconsidered an obvious danger by all of Du-Mor’s employees who testified.Immediately prior to the accident, Hampton was grading the trench, which was about fourfeet deep. This work consisted of picking up rocks that the Vermeer had left behind andmoving them aside. The Vermeer’s operator, Ramos, disengaged the clutch, stopping thechain for a short time, although the engine continued to run. When Ramos started the chainagain, Hampton was pulled into the chain and killed. Ramos did not check to see if anyonewas near the digging chain before he restarted it.At the hearing, Robert Hargroder, Du-Mor’s general manager and partner, testified that itis Du-Mor’s policy to instruct its employees who are to be in trenches, to stay at leastten feet behind the digging chain on the trenching machine and not to use the chain as ameans of egress from the trench. He further explained that a ladder is used to get in andout of the trench when the trench is over four feet in depth and that the machineoperators are instructed not to operate the digging chain on the Vermeer without firstascertaining that no one is in proximity to it. Hanover, Du-Mor’s general superintendent,stated that he instructs employees to stay about ten feet away from the conveyer chain andnot to use the conveyer chain when getting in and out of the trench. Both Robert Hargroderand Hanover stated that they observed Hampton working too close to the Vermeer andcautioned him to stay away from the machine. Troy Hargroder, Du-Mor’s foreman, testifiedthat it is not Du-Mor’s policy to allow employees to walk immediately behind a trenchingmachine or to use the conveyer chain as a means of getting in and out of trenches. He andoperator Ramos also spoke to Hampton about the danger of working too close to the Vermeer.Du-Mor’s supervisors stated that a safety meeting is held once a month. The employees arepaid a half-hour of overtime to attend the meeting and sign a receipt verifying theirattendance. Each crew has its own safety meetings. General safety regulations coveringhazards the employees have encountered or are likely to encounter, including the dangersof the Vermeer, are discussed. The foremen are asked to pay particular attention to anynew employees.Du-Mor’s laborers, Jamie and Rodriguez, had worked as laborers for one week prior to thefatality[[2]] and stated that they had not received any instructions from Du-Mor not tostand or walk immediately behind the digging chain and not to get on the digging chain.Jamie admitted, however, that \”some other employees\” had discussed the need tostay away from the chain with Hampton and himself, and he stated that he told Hampton tobe careful. In addition he stated that Ramos told employees to be careful when workingnear the Vermeer. Jamie and Rodriguez admitted that they and other employees had used thechain to get into or out of the trench when the machine was shut off. Ramos guessed thechain was used in this manner 5-10 times. Rodriguez testified that he knew that using thedigging chain when the machine was not operating was improper. Jamie stated that TroyHargroder had seen the employees use the chain, but Hargroder denied having observed suchaction. The Compliance Officer stated he was told by Du-Mor’s employees that they walkedbetween two and ten feet behind the Vermeer. Rodriguez felt that as a general ruleemployees walked from five to six feet behind the machine. There is no evidence thatDu-Mor’s supervisors observed and permitted employees this close to the machine.Judge Schwartz vacated the citation. He credited the testimony of Du-Mor’s witnesses thatinstructions had been given and noted that the employees were aware of the dangers of themachine. He did not, however, make any findings as to whether the employees violated therules.The two Commission members are divided on whether the judge’s decision should be affirmed.Chairman Buckley would affirm the judge’s decision. He concludes that the standard imposesa single duty upon employers: to instruct employees concerning hazards at the worksite.Dravo Engineers & Constructors, __OSAHRC __, 11 BNA OSHC 2010, 2011-12, 1984 CCH OSHD? 26,930 at pp. 34,507-34,508 (No. 81-748, 1984); Sawnee Electric Membership Corp., 77OSAHRC 24\/C10, 5 BNA OSHC 1059, 1060, 1977-78 CCH OSHD ? 21,560 at pp. 25,871-25,872 (No.10277, 1977) (lead and concurring opinions). In his opinion, the evidence establishes thatDu-Mor complied with this duty.The citation lists three separate instances in which Du-Mor failed to give instructionswith respect to the Vermeer. The first two involve the requirement that Du-Mor’s employeesstay a sufficient distance from the trenching machine’s conveyer chain and not use thechain as a means of egress from the trench. The evidence is conflicting as to whetherinstructions about the cited hazard were given. However, after, listening to the evidence,Judge Schwartz made a specific credibility finding that he was giving greater weight tothe testimony of Du-Mor’s supervisors that instructions were given. The judge explainedthe reasons for his finding and made it carefully and impartially in light of the entirerecord. Accordingly Chairman Buckley would defer to the judge’s evaluation of thecredibility of the witnesses. See C. Kaufman, Inc., 78 OSAHRC 3\/C1, 6 BNA OSHC 1295, 1297,1977-1978 CCH OSHD ? 22,481 at p. 22,481 (No. 14249, 1978). He agrees with the judge thatDu-Mor’s employees were instructed regarding the requirement not to walk immediatelybehind the conveyer chain and not to use the chain as a means of egress.The Secretary argues that even if instructions were given, they were inadequate withrespect to use of the conveyer chain to exit the trench. He relies in part upon theconversations Du-Mor’s supervisors had with Hampton, noting that Hampton was notinstructed regarding use of the chain as a means of egress. However, in theseconversations, Robert Hargroder explained to Hampton that he had lost his thumb on a smallchain of the ditching machine and that the larger chain would \”cut your whole headoff.\” Hanover told Hampton he needed to stay away from the machine because the chainwas very dangerous and \”there was no telling what would happen.” According toHanover, Hampton replied that he understood the danger involved. Both Troy Hargroder andRamos also cautioned Hampton about the dangers of the Vermeer. These instructionsgenerally warned of the danger of coming too close to the machine and would indicate thatit should not be used as a means of egress. Moreover, Hanover stated that he hadinstructed employees not to use the machine as a means of egress. Both Troy Hargroder andHanover stated that they had never seen employees exiting by way of the machine, andHampton was not observed doing that either. To the extent identified in the record, thegeneral warnings to him were precipitated by Hampton’s getting too close to the Vermeer,and did not involve any use by him of the chain as an egress. It also is clear that theaccident here would not have occurred if Hampton had heeded the repeated warnings given tohim by both Robert and Troy Hargroder, Hanover, Ramos, and other employees. ChairmanBuckley therefore concludes that the instructions and warnings to Hampton were adequate.Chairman Buckley also rejects the Secretary’s argument that Du-Mor did not instruct itsemployees that use of the chain as a means of egress was prohibited when the machine wasnot operating. The evidence does not support a finding that Du-Mor’s instructions wereinadequate to cover all instances of the chain’s use. Hargroder testified that it wasDu-Mor’s policy to instruct employees not to use the chain for egress, and that a ladderis used for that purpose when the trench is deeper than four feet. Hanover testified thathe instructs employees not to use the conveyer when getting in and out of the trench.Thus, Du-Mor’s rule was clear and unequivocal. Employees were instructed not to use thechain as a means of egress; there were no exceptions. Because the dangers from the chain’soperation were obvious, a general admonition to the employees to stay away from the chainwas sufficient. See Butler Lime & Cement Co. v. OSHRC, 658 F.2d 544, 548, 551-52 (7thCir. 1981). As the testimony of Rodriguez demonstrates, he understood the instructions toinclude use of the chain when it was not operating.In further support of its position that the citation should be affirmed, the Secretaryasserts that the practice of using the chain as a means of egress \”was not uncommonamong employees.\” In making this statement, the Secretary is apparently arguing thata violation occurred because Du- Mor did not enforce its instructions. However, the dutyto enforce is not required by the standard, and Chairman Buckley would not rewrite thestandard to impose a duty not otherwise required. Dravo Engineers & Constructors,supra; cf. Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157, 161 (3rd Cir. 1978) (Commissionshould not strain the plain and natural meaning of words in a standard). In any event, theevidence does not support a finding that Du-Mor knew or reasonably should have known thatemployees used the chain as a means of egress. Although Jamie claimed that Troy Hargrodersaw such conduct, Troy Hargroder denied that he had seen employees use the chain foregress and there is no other evidence that Du-Mor supervisors observed any employeesexiting by way of the chain.Du-Mor was cited in the third instance for failing to instruct the trenching machineoperator to determine whether employees are in proximity to the hazardous moving parts ofthe Vermeer before operating the conveyer chain. Robert Hargroder stated that it isDu-Mor’s policy to instruct the machine operators not to operate the digging chain withoutfirst looking to see that no one is in proximity to it. The judge credited Hargroder’stestimony. Ramos, the machine operator, testified that, he had discussed with Du-Mor’ssupervisors the operation of the trenching machine when people are in the vicinity andalso stated that prior to the accident he had seen an operator’s manual and a safetymanual published by the Farm and Industrial Equipment Institute, which discuss therequirement that all personnel must be at a safe distance before the operator beginsoperating the machine. Ramos also stated that he knew better than to turn on the Vermeerwhen anyone was present and that the dangers of the Vermeer had been discussed at safetymeetings. This evidence unequivocally establishes that Ramos was well aware of the hazardsof the Vermeer and of the actions he should take as the machine operator. Accordingly, inlight of the judge’s clear credibility finding and Ramos’s understanding as the machineoperator, Chairman Buckley would also vacate this portion of the citation.Commissioner Cleary would affirm the citation. He finds that the evidence establishes thatsome of the employees at the site were not instructed as to the hazards associated withthe Vermeer. Although Du-Mor’s supervisors testified that they instructed employeesconcerning the hazards of the Vermeer, the evidence is that they did not give suchinstructions to either Rodriguez or Jamie, who had been working as laborers for only oneweek prior to the accident. Both men testified they had received no instructions fromDu-Mor not to stand or walk immediately behind the digging chain and not to use thedigging chain as a means of egress from the trench. Moreover Jamie was unaware that safetymeetings were held. Rodriguez knew of the safety meetings but there is no evidence that heattended any of these meetings. On the basis of these facts, Commissioner Cleary findsthat these employees were not adequately instructed about the hazards of the Vermeer. Anemployer does not fulfill his duty under the cited standard by waiting to give employeessafety instructions after they are performing a job rather than training them in advanceto avoid hazards. See Sawnee Electric Membership Corp., supra. (Cleary, dissenting).The record also fails to establish that Ramos was instructed to determine that employeeswere not in proximity to the conveyer chain before operating it. As with the instructionsto the laborers, none of Du- Mor’s supervisors testified that they gave Ramos instructionsconcerning operation of the chain, and Ramos’ testimony is inconsistent as to whether hereceived instruction.[[3]] Du-Mor has not fulfilled its duty under the standard becauseRamos had seen two manuals discussing the need to keep personnel at a safe distance beforeoperating the machine. The record does not disclose whether Ramos read the manuals, and ifhe did read them whether he was instructed to do so by Du-Mor. The standard placesresponsibility on the employer to instruct its employees and this duty is not fulfilled ifemployees can coincidentally learn of or recognize the hazards of the Vermeer. Seegenerally Brown & Root, Inc., 80 OSAHRC 97\/A2, 8 BNA OSHC 2140, 2145, 1980 CCH OSHD ?24,853 (No. 76-1296, 1980) (final responsibility for compliance with the Act rests withthe employer and cannot be shifted to employees).Commissioner Cleary also agrees with the Secretary that the instructions were not adequateto keep the employees from using the chain as a means of egress when the Vermeer was notin operation. Clearly, some of the employees believed that it was safe to use the chainwhen the machine was stopped. Rodriguez did not recall having received instructions thatit was improper to use the chain when the machine was off. Jamie said that he had not beeninstructed that such use was improper. Ramos stated that he did not caution the employeeswhen he saw them using the chain because the machine was off. As the Commission stated inNew England Telephone & Telegraph Co., 80 OSAHRC 54\/A2, 8 BNA OSHC 1478, 1490, 1980CCH OSHD ? 24,523 at p. 30,000 (No. 76- 3010, 1980), quoting Brennan v. Butler Lime andCement Co., 520 F.2d 1101, 1018 (7th Cir. 1975), \”Rules are more likely to beobserved if their rationale is understood and it is made clear that they are not justarbitrary pronouncements but are grounded in practical reasons of safety.\”But more importantly the evidence establishes that employees extensively used the machineas a means of egress from the trench, and that this was done over a period in the presenceof a supervisor, Troy Hargroder. This is compelling evidence that the employees were notinstructed to avoid the Vermeer as a means of egress. Moreover, there was no ladder, andit would appear the machine was the only means of getting out of the trench. Additionally,Du-Mor violated the standard because it did not enforce the safety rules concerning thedangers of the Vermeer. The duty to instruct includes the duty to enforce theinstructions. See Dravo Engineers & Constructors, supra (Cleary, dissenting); NationalIndustrial Constructors, Inc. v. OSHRC, 583 F.2d 1048 (8th Cir. 1978). The employer mustundertake reasonable efforts to ensure that the instructions are obeyed. If the employerdoes not do this, and employees are free to ignore instructions, safety rules become amockery. Commissioner Cleary accordingly would affirm the citation.Under section 12(f) of the Act, 29 C.F.R. ? 661(e), official action can be taken by theCommission with the affirmative vote of at least two members. To resolve their impasse onthe merits of the citation and to permit the parties to conclude this litigation, ChairmanBuckley and Commissioner Cleary agree to vacate the direction for review. E.g. Texaco,Inc., 80 OSAHRC 74\/B1, 8 BNA OSHC 1758, 1980 CCH OSHD ? 24,634 (Nos. 77-3040 &77-3542, 1980). The judge’s decision concluding that Du-Mor did not violate section1926.21(b)(2) therefore becomes the final order of the Commission but is accorded theprecedential value of an unreviewed judge’s decision.FOR THE COMMISSIONRay H. Darling, Jr.Executive Secretary DATED: APR 26 1985FOOTNOTES: [[1]] 29 CFR ? 1926.21(b)(2) provides:The employer shall instruct each employee in the recognition and evidence ofunsafe conditions and the regulations applicable to his work environment to control oreliminate any hazards or other exposure to illness or injury.[[2]] Rodriguez had been a truck driver for Du-Mor for over a year previousto working as a laborer.[[3]] At one point Ramos stated he had not received specific instructionsfrom Du-Mor not to operate the machine without checking to be sure that anyone was nearthe digging chain. However, he also testified he had received instructions from Du-Mor’ssupervisors about operating the trenching machine when people are in the vicinity.”