“SECRETARY OF LABOR,Complainant,v.GENERAL DYNAMICS CORPORATION,ELECTRIC BOAT DIVISION,Respondent.OSHRC Docket No. 79-6844_DECISION_Before: 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 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. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).Judge Richard DeBenedetto vacated a citation charging that GeneralDynamics Corporation, Electric Boat Division, willfully violated thegeneral duty clause of the Act with respect to a hatch of a submarineescape trunk under construction.[[1]] The Secretary petitioned forreview of the judge’s decision, and review was granted. For thefollowing reasons, we affirm the judge’s vacation of the citation.General Dynamics Corporation’s Electric Boat Division builds nuclearsubmarines of the \”688 attack class\” at its shipyard in Groton,Connecticut. One of the submarine’s components assembled at the Grotonshipyard is an escape trunk. Escape trunks are essentially tubes thatare large enough for men to climb through and lead up from the interiorof a submarine to the hull on top. Each end of an escape trunk has ahatch and hatch cover. The lower hatch provides access into the escapetrunk from inside the submarine, and the cover of the lower hatch opensupward into the escape trunk. During construction of submarine number703, an employee was fatally injured when struck by the 1,100 poundlower hatch cover for the submarine’s forward escape trunk. A largespring that was to serve as a counterweight to the hatch cover had notyet been installed. After an inspection, the Occupational Safety andHealth Administration (\”OSHA\”) issued a citation charging that, by\”fail[ing] to take positive control measures to prevent an employee frombeing exposed to the hazard of an unsafe closing of a hatch,\” GeneralDynamics willfully violated section 5(a)(1) of the Act. A penalty of$10,000 was proposed for the violation.Each \”688 attack class\” submarine contains two escape trunks, a forwardescape trunk and an aft escape trunk. The forward escape trunk iscylindrical in shape, eleven feet high, and has an inside diameter offifty-six inches. The aft escape trunk has similar, but not identical,dimensions. At the time of the accident, the lower and upper hatchesand hatch covers, as well as a locking bar to secure the lower hatchcover in an open position, had been installed on the forward escapetrunk in the shipyard’s machine shop, and a foundation bracket for thespring (counterweight) had been welded to the outside of the trunk.On the four prior \”688 attack class\” submarines that General Dynamicshad built, the spring had been attached to the lower hatch cover bymachine shop personnel after the foundation bracket was welded to thetrunk. The spring is about forty inches long and eight to ten inches indiameter and extends from the foundation bracket to the end of an arm orlever that protrudes from the side of the escape trunk near the lowerhatch. The arm is connected to the lower hatch cover. The arm pivots,pulling against the spring, as the hatch cover closes, thus slowing thedescent of the hatch cover.The escape trunks of the prior four submarines had been manufacturedentirely by General Dynamics, but the two escape trunks of submarine 703were made by Martin Marietta Corporation and shipped to General Dynamicsfor assembly. In the case of submarine 703, the escape trunk was sentfrom the machine shop to the North Yard of the Groton facility for thenext stage of production without the spring counterweight being attachedto the forward escape trunk. General Dynamics’ machine shop did notattach the spring to the forward escape trunk before sending it to theNorth Yard because the machine shop did not have the spring, apparentlybecause the spring had not yet been received from Martin Marietta. Thespring for submarine 704, which was also in production, was used as atemplate by the machine shop to properly position the foundation bracketon the escape trunk. But, this spring was removed from the escape trunkbefore the trunk was sent to the North Yard, because the spring was tobe used on submarine 704. About a month earlier, the aft escape trunkfor submarine 703, which was at a more advanced stage of production thanthe forward escape trunk for this submarine, had similarly been sentfrom the machine shop to the North Yard without a spring for its lowerhatch cover. No difficulties were encountered in the final productionand installation of the aft escape trunk.Frank Lopriore, a machinist who worked on submarine 703’s forward escapetrunk, testified that when he learned that the forward escape trunk wasto be sent to the North Yard without a spring on the lower hatch cover,he told supervisor Arnold Paul and general assembly foreman JohnAzzinaro that it would be unsafe to send it to the North Yard withoutthe spring in place. However, Paul and Azzinaro denied having aconversation with Lopriore about the safety of the forward escape trunkor receiving any complaints about it. Moreover, Paul and Azzinaro bothtestified that, based on their familiarity with the fabrication processfor escape trunks, they did not regard it as hazardous to work on escapetrunks lacking springs or to send trunks to the North Yard in thiscondition. Lopriore also testified that frequently in the course of hisjob he had occasion to work with, and to open and close, the lower hatchcover without the spring assembly. In any event, Lopriore had hishelper secure the locking bar with strong wire to a \”pad eye\” inside theescape trunk. The locking bar was used to secure the lower hatch coverin an open position. Even without the wire, the locking bar would haveto be pulled hard or pried with a two-by-four to start it moving, and,once wired in place, a pliers or other tool would be needed to removethe wire from the locking bar. When Lopriore told foreman Azzinaro thathe had wired the locking bar to keep the hatch cover open, Azzinaro saidthat was a good idea.Lopriore believed that he had eliminated any hazard by wiring the hatchcover open. The wire protected against the hatch cover beingaccidentally hooked and pulled down. Moreover, the absence of a spring- which Lopriore believed to be obvious – as well as the wiring aroundthe locking bar would alert anyone working on the escape trunk about themissing spring. He also knew that a hatch cover without a spring couldbe safely raised and lowered by using a crane or a \”chain fall,\” whichwas the standard procedure used before a spring was installed. Employees in the North Yard were accustomed to using cranes and chainfalls for this purpose because springs normally were not attached to thetop hatch covers of escape trucks in the North Yard.On the afternoon that the forward escape trunk arrived at the NorthYard, two machinists there, George Palmisano and Kenneth Matteau,noticed that there was no spring on the lower hatch cover andascertained from the position of the arm that the hatch was open. Palmisano told his foreman, Conrad Kosegarten, that the spring wasmissing and the hatch was open. According to Palmisano and Matteau,Palmisano also said to Kosegarten that someone might get hurt from theopen hatch cover, but Kosegarten denied being told this by Palmisano. However, neither Palmisano nor Matteau, had looked inside the trunk anddid not know that the locking bar was wired so that the hatch coverwould stay open. Matteau, however, thought that the open hatch coverwas safe despite the absence of a spring because open hatch coversnormally were secured by wire. Palmisano thought that an employeemight approach the escape trunk from a side away from the side where thespring was to be attached or could \”come up from the bottom\” into thehatch, and, in either case, could enter the trunk without knowing thatthe spring was missing.Foreman Kosegarten did not consider the absence of the spring to presenta hazard, because he believed the lower hatch cover probably was securedand because the work of employees he was supervising did not involve thelower hatch at that time. Therefore, at the end of the shift he did notinform the second shift machinist foreman, Richard Zalusky, that thelower hatch cover lacked a spring.At the beginning of the second shift, Zalusky assigned Edward Smith, amachinist, to open the upper hatch of the escape trunk, a task whichincluded welding an \”angle iron A-frame\” or brace assembly to supportopening the hatch. Zalusky went to the escape trunk and checked onSmith’s work three times during the first three hours of the shift. Atthis time other employees, called testers, were in the vicinity of theescape trunk preparing to perform hydrostatic tests on the trunk toassure that it was watertight. However, Zalusky testified that he didnot know that tests were planned to take place during that shift. Inorder for the tests to be performed the lower hatch on the escape trunkhad to be closed. About three-and-a-half hours after the shift started,Smith entered the escape trunk through the lower hatch in order to closethe hatch in preparation for the hydrostatic tests. When he saw thewire around the locking bar, he exclaimed, \”Who wired this up?\” He thenremoved the wire and pulled on the locking bar, which started the hatchcover in motion. The cover came down on Smith, causing fatal injuries.According to Lynn Jessee, a tester who witnessed the accident, Smith hadbeen assigned to close the lower hatch by foreman Zalusky and bothZalusky and tester foreman Walter Lototski had told Jessee that Smithwould close the hatch. However, both Zalusky and Lototski denied this. Nevertheless, the witnesses agreed that machinists rather than testersnormally perform the function of closing hatches. Lototski alsotestified that he did not know of the absence of the lower spring untilafter the accident, and he considered its absence to be \”significant.\”II.In vacating the citation, the judge found that binding an open hatchcover with wire is a safe method to secure the cover against accidentalclosing. The open hatch cover, thus, was safe until Smith removed thewire. The judge also found that the absence of a spring for the lowerhatch cover was an obvious condition and that Smith should have beenaware of the absent spring and the hazard presented by removing thewire. The judge reasoned that the dispositive question was whetherGeneral Dynamics had taken proper steps in training its employees as towhen a wire bound around a locking bar that was holding an open hatchcover in place could be removed. However, the issue of training was nottried by the parties. Therefore, the Secretary did not prove thatGeneral Dynamics failed to render its workplace free of a recognizedhazard, the judge concluded.In the course of his decision, the judge declined to credit Jessee’stestimony that Zalusky had assigned Smith the task of closing the lowerhatch and that both Zalusky and Lototski had told Jessee that Smithwould close the lower hatch. Rather, the judge accepted the testimonyof Zalusky and Lototski to the contrary. However, the judge did notresolve the conflicting testimony concerning whether Lopriore hadcomplained to Paul and Azzinaro about sending the escape trunk to theNorth Yard without a spring or whether Palmisano had told Kosegartenthat someone might get hurt from the open hatch cover.On review, the Secretary argues that General Dynamics created a hazardwhen it shipped the forward escape trunk to the North Yard withoutattaching the spring for the lower hatch, because machinists in theNorth Yard were accustomed to working on escape trunks with the lowerspring attached and were not warned that this escape trunk lacked aspring. As evidence that this hazard was recognized, the Secretarypoints to the testimony of machinists Lopriore and Palmisano that theyhad told their supervisors that the lack of a spring on the open hatchcover was unsafe or that someone might get hurt because of it. TheSecretary also refers to testimony that assembly foreman Azzinaro saidthat it was a good idea when told that the locking bar had been wiredopen and to testimony of tester foreman Lototski that he considered thelack of a lower spring to be \”significant.\” The Secretary contends thatGeneral Dynamics could have abated the hazard by following the priorpractice of installing the spring for the lower hatch cover before theescape trunk was sent to the North Yard. The Secretary maintains thatit would have been feasible for General Dynamics to do this, and that,in fact, the machine shop at one point had installed a spring but hadremoved it because it was to be used on the forward escape trunk ofsubmarine 704.III.The provision of the Act that General Dynamics is alleged to haveviolated, section 5(a)(1), imposes the following requirement: \”Eachemployer shall furnish to each of his employees employment and a placeof employment which are free from recognized hazards that are causing orlikely to cause death or serious physical harm to his employees.\” Inorder to establish a violation of section 5(a)(1), the Secretary mustprove that (1) the employer failed to render its workplace free of ahazard, (2) the hazard was recognized by the cited employer or generallyby the employer’s industry, (3) the hazard was causing or likely tocause death or serious physical harm, and (4) there was a feasible meansby which the employer could have eliminated or materially reduced thehazard. _E.g._, _Phillips Petroleum Co_., 84 OSAHRC ______, 11 BNA OSHC1776, 1984 CCH OSHD ? 26,783 (No. 78-1816, 1984). It is apparent fromthe accident that prompted the inspection that, under somecircumstances, the closing of a lower hatch cover on a submarine escapetrunk without a spring presents a hazard. However, the Secretary failedto prove that General Dynamics recognized this hazard under thecircumstances of this case. Moreover, he did not show a feasible meansto abate the hazard.The Secretary does not attempt to show that the hazard in this case wasrecognized by the shipbuilding or submarine building industry. Rather,he contends that General Dynamics itself recognized the hazard. To thisend, he relies largely on two items of evidence: machinist Lopriore’stestimony that he told supervisor Paul and foreman Azzinaro that itwould be unsafe to send the escape trunk to the North Yard without thespring in place, and the testimony of machinists Palmisano and Matteauthat Palmisano told foreman Kosegarten that someone might get hurt fromthe open hatch cover. There is conflicting testimony as to whetherthese statements were made, and the judge did not resolve theconflicts. Nevertheless, even assuming, without deciding, that Loprioreand Palmisano made these statements, they fall short of proving thatGeneral Dynamics recognized the hazard.Supervisor Paul and foreman Azzinaro believed that the absence of aspring for the lower hatch cover was not a hazard because employeesroutinely opened and closed hatch covers safely using chain falls orcranes when hatch covers lacked springs. Also, the danger of the hatchcover closing accidentally was eliminated when it was wired open. Moreover, Lopriore himself felt that the hazard had been eliminated whenhis helper wired the hatch cover open. Thus, even Lopriore wassatisfied that the lower hatch did not pose a hazard by the time it wassent to the North Yard.Similarly, foreman Kosegarten did not consider the absence of a springfor the lower hatch to be a hazard because he assumed that the hatchcover was secured. Employees under his supervision were not going tobe working on the lower hatch at that time, so he had no reason to checkfurther. Moreover, Palmisano and Matteau, who thought that the openhatch without a spring might be dangerous, were not working on theescape trunk and did not check inside the trunk to see if the hatchcover was wired open. Additionally, Matteau thought that the hatch coverwas safe if it was wired. Therefore, even assuming that Paul, Azzinaro,and Kosegarten received complaints about the absence of a spring for thelower hatch, they did not believe that this condition presented ahazard. _See_, _Roystar Co_., 77 OSAHRC 207\/C3, 6 BNA OSHC 1144,1977-78 CCH OSHD ? 22,389 (No. 13331, 1977) (Commissioner Barnako,separate opinion) (\”An employer need not accept an employee’s opinionthat a hazard exists, but may in good faith reach a differentconclusion.\”) It was reasonable for them to hold this belief, since thewire prevented the lower hatch from shutting accidentally, and there wasa commonly used method by which the hatch could be shut safely when itwas necessary to close the hatch. That the aft escape trunk previouslyhad been sent to the North Yard without a lower hatch spring andapparently had caused no problem adds credence to this belief. To besure, when Smith later closed the lower hatch, he did not use the craneor chain fall method but, rather, used a method that was unsafe withoutthe spring in place. Nevertheless, Smith’s subsequent accident does notmake unreasonable the views of Paul, Azzinaro, and Kosegarten that theabsence of a spring did not present a hazard, given the circumstances atthe time they purportedly received complaints about the lack of a spring.The Secretary also maintains that recognition of the hazard was shown byAzzinaro’s statement to Lopriore that wiring up the locking bar of thehatch cover was a good idea. However, the statement actually indicatesthat the supervisor believed there was no hazard due to the lack of aspring because the wire was used. Also, a supervisor might regard anysimple measure that adds to safety a good idea even if he does not thinkthere is really a hazard. Thus, a supervisor’s statement that aparticular measure is a good idea is hardly tantamount to an admissionthat the supervisor recognized that a hazard was present prior to themeasure being taken.The Secretary also notes that foreman Lototski stated that he consideredthe lack of a spring to be significant when he learned of it after theaccident. However, the meaning of this remark is uncertain. Moreover,as this statement came after the accident had occurred, it cannot proverecognition of the hazard prior to the accident.The Secretary’s proof of a feasible means of abatement also falls short. The only abatement method proffered by the Secretary was for GeneralDynamics to install on the escape trunk of submarine 703 the spring forsubmarine 704’s escape trunk. However, the Secretary does not explainhow this could be done without creating a hazard by requiring the escapetrunk for submarine 704 to be sent to the North Yard without a spring. Thus, this abatement method does not really abate the hazard but merelytransfers it to a different submarine.Having determined that the Secretary failed to establish either arecognized hazard or a feasible abatement method, we affirm the judge’svacation of the citation.SO ORDEREDFOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATE: JUN 21 1984CLEARY, Commissioner, dissenting:I dissent from the conclusions of the majority in regard to both therecognition of the hazard and the feasibility of abatement. By itsconclusions, the majority is improperly shifting the duty to provide asafe and healthful workplace from the employer to the employees. Iwould affirm a violation of the general duty clause here, but I wouldnot characterize the violation as willful.IThe recognized hazard alleged in this case is the danger on a submarineescape trunk of an unsafe closing of the lower hatch cover because itwas not yet equipped with a spring to slow its descent. The hatch coverweighed approximately 1100 pounds. The missing spring would operate asa counterweight so that a person manually could open or close thehatch. The hatch cover was left open. It was held in this position bya locking bar. Two employees took the precaution of wiring the lockingbar in place as a safety measure. Apparently, the precaution of wiringwas adequate to prevent the hatch cover from closing accidentally. Itis clear from the events that occurred, however, that the wired lockingbar would not prevent someone who was unaware of the missing spring fromattempting to close the hatch manually. It is clear also that thewiring did not warn an employee that the spring was missing. Themajority vacates the citation because they find that General Dynamicsdid not know of this hazard.The undisputed facts are these. General Dynamics’ supervisory personnelboth in the machine shop, where the hatch was wired open, and in theNorth Yard, where the accident occurred, knew that the spring wasmissing. Supervisor Paul and foreman Azzinaro in the machine shop andforeman Kosegarten in the North Yard also knew that the hatch was in theopen position. At least foreman Azzinaro was aware that the locking barhad been wired in place. Thus, all of General Dynamics’ supervisorypersonnel, except possibly machinist foreman Zalusky, knew that thehatch was open and that the spring was missing. The extent of Zalusky’sknowledge is unclear; however, Zalusky was the foreman who assigned thedeceased employee to work on the escape trunk. Nevertheless, despiteintimate knowledge of the physical conditions here, Respondent’ssupervisor Paul and foremen Azzinaro and Kosegarten testified that theydid not consider the condition a hazard. There is testimony to thecontrary by three employees. Yet despite the contrary assertion, I findthis testimony to be incredible in view of the obviousness of thishazard, unless one conditions implicitly the foremen’s testimony on anassumption that the machinists would notice the absence of the spring.Such an assumption, however, was totally unwarranted. The escape trunksof the prior four submarines had been manufactured by Respondent and allwere sent to the shipyard with the spring counterweights attached to thelower hatch cover. It would have been reasonable, therefore, foremployees to expect the hatch cover on submarine 703 to be similarlyequipped. Despite this departure from usual conditions, no warning wasgiven. More importantly, machinist George Palmisano testified, however,that if you stand on the \”blind side\” of the trunk, the absence of thespring canister is not noticeable. In questioning by the Judge,machinist Palmisano testified as follows:JUDGE DE BENEDETTO: Well, I’m not quite sure I follow you. If there isa missing spring canister, it’s obvious whether it’s on the lower hatchor an the upper hatch. Isn’t that true?THE WITNESS: Not once they’re – once they’re in the boat, you don’t seeeither canister. Outside the boat, you can open – you open that hatchup to secure it to something. And the upper hatch is right out in theopening. You can see if it’s secure.It would either have a turnbuckle on there going into a pad eye, whichis welded if it is open, or you would have a stancheon up there with achain fall on it which you could see it was open. And you know youcouldn’t just release it because there wouldn’t be a one-time chain fallon it if you could release it.The lower hatch, if someone comes up from the bottom, there’s no way -if you’re unaware, if you don’t work with a particular job and youdidn’t know, there’s no way of telling.Furthermore, both foreman Walter Lototski, Jr., the supervisor of theShipyard Test Organization, and foreman Conrad Kosegarten testified thateven though they looked at the escape trunk they did not notice theabsence of the spring mechanism. Finally, Lynn Jessee, who was workingwith Smith, the deceased employee, testified that Smith asked him whowired up the hatch before he unraveled the wire. Obviously, Smith, notnoticing the absence of the spring, failed to discern a hidden purposebehind the wiring. Apparently, neither did Jessee.For these reasons, I cannot accept that General Dynamics’ foremenperceived no hazard from the conditions cited here. The hazard wasobvious and severe. Respondent’s employees, those who were aware thespring was missing, recognized the hazard. If the supervisory personnelsimply assumed the employees would notice the missing spring beforeattempting to close the hatch, that assumption was totally unwarranted. It also is contrary to the Act in that it impermissibly attempts toshift the responsibility for safety to the employees. Accordingly, theSecretary established that relying on employees to observe the absence ofthe spring was not sufficient to free the workplace of the hazard. Thestep of wiring open the cover without any warning of the reason behindthe action did not free the workplace from the hazard to an employeeattempting to close the hatch with the spring missing.III would also find that feasible means of reducing the hazard wereestablished. At several points during the hearing, the Secretaryadduced the testimony establishing that there were no signs orinstructions informing employees of the absence of the spring mechanismor warning them not to remove the wires. From Smith’s inquiry as to whowired up the hatch and the other testimony, it is abundantly clear thata simple warning sign would have prevented this accident. [[2]]The record also establishes that, after the accident, Respondent securedopen hatch covers with chains and padlocks.[[3]] Keys to the locks wereput in the possession of the ship’s manager and the outside machinists. This system should also eliminate the danger to employees unaware of theabsence of the spring.Accordingly, I would find a violation.————————————————————————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]] Section 5(a)(1) of the Act, referred to as \”the general dutyclause,\” provides: \”Each employer shall furnish to each of hisemployees employment and a place of employment which are free fromrecognized hazards that are causing or likely to cause death or seriousphysical harm to his employees.\”[[2]] As brought out on cross-examination, it is also apparent that thehazard could have been obviated by simply closing the hatch beforemoving it to the North Yard.[[3]] Respondent’s attorney objected to this testimony. Under Rule 407of the Federal Rules of Evidence, evidence of subsequent measures isadmissible to prove feasibility of precautionary measures. The rule states:Rule 407. Subsequent Remedial MeasuresWhen, after an event, measures are taken which, if taken previously,would have made the event less likely to occur, evidence of thesubsequent measures is not admissible to prove negligence or culpableconduct in connection with the event. This rule does not require theexclusion of evidence of subsequent measures when offered for anotherpurpose, such as proving ownership, control, or feasibility ofprecautionary measures, if contraverted, or impeachment.”