“SECRETARY OF LABOR,Complainant,v.TODD SHIPYARDS CORPORATION,Respondent.OSHRC Docket No. 77-1598_DECISION_Before: CLEARY and BUCKLEY, Commissioners.CLEARY, Commissioner:The Secretary of Labor alleges that Todd Shipyards (hereinafter \”Todd\”)committed serious violations of OSHA shipyard standards by failing toguard certain deck openings and by permitting employees to enter aninadequately illuminated area. The citations were issued following afatal accident in which a Todd employee fell into an unguarded hatch ona ship undergoing repair work at Todd’s Alameda, California shipyard. Administrative Law Judge Jerry W. Mitchell found that the violativeconditions occurred as alleged, but vacated the citations upon findingthat Todd did not and could not, with reasonable diligence, know thatemployees would be in the area where the conditions existed. The caseis before the Commission for review pursuant to section 10(c), 29 U.S.C.? 659(c), of the Occupational Safety and Health Act of 1970, 29 U.S.C.?? 651-678. We reverse the judge’s decision, affirm the citations, andassess a penalty of $1500.IThe vessel on which the alleged violations occurred was a cargo ship,the S.S. Pioneer Contractor. Below the ship’s main deck were cargoholds, which were divided into levels by other decks. On May 2, 1977,Todd was doing scaling work in the wing tanks on the upper tween decklevel of cargo hold #3. The upper tween deck level is the levelimmediately below the main deck. Access to the upper tween deck levelof cargo hold #3 could be gained by either fore or aft ladders leadingfrom manhole openings on the main deck. Todd had begun working in cargohold #3 about one week before May 2, 1977.The upper tween deck level of cargo hold #3 was approximately 65 feetlong. It contained six hatches, three in the forward end of the holdand three in the aft end. The forward hatches were closed, but the afthatches were open. The forward end of the compartment was adequatelyilluminated, but the aft end was dark. The entrance to the wing tanksin which the work was being done was near the forward ladder. Thus,employees entering the wing tanks by descending to the upper tween deckby means of the forward ladder would not be exposed to open hatches andwould have adequate illumination. However, if employees used the aftladder for access to the upper tween deck, they would have to walk pastthe open hatches in the unlighted aft end of the hold to reach the wingtanks. The walkways between and around the open hatches wereapproximately 3 to 5 feet wide. Prior to May 2, the aft manhole coverproviding access to the aft ladder leading to the open aft hatches hadbeen closed and bolted shut.Todd had two shifts of workers on the S.S. Pioneer Contractor: a dayshift and an evening, or swing, shift. Each crew of several workers wasdirected by a leadman. A day-shift crew under the direction of leadmanMcClure was assigned to perform the scaling work in the cargo hold #3wing tanks. McClure had been instructed by Ball, an assistantsuperintendent, to use the forward entrance to cargo hold #3, andMcClure and his crew complied with that instruction. Following the dayshift on May 2, 1977, a swing shift crew headed by leadman Terrellprepared to continue the scaling work. Terrell had been with Todd for25 years. This crew had not previously worked in cargo hold #3. Therecord does not reflect that Terrell was instructed to enter the holdonly by the forward ladder, as McClure had been.At the start of the swing shift on May 2, 1977, the manhole cover to theforward ladder was open. The aft manhole cover was closed and boltedshut when the day shift superintendent inspected it at the end of theday shift. The record is silent as to when, by whom, and why the aftmanhole cover was unbolted and opened. In any event, Terrell led hiscrew to the upper tween deck level of cargo hold #3 by way of the aftladder. In order to reach the wing tanks from the base of the ladder,the crew had to climb through wooden cargo shoring at the aft end of thehold and walk past the unguarded hatches. Having gained access to thewing tanks by this route, the crew commenced work. Terrell shortlythereafter left the cargo hold by way of the forward ladder. WhileTerrell was gone, a quarterman, Chatman, instructed the members of thecrew to work in another area. The crew members then left the cargo holdby climbing the forward ladder.After their lunch break, the crew, including Terrell, prepared to resumework. They assembled on the main deck near the aft ladder at about 9:00p.m., again descended that ladder, and proceeded toward the forward endby walking past the unguarded hatches. Terrell had a flashlight, but theother crew members did not. After proceeding a few feet along one ofthe walkways between two of the open hatches, Terrell fell into one ofthe openings. He fell a distance of 30 feet and suffered fatal injuries.Three members of Terrell’s crew, Johnson, Ward, and Cockerham, testifiedthat they had not received instructions on how to enter or exit cargohold #3. Ward recalled being advised in safety meetings not to enterinadequately lighted areas, but Johnson and Cockerham stated that theyhad not received similar instructions. All three employees testifiedthat they had not been warned to avoid walking past unguarded openingsthat presented a falling hazard. Johnson testified that the day of theaccident was the first time he had been on the ship’s upper tween decklevel, and that he did not know there was a forward ladder to enter hold#3 before they had entered the wing tank. Johnson further testifiedthat Terrell would always check out an area in which the crew was towork to be sure the area was safe.Todd had a safety program consisting of safety training for allemployees as well as daily inspections of all jobs at the Alamedashipyard by a safety coordinator. All new employees received aninitial safety indoctrination. Safety meetings for employees in eachcraft were held weekly, and there was a monthly meeting for all foremenand department heads. At these monthly meetings, various safety issueswere reviewed, and foremen were encouraged to keep stressing safety onthe job. Monthly safety meetings of management representatives with theshop stewards of the unions representing Todd employees were also held. Todd gave each new employee an information handbook containing bothsafety rules and general employment policies. Among the safety ruleswere instructions to arrange for more lighting if working in aninadequately lighted area, and to guard all openings into which personscould fall.The employee information handbook also spelled out the role of theleadman in the company’s safety program:The Leadman, because he is the primary group leader, is the key man inpreventing accidents. He must be sure that every person in his crewthoroughly understands how to work safely. Whenever a new man is addedto his crew the Leadman must instruct the worker on the proper type ofpersonal Safety equipment to be worn, safe methods and safe practices indoing the work. The Leadman is responsible for hazardous conditions inhis work area, particularly those that are created by his own crew. Heis to see that hoses, leads, loose materials, tools, etc., are not leftin passageways or walk ways, that openings are roped off or coveredover, staging kept clear of litter and in general be certain that thereare no unnoticed hazards that could cause an accident.If it is apparent that an existing hazard was caused by or must becorrected by another Craft, then the Leadman will contact this Craft inorder to get it corrected. If he is unable to get the necessary actionin having the hazard removed, he is to report the hazard to his Foremanas soon as possible. The Foreman will carry on from there, but in theevent he is also unable to obtain cooperation from the responsibleCraft, he is to turn the problem over to the Safety Department forproper action.Leadman McClure testified that he supervised ten or twelve laborers, whowere divided into several crews. He would constantly make rounds tocheck on the different crews. He would work with a particular crew if ajob had to be completed right away. McClure usually spent two or threehours a day working with the crews, and the remainder of the shiftmaking his rounds.IIThe citations alleged that Todd violated 29 C.F.R. ?? 1915.43(c) and1915.52(a) and (e). These standards provide:[[1]]? 1915.43 _Guarding of deck openings and edges_.* * *(c) When employees are exposed to unguarded edges of decks, platforms,flats, and similar flat surfaces, more than 5 feet above a solidsurface, the edges shall be guarded by adequate guardrails meeting therequirements of ? 1915.41(i)(1) and (2), unless the nature of the workin progress or the physical conditions prohibit the use or installationof such guardrails.? 1915.52 _Illumination_.(a) All means of access and walkways leading to working areas as well asthe working areas themselves shall be adequately illuminated.* * *(e) Employees shall not be permitted to enter dark spaces without asuitable portable light. The use of matches and open flame lights isprohibited.Todd did not dispute that the means of access to the wing tanks used byTerrell’s crew violated these standards, but argued to the judge thatthe company did not and could not, with reasonable diligence, know itsemployees would use that means of access. Todd pointed out that, priorto the swing shift on May 2, 1977, all employees entering the uppertween deck of cargo hold #3 had used the forward entrance, whichcomplied with the standards. It argued that Terrell was not asupervisor, and that no Todd supervisor knew or could have anticipatedthat employees would use the aft entrance to the hold, particularlysince access to the hold from the aft ladder was blocked by cargoshoring. Todd contended that it exercised reasonable diligence ininspecting the ship for safety hazards and that it should not be heldresponsible for the unforeseeable series of events that culminated inthe accident. Judge Mitchell agreed with Todd’s arguments and vacatedthe citations. In reaching his decision, the judge specifically foundthat Terrell was not a supervisor whose actions and knowledge should beimputed to his employer.On review, the Secretary takes exception to the judge’s finding thatTerrell was not a supervisor. The Secretary argues that priorCommission decisions have found employees with authority similar toTerrell’s to be supervisors whose actions and knowledge are imputed totheir employers. The Secretary points out that Terrell exercisedsubstantial control over work assignments and in instructing workers inthe proper manner of completing those assignments. According to theSecretary, the manner in which the leadman carries out his dutiesdirectly affects the safety and health of workers, and workers mustdepend on the leadman to protect them from unsafe working conditions. Therefore, the Secretary argues, the leadman must be considered asupervisor for purposes of the Act. Todd, on review, renews thearguments it made before the judge and urges that the judge’s decisionbe upheld.IIIIn order to prove that an employer violated the Act, the Secretary mustshow, among other things, that the employer knew or could have known ofthe noncomplying condition with the exercise of reasonablediligence.[[2]] _Prestressed Systems, Inc_., 81 OSAHRC 43\/D5, 9 BNAOSHC 1864, 1981 CCH OSHD ? 25,358 (No. 16147, 1981). Because corporateemployers can only obtain knowledge through their agents, the actionsand knowledge of supervisory personnel are generally imputed to theiremployers, and the Secretary can make a prima facie showing of knowledgeby proving that a supervisory employee knew of or was responsible forthe violation. _H.E. Wiese, Inc_., 82 OSAHRC 18\/A2, 10 BNA OSHC 1499,1505, 1982 CCH OSHD ? 25,985 at p. 32,614 (No. 78-204, 1982), _aff’d_,705 F.2d 449 (5th Cir. 1983). The employer, however, can rebut thisshowing by demonstrating that the supervisory employee’s misconductcould not have been prevented. _Id_. In general, the employer mustshow that it had implemented an effective safety program designed todetect and prevent violations of the type allegedly committed. _Id_.I agree with the Secretary’s argument that Terrell was a supervisoryemployee of Todd. The record shows that leadmen such as Terrellexercised substantial authority over the manner in which Todd’s work wasperformed. As leadman McClure testified, he was the first-linesupervisor for several work crews and spent a large part of his timechecking that his crews were performing their assignments properly. Todd’s leadmen also possessed supervisory authority in matters ofsafety. The description of the leadman’s responsibilities in Todd’semployee information handbook states that the leadman is responsible forinstructing his crew members in how to perform their work safely and inwhat protective equipment to use. The handbook explicitly states: \”TheLeadman . . . is the key man in preventing accidents. He must be surethat every person in his crew thoroughly understands how to worksafely.\” The handbook further provides that the leadman is responsiblefor assuring safe conditions in work areas. This documentary evidenceof the leadman’s role in safety was supported by the testimony ofJohnson, a member of Terrell’s crew, who stated that Terrell wouldalways check on an area in which the crew was to work to make sure itwas safe. Since Todd relied on its leadmen to provide safe workingconditions, the leadmen must be considered supervisors for purposes ofthe Act. _Iowa Southern Utilities Co_., 77 OSAHRC 32\/C10, 5 BNA OSHC1138, 1977-78 CCH OSHD ? 21,612 (No. 9295, 1977).Because Terrell was a supervisor, his knowledge of the violations isimputed to Todd unless the company has shown that Terrell’s actions wereunpreventable. To establish that Terrell’s conduct was unpreventable,Todd would have to show either that Terrell acted in contravention ofeffectively implemented work rules[[3]] or that Terrell’s actions wereso idiosyncratic that an employer would not take the possibility of suchactions into account in establishing a safety program.[[4]] I concludethat Todd has not made either showing.Todd relies on the evidence concerning its safety program in arguingthat Terrell’s conduct was unpreventable. The record shows that,despite his knowledge of the conditions in the aft end of the hold,Terrell led the crew in a second time, in disregard of the hazard. However, the record also shows that Todd’s program was not adequatelyimplemented with respect to the hazards that occurred in this case. Todd’s employee information handbook contains rules against leaving deckopenings unguarded and cautioning against working in areas that are notadequately lighted. Each employee is given a copy of this handbookwhen first hired. There, is however, no evidence that Todd took anyongoing steps to implement these rules. Although all Todd employeesattended periodic safety meetings, the company’s safety director statedthat no specific instructions would be given at these meetings aboutentering inadequately lighted areas because that subject is covered inthe handbook.[[5]] Similarly, there is no evidence that the rulerequiring guarding of deck openings was discussed at safety meetings, orthat employees were instructed to avoid areas containing deck openings. While written rules are an important component of a safety program, anemployer cannot reasonably assume that rules given to employees whenfirst hired but not thereafter mentioned will be consistently followed.Even if I were to conclude that Terrell was not a supervisor, I wouldfind that knowledge of the hazardous condition was imputed to Toddthrough Ball and Chatman. Both were supervisors. Moreover, the factthat Todd supervisors instructed the day shift laborers to enter thehold by the forward ladder demonstrates the foreseeability that, withoutsuch instructions, employees might use the aft entrance. Todd shouldhave given the same instruction to the swing shift laborers it gave tothe day shift.IVThe Secretary alleged that the violations were serious in nature andproposed penalties of $1000 for each violation. In view of thepotential fall distance of 30 feet, we conclude that the violations gaverise to a substantial probability of death or serious harm and aretherefore properly classified as serious.[[6]] In assessing penalties,we must consider the gravity of the violations, the good faith of theemployer, and the employer’s size and history of prior violations.[[7]]Todd provided an alternative means of access to cargo hold #3 thatcomplied with the cited standards, and its safety program evidenced someconcern for the safety of its employees. However, Todd is a relativelylarge employer, with approximately 650 employees at the Alameda shipyardat the time of the violations. The record contains a number ofcitations Todd’s Alameda facility received prior to the violations inthis case. The violations in this case were of high gravity in that thebad lighting conditions coupled with the open hatches exposed fouremployees to a potentially fatal fall. On balance, we consider apenalty of $1000 for the violation of section 1915.43(c) and $500 forthe violation of sections 1915.52(a) and (e) to be appropriate.Accordingly, the judge’s decision is reversed. The citations areaffirmed and a penalty of $1500 is assessed.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: AUG 3 1984BUCKLEY, Commissioner, concurring:I concur in affirming the citations in this case, but for differentreasons. Section 5(a)(2) of the Act, 29 U.S.C. ? 654(a)(2), requiresthat each employer \”shall comply with occupational safety and healthstandards promulgated under this Act\” and, pursuant to authority, theSecretary has promulgated standards which impose upon employers theprimary duty for compliance.[[1\/]] The standards cited in this case areexamples. They require shipyard employers such as Todd Shipyards toinstall guardrails around deck openings (29 C.F.R. ? 1915.43(c), now 29C.F.R. ? 1915.73(d)), adequately illuminate all means of access andwalkways leading to work areas (29 C.F.R. ? 1915.52(a), now 29 C.F.R. ?1915.92(a)), and provide a suitable portable light to employees in darkspaces (29 C.F.R. ? 1915.52(e), now 29 C.F.R. ? 1915.92(e)).The purpose of these and other occupational safety standards is toimprove safety conditions by telling employers as exactly as possiblewhat they must do to reduce or eliminate hazards to employees. _See__Dravo Corp. v. OSHRC_ 613 F.2d 1227 (3rd Cir. 1980), and cases citedtherein. The rationale for imposing compliance duties such as these onthe employers is that they generally control the workplace, andtherefore can exert significant control over the physical conditions orenvironment in which their employees work and over the equipmentavailable to the employees for performing the work. _See_ _Teal v. E.I. DuPont de Nemours_ _and Co_., 728 F.2d 799 (6th Cir. 1984); _Centralof Georgia Railroad Co. v. OSHRC_, 576 F.2d 620 (5th. Cir. 1978);_Atlantic &_ _Gulf Stevedores, Inc. v. OSHRC_, 534 F.2d 541 (3rd Cir.1976), _aff’g_ 75 OSAHRC 47\/A2, 3 BNA OSHC 1003, 1974-75 CCH OSHD ?19,526 (No. 2818, 1975); _Anning-Johnson Co. v. OSHRC_, 516 F.2d 108(7th Cir. 1975); _National Realty and_ _Construction Co. v. OSHRC_, 489F.2d 1257 (D.C. Cir. 1973). Employers can take steps to assure that theworkplace is inspected for noncomplying conditions and equipment, andcan take the necessary measures for compliance. Employers can alsotake significant measures to control where their employees work andwhere they will go to gain access to their work areas. Accordingly, tocomply with certain standards applicable to their workplaces, it may beappropriate for employers to decide to either correct the conditions orlimit employee access to them.Section 1915.43(c), cited in this case, explicitly requires guardrailsaround deck openings only \”[w]hen employees are exposed\” to unguardedopenings. Sections 1915.52(a) and (e) have the same, implicitqualification. Section 1915.52(a) requires illumination for \”[a]llmeans of access and walkways leading to working areas,\” indicating thatthose means of access and walkways not leading to working areas do nothave to be illuminated. Section 1915.52(e) requires suitable portablelights for employees \”permitted to enter dark spaces.\” In each ease thestandards require the employer to consider the reasonably predictablemovements of employees in their work and related activities to determinewhether to take steps needed to comply with the standard.The lead opinion discusses the issue of Terrell’s status as a foreman inorder to decide whether Terrell’s knowledge can be imputed to ToddShipyards. In applying this analysis, the decision that Terrell is aforeman disposes of the case, since Terrell obviously \”knew\” thathatches were unguarded to which employees were \”exposed;\” that means ofaccess and walkways to a work area were unlit; and that suitableportable lights were not provided in dark spaces. However, ToddShipyards’ knowledge about the lack of guardrails, illumination andportable lights does not establish a violation. If this were so therewould be no need to discuss the status of Terrell or imputation ofknowledge because it is apparent that Todd Shipyards knew that theseconditions existed in certain areas of the ship. The lead opinion goesone step further and imputes Terrell’s knowledge that employees wereexposed to these hazards to Todd Shipyards, based on Terrell’s actionsin leading employees through the hatch.In my view, that analysis is inappropriate in this case. The gravamenof the violations alleged here consists of acts of omission in acircumstance where employee exposure to hazards resulting from thoseacts of omission was reasonably predictable or foreseeable. To establishthat an employer failed to comply with the standards cited in this case,the Secretary must establish not only knowledge that a noncomplyingcondition existed at the workplace to which employees were actuallyexposed, but also that access to the noncomplying condition wasreasonably predictable or foreseeable by the employer in light of suchthings as the employees’ assigned work duties or their normal means ofingress to or egress from their work areas.[[2\/]] Terrell’s actions arenot dispositive on this question, although relevant on the issue offoreseeability. _See_ _Pennsylvania Power & Light Co. v. OSHRC_, No.83-3263, slip op. at 16 (3rd Cir. June 15, 1984) (the participation of asupervisor in a violation is evidence of, but does not end the inquiryinto, foreseeability).There is no serious dispute that Todd Shipyards was aware of thenoncomplying conditions. Todd Shipyards should have foreseen thataccess to the work area in the wing tanks could be gained through theaft end of the cargo hold and knew that this area was inadequatelylighted and contained open hatches. The record demonstrates that priorto the day of the accident, Todd Shipyards had closed the three forwardhatches and had illuminated the forward end of the cargo hold for thesafety of the employees as they used the forward ladder. However,because Todd Shipyards intended the employees to use only the forwardladder, the company did not close the aft hatches or illuminate the aftend of the cargo hold.During the day before Terrell led his crew through the aft hatch, ToddShipyards’ assistant superintendent instructed the day shift laborers toenter the hold by the forward ladder demonstrating that Todd Shipyardsforesaw that, absent some affirmative steps, employees could be expectedto use the aft entrance. The record shows that the aft ladder was leftopen at times prior to the day of the accident. It also shows that theswing shift employees used the aft ladder more than once, immediatelybefore the accident, when it was again open. On this record theSecretary has established that employees could reasonably be predictedto use the aft hatch. I therefore concur in affirming the citations inthis case and I join in assessing a total penalty of $1,500 for thereasons given in part IV of the lead opinion.————————————————————————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]] Since this case arose, the shipyard standards have beenrecodified. The cited standards are now codified at 29 C.F.R. ??1915.73(d) and 1915.92(a) and (e) respectively.[[2]] In order to prove that an employer violated an occupational safetyor health standard, the Secretary must also show that the standardapplies to the facts, that there was noncompliance with the standard,and that employees had access to the hazard. _See_ _AstraPharmaceutical Prods_., 81 OSAHRC 79\/D9, 9 BNA OSHC 2126, 2129, 1981 CCHOSHD ? 25,578 at pp. 31,899-900 (No. 78-6247, 1981), _aff’d_, 681 F.2d69 (1st Cir. 1982). Those elements of the Secretary’s case are not indispute here.[[3]] _H.E. Wiese, Inc._, _supra_; _Merritt Electric Co_., 81 OSAHRC75\/D4, 9 BNA OSHC 2088, 1981 CCH OSHD ? 25,556 (No. 77-3772, 1981).[[4]] _National Realty & Construction Co. v. OSHRC_, 489 F.2d 1257, 1266(D.C. Cir. 1973).[[5]] Of the three members of Terrell’s crew who testified, oneremembered being warned against entering inadequately lighted areaswhile the other two said they had not received any such instructions. In view of the statement by Todd’s safety director that this subjectwould not be covered in safety meetings, the preponderance of theevidence indicates that the prohibition against entering inadequatelylighted areas was not effectively communicated at safety meetings.[[6]] Section 17(k) of the Act, 29 U.S.C. ? 666(j).[[7]] Section 17(j) of the Act, 29 U.S.C. ? 666(i).[[1\/]] The Act imposes an obligation on employees as well to comply, 29U.S.C. ? 654(b), but does not place on them any responsibility fornoncompliance.[[2\/]] _Cf_. _Gilles & Cotting, Inc_., 76 OSAHRC 30\/D9, 3 BNA OSHC 2002,1975-76 CCH OSHD ? 20,448 (No. 504, 1976) (The Secretary must show thereasonable predictability of employee access to the zone of danger toestablish a violation of a standard in a multiple employer worksite),cited in _Clement Food Company_, OSHRC Docket No. 80-607 (July 17,1984), and _Carpenter_ _Contracting Corp_., 84 OSAHRC __, 11 BNA OSHC2027, 1984 CCH OSHD ? 26,950 (No. 81-838, 1984).”