“SECRETARY OF LABOR,Complainant,v.HAYSITE, DIVISION OF SYNTHANE-TAYLORCORPORATION,Respondent.OSHRC Docket No. 79-0407_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 Occupational Safety andHealth Administration of the Department of Labor. 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). The issue on review iswhether Administrative Law Judge William. B. Brennan erred in holdingthat Haysite, Division of Synthane-Taylor Corp. (\”Haysite\”), did notviolate 29 C.F.R. ? 1910.132(a)[[1]] by failing to require the use ofsafety shoes at its plant.In _Marshall v. Haysite, Division of Synthane-Taylor Corp_., 636 F.2d1209 (3d Cir. 1980), the United States Court of Appeals for the ThirdCircuit remanded this case to the Commission for reconsideration inlight of its decision in _Voegele Co. v. OSHRC_, 625 F.2d 1075 (3d Cir.1980). In _Voegele_, the Third Circuit held that in order for theSecretary to establish a violation of a standard such as 29 C.F.R. ?1910.132(a), he must demonstrate that a reasonable person familiar withthe factual circumstances surrounding the allegedly hazardous condition,including any facts unique to the particular industry, would recognize ahazard warranting the use of personal protective equipment. JudgeBrennan applied the _Voegele_ test and vacated the item on review. Weaffirm his decision.The facts are well summarized in the judge’s decision. As part of itsmanufacturing process, Haysite’s employees handle small parts andfiberglass sheets that weigh from 4 or 5 pounds up to 180 pounds and areas large as 4 feet by 8 feet by 1\/4 inch. Haysite enforces workrulesrequiring that employees wear sturdy shoes, and that two or moreemployees together carry sheets weighing more than 50 to 60 pounds. Inattempting to establish a violation of section 1910.132(a), theSecretary primarily relied on the testimony of four of Haysite’semployees to demonstrate that handling fiberglass sheets without safetyshoes posed a hazard to their feet. The work of three of the employeesinvolved carrying the fiberglass sheets that posed the alleged hazard. The fourth employee handled the sheets but his main duty was to inspectthem.Parker had been with Haysite for four months. By himself he handledsheets weighing up to 25 pounds. He had \”dropped some of the smallersheets,\” but he did not receive any injury, nor was he aware of anyemployee being injured while handling the sheets. He testified that ifa large sheet held in the vertical position were dropped, the sharp edgecould \”go right through his foot.\” Parker followed Haysite’s workrulerequiring sturdy shoes but did not wear safety shoes.Spinelli had been employed by Haysite for 10 years. He handled sheetsweighing up to 40 pounds. Approximately 10 years ago, while helping tocarry a sheet, he had dropped it but it did not strike his feet or anypart of his body. He testified that some type of safety shoe should berequired but he does not wear them himself. Instead, he wears theworkshoes required by Haysite’s workrule. Trained in first aid, Spinelliwas called on to assist those injured at the plant. He had nevertreated an injury resulting from a dropped sheet.Bliss has also been at Haysite for 10 years. He handles sheets thatweigh up to 20 pounds and has seen perhaps two sheets fall, with noresultant injuries. He follows Haysite’s rule regarding sturdyworkshoes. Although Bliss testified that safety shoes are necessary, healso stated that he does not wear them. He explained that he could notafford safety shoes but agreed that the hazard did not warrant thedifference in cost between \”normal\” shoes and safety shoes.For 8 of his 12 years at Haysite, Prova was the chief union steward. Hewas also a member of the joint union-management safety committee. Thecommittee’s function is to detect safety hazards in the plant. Thecommittee had never recommended the use of safety shoes anywhere in theplant, nor had Prova, as a union steward, ever voiced any concern tomanagement over the need for safety shoes. Prova wears normal workshoes or boots in accordance with company policy but feels that safetyshoes should be worn.In vacating the item, the judge gave little or no weight to thetestimony of the four employees that the alleged hazard required the useof safety shoes. He relied on their failure to wear safety shoes eventhough they claimed that such shoes were needed, and on the failure ofthe union, its steward, and the joint union-management safety committeeto suggest that a hazard was presented by the sheets. He also relied anthe complete absence of injuries,[[2]] and on Parker’s lack ofexperience. Following the test set out in _Voegele_, the judgeconcluded that the evidence was not substantial or creditable enough tosupport a conclusion that a reasonable person familiar with thecircumstances surrounding the allegedly hazardous conditions at theplant, including any facts unique to the industry, would recognize ahazard requiring the use of personal protective equipment.The Secretary argues that the judge’s reason for giving little or noweight to the testimony of Haysite’s employees \”ignores the well-knownreluctance of employees to wear personal protective equipment.\” Heclaims that the employees’ testimony should be viewed as a virtualadmission against interest because the affirmance of the citation wouldrequire them to wear safety shoes, be disciplined for not wearing themand, citing _The Budd Co._, 74 OSAHRC 12\/A2, 1 BNA OSHC 1548, 1973-74CCH OSHD ? 17,387 (Nos. 199 & 215, 1974), _aff’d_, 513 F.2d 201 (3d Cir.1975), possibly to pay for the shoes. The Secretary notes that theCommission will ordinarily accept the judge’s credibility determination,but is not bound by those findings. He urges the Commission not toaccept those findings here because they were based on an inference drawnfrom the witnesses’ testimony rather than on any evaluation of thedemeanor of the witnesses.Haysite contends that Judge Brennan did not rely only on the failure ofthe employee witnesses to wear safety shoes. It points out that he alsogave little weight to Parker’s testimony because of his limited timewith the company, and the light loads that he carried. Spinelli’stestimony was also not relied on for two reasons. First, he had droppedonly one sheet in 10 years. The dropped sheet did not touch his body. Second, in administering first aid Spinelli had never treated anyone foran injury resulting from dropped sheets. Bliss’ testimony was alsoquestioned because he had only dropped two sheets in 10 years. Haysitemaintains that the judge also gave little weight to Prova’s claim thathe dropped sheets \”all the time\” because Prova often neglected to wearthe gloves that Haysite provided. Haysite also emphasizes the judge’sreliance on the failure of Prova as union steward, the members of theunion- management safety committee, and the union itself, to bring toHaysite’s attention any concern over foot hazards.We adopt the judge’s finding that the Secretary failed to establish aviolation of section 1910.132(a) under the _Voegele_ test. Contrary tothe Secretary’s argument, the judge properly gave little or no weight tothe testimony of the employees that a hazard was present. As the judgerecognized, their failure to take any steps to bring the alleged hazardto Haysite’s attention or to protect their feet from the sheets bywearing safety shoes did detract from their testimony that the sheetspresented a hazard to their feet.[[ 3]] The judge also did not err inaccording little weight to Parker’s testimony due to his lack ofexperience. We additionally observe, in determining whether areasonable man would have recognized a hazard to employees’ feet, thatthere were no foot injuries from dropped sheets over a substantialperiod of time, and that Haysite required that sturdy shoes be worn andheavier sheets be carried by two or more employees. We therefore upholdthe judge’s finding that there is an insufficient basis from which toconclude that a reasonable person familiar with the factualcircumstances surrounding the allegedly hazardous condition, includingany facts unique to this particular industry, would have recognized ahazard warranting the use of personal protective equipment.[[4]]The judge was also correct in concluding that there is no evidence fromwhich to conclude that Haysite had actual knowledge of the allegedhazard. No injuries had ever been reported from a dropped sheet thatwould have given it any indication of a hazard. Moreover, although anemployer’s practices regarding the use of protective equipment arerelevant under Commission precedent, _see_ _Owens Corning FiberglasCorp_., 79 OSAHRC 26\/D6, 7 BNA OSHC 1291, 1295, 1979 CCH OSHD ? 23,509,p. 28,492 (No. 76-4990, 1979), _aff’d_, 659 F.2d 1285 (5th Cir. 1981),Haysite’s sturdy shoe requirement, standing alone, does not establishthat Haysite had knowledge of the alleged hazard. _See_ _United StatesSteel Corp_., 82 OSAHRC 62\/A2, 10 BNA 2123, 2131, 1982 CCH OSHD ?26,297, p. 33,235 (No. 77-3378, 1982). If anything, it demonstratesthat the hazards had been removed.Accordingly, the judge’s decision is affirmed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: MAY 25 1984CLEARY, Commissioner, dissenting:I dissent from the majority’s affirmance of the judge’s decision. Haysite’s employees handle parts and fiberglass sheets that weigh asmuch as 180 pounds. The sheets are large and awkward to handle,measuring as much as eight feet by four feet by one-fourth inch. Thesheets mot be carried from the presses and piled in stacks, an operationthat often requires two men. That objects of such weight andconfiguration are susceptible to being dropped and, if dropped, arelikely to injure protected feet should be obvious. If it is notobvious, then I urge my colleagues to look at the American NationalStandards Institute specifications for safety-toe footwear, ANSIZ41.1-1967, incorporated by reference at 29 C.F.R. ? 1910.136. Thesespecifications, which represent the consensus of American manufacturingindustry, require a minimum impact resistance of 30 foot-pounds. [[1]] A reasonable person familiar with the facts of this case would haverecognized a hazard warranting the use of safety shoes. _Voegele Co.v._ _OSHRC_, 625 F.2d 1075 (3d Cir. 1980).Haysite my consider itself fortunate that its employees have thus farmanaged to avoid foot injuries, but the absence of prior injuries is nobasis for denying the very real potential for injury. \”The keystone ofthe Act. . . is preventability.\” _Brennan v. OSHRC_ _(UnderhillConstruction Corp.)_, 513 F.2d 1032, 1039 (2d Cir. 1975). \”One purposeof the Act is to prevent the first accident.\” _Lee Way Motor Freight,Inc. v. Secretary of Labor_, 511 F.2d 864, 870 (10th Cir. 1975); _see__also_ _Brennan v. Butler Lime and_ _Cement Co_., 520 F.2d 1011 (7thCir. 1975). Thus, actual injury is not a prerequisite to establishing aviolation.Moreover, an employer may not shift responsibility for employee safetyonto its employees by undue reliance on their skill, prudence andcaution; the employer’s duty to do all it feasibly can to prevent orsubstantially reduce hazard includes the duty to anticipate and guardagainst employee error and misconduct short of the bizarre anduncontrollable. _See_ _General Dynamics Corp_., _Quincy ShipbuildingDiv. v. OSHRC_, 599 F.2d 453 (1st Cir. 1979); _National Realty andConstruction Co. v. OSHRC_, 489 F.2d 1257 (D.C. Cir. 1974); _see_ _also__General Electric Co_., 82 OSHRC 56\/A2, 10 BNA OSHRC 2034, 1982 CCH OSHD? 26,259 (No. 79-504, 1982). An employer who relies on employees not todrop heavy parts on their feet has not done all it can to reduce the hazard.The majority discounts the employees’ unrebutted testimony that handlingsheets weighing up to 180 pounds presents a hazard requiring the wearingof safety shoes. They reason that the employees lack credibilitybecause they did not wear safety shoes voluntarily and did not ask theirunion for a safety shoe rule. The most important evidence in this case,however, is the employees’ clear descriptions of the physical conditionsthat endanger them. As to this evidence, credibility is not the issue. The employees handle sheets weighing up to 180 pounds. Sheets thisheavy are clearly capable of causing foot injury. Whether theseemployees took steps to protect themselves or failed to complain aboutthe hazard has no bearing on these facts.I would also draw no unfavorable inferences from the employees’ failureto wear safety shoes or complain about the hazard. This is the moredisturbing aspect of the majority’s ruling. By discounting an obviouspotential for injury because the employees did not take the initiativeto protect themselves, the majority turns the Act on its head and shiftsresponsibility for safety fromthe employer and the Secretary to the employees. The OccupationalSafety and Health Act is not a labor relations act in the sense thatsafety is meant to be achieved by the collective bargaining process, orthat employees must exhaust their internal union grievance procedures orcollective bargaining procedures before the government will act on theirbehalf in securing a safe workplace, or that the employees areresponsible for bringing safety violations to the attention of employersbefore the employers are on notice that such violations exist. Nor doesthe Act place any responsibility on employees to police their workplaceor secure their own safety protection. Rather, the responsibility isplaced on employers under the Act, and the responsibility for enforcingthe standards under the Act is placed on the government. _See_ _UnitedSteelworkers of America v. Marshall_, 647 F.2d 1189, 1236 (D.C. Cir.1980) (\”In passing a massive worker health and safety statute, Congresscertainly knew it was laying a basis for agency regulations that wouldreplace or obviate worker safety provisions of many collectivebargaining agreements. Congress may well have viewed collectivebargaining along with state workers’ compensation laws as part of thestatus quo that failed to provide workers sufficient protection.\”)————————————————————————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 1910.132(a) states:? 1910.132 _General requirements_.(a) _Application_. Protective equipment, including personal protectiveequipment for eyes, face, head, and extremities, protective clothing,respiratory devices, and protective shields and barriers, shall beprovided, used, and maintained in a sanitary and reliable conditionwherever it is necessary by reason of hazards of processes orenvironment, chemical hazards, radiological hazards, or mechanicalirritants encountered in a manner capable of causing injury orimpairment in the function of any part of the body through absorption,inhalation or physical contact.[[2]] The Secretary claims that there was one injury, which thecompliance officer discovered by examining Haysite’s injury records. Thejudge found, however, that the compliance officer’s recollection thatthe injury was caused by a dropped sheet was inaccurate. The judge notedthat an accident referred to by Spinelli, involving a toe injury from aforklift, was probably the same injury noted by the compliance officer.[[3]] The dissenting opinion argues that Judge Brennan’s evaluation ofthe witnesses’ testimony was wrong on this point. The dissenting memberwould evidently hold as a matter of law that a finder of fact may notattach great importance to whether a witness’ conduct was inconsistentwith his assertions. Such a rule would be out of harmony withCommission precedent, _see_ _General Electric Co._, 80 OSAHRC 9\/B9, 7BNA OSHC 2183, 2185, 2187, 1980 CCH OSHD ? 24,268, pp. 29,551, 29,553(No. 15037, 1980), and ignore the realities of human behavior. It doesnot strike us as unrealistic or out of keeping with the purposes of theAct to examine testimony in light of the obvious facts of human behaviorand to consider that an assertion inconsistent with conduct is entitledto be treated with skepticism. The observations made in the dissentingopinion do not support a contrary conclusion.[[4]] The dissenting opinion suggests that specifications for safety-toefootwear in ANSI Z41.1-1967, which section 1910.136 incorporates byreference, demonstrate the obviousness of the hazard to Haysite’semployees. This ANSI standard simply sets standards by which shoemanufacturers can classify safety shoes according to their crushresistance. Nothing in the standard tells an employer whether a hazardrequiring safety shoes exists. For example, the fact that aclassification 30 shoe must withstand 30 foot\/pounds of impact pressure,_i.e_., the impact of a 10 pound object dropped 3 feet, does not informan employer that carrying a 10-pound object at a 3-foot height is ahazard. Such an analysis ignores other considerations relevant indeciding whether a hazard is present, such as the number of objectslifted, the size and shape of the objects lifted, the way in which theyare lifted, the distance they are carried, and the number of injuriesreceived.[[1]] A foot-pound is a unit of work equal to the work done by a forceof one pound acting through a distance of one foot in the direction ofthe force. Thus, 50 pounds dropped three feet would equal 150foot-pounds. WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 885 (1971).”