“Docket No. 77-1598 SECRETARY OF LABOR,Complainant,v.TODD SHIPYARDS CORPORATION,Respondent.OSHRC Docket No. 77-1598DECISION Before:\u00a0 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 an inadequatelyilluminated area.\u00a0 The citations were issued following a fatal accident in which aTodd employee fell into an unguarded hatch on a ship undergoing repair work at Todd’sAlameda, California shipyard.\u00a0 Administrative Law Judge Jerry W. Mitchell found thatthe violative conditions occurred as alleged, but vacated the citations upon finding thatTodd did not and could not, with reasonable diligence, know that employees would be in thearea where the conditions existed.\u00a0 The case is before the Commission for reviewpursuant to section 10(c), 29 U.S.C. ? 659(c), of the Occupational Safety and Health Actof 1970, 29 U.S.C. ?? 651-678.\u00a0 We reverse the judge’s decision, affirm thecitations, and assess a penalty of $1500.IThe vessel on which the alleged violations occurred was a cargo ship, the S.S. PioneerContractor.\u00a0 Below the ship’s main deck were cargo holds, which were divided intolevels by other decks.\u00a0 On May 2, 1977, Todd was doing scaling work in the wing tankson the upper tween deck level of cargo hold #3.\u00a0 The upper tween deck level is thelevel immediately below the main deck.\u00a0 Access to the upper tween deck level of cargohold #3 could be gained by either fore or aft ladders leading from manhole openings on themain deck.\u00a0 Todd had begun working in cargo hold #3 about one week before May 2,1977.The upper tween deck level of cargo hold #3 was approximately 65 feet long.\u00a0 It contained six hatches, three in the forward end of the hold and three in the aftend.\u00a0 The forward hatches were closed, but the aft hatches were open.\u00a0 Theforward end of the compartment was adequately illuminated, but the aft end was dark.\u00a0 The entrance to the wing tanks in which the work was being done was near theforward ladder.\u00a0 Thus, employees entering the wing tanks by descending to the uppertween deck by means of the forward ladder would not be exposed to open hatches and wouldhave adequate illumination.\u00a0 However, if employees used the aft ladder for access tothe upper tween deck, they would have to walk past the open hatches in the unlighted aftend of the hold to reach the wing tanks.\u00a0 The walkways between and around the openhatches were approximately 3 to 5 feet wide.\u00a0 Prior to May 2, the aft manhole coverproviding access to the aft ladder leading to the open aft hatches had been closed andbolted shut.Todd had two shifts of workers on the S.S. Pioneer Contractor:\u00a0 a dayshift and an evening, or swing, shift.\u00a0 Each crew of several workers was directed bya leadman.\u00a0 A day-shift crew under the direction of leadman McClure was assigned toperform the scaling work in the cargo hold #3 wing tanks.\u00a0 McClure had beeninstructed by Ball, an assistant superintendent, to use the forward entrance to cargo hold#3, and McClure and his crew complied with that instruction.\u00a0 Following the day shifton May 2, 1977, a swing shift crew headed by leadman Terrell prepared to continue thescaling work.\u00a0 Terrell had been with Todd for 25 years.\u00a0 This crew had notpreviously worked in cargo hold #3.\u00a0 The record does not reflect that Terrell wasinstructed to enter the hold only 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.\u00a0 The aft manhole cover was closed and bolted shut when theday shift superintendent inspected it at the end of the day shift.\u00a0 The record issilent as to when, by whom, and why the aft manhole cover was unbolted and opened. \u00a0In any event, Terrell led his crew to the upper tween deck level of cargo hold #3 by wayof the aft ladder.\u00a0 In order to reach the wing tanks from the base of the ladder, thecrew had to climb through wooden cargo shoring at the aft end of the hold and walk pastthe unguarded hatches.\u00a0 Having gained access to the wing tanks by this route, thecrew commenced work.\u00a0 Terrell shortly thereafter left the cargo hold by way of theforward ladder.\u00a0 While Terrell was gone, a quarterman, Chatman, instructed themembers of the crew to work in another area.\u00a0 The crew members then left the cargohold by climbing the forward ladder.After their lunch break, the crew, including Terrell, prepared to resumework.\u00a0 They assembled on the main deck near the aft ladder at about 9:00 p.m., againdescended that ladder, and proceeded toward the forward end by walking past the unguardedhatches. Terrell had a flashlight, but the other crew members did not.\u00a0 Afterproceeding a few feet along one of the walkways between two of the open hatches, Terrellfell into one of the openings.\u00a0 He fell a distance of 30 feet and suffered fatalinjuries.Three members of Terrell’s crew, Johnson, Ward, and Cockerham, testified thatthey had not received instructions on how to enter or exit cargo hold #3.\u00a0 Wardrecalled being advised in safety meetings not to enter inadequately lighted areas, butJohnson and Cockerham stated that they had not received similar instructions.\u00a0 Allthree employees testified that they had not been warned to avoid walking past unguardedopenings that presented a falling hazard.\u00a0 Johnson testified that the day of theaccident was the first time he had been on the ship’s upper tween deck level, and that hedid not know there was a forward ladder to enter hold #3 before they had entered the wingtank.\u00a0 Johnson further testified that Terrell would always check out an area in whichthe crew was to work to be sure the area was safe.Todd had a safety program consisting of safety training for all employees aswell as daily inspections of all jobs at the Alameda shipyard by a safety coordinator.\u00a0 All new employees received an initial safety indoctrination.\u00a0 Safety meetingsfor employees in each craft were held weekly, and there was a monthly meeting for allforemen and department heads.\u00a0 At these monthly meetings, various safety issues werereviewed, and foremen were encouraged to keep stressing safety on the job.\u00a0 Monthlysafety meetings of management representatives with the shop stewards of the unionsrepresenting Todd employees were also held.\u00a0 Todd gave each new employee aninformation handbook containing both safety rules and general employment policies. \u00a0Among the safety rules were instructions to arrange for more lighting if working in aninadequately lighted area, and to guard all openings into which persons could fall.The employee information handbook also spelled out the role of the leadman inthe company’s safety program:The Leadman, because he is the primary group leader, is the key man inpreventing accidents.\u00a0 He must be sure that every person in his crew thoroughlyunderstands how to work safely.\u00a0 Whenever a new man is added to his crew the Leadmanmust instruct the worker on the proper type of personal Safety equipment to be worn, safemethods and safe practices in doing the work.\u00a0 The Leadman is responsible forhazardous conditions in his work area, particularly those that are created by his owncrew.\u00a0 He is to see that hoses, leads, loose materials, tools, etc., are not left inpassageways or walk ways, that openings are roped off or covered over, staging kept clearof litter and in general be certain that there are no unnoticed hazards that could causean accident. If it is apparent that an existing hazard was caused by or must be corrected by anotherCraft, then the Leadman will contact this Craft in order to get it corrected.\u00a0 If heis unable to get the necessary action in having the hazard removed, he is to report thehazard to his Foreman as soon as possible.\u00a0 The Foreman will carry on from there, butin the event he is also unable to obtain cooperation from the responsible Craft, he is toturn the problem over to the Safety Department for proper action.Leadman McClure testified that he supervised ten or twelve laborers, who weredivided into several crews.\u00a0 He would constantly make rounds to check on thedifferent crews.\u00a0 He would work with a particular crew if a job had to be completedright away. McClure usually spent two or three hours a day working with the crews, and theremainder of the shift making his rounds.IIThe citations alleged that Todd violated 29 C.F.R. ?? 1915.43(c) and 1915.52(a) and (e).\u00a0 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 similarflat surfaces, more than 5 feet above a solid surface, the edges shall be guarded byadequate guardrails meeting the requirements of ? 1915.41(i)(1) and (2), unless thenature of the work in 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 as the working areasthemselves shall be adequately illuminated.* * *(e) Employees shall not be permitted to enter dark spaces without a suitable portablelight.\u00a0 The use of matches and open flame lights is prohibited.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 that the company did notand could not, with reasonable diligence, know its employees would use that means ofaccess.\u00a0 Todd pointed out that, prior to the swing shift on May 2, 1977, allemployees entering the upper tween deck of cargo hold #3 had used the forward entrance,which complied with the standards.\u00a0 It argued that Terrell was not a supervisor, andthat no Todd supervisor knew or could have anticipated that employees would use the aftentrance to the hold, particularly since access to the hold from the aft ladder wasblocked by cargo shoring.\u00a0 Todd contended that it exercised reasonable diligence ininspecting the ship for safety hazards and that it should not be held responsible for theunforeseeable series of events that culminated in the accident. Judge Mitchell agreed withTodd’s arguments and vacated the citations.\u00a0 In reaching his decision, the judgespecifically found that 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 that Terrell was not asupervisor.\u00a0 The Secretary argues that prior Commission decisions have foundemployees with authority similar to Terrell’s to be supervisors whose actions andknowledge are imputed to their employers.\u00a0 The Secretary points out that Terrellexercised substantial control over work assignments and in instructing workers in theproper manner of completing those assignments.\u00a0 According to the Secretary, themanner in which the leadman carries out his duties directly affects the safety and healthof workers, and workers must depend on the leadman to protect them from unsafe workingconditions.\u00a0 Therefore, the Secretary argues, the leadman must be considered asupervisor for purposes of the Act.\u00a0 Todd, on review, renews the arguments it madebefore the judge and urges that the judge’s decision be upheld.IIIIn order to prove that an employer violated the Act, the Secretary must show, among otherthings, that the employer knew or could have known of the noncomplying condition with theexercise of reasonable diligence.[[2]]\u00a0 Prestressed Systems, Inc., 81 OSAHRC43\/D5, 9 BNA OSHC 1864, 1981 CCH OSHD ? 25,358 (No. 16147, 1981).\u00a0 Because corporateemployers can only obtain knowledge through their agents, the actions and knowledge ofsupervisory personnel are generally imputed to their employers, and the Secretary can makea prima facie showing of knowledge by proving that a supervisory employee knew of or wasresponsible for the violation.\u00a0 H.E. Wiese, Inc., 82 OSAHRC 18\/A2, 10 BNA OSHC1499, 1505, 1982 CCH OSHD ? 25,985 at p. 32,614 (No. 78-204, 1982), aff’d, 705F.2d 449 (5th Cir. 1983).\u00a0 The employer, however, can rebut this showing bydemonstrating that the supervisory employee’s misconduct could not have been prevented.\u00a0 Id.\u00a0 In general, the employer must show that it had implemented aneffective safety program designed to detect and prevent violations of the type allegedlycommitted.\u00a0 Id.I agree with the Secretary’s argument that Terrell was a supervisory employeeof Todd.\u00a0 The record shows that leadmen such as Terrell exercised substantialauthority over the manner in which Todd’s work was performed.\u00a0 As leadman McCluretestified, he was the first-line supervisor for several work crews and spent a large partof his time checking that his crews were performing their assignments properly. \u00a0Todd’s leadmen also possessed supervisory authority in matters of safety.\u00a0 Thedescription of the leadman’s responsibilities in Todd’s employee information handbookstates that the leadman is responsible for instructing his crew members in how to performtheir work safely and in what protective equipment to use.\u00a0 The handbook explicitlystates:\u00a0 \”The Leadman . . . is the key man in preventing accidents.\u00a0 Hemust be sure that every person in his crew thoroughly understands how to worksafely.\” The handbook further provides that the leadman is responsible for assuringsafe conditions in work areas.\u00a0 This documentary evidence of the leadman’s role insafety was supported by the testimony of Johnson, a member of Terrell’s crew, who statedthat Terrell would always check on an area in which the crew was to work to make sure itwas safe.\u00a0 Since Todd relied on its leadmen to provide safe working conditions, theleadmen must be considered supervisors for purposes of the Act.\u00a0 Iowa SouthernUtilities Co., 77 OSAHRC 32\/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD ? 21,612 (No.9295, 1977).Because Terrell was a supervisor, his knowledge of the violations is imputedto Todd unless the company has shown that Terrell’s actions were unpreventable.\u00a0 Toestablish that Terrell’s conduct was unpreventable, Todd would have to show either thatTerrell acted in contravention of effectively implemented work rules[[3]] or thatTerrell’s actions were so idiosyncratic that an employer would not take the possibility ofsuch actions into account in establishing a safety program.[[4]]\u00a0 I conclude thatTodd has not made either showing.Todd relies on the evidence concerning its safety program in arguing thatTerrell’s conduct was unpreventable.\u00a0 The record shows that, despite his knowledge ofthe conditions in the aft end of the hold, Terrell led the crew in a second time, indisregard of the hazard.\u00a0 However, the record also shows that Todd’s program was notadequately implemented with respect to the hazards that occurred in this case. \u00a0Todd’s employee information handbook contains rules against leaving deck openingsunguarded and cautioning against working in areas that are not adequately lighted. \u00a0Each employee is given a copy of this handbook when first hired.\u00a0 There, is however,no evidence that Todd took any ongoing steps to implement these rules. \u00a0 Although allTodd employees attended periodic safety meetings, the company’s safety director statedthat no specific instructions would be given at these meetings about entering inadequatelylighted areas because that subject is covered in the handbook.[[5]] \u00a0 Similarly,there is no evidence that the rule requiring guarding of deck openings was discussed atsafety meetings, or that employees were instructed to avoid areas containing deckopenings.\u00a0 While written rules are an important component of a safety program, anemployer cannot reasonably assume that rules given to employees when first hired but notthereafter mentioned will be consistently followed.Even if I were to conclude that Terrell was not a supervisor, I would findthat knowledge of the hazardous condition was imputed to Todd through Ball and Chatman.\u00a0 Both were supervisors.\u00a0 Moreover, the fact that Todd supervisors instructedthe day shift laborers to enter the hold by the forward ladder demonstrates theforeseeability that, without such instructions, employees might use the aft entrance.\u00a0 Todd should have given the same instruction to the swing shift laborers it gave tothe day shift.IVThe Secretary alleged that the violations were serious in nature and proposed penalties of$1000 for each violation.\u00a0 In view of the potential fall distance of 30 feet, weconclude that the violations gave rise to a substantial probability of death or seriousharm and are therefore properly classified as serious.[[6]]\u00a0 In assessing penalties,we must consider the gravity of the violations, the good faith of the employer, and theemployer’s size and history of prior violations.[[7]] Todd provided an alternative means of access to cargo hold #3 that complied with the citedstandards, and its safety program evidenced some concern for the safety of its employees.\u00a0 However, Todd is a relatively large employer, with approximately 650 employees atthe Alameda shipyard at the time of the violations.\u00a0 The record contains a number ofcitations Todd’s Alameda facility received prior to the violations in this case.\u00a0 Theviolations in this case were of high gravity in that the bad lighting conditions coupledwith the open hatches exposed four employees to a potentially fatal fall.\u00a0 Onbalance, we consider a penalty of $1000 for the violation of section 1915.43(c) and $500for the violation of sections 1915.52(a) and (e) to be appropriate.Accordingly, the judge’s decision is reversed.\u00a0 The citations areaffirmed and a penalty of $1500 is assessed.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARY DATED:\u00a0 AUG 3 1984BUCKLEY, Commissioner, concurring:I concur in affirming the citations in this case, but for different reasons.\u00a0 Section 5(a)(2) of the Act, 29 U.S.C. ? 654(a)(2), requires that each employer\”shall comply with occupational safety and health standards promulgated under thisAct\” and, pursuant to authority, the Secretary has promulgated standards which imposeupon employers the primary duty for compliance.[[1\/]]\u00a0 The standards cited in thiscase are examples.\u00a0 They require shipyard employers such as Todd Shipyards to installguardrails around deck openings (29 C.F.R. ? 1915.43(c), now 29 C.F.R. ? 1915.73(d)),adequately illuminate all means of access and walkways 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 toemployees in dark spaces (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 to improvesafety conditions by telling employers as exactly as possible what they must do to reduceor eliminate hazards to employees.\u00a0 See Dravo Corp. v. OSHRC 613 F.2d1227 (3rd Cir. 1980), and cases cited therein.\u00a0 The rationale for imposing complianceduties such as these on the employers is that they generally control the workplace, andtherefore can exert significant control over the physical conditions or environment inwhich their employees work and over the equipment available to the employees forperforming the work.\u00a0 See Teal v. E. I. DuPont de Nemours and Co.,728 F.2d 799 (6th Cir. 1984); Central of Georgia Railroad Co. v. OSHRC, 576 F.2d620 (5th. Cir. 1978); Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534F.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, 489 F.2d 1257 (D.C.Cir. 1973).\u00a0 Employers can take steps to assure that the workplace is inspected fornoncomplying conditions and equipment, and can take the necessary measures for compliance.\u00a0 Employers can also take significant measures to control where their employees workand where they will go to gain access to their work areas.\u00a0 Accordingly, to complywith certain standards applicable to their workplaces, it may be appropriate for employersto decide to either correct the conditions or limit employee access to them.Section 1915.43(c), cited in this case, explicitly requires guardrails arounddeck openings only \”[w]hen employees are exposed\” to unguarded openings. \u00a0Sections 1915.52(a) and (e) have the same, implicit qualification.\u00a0 Section1915.52(a) requires illumination for \”[a]ll means of access and walkways leading toworking areas,\” indicating that those means of access and walkways not leading toworking areas do not have to be illuminated.\u00a0 Section 1915.52(e) requires suitableportable lights for employees \”permitted to enter dark spaces.\”\u00a0 In eachease the standards require the employer to consider the reasonably predictable movementsof employees in their work and related activities to determine whether to take stepsneeded 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 Todd Shipyards.\u00a0 Inapplying this analysis, the decision that Terrell is a foreman disposes of the case, sinceTerrell obviously \”knew\” that hatches were unguarded to which employees were\”exposed;\” that means of access and walkways to a work area were unlit; and thatsuitable portable lights were not provided in dark spaces.\u00a0 However, Todd Shipyards’knowledge about the lack of guardrails, illumination and portable lights does notestablish a violation.\u00a0 If this were so there would be no need to discuss the statusof Terrell or imputation of knowledge because it is apparent that Todd Shipyards knew thatthese conditions existed in certain areas of the ship.\u00a0 The lead opinion goes onestep further and imputes Terrell’s knowledge that employees were exposed to these hazardsto Todd Shipyards, based on Terrell’s actions in leading employees through the hatch.In my view, that analysis is inappropriate in this case.\u00a0 The gravamenof the violations alleged here consists of acts of omission in a circumstance whereemployee exposure to hazards resulting from those acts of omission was reasonablypredictable or foreseeable. To establish that an employer failed to comply with thestandards cited in this case, the Secretary must establish not only knowledge that anoncomplying condition existed at the workplace to which employees were actually exposed,but also that access to the noncomplying condition was reasonably predictable orforeseeable by the employer in light of such things as the employees’ assigned work dutiesor their normal means of ingress to or egress from their work areas.[[2\/]]\u00a0 Terrell’sactions are not dispositive on this question, although relevant on the issue offoreseeability.\u00a0 See Pennsylvania Power & Light Co. v. OSHRC, No.83-3263, slip op. at 16 (3rd Cir. June 15, 1984) (the participation of a supervisor in aviolation is evidence of, but does not end the inquiry into, foreseeability).There is no serious dispute that Todd Shipyards was aware of the noncomplyingconditions.\u00a0 Todd Shipyards should have foreseen that access to the work area in thewing tanks could be gained through the aft end of the cargo hold and knew that this areawas inadequately lighted and contained open hatches.\u00a0 The record demonstrates thatprior to the day of the accident, Todd Shipyards had closed the three forward hatches andhad illuminated the forward end of the cargo hold for the safety of the employees as theyused the forward ladder.\u00a0 However, because Todd Shipyards intended the employees touse only the forward ladder, the company did not close the aft hatches or illuminate theaft end of the cargo hold.During the day before Terrell led his crew through the aft hatch, ToddShipyards’ assistant superintendent instructed the day shift laborers to enter the hold bythe forward ladder demonstrating that Todd Shipyards foresaw that, absent some affirmativesteps, employees could be expected to use the aft entrance.\u00a0 The record shows thatthe aft ladder was left open at times prior to the day of the accident.\u00a0 It alsoshows that the swing shift employees used the aft ladder more than once, immediatelybefore the accident, when it was again open.\u00a0 On this record the Secretary hasestablished that employees could reasonably be predicted to use the aft hatch.\u00a0 Itherefore concur in affirming the citations in this case and I join in assessing a totalpenalty of $1,500 for the reasons given in part IV of the lead opinion.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]] Since this case arose, the shipyard standards have been recodified.\u00a0 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 safety orhealth standard, the Secretary must also show that the standard applies to the facts, thatthere was noncompliance with the standard, and that employees had access to the hazard.\u00a0 See Astra Pharmaceutical Prods., 81 OSAHRC 79\/D9, 9 BNA OSHC 2126,2129, 1981 CCH OSHD ? 25,578 at pp. 31,899-900 (No. 78-6247, 1981), aff’d, 681F.2d 69 (1st Cir. 1982).\u00a0 Those elements of the Secretary’s case are not in disputehere.[[3]] H.E. Wiese, Inc., supra; Merritt Electric Co., 81OSAHRC 75\/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, one rememberedbeing warned against entering inadequately lighted areas while the other two said they hadnot received any such instructions.\u00a0 In view of the statement by Todd’s safetydirector that this subject would not be covered in safety meetings, the preponderance ofthe evidence indicates that the prohibition against entering inadequately lighted areaswas 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 for noncompliance.[[2\/]] Cf. Gilles & Cotting, Inc., 76 OSAHRC 30\/D9, 3 BNAOSHC 2002, 1975-76 CCH OSHD ? 20,448 (No. 504, 1976) (The Secretary must show thereasonable predictability of employee access to the zone of danger to establish aviolation 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., 84OSAHRC __, 11 BNA OSHC 2027, 1984 CCH OSHD ? 26,950 (No. 81-838, 1984).”