Docket No. 16093

DEL-COOK LUMBER CO.

OSHRC Docket No. 16093

Occupational Safety and Health Review Commission

February 2, 1978

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Before: CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Reg. Sol., USDOL

J. Reese Franklin, for the employer

OPINION:

DECISION

BY THE COMMISSION: An August 16, 1976, decision of Review Commission Judge John S. Patton is before this Commission pursuant to a direction for review issued by former Commissioner Robert D. Moran under § 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [the Act]. At issue is whether the Judge erred in finding respondent in violation of section 5(a)(2) of the Act for failing to comply with the safety standards codified at 29 C.F.R. § 1910.265(c)(4)(iv) [citation for nonserious violation] and 29 C.F.R. § 1910.265(c)(18)(i) [citation for serious violation]. n1 For the reasons that follow, we affirm the Judge's decision.

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n1 The cited standards provide as follows:

1910.265 Sawmills.

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(4) Walkways, docks and platforms --

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(iv) Elevated walks. All elevated walks, runways, or platforms, if 4 feet or more from the floor level, shall be provided with a standard railing except on loading or unloading sides of platforms. If height exceeds 6 feet, a standard toe board also shall be provided to prevent material from rolling or falling off.

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(18) Conveyors -- (i) Standards. Construction, operation, and maintenance of conveyors shall be in accordance with American National Standard B20.1-1957.

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Respondent's sawmill was inspected by an authorized representative of the Department of Labor following an accident at the worksite resulting in an employee fatality. As a result of that inspection, respondent was issued citations alleging the aforementioned violations at its #1 Night Sawmill. In that location, respondent operates a log deck, a chain conveyor and a cut-off saw. The saw is located on a platform that is adjacent to the log deck and the conveyor. The platform is 15' X 15' in size, and exceeds 4 feet in height. As is illustrated in the drawing attached as an appendix to this decision, the log deck is located to the left of the platform, and the conveyor runs parallel with the back side of the platform. Logs are placed on the log deck, travel to the conveyor, are dumped into the conveyor trough by a loader bar, and are pulled along to the cut-off saw. The logs are not uniform in length, and may overlap the platform from one to three feet. Occasionally, a much longer log will extend over the platform to such an extent that, unless cut by a hand saw, it would hit the saw housing.

A [*3] rampman works on the platform. It is his responsibility to keep the logs on the deck straight and spread out, and to cut off parts of logs that overhang the platform and could hit the saw housing. The sawman's station is located on the side of the conveyor opposite the platform. Both the rampman and the sawman gain access to their work stations by way of the stairs in front of the platform, directly adjacent to the ten foot long unguarded edge.

Respondent was found in noncompliance with § 1910.265(c)(4)(iv) for failing to install guardrails on the unguarded edge of the platform that is designated by X's on the attached drawing. Respondent's arguments on review are summarized as follows:

1. The cited standard is inapplicable because the platform was used for loading and unloading.

2. The installation of guardrails was impossible and would create a greater hazard.

3. The part of the platform that was used regularly was protected by suitable railings.

4. An OSHA inspector indicated during a prior inspection that guardrails were not necessary. The citation should therefore be dismissed, and/or the penalty vacated.

The evidence establishes that logs are carried to the [*4] conveyor by traversing the log deck, not the platform. Judge Patton properly rejected respondent's contention that the platform was used for loading and unloading.

Respondent's "impossibility" argument is based on the premise that a rail extending all the way to the log deck would be hit and shattered by logs that are longer than the deck and overlap the platform. It is further argued that the rampman working on the platform would be injured by the shattering rail, thereby making compliance more hazardous than noncompliance. Judge Patton rejected respondent's contentions, finding that, "there are ways to prevent the logs from striking the railing." n2 We agree with the Judge's conclusion for the reasons he assigned.

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n2 It should be noted that respondent did not provide any railing on this side although logs would overlap the platform only one to three feet. Respondent has not stated any reason for failing to install a rail up to that point. In fact, respondent did install two feet of railing after the inspection, with no resultant difficulty.

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Respondent argues that suitable railings were provided on the part of the platform regularly used by employees. Employees were still exposed, however, to the unguarded portion of the platform during the normal course of their work. Such partial compliance cannot excuse respondent's failure to install required guardrails, but will be considered for the purpose of determining an appropriate penalty in this case.

Testimony of respondent's witnesses indicates that respondent's worksite had been inspected previously by an authorized representative of the Department of Labor. At that time the compliance officer had indicated that guardrails were not necessary at the cited location. The opinion of a compliance officer cannot bind the Secretary or the Commission to an erroneous interpretation of a standard. Holman Erection Co., Inc., 77 OSAHRC 196/A2, 5 BNA OSHC 2078, 1977-78 CCH OSHD para. 22,318 (No. 13529, 1977).

We therefore conclude that Judge Patton properly found respondent in violation of § 1910.265(c)(4)(iv). We do not agree, however, that the assessed penalty of $185 is appropriate. Considering respondent's reliance on the recommendation [*6] of the compliance officer who conducted the earlier inspection, and its apparent good faith in erecting guardrails on other parts of the platform, we consider it appropriate to assess no penalty for this nonserious violation.

Respondent was found in serious violation of the Act for failing to comply with American National Standards Institute (ANSI) standard B20.1-1957, as adopted by § 1910.265(c)(18)(i). The ANSI provision provides the following:

Maintenance work should not be done while conveyor is in operation. If it is necessary to operate the conveyor while servicing it, special safety provisions shall be used.

Sawman Page and rampman Hollins were repairing the conveyor when the fatal accident occurred. The conveyor chain had jumped off the sprocket, as frequently occurs when logs traveling on the conveyor are crooked. Following their usual procedure, the employees stopped the conveyor, procured a cant hook, and replaced the chain with the hook. The saw was not turned off. Because a log was lying over the sprocket, rampman Hollins used a cant hook to pull one end of the log off the sprocket and held it while the chain was replaced. Hollins was still holding the log [*7] when the conveyor was turned back on to allow the chain to jump onto the sprocket. Hollins was fatally injured when he fell onto the conveyor and toward the operating saw. n3

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n3 Page did not see Hollins fall and there were no other witnesses to the accident. We do not know, therefore, whether Hollins lost his balance or was pulled forward when the conveyor was turned on.

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Respondent's arguments on review are summarized as follows:

1. Complainant failed to establish the existence of a recognized hazard, failed to specify the particular steps respondent should have taken to avoid citation, and failed to demonstrate the feasibility and likely utility of these measures.

2. The standard is inapplicable because replacing the chain is not maintenance.

3. The violation was unpreventable because (a) respondent lacked either actual or constructive knowledge of the violation and (b) the violation was caused by the willful misconduct of respondent's employees.

4. The Judge erred in failing to allow respondent to reopen [*8] its case to present testimony regarding its supervisor's knowledge of the violation.

Respondent's first argument is without merit. National Realty and Construction Co., Inc. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973) is cited by respondent for the proposition that complainant has the burden in cases alleging general duty clause violations of proving the existence of a recognized hazard and the particular steps an employer should have taken to avoid the citation, as well as the feasibility and likely utility of these measures. Respondent, however, has not been charged with a violation of section 5(a)(1) of the Act, the general duty clause, but has been charged with a violation of a specific duty under section 5(a)(2) of the Act. n4 The cited standard presupposes the existence of a hazard when its terms are not met. See Vecco Concrete Construction, Inc., 77 OSAHRC 183/A2, 5 BNA OSHC 1960, 1977-78 CCH OSHD para. 22,247 (No. 15579, 1977).

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n4 The Act describes the duties of employers as follows:

Sec. 5(a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

(2) shall comply with occupational safety and health standards promulgated under this Act.

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Respondent's argument that replacement of the chain does not constitute maintenance on the conveyor is also without merit. The chain is an integral part of the conveyor, upon which its operation depends. Work performed on the chain and sprocket for the purpose of returning the conveyor to proper functioning order must, therefore, be considered maintenance work within the meaning of the cited standards. The evidence establishes that Hollins was still holding the log off the sprocket with the cant hook at the time the conveyor was turned back on. Respondent has therefore violated the standard's requirement that maintenance work not be performed while the conveyor is in operation.

The third issue raised by respondent on review involves questions of its knowledge of the violation and the preventability of the accident that occurred. It is respondent's position that the fatal accident resulted from the employees' careless violation of company policy and was, therefore, not preventable. It is argued that, having instructed the deceased employee on company policy, respondent has satisified its responsibility [*10] under the Act. According to respondent, finding liability under these circumstances would impose upon respondent a standard of strict liability that was not intended under the Act.

In order to defend against the prima facie showing of a violation on the basis of the unpreventable employee misconduct defense, an employer must prove that the employee conduct was a departure from a uniformly and effectively enforced safety rule. Leo J. Martone & Associates, Inc., 77 OSAHRC 46/C4, 5 BNA OSHC 1228, 1977-78 CCH OSHD para. 21,718 (No. 11175, 1977); B.G. Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD para. 20,744 (No. 4713, 1976). To establish this defense, an employer must show that his employees received adequate training and instructions designed to prevent the violation. Enfield's Tree Service, Inc., 77 OSAHRC 32/B3, 5 BNA OSHC 1142, 1977-78 CCH OSHD para. 21,607 (No. 9118, 1977). In other words, specific safety instructions and workrules concerning particular hazards that may be encountered on the job are the essential foundations of an adequate safety program. Kansas Power & Light Co., 77 OSAHRC 39/A2, 5 BNA OSHC 1202, 1977-78 [*11] CCH OSHD para. 21,696 (No. 11015, 1977).

Judge Patton found that respondent had a policy requiring employees to "turn off the power" and call for assistance to make the type of repairs that the sawman and the repairman were attempting at the time of the accident. He determined, however, that respondent had failed to sustain its defense because of evidence establishing frequent violations of company rules, including "violations observed by company supervisors." We agree that respondent has not sustained its defense for the reasons assigned by the Judge.

Respondent also maintains that the Judge erred by refusing to allow that respondent reopen its case to recall the night foreman. Respondent's counsel made an offer of proof, indicating that the witness would have testified that he had no knowledge that the employees were replacing the chain without turning off the saw. Respondent is, however, chargeable with constructive knowledge of the violation through its failure to adequately enforce its rule that the power be turned off during maintenance. Whether it also had actual knowledge of the specific incident involved in this case is therefore irrelevant. There was no error.

Having [*12] considered the penalty assessment criteria set forth at section 17(j) of the Act, 29 U.S.C. § 666(i), particularly the gravity of the violation, we find the assessment of a $900 penalty in this case to be appropriate. The violation of § 1910.265(c)(18)(i) and the $900 penalty are, therefore, affirmed.

It is ORDERED that the decision of the Administrative Law Judge, as modified by this decision, is affirmed.

APPENDIX

[SEE ILLUSTRATION IN ORIGINAL]

This drawing is a reproduction of Complainant's exhibit C-15 which was introduced into evidence at the hearing in this matter. Exhibit C-15 is a free-hand sketch of the inspected worksite and is not drawn to scale. The double lines represent guardrails in place at the time of the inspection. The X's represent the unguarded side of the platform involved in the § 1910.265(c)(4)(iv) charge.