“Docket No. 79-6844 SECRETARY OF LABOR,Complainant,v.GENERAL DYNAMICS CORPORATION,ELECTRIC BOAT DIVISION,Respondent.OSHRC Docket No. 79-6844DECISIONBefore:\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).Judge Richard DeBenedetto vacated a citation charging that General DynamicsCorporation, Electric Boat Division, willfully violated the general duty clause of the Actwith respect to a hatch of a submarine escape trunk under construction.[[1]]\u00a0 TheSecretary petitioned for review of the judge’s decision, and review was granted.\u00a0 Forthe following 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.\u00a0One of the submarine’s components assembled at the Groton shipyard is an escapetrunk.\u00a0 Escape trunks are essentially tubes that are large enough for men to climbthrough and lead up from the interior of a submarine to the hull on top. Each end of anescape trunk has a hatch and hatch cover.\u00a0 The lower hatch provides access into theescape trunk from inside the submarine, and the cover of the lower hatch opens upward intothe escape trunk.\u00a0 During construction of submarine number 703, an employee wasfatally injured when struck by the 1,100 pound lower hatch cover for the submarine’sforward escape trunk.\u00a0 A large spring that was to serve as a counterweight to thehatch cover had not yet been installed.\u00a0 After an inspection, the Occupational Safetyand Health Administration (\”OSHA\”) issued a citation charging that, by\”fail[ing] to take positive control measures to prevent an employee from beingexposed to the hazard of an unsafe closing of a hatch,\” General Dynamics willfullyviolated section 5(a)(1) of the Act.\u00a0 A penalty of $10,000 was proposed for theviolation.Each \”688 attack class\” submarine contains two escape trunks, aforward escape trunk and an aft escape trunk.\u00a0 The forward escape trunk iscylindrical in shape, eleven feet high, and has an inside diameter of fifty-six inches.\u00a0The aft escape trunk has similar, but not identical, dimensions.\u00a0 At the timeof the accident, the lower and upper hatches and hatch covers, as well as a locking bar tosecure the lower hatch cover in an open position, had been installed on the forward escapetrunk in the shipyard’s machine shop, and a foundation bracket for the spring(counterweight) had been welded to the outside of the trunk.On the four prior \”688 attack class\” submarines that GeneralDynamics had built, the spring had been attached to the lower hatch cover by machine shoppersonnel after the foundation bracket was welded to the trunk.\u00a0 The spring is aboutforty inches long and eight to ten inches in diameter and extends from the foundationbracket to the end of an arm or lever that protrudes from the side of the escape trunknear the lower hatch.\u00a0 The arm is connected to the lower hatch cover.\u00a0 The armpivots, pulling against the spring, as the hatch cover closes, thus slowing the descent ofthe hatch cover.The escape trunks of the prior four submarines had been manufactured entirelyby General Dynamics, but the two escape trunks of submarine 703 were made by MartinMarietta Corporation and shipped to General Dynamics for assembly.\u00a0 In the case ofsubmarine 703, the escape trunk was sent from the machine shop to the North Yard of theGroton facility for the next stage of production without the spring counterweight beingattached to the forward escape trunk.\u00a0 General Dynamics’ machine shop did not attachthe spring to the forward escape trunk before sending it to the North Yard because themachine shop did not have the spring, apparently because the spring had not yet beenreceived from Martin Marietta.\u00a0 The spring for submarine 704, which was also inproduction, was used as a template by the machine shop to properly position the foundationbracket on the escape trunk.\u00a0 But, this spring was removed from the escape trunkbefore the trunk was sent to the North Yard, because the spring was to be used onsubmarine 704.\u00a0 About a month earlier, the aft escape trunk for submarine 703, whichwas at a more advanced stage of production than the forward escape trunk for thissubmarine, had similarly been sent from the machine shop to the North Yard without aspring for its lower hatch cover.\u00a0 No difficulties were encountered in the finalproduction and 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 was to be sent to theNorth Yard without a spring on the lower hatch cover, he told supervisor Arnold Paul andgeneral assembly foreman John Azzinaro that it would be unsafe to send it to the NorthYard without the spring in place.\u00a0 However, Paul and Azzinaro denied having aconversation with Lopriore about the safety of the forward escape trunk or receiving anycomplaints about it.\u00a0 Moreover, Paul and Azzinaro both testified that, based on theirfamiliarity with the fabrication process for escape trunks, they did not regard it ashazardous to work on escape trunks lacking springs or to send trunks to the North Yard inthis condition.\u00a0 Lopriore also testified that frequently in the course of his job hehad occasion to work with, and to open and close, the lower hatch cover without the springassembly.\u00a0 In any event, Lopriore had his helper secure the locking bar with strongwire to a \”pad eye\” inside the escape trunk.\u00a0 The locking bar was used tosecure the lower hatch cover in an open position.\u00a0 Even without the wire, the lockingbar would have to be pulled hard or pried with a two-by-four to start it moving, and, oncewired in place, a pliers or other tool would be needed to remove the wire from the lockingbar.\u00a0 When Lopriore told foreman Azzinaro that he had wired the locking bar to keepthe hatch cover open, Azzinaro said that was a good idea.Lopriore believed that he had eliminated any hazard by wiring the hatch coveropen.\u00a0 The wire protected against the hatch cover being accidentally hooked andpulled down.\u00a0 Moreover, the absence of a spring – which Lopriore believed to beobvious – as well as the wiring around the locking bar would alert anyone working on theescape trunk about the missing spring.\u00a0 He also knew that a hatch cover without aspring could be safely raised and lowered by using a crane or a \”chain fall,\”which was the standard procedure used before a spring was installed.\u00a0 Employees inthe North Yard were accustomed to using cranes and chain falls for this purpose becausesprings normally were not attached to the top hatch covers of escape trucks in the NorthYard.On the afternoon that the forward escape trunk arrived at the North Yard, twomachinists there, George Palmisano and Kenneth Matteau, noticed that there was no springon the lower hatch cover and ascertained from the position of the arm that the hatch wasopen.\u00a0 Palmisano told his foreman, Conrad Kosegarten, that the spring was missing andthe hatch was open.\u00a0 According to Palmisano and Matteau, Palmisano also said toKosegarten that someone might get hurt from the open hatch cover, but Kosegarten deniedbeing told this by Palmisano.\u00a0 However, neither Palmisano nor Matteau, had lookedinside the trunk and did not know that the locking bar was wired so that the hatch coverwould stay open.\u00a0 Matteau, however, thought that the open hatch cover was safedespite the absence of a spring because open hatch covers normally were secured by wire.\u00a0 Palmisano thought that an employee might approach the escape trunk from a side awayfrom the side where the spring was to be attached or could \”come up from thebottom\” into the hatch, and, in either case, could enter the trunk without knowingthat the spring was missing.Foreman Kosegarten did not consider the absence of the spring to present ahazard, because he believed the lower hatch cover probably was secured and because thework of employees he was supervising did not involve the lower hatch at that time.Therefore, at the end of the shift he did not inform the second shift machinist foreman,Richard Zalusky, that the lower 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 which included welding an\”angle iron A-frame\” or brace assembly to support opening the hatch. \u00a0Zalusky went to the escape trunk and checked on Smith’s work three times during the firstthree hours of the shift.\u00a0 At this time other employees, called testers, were in thevicinity of the escape trunk preparing to perform hydrostatic tests on the trunk to assurethat it was watertight.\u00a0 However, Zalusky testified that he did not know that testswere planned to take place during that shift.\u00a0 In order for the tests to be performedthe lower hatch on the escape trunk had to be closed.\u00a0 About three-and-a-half hoursafter the shift started, Smith entered the escape trunk through the lower hatch in orderto close the hatch in preparation for the hydrostatic tests. \u00a0When he saw the wirearound the locking bar, he exclaimed, \”Who wired this up?\”\u00a0 He then removedthe wire and pulled on the locking bar, which started the hatch cover in motion.\u00a0 Thecover came down on Smith, causing fatal injuries.According to Lynn Jessee, a tester who witnessed the accident, Smith had beenassigned to close the lower hatch by foreman Zalusky and both Zalusky and tester foremanWalter Lototski had told Jessee that Smith would close the hatch.\u00a0 However, bothZalusky and Lototski denied this.\u00a0 Nevertheless, the witnesses agreed that machinistsrather than testers normally perform the function of closing hatches.\u00a0 Lototski alsotestified that he did not know of the absence of the lower spring until after theaccident, and he considered its absence to be \”significant.\”II.In vacating the citation, the judge found that binding an open hatch cover with wire is asafe method to secure the cover against accidental closing.\u00a0 The open hatch cover,thus, was safe until Smith removed the wire.\u00a0 The judge also found that the absenceof a spring for the lower hatch cover was an obvious condition and that Smith should havebeen aware of the absent spring and the hazard presented by removing the wire.\u00a0 Thejudge reasoned that the dispositive question was whether General Dynamics had taken propersteps in training its employees as to when a wire bound around a locking bar that washolding an open hatch cover in place could be removed.\u00a0 However, the issue oftraining was not tried by the parties.\u00a0 Therefore, the Secretary did not prove thatGeneral Dynamics failed to render its workplace free of a recognized hazard, the judgeconcluded.In the course of his decision, the judge declined to credit Jessee’stestimony that Zalusky had assigned Smith the task of closing the lower hatch and thatboth Zalusky and Lototski had told Jessee that Smith would close the lower hatch. \u00a0Rather, the judge accepted the testimony of Zalusky and Lototski to the contrary. \u00a0However, the judge did not resolve the conflicting testimony concerning whether Lopriorehad complained to Paul and Azzinaro about sending the escape trunk to the North Yardwithout a spring or whether Palmisano had told Kosegarten that someone might get hurt fromthe open hatch cover.On review, the Secretary argues that General Dynamics created a hazard whenit shipped the forward escape trunk to the North Yard without attaching the spring for thelower hatch, because machinists in the North Yard were accustomed to working on escapetrunks with the lower spring attached and were not warned that this escape trunk lacked aspring.\u00a0 As evidence that this hazard was recognized, the Secretary points to thetestimony of machinists Lopriore and Palmisano that they had told their supervisors thatthe lack of a spring on the open hatch cover was unsafe or that someone might get hurtbecause of it.\u00a0 The Secretary also refers to testimony that assembly foreman Azzinarosaid that it was a good idea when told that the locking bar had been wired open and totestimony of tester foreman Lototski that he considered the lack of a lower spring to be\”significant.\”\u00a0 The Secretary contends that General Dynamics could haveabated the hazard by following the prior practice of installing the spring for the lowerhatch cover before the escape trunk was sent to the North Yard.\u00a0 The Secretarymaintains that it would have been feasible for General Dynamics to do this, and that, infact, the machine shop at one point had installed a spring but had removed it because itwas to be used on the forward escape trunk of submarine 704.III.The provision of the Act that General Dynamics is alleged to have violated,section 5(a)(1), imposes the following requirement: \”Each employer shall furnish toeach of his employees employment and a place of employment which are free from recognizedhazards that are causing or likely to cause death or serious physical harm to hisemployees.\”\u00a0 In order to establish a violation of section 5(a)(1), the Secretarymust prove that (1) the employer failed to render its workplace free of a hazard, (2) thehazard was recognized by the cited employer or generally by the employer’s industry, (3)the hazard was causing or likely to cause death or serious physical harm, and (4) therewas a feasible means by which the employer could have eliminated or materially reduced thehazard.\u00a0 E.g., Phillips Petroleum Co., 84 OSAHRC ______, 11 BNA OSHC1776, 1984 CCH OSHD ? 26,783 (No. 78-1816, 1984).\u00a0 It is apparent from the accidentthat prompted the inspection that, under some circumstances, the closing of a lower hatchcover on a submarine escape trunk without a spring presents a hazard.\u00a0 However, theSecretary failed to prove that General Dynamics recognized this hazard under thecircumstances of this case.\u00a0 Moreover, he did not show a feasible means to abate thehazard.The Secretary does not attempt to show that the hazard in this case wasrecognized by the shipbuilding or submarine building industry.\u00a0 Rather, he contendsthat General Dynamics itself recognized the hazard.\u00a0 To this end, he relies largelyon two items of evidence:\u00a0 machinist Lopriore’s testimony that he told supervisorPaul and foreman Azzinaro that it would be unsafe to send the escape trunk to the NorthYard without the spring in place, and the testimony of machinists Palmisano and Matteauthat Palmisano told foreman Kosegarten that someone might get hurt from the open hatchcover.\u00a0 There is conflicting testimony as to whether these statements were made, andthe judge did not resolve the conflicts.\u00a0 Nevertheless, even assuming, withoutdeciding, that Lopriore and Palmisano made these statements, they fall short of provingthat General Dynamics recognized the hazard.Supervisor Paul and foreman Azzinaro believed that the absence of a springfor the lower hatch cover was not a hazard because employees routinely opened and closedhatch covers safely using chain falls or cranes when hatch covers lacked springs. \u00a0Also, the danger of the hatch cover closing accidentally was eliminated when it was wiredopen.\u00a0 Moreover, Lopriore himself felt that the hazard had been eliminated when hishelper wired the hatch cover open.\u00a0 Thus, even Lopriore was satisfied that the lowerhatch did not pose a hazard by the time it was sent to the North Yard.Similarly, foreman Kosegarten did not consider the absence of a spring forthe lower hatch to be a hazard because he assumed that the hatch cover was secured. \u00a0Employees under his supervision were not going to be working on the lower hatch at thattime, so he had no reason to check further.\u00a0 Moreover, Palmisano and Matteau, whothought that the open hatch without a spring might be dangerous, were not working on theescape trunk and did not check inside the trunk to see if the hatch cover was wired open.Additionally, Matteau thought that the hatch cover was safe if it was wired.\u00a0Therefore, even assuming that Paul, Azzinaro, and Kosegarten received complaintsabout the absence of a spring for the lower hatch, they did not believe that thiscondition presented a hazard.\u00a0 See, Roystar Co., 77 OSAHRC 207\/C3, 6BNA OSHC 1144, 1977-78 CCH OSHD ? 22,389 (No. 13331, 1977) (Commissioner Barnako,separate opinion) (\”An employer need not accept an employee’s opinion that a hazardexists, but may in good faith reach a different conclusion.\”)\u00a0 It was reasonablefor them to hold this belief, since the wire prevented the lower hatch from shuttingaccidentally, and there was a commonly used method by which the hatch could be shut safelywhen it was necessary to close the hatch.\u00a0 That the aft escape trunk previously hadbeen sent to the North Yard without a lower hatch spring and apparently had caused noproblem adds credence to this belief.\u00a0 To be sure, when Smith later closed the lowerhatch, he did not use the crane or chain fall method but, rather, used a method that wasunsafe without the spring in place.\u00a0 Nevertheless, Smith’s subsequent accident doesnot make unreasonable the views of Paul, Azzinaro, and Kosegarten that the absence of aspring did not present a hazard, given the circumstances at the time they purportedlyreceived 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 the hatch cover was agood idea.\u00a0 However, the statement actually indicates that the supervisor believedthere was no hazard due to the lack of a spring because the wire was used.\u00a0 Also, asupervisor might regard any simple measure that adds to safety a good idea even if he doesnot think there is really a hazard.\u00a0 Thus, a supervisor’s statement that a particularmeasure is a good idea is hardly tantamount to an admission that the supervisor recognizedthat a hazard was present prior to the measure being taken.The Secretary also notes that foreman Lototski stated that he considered thelack of a spring to be significant when he learned of it after the accident. \u00a0However, the meaning of this remark is uncertain.\u00a0 Moreover, as this statement cameafter the accident had occurred, it cannot prove recognition of the hazard prior to theaccident.The Secretary’s proof of a feasible means of abatement also falls short.\u00a0 The only abatement method proffered by the Secretary was for General Dynamics toinstall on the escape trunk of submarine 703 the spring for submarine 704’s escape trunk.\u00a0 However, the Secretary does not explain how this could be done without creating ahazard by requiring the escape trunk for submarine 704 to be sent to the North Yardwithout a spring.\u00a0 Thus, this abatement method does not really abate the hazard butmerely transfers it to a different submarine.Having determined that the Secretary failed to establish either a recognized hazard or afeasible abatement method, we affirm the judge’s vacation of the citation.SO ORDEREDFOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATE:\u00a0 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.\u00a0 By its conclusions, themajority is improperly shifting the duty to provide a safe and healthful workplace fromthe employer to the employees.\u00a0 I would affirm a violation of the general duty clausehere, but I would not characterize the violation as willful.IThe recognized hazard alleged in this case is the danger on a submarine escapetrunk of an unsafe closing of the lower hatch cover because it was not yet equipped with aspring to slow its descent.\u00a0 The hatch cover weighed approximately 1100 pounds.\u00a0 The missing spring would operate as a counterweight so that a person manually couldopen or close the hatch.\u00a0 The hatch cover was left open.\u00a0 It was held in thisposition by a locking bar.\u00a0 Two employees took the precaution of wiring the lockingbar in place as a safety measure.\u00a0 Apparently, the precaution of wiring was adequateto prevent the hatch cover from closing accidentally.\u00a0 It is clear from the eventsthat occurred, however, that the wired locking bar would not prevent someone who wasunaware of the missing spring from attempting to close the hatch manually.\u00a0 It isclear also that the wiring did not warn an employee that the spring was missing. Themajority vacates the citation because they find that General Dynamics did not know of thishazard.The undisputed facts are these.\u00a0 General Dynamics’ supervisory personnelboth in the machine shop, where the hatch was wired open, and in the North Yard, where theaccident occurred, knew that the spring was missing.\u00a0 Supervisor Paul and foremanAzzinaro in the machine shop and foreman Kosegarten in the North Yard also knew that thehatch was in the open position.\u00a0 At least foreman Azzinaro was aware that the lockingbar had been wired in place.\u00a0 Thus, all of General Dynamics’ supervisory personnel,except possibly machinist foreman Zalusky, knew that the hatch was open and that thespring was missing.\u00a0 The extent of Zalusky’s knowledge is unclear; however, Zaluskywas the foreman who assigned the deceased employee to work on the escape trunk.\u00a0Nevertheless, despite intimate knowledge of the physical conditions here,Respondent’s supervisor Paul and foremen Azzinaro and Kosegarten testified that they didnot consider the condition a hazard.\u00a0 There is testimony to the contrary by threeemployees.\u00a0 Yet despite the contrary assertion, I find this testimony to beincredible in view of the obviousness of this hazard, unless one conditions implicitly theforemen’s testimony on an assumption that the machinists would notice the absence of thespring.Such an assumption, however, was totally unwarranted.\u00a0 The escape trunksof the prior four submarines had been manufactured by Respondent and all were sent to theshipyard with the spring counterweights attached to the lower hatch cover.\u00a0 It wouldhave been reasonable, therefore, for employees to expect the hatch cover on submarine 703to be similarly equipped.\u00a0 Despite this departure from usual conditions, no warningwas given.\u00a0 More importantly, machinist George Palmisano testified, however, that ifyou stand on the \”blind side\” of the trunk, the absence of the spring canisteris not noticeable.\u00a0 In questioning by the Judge, machinist Palmisano testified asfollows:JUDGE DE BENEDETTO:\u00a0 Well, I’m not quite sure I follow you.\u00a0 Ifthere is a missing spring canister, it’s obvious whether it’s on the lower hatch or an theupper hatch.\u00a0 Isn’t that true?THE WITNESS:\u00a0 Not once they’re – once they’re in the boat, you don’t seeeither canister.\u00a0 Outside the boat, you can open – you open that hatch up to secureit to something.\u00a0 And the upper hatch is right out in the opening.\u00a0 You can seeif it’s secure.It would either have a turnbuckle on there going into a pad eye, which is welded if it isopen, or you would have a stancheon up there with a chain fall on it which you could seeit was open.\u00a0 And you know you couldn’t just release it because there wouldn’t be aone-time chain fall on it if you could release it.The lower hatch, if someone comes up from the bottom, there’s no way – ifyou’re unaware, if you don’t work with a particular job and you didn’t know, there’s noway of telling.Furthermore, both foreman Walter Lototski, Jr., the supervisor of theShipyard Test Organization, and foreman Conrad Kosegarten testified that even though theylooked at the escape trunk they did not notice the absence of the spring mechanism.\u00a0Finally, Lynn Jessee, who was working with Smith, the deceased employee, testifiedthat Smith asked him who wired up the hatch before he unraveled the wire.\u00a0 Obviously,Smith, not noticing the absence of the spring, failed to discern a hidden purpose behindthe wiring. Apparently, neither did Jessee.For these reasons, I cannot accept that General Dynamics’ foremen perceivedno hazard from the conditions cited here.\u00a0 The hazard was obvious and severe. \u00a0Respondent’s employees, those who were aware the spring was missing, recognized thehazard.\u00a0 If the supervisory personnel simply assumed the employees would notice themissing spring before attempting to close the hatch, that assumption was totallyunwarranted.\u00a0 It also is contrary to the Act in that it impermissibly attempts toshift the responsibility for safety to the employees.\u00a0 Accordingly, the Secretaryestablished that relying on employees to observe the absence ofthe spring was not sufficient to free the workplace of the hazard.\u00a0 The step ofwiring open the cover without any warning of the reason behind the action did not free theworkplace from the hazard to an employee attempting to close the hatch with the springmissing.III would also find that feasible means of reducing the hazard were established.\u00a0 Atseveral points during the hearing, the Secretary adduced the testimony establishing thatthere were no signs or instructions informing employees of the absence of the springmechanism or warning them not to remove the wires.\u00a0 From Smith’s inquiry as to whowired up the hatch and the other testimony, it is abundantly clear that a simple warningsign would have prevented this accident. [[2]]The record also establishes that, after the accident, Respondent secured openhatch covers with chains and padlocks.[[3]]\u00a0 Keys to the locks were put in thepossession of the ship’s manager and the outside machinists.\u00a0 This system should alsoeliminate the danger to employees unaware of the absence of the spring.Accordingly, I would find a violation. 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]] Section 5(a)(1) of the Act, referred to as \”the general dutyclause,\” provides:\u00a0 \”Each employer shall furnish to each of his employeesemployment and a place of employment which are free from recognized hazards that arecausing or likely to cause death or serious physical 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 before moving it to the NorthYard.[[3]] Respondent’s attorney objected to this testimony.\u00a0 Under Rule 407of the Federal Rules of Evidence, evidence of subsequent measures is admissible to provefeasibility of precautionary measures.\u00a0 The rule states:Rule 407.\u00a0 Subsequent Remedial MeasuresWhen, after an event, measures are taken which, if taken previously, wouldhave made the event less likely to occur, evidence of the subsequent measures is notadmissible to prove negligence or culpable conduct in connection with the event. \u00a0This rule does not require the exclusion of evidence of subsequent measures when offeredfor another purpose, such as proving ownership, control, or feasibility of precautionarymeasures, if contraverted, or impeachment.”