D. R. JOHNSON LUMBER COMPANY
OSHRC Docket No. 3179
Occupational Safety and Health Review Commission
April 25, 1975
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: A January 8, 1974, decision of Review Commission Judge James A. Cronin, Jr., in a proceeding under the Occupational Safety and Health Act of 1970 n1 is before this Commission for review pursuant to 29 U.S.C. § 661(i). Respondent was charged with a serious violation of 29 U.S.C. § 654(a)(2) for failure to comply with an occupational safety and health standard codified at 29 C.F.R. § 1910.265(c)(22). n2 This charge was vacated in the decision below. n3 We affirm that ruling because there is no evidence in the record establishing the respondent's knowledge of the presence of the violation.
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n1 84 Stat. 1590, 29 U.S.C. § 651 et seq., hereafter the Act.
n2 29 C.F.R. § 1910.265(c)(22) provides:
"The construction, operation, and maintenance of all mechanical power-transmission apparatus shall be in accordance with the requirements of § 1910.219."
It is noted that the citation, as well as the complaint, merely reiterated the incorporated section 1910.219 without specifying any particular subsection thereof. 29 U.S.C. § 658(a) requires that a citation specify the nature of the violation including a reference to the particular standard alleged to have been violated. For decisions holding that an unspecific reference to a standard does not meet the requirements of § 658(a), see: Secretary v. H.K. Ferguson Co., 12 OSAHRC 343 (1974); Secretary v. N.Y. Metal Finishing Co., 7 OSAHRC 845 (1974); Secretary v. Union Camp Corp., 5 OSAHRC 514 (1973).
n3 Respondent was also charged with and subsequently found in violation of the same section of 29 U.S.C. because of noncompliance with occupational safety and health standards codified at 29 C.F.R. § 1910.265(d)(1)(i)(b), § 1910.265(e)(6)(i)(c), and § 1910.265(c)(20)(iii). We affirm such findings.
[*2]
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The facts here are not in dispute. The respondent is engaged in a lumber business including the operation of a sawmill. Part of that operation includes running power transmission units of a sawmill edger. On the day of the inspection n4 the guard protecting the edger was removed and replaced several times to permit millworker employees to make adjustments thereon.
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n4 On the day before the inspection an adequate guard had been removed in order to replace the motor and reconnect the jack shaft. However, on that same evening, the guard was put back in its regular position.
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The Judge, while finding the power transmission units of the edger were being operated without guards, vacated the charge because there was no evidence that the respondent knew or could have known with the exercise of reasonable diligence, that the guard had been removed. We agree. n5
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n5 The only evidence inferring knowledge thereof is the testimony of the compliance officer that it was his impression that the superintendent knew that the edger was unguarded. However, Dale Sisco, the millworker employee working on the edger, testified that he did not believe the superintendent knew of the removal thereof. Furthermore, Ralph Dunbar (respondent's supervisor of compliance with OSHA) as well as D. R. Johnson (respondent's owner) testified they did not know the edger was unguarded or the reasons therefor.
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29 U.S.C. § 661(j) provides that:
. . . a serious violation shall . . . exist . . . unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
A serious violation of the Act then does not exist if the respondent had no knowledge, either actual or constructive, of the existence of the hazard. See: Secretary v. Mountain States Telephone and Telegraph Co., 2 OSAHRC 168 (1972); Secretary v. Cam Industries, Inc., 7 OSAHRC 30 (1974); Secretary v. Republic Creosoting Company, 2 OSAHRC [*4] 400 (1973), affirmed at 501 F.2d 1196 (7th Cir., 1974). Brennan v. OSAHRC and Hendrix d/b/a, Alsea Lumber Co. 511 F.2d 1139, (9th Cir., 1975).
The Secretary here has affirmatively alleged in the complaint this requisite knowledge. Pursuant to Commission Rule 73(a), n6 he must prove all allegations made therein. It is therefore his burden to show that either the respondent knew or could with the exercise of reasonable diligence, have known that the edger was being used while unguarded. Absent such a showing, lack of employer knowledge must be presumed and no serious violation can therefore be found. n7 Brennan v. OSAHRC and Hendrix, d/b/a, Alsea Lumber Co. supra.
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n6 This rule, codified at 29 C.F.R. § 2200.73(a), provides:
"In all proceedings commenced by the filing of a notice of contest, the burden of proof shall rest with the Secretary."
n7 This knowledge requirement must also be proved by the Secretary to establish a nonserious violation. Brennan v. OSAHRC and Hendrix, supra.
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Clearly, [*5] the record here is void of any proof showing either that the respondent knew or should have known the edger was unguarded. As a result, the Secretary has failed to prove an essential element of the charge.
Accordingly, we hold there has been no violation of 29 C.F.R. § 1910.265(c)(22). It is therefore ORDERED that the Judge's decision and order are hereby affirmed.
CONCURBY: VAN NAMEE
CONCUR:
VAN NAMEE, COMMISSIONER, concurring: I concur because on the facts this case is clearly within the rule announced in Brennan v. OSHRC (Hendrix d/b/a Alsea Lumber Co.), 511 F.2d 1139 (9th Cir., 1975). Accordingly, the dicta contained in note 2 of the lead opinion is unnecessary.
DISSENTBY: CLEARY
DISSENT:
CLEARY, COMMISSIONER, dissenting: I dissent for the following reasons:
(1) Brennan v. O.S.H.R.C. & Raymond Hendrix, d/b/a Alsea Lumber Co., 511 F.2d 1139 (9th Cir., 1975) is not controlling under the facts of this case.
(2) This case does not involve unpreventable employee conduct. The Secretary, therefore, establishes a prima facie case by showing that a standard is breached and employees have access to the hazard. Brennan v. O.S.H.R.C. & Underhill Constr. Corp., Nos. 74-1568 & 74-1579 [*6] (2d Cir., March 10, 1975).
(3) The only employer "knowledge" relevant to this case is that under section 17(k) of the Act. The employer must prove lack of such knowledge and respondent has failed to do so here.
(4) Assuming the Secretary has the burden of showing knowledge pursuant to section 17(k) he has proved that the employer knew or with the exercise of reasonable diligence could have known of the presence of the violation.
In the Alsea case ". . . the appealed violations resulted from individual employee choices of conduct -- equipment operation and failure to wear protective equipment -- which were contrary to the employer's instructions." Slip op. at 2. One alleged violation involved an employee operating a buck saw as it raised and lowered, rather than at times when the operator was several feet from the saw as the employer instructed. The other alleged violations concerned employees' failure to wear a life preserver and goggles which had been provided by the employer.
The decision is replete with references to the specific facts of the case which the Court deemed to warrant, under those circumstances, proof by the Secretary of the employer's knowledge [*7] of the violation. The Court refers to there being ". . . no evidence in the record tending to show that the employer had any knowledge respecting these instances of employee disobedience of its established instructions." Slip op. at 3 (emphasis added). The Court questioned whether the employer and employee responsibilities under the Act are achieved by charging an employer with a violation ". . . because of an individual, single act of an employee, of which the employer had no knowledge and which was contrary to the employer's instructions." Slip op. at 9 (emphasis added). Similarly, the Court pointed out that ". . . no man is held accountable, or subject to fine, for the totally independent act of another." Slip of 10 (emphasis added). Finally, the Court pointed out that ". . . we deal here only with the special duty clause and violations resulting from and employee's election to disobey his employer's instructions." Slip op. at 6 n.5 (emphasis added).
Courts of Appeals dealing with the issue of an employer's responsibility for violations for the Act occurring without his knowledge have uniformly held that the Act seeks to protect employees from preventable [*8] hazards. In Alsea, the Ninth Circuit asserts that "[t]he employer's duty, even that under the general duty clause, must be one which is achievable." Slip op. at 9, citing National Realty & Constr. Co. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973). In National Realty, a case involving the "general duty" clause, the D.C. Circuit noted that Congress intended to require elimination of preventable forms and instances of hazardous conduct. National Realty, supra, at 1266-7.
The Court stated:
Hazardous conduct is not preventable if it is so idiosyncratic and implausible in motive or means that conscientious experts, familiar with the industry, would not take it into account in prescribing a safety program.
National Realty, supra, at 1266.
This preventability concept has been applied by several circuits. See. e.g., REA Express, Inc. v. Brennan, 495 F.2d 822 (2d Cir. 1974) (supervisory employees permitting untrained employees to repair electrical equipment under wet conditions held preventable and violative of the general duty clause); Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 234 (5th Cir. 1974) (employer's argument that [*9] it did not and could not know what was required by a standard rejected; the case involved a preventable hazard); Brennan v. O.S.H.R.C. & Vy Lactos Laboratories, Inc., 494 F.2d 460, 463 (8th Cir. 1974) ("A violation occurs whenever an employer fails to take reasonable precautionary steps to protect his employees from reasonably foreseeable 'recognized hazards.'"); Brennan v. O.S.H.R.C. & Republic Creosoting Co., 501 F.2d 1196, 1200 (7th Cir. 1974).
Thus, when employee conduct is contrary to employer instructions and is unforeseeable there has been judicial reluctance to impose a duty on an employer either under section 5(a)(1) or 5(a)(2) of the Act. To impose liability would do little to effectuate the preventative purpose of the Act.
In the instant case the majority finds that the guard protecting the edger was removed and replaced several times while adjustments were made. Meanwhile, the edger was operated without a guard. This occurred on the day after the edger had broken down and the motor had been replaced.
This is not an instance of a single employee disobeying instructions. It is not an idiosyncratic act contrary to normal policy. The violation resulted [*10] from conduct occurring during the repair and operation of a machine, rather than its normal operation -- when supervisory personnel were especially aware of the employees involved. Those employees combined, in open view of supervisors and the Secretary's representative, to create the hazard by removing the guard while the machine was being operated. This is not the type of circumstance contemplated by Alsea.
The Secretary established a prima facie violation by proving the existence of a hazard in violation of a standard and by showing that the hazard is accessible to employees. Brennan v. O.S.H.R.C. & Underhill Constr. Corp., Nos. 74-1568 & 74-1579 (2d Cir., March 10, 1975). n8 In Underhill the Court states,
In a situation where, as here, an employer is in control of an area, and responsible for its maintenance, we hold that to prove a violation of OSHA the Secretary of Labor need only show that a hazard has been committed and that the area of the hazard was accessible to the employees of the cited employer or those of other employers engaged in a common undertaking.
Slip op. at 2211-12.
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n8 Footnote 5 to Alsea suggests that any difference therein from Underhill as to the Secretary's prima facie case may be small.
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Here, an employee was observed operating a machine without required guards, in violation of 29 CFR § 1910.265(c)(22). This makes out a prima facie case, which, if not reubutted established the violation. When, as here and in the Underhill case, an employer has control over the area in which a violation is alleged to have occurred, any conceivable issue of knowledge involves that of employee exposure to the hazard. That is clearly not involved in the instant case because the unguarded machine is the regular worksite of one of respondent's employees. As already stated, neither is this a case involving unpredictable, unforeseeable employee conduct (Alsea).
The only question concerning knowledge that is present in this case concerns whether there is a serious violation, as defined by section 17(k) of the Act. It is my view that knowledge is not an element of a serious violation. It is not part of the Secretary's prima facie case. [*12] Rather, the employer may affirmatively show any lack of knowledge.
Section 17(k) of the Act, defining or describing the term "serious" violation, reads as follows:
For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation (emphasis added).
The "unless" clause plainly establishes exception to the definition or description. The proof of the exception involves a subject that is peculiarly within the knowledge of the employer. The burden of proving such subject matter is generally placed on the party more capable of sustaining it because of its possession of the facts. McCormick, Law of Evidence 787, 2d ed. (1972). n9
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n9 To the extent that this view may be inconsistent with that expressed in Alsea, I would respectfully disagree with the Court's reading of the clause for the reasons stated in this dissent and those urged before the Court by the Secretary of Labor.
[*13]
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The Act provides for citation of employers who violate a safety and health standard or the general duty clause. Vacation of a citation for serious violation on the ground that the employer lacks knowledge of the violation clearly constitutes and exception to the policy of enforcing the Act by citing violative conditions. It is an exception which would exempt an otherwise serious violation from the section 17(k) meaning of that term. When dealing with a remedial statute serving an important social purpose, it has been the practice to place the burden of proving an exception to the general policy of the statute upon the person claiming it. See Weeks v. Southern Bell Telephone & Telegraph Company, 408 F.2d 228, 232 (5th Cir. 1969), citing Phillips v. Walling, 324 U.S. 490, 493 (1945).
The instant case falls more closely within a category of cases involving a defense which has been referred to as the "isolated event." The Commission has held that the "isolated event" concept, if it is to be cognizable at all, can only have meaning after it is shown that a violation has occurred. That is, [*14] the concept is by nature a legal defense. Mississippi Valley Erection Co., No. 524 (December 6, 1973). Respondent, however, has not rebutted the Secretary's case on the basis of either lack of knowledge or the isolated event concept. n10
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n10 The Administrative Law Judge correctly ruled that Grayson Lumber Co., No. 793 (June 14, 1973) does not apply to this case. Grayson held that removal of guards to perform maintenance operations is not a violation. Here, the machine was operating without guards when no maintenance was being performed.
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Assuming, arguendo, that the Secretary has the burden of proving that an employer has knowledge of a serious violation, n11 within the meaning of section 17(k) of the Act, I would still dissent from the majority's holding.
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n11 As stated, the section 17(k) issue arises without regard to whether the facts of a case fall within the Alsea rationale.
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The employer clearly knew that the machine had been inoperable and required repair. This circumstance alone brings the machine under somewhat greater first line supervision because its disrepair affected the plant's operation. Respondent's millwright testified that, "everybody in the mill knew when that gearbox went out." The breakdown of the edger, the function of which is to trim the width of lumber, affects the further processing of the lumber.
After repair of the edger, further adjustments were required which resulted in periodic removal of the guard on the edger's power transmission apparatus. During the inspection conducted by the Secretary's compliance officer the unguarded, operating machine was pointed out to respondent's sawmill superintendent. According to the compliance officer, respondent's superintendent immediately pointed out the guard, located several feet away, without displaying any surprise that the machine was unguarded. The compliance officer believed the superintendent to be aware of the machine operating without a guard. Respondent's industrial relations director, who is responsible for [*16] plant safety and accompanied the compliance officer, testified that the superintendent told the compliance officer that the guard had been removed because they were working on the machine. This evidence establishes a prima facie case that the superintendent knew the machine was unguarded. The place of the edger in respondent's production process establishes that the same superintendent knew the machine was operating on the day of inspection. The knowledge element of section 17(k) is satisfied by imputing to respondent the superintendent's knowledge. Floyd Pick, Inc., No. 3069 (January 30, 1975). n12
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n12 The short shrift given the facts in this case by the lead opinion in footnote 5 demonstrates more daring than prudence in dealing with the facts and in applying relevant precedent to the facts.
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I would affirm the violation of the standard published at 29 CFR § 1910.265(c)(22)
[The Judge's decision referred to herein follows]
CRONIN, JUDGE: This is a proceeding under Section 10 of the Occupational [*17] Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereafter called the Act) contesting three Citations and Notification of Proposed Penalty issued by the Complainant against the Respondent on May 15, 1973. These citations resulted from an inspection of Respondent's sawmill and adjacent facilities on April 26, 1973.
The two Citations for Serious Violation allege violations of 29 CFR § 1910.265(d)(1)(i)(b) and 29 CFR § 1910.265(c)(22) respectively, and the third citation alleges two non-serious violations of the Act, namely, 29 CFR § 1910.265(e)(6)(i)(c) and 29 CFR § 1910.265(c)(20)(iii). The proposed penalties for the two serious violations were $850 each and $75 for 29 CFR § 1910.265(e)(6)(i)(c). No penalty was proposed for 29 CFR § 1910.265(c)(20)(iii).
At the outset of the hearing held on September 25, 1973 at Roseburg, Oregon, the Respondent stipulated that there was no contest as to Respondent's violation of Item 1 of the non-serious citation, and that contest was directed only to the appropriateness of the $75 penalty. Also, Respondent stipulated that there was no contest as to the violation, the proposed penalty of zero dollars, or abatement date, of Item No. [*18] 2 of the non-serious citation.
The alleged violation of § 1910.256(d)(1)(i)(b) was described in the citation as follows:
A D.R. Johnson Lumber Company log truck Autocar-Diesel, Oregon liscense (sic) T238097 -- June 1973, was parked in the log yard. The truck driver had removed the front and middle binders on the logs before the load was secured by the log unloader.
The standard as promulgated by the Secretary provides:
(b) Binders on logs shall not be released prior to securing with unloading lines or other unloading device.
The alleged violation of § 1910.265(c)(22) was described in the citation as follows:
The following pieces of power transmission equipment are not guarded in accordance with the requirements of 1910.219:
(1) The shaft and coupling drive to the edger is not guarded;
(2) The drive for the indeed and outfeed rolls on the edger is a double V-belt and pulley with a keyed end shaft and four chain and sprocket drives, none of which are guarded. n1
The same violation was alleged in the Complaint as follows:
The following pieces of power transmission equipment were not guarded in accordance with the requirements of 29 C.F.R. 1910.219:
a) The shaft [*19] and coupling drive to the edger
b) The drive for the infeed and outfeed rolls on the edger, consisting of a double V-belt and pulley with a keyed end shaft and four chain and sprocket drivers, all contrary to 29 C.F.R. 1910.265(c)(22).
The standard as promulgated by the Secretary provides:
(22) Mechanical power-transmission apparatus. The construction, operation, and maintenance of all mechanical power-transmission apparatus shall be in accordance with the requirements of § 1910.219.
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n1 Any defense based on citation's and complaint's failure to describe with particularity the provisions of § 1910.219 alleged to have been violated was not raised by Respondent and, therefore, waived.
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The alleged violation of § 1910.265(e)(6)(i)(c) was described in the citation as follows:
The planer feeder in the planing mill is not guarded to cover the two pineapples.
The standard as promulgated by the Secretary provides:
(c) Pressure feed rolls and "pineapples" shall be guarded.
JURISDICTION AND ISSUES
The [*20] Respondent corporation operates a sawmill, planing mill, dry kiln and laminated beam plant, at Riddle, Oregon and admits that it is an employer engaged in business affecting commerce within the meaning of Section 3(5) of the Act. On these facts, jurisdiction over the Respondent is conferred on the Commission.
The Respondent's representative in his post-hearing brief concedes, with respect to the two alleged serious violations, that the conditions, standing alone, violated the Regulations of the Secretary but contends that "this matter will turn upon the issue as to whether or not the Respondent knew, or with the exercise of reasonable diligence should have known, of the presence of these violations." In view of Respondent's concession the issues to be resolved and determined are:
1. Did Respondent know or could Respondent through the exercise of reasonable diligence have known of the presence of the violations of 29 CFR § 1910.265(d)(1)(i)(b) and 29 CFR § 1910.265(c)(22) on April 26, 1973?
2. If Respondent committed the said violations, what penalties are appropriate for the two serious, and one non-serious, violations?
SUMMARY OF EVIDENCE
On April 26, 1973 Respondent's truck [*21] driver, Mr. Daniel O. Johnson, removed the two middle binders on his truck's log load at the scale facility across the road from Respondent's sawmill, then drove his truck into Respondent's log yard where he removed the front binder prior to the arrival of the Kenworth log unloader. He was in the process of removing his rear binder when, at the request of Mr. Richard E. Jackson, the inspecting compliance officer of the U.S. Department of Labor, he was stopped by Respondent's superintendent, Mr. Dwayne Johnson (Secretary's Exhibits 1, 2 and 3). Approximately ten minutes prior to this incident a "gyppo" truck driver, or independent truck owner driver under contract with Respondent, had removed all log binders prior to his load being secured by the Kenworth unloader.
After observation of the first incident, Officer Jackson was told by Superintendent Johnson that the company didn't have any signs prohibiting this practice or written policy forbidding drivers to remove binders but that they had told the drivers not to remove the binders. In answer to Officer Jackson's question as to how often this practice of premature removal of binders occurs, Superintendent Johnson stated [*22] that "sometimes they do and sometimes they don't remove the binders," depending on how fast the truck drivers want to get in and out of the yard. Another compliance officer, Fred Schroeder, who was in a position to overhear this conversation, confirmed Superintendent Johnson's statement concerning the removal of the binders.
According to Driver Johnson, it was standard practice for him to remove middle binders at the scaling yard and other drivers followed the same practice. After pulling into the yard he would then wait for the loader to secure and then remove the front and rear binders. The only time while employed by the Respondent that he had removed the front wrapper before the load was secured was on April 26, 1973.
He testified that he had never received oral or written instructions from Respondent with respect to removal of binders, although there was a sign nailed up on the end of the millwright's shop warning drivers not to remove the binders until the log load is secured by the unloading machine.
Mr. Ralph Dunbar is Respondent's Director of Industrial Relations and charged with general supervision over corporate safety. Mr. Dunbar was aware that log trucks were coming [*23] into Respondent's log dumping areas with only two binders and that there were two signs on Respondent's premises, one on either the end or side of a building and one at the log dump prohibiting removal of binders until load was secured.
The Kenworth unloader had been in operation two or three months prior to April 26th. Prior to that date logs were unloaded into a log pond by means of an A-frame. The unloading procedure permitted the truck to drive under the A-frame with binders on; the two straps were placed underneath to hold the load; the binders loosened and removed, and stakes released. The standard practice, however, was to remove the middle binders before securing the straps.
Respondent's major stockholder, Donald R. Johnson, had never given instructions to any of his truck drivers with respect to the release of binders on logs. Two signs, identical to that depicted in Respondent's Exhibit 13, were in place on Respondent's worksite -- one at the A-frame used for dumping logs in the pond and another on the end of the machine shop which is directly in front of where Driver Johnson's truck was parked on April 26, 1973. The signs read:
WARNING DO NOT LOOSEN BINDERS [*24] UNTIL STRAP IS SECURED.
(Respondent's Exhibit 13). Owner Johnson was aware that drivers were releasing the center binders but only when these binders would be fouled by the unloading mechanism, whether the A-frame or Kenworth.
Prior to April 26, 1973 the power transmission units of Respondent's edger had been guarded in a manner required by the Act. n2 On the day prior to the inspection the wooden barrier guard had been removed in order to replace a burnt out motor and reconnect a jack shaft. That evening the barrier was returned to its customary position. During the morning of April 26th, the guard was removed and replaced several times to permit adjustments in the linkage of the high speed chains and belts, and correction of the shaft's alignment by the millwrights. During this period the guard when replaced was not nailed in place but merely "set there." The edger saw was in full operation on April 26th and the operator, in addition to his usual duties, was required to watch the chains, belts and jack shaft because of the alignment difficulties.
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n2 The Secretary takes no position on this issue and therefore it is resolved in favor of Respondent.
[*25]
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At the time of inspection the barrier guard was not in its usual place but was about eight feet away. Superintendent Johnson pointed out the guard to Officer Jackson and informed him that the guard had been removed because they had been working there.
In the opinion of Officer Jackson, the edger operator was exposed to the hazard of being struck with the high speed chains and belts, should they break up and pieces fly off. On cross-exmination, however, he conceded that the Secretary's standards didn't require a fully-enclosed guard for the edger operation and that in some instances guarding permitted by the standards would not protect the operator from flying chain. There also was evidence that the operator while standing at his work station is protected from flying chain by a shield placed between him and the chain drive (Respondent's Exhibit 5).
The greatest potential for danger to the operator is that his clothes might be caught by the revolving end shafts, pulling him into the machine. When unplugging the edger's outfeed the operator would be required to walk in close proximity to [*26] the power transmission unit. This might occur on the frequency of once or twice a day or, then again, "might not happen at all."
Respondent's employment varies from 70 to 90 persons and during an average year the sawmill utilizes from seven and one-half to 10 million board feet.
General safety meetings are held every other month, attended by management, all supervisors and one committeeman and alternate from each of the five departments.
The April 26th inspection was the third inspection of Respondent conducted by the U.S. Department of Labor under the Act. For previous cases see D.R. Johnson Lumber Co., D.R. Johnson Lumber Co.,
Officer Jackson testified that "somewhere between 25 and 30" of the violations which had been affirmed by the Commission's Final Order in Docket No. 833 had not been corrected by Respondent at the time of the April 26 inspection. n3 An administrative decision was made by the U.S. Department of Labor after April 26, 1973 not to cite on the basis of Respondent's failure to correct these items.
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n3 The order in this case became final on March 5, 1973 and abatement periods for the affirmed violations varied from 5 to 45 days.
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In commuting the penalties for the two serious violations, $1000 unadjusted penalties were determined for each and then credit discounts of 5% for size, 10% for history of prior violations were applied. No credit was awarded for good faith.
Officer Jackson was of the opinion that Citation for Serious Violation No. 1 (premature binder release) had a greater potential for an accident than the guarding violation of Citation for Serious Violation No. 2.
With regard to the violation concerning the unguarded "pineapples" an unadjusted penalty of $180 was selected on the basis that the degree of injury for this violation fell in the medium range. Credit deductions of 10% for history and 5% for size then were applied, followed by a further 50% reduction in anticipation that abatement would be carried out by Respondent. Again, no credit was given for good faith.
DISCUSSION
A. As to Violation
Unquestionably, [*28] the premature release of the three binders by Respondent's truck driver, and the removal of the guard on the edger's motor transmission units by a millwright, on April 26, 1973 constituted "serious" violations of 29 CFR § 1910.265(d)(1)(i)(b) and 29 CFR § 1910.265(c)(22).
The record permits a finding that these violative conditions presented a foreseeable possibility of an accident and that, in the event of an accident, the probability of resultant serious physical injury was substantial.
The more difficult question to be answered, however, is whether the Respondent knew of these violative conditions or with the exercise of reasonable diligence could have known.
Respondent, a corporation, can operate only through its agents and therefore, its absolute and continuing duty to "comply with the Occupational Safety and Health standards promulgated under the Act" (Section 5(a)(2) of the Act) necessarily has to be delegated to supervisory personnel. If a corporate employer entrusts supervisory personnel with the performance of activities which involve compliance with safety and health standards, their actions taken in carrying out their work assignments must be imputed to the [*29] employer, even if the action results in violation of a standard. Also, just as a supervisor's action must be attributed to an employer, so must his knowledge be imputed to the employer. The record reflects Driver Johnson had never been instructed by Respondent concerning premature release of the binders n4 although both Respondent's superintendent and safety director knew that the customary practice for drivers was to release binders before the log load was secured by the unloading machines. Certainly, the failure of Respondent's supervisors to act affirmatively on their knowledge contributed in some measure to the driver's violation of the binder standard on April 26, 1973 and requires a finding that Respondent should have anticipated, and could have known of, the presence of this violation.
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n4 Driver Johnson's sworn testimony on this point is accepted, and preferred, over the hearsay statement of Superintendent Johnson to Officer Jackson.
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A different finding, however, is required, with respect to Respondent's [*30] knowledge of the guarding violation, § 1910.265(c)(22). Although Respondent's superintendent knew that the barrier had been removed to permit the millwrights to replace the burnt out motor, and presumably knew its removal would be necessary in order to make adjustments to align the equipment after replacement, no violation of the standard existed at those points in time. Undoubtedly, the edger was not operating on April 25th due to the burnt out motor and therefore, no hazards were created by the failure to guard on that date. Also, for the millwrights actually to make necessary alignments and adjustments it was essential that the barrier be removed and the edger be in operation. In Grayson Lumber Co., Inc., 1910.219, will not be found if the guards' removal is necessary to perform maintenance operations on mechanical transmission apparatus.
A violation in this case did occur, but during the time period when the edger was operating and both the barrier and millwrights were absent. There is no indication in the record how [*31] long the simultaneity of these conditions existed, that Respondent's supervisory personnel were aware, or should have been aware, of this situation, or any other evidence from which Respondent's knowledge of the violation reasonably could be presumed. Without such evidence or proof, this judge is unable to conclude that Respondent committed a "serious" violation of § 1910.265(c)(22). Citation for Serious Violation No. 2, therefore, will be vacated.
B. As to Penalty
All four factors prescribed under section 17(j) of the Act, gravity of the violations, the size of Respondent's business, its good faith, and history of previous violations, have been considered.
The proposed penalty assessment of $850 for the "serious" violation of § 1910.265(d)(1)(i)(b) is appropriate and clearly warranted. While obviously an accident from this violative condition is not a certainty, the likelihood that a practice of removing binders prematurely will result in an accident causing serious physical injury, even death, is high. Moreover, the background of this violation and Respondent's prior history of numerous violations of the Act are other factors dictating the relatively high penalty. Respondent [*32] had never instructed its truck driver not to release his binders before the loads were secure, even though fully aware that an established practice of ignoring the warnings and prohibitions of posted signs had been adopted by truck drivers under its control, a plain abdication of responsibility. Under these circumstances, there was an absence of good faith.
After consideration of the same factors prescribed under Section 17(j) of the Act, the proposed penalty of $75 for the non-serious violation of § 1910.265(e)(6)(i)(c) also is considered appropriate. Officer Schroeder's testimony is persuasive that the failure to guard the "pineapples" could have a direct and immediate relationship to the safety of the planer operator and therefore was not a de minimis violation. Certainly the fact that this violative condition had existed for a long time and had not been cited in a previous inspection neither relieves Respondent of complying with the standard nor establishes that a violation of the standard is de minimis. The Secretary's evidence also establishes that the violation's gravity falls into the medium range -- cracked finger bones, lacerations, but not amputations, thereby [*33] justifying assessment of a penalty.
FINDINGS OF FACT
Upon the entire record the following facts are found:
1. D.R. Johnson Lumber Company, a corporation, maintains a place of business and employment at Riddle, Oregon, and is engaged in sawmill operations.
2. On April 26, 1973, Respondent's truck driver released three binders on a log load before the load was secured by an unloading device.
3. On April 26, 1973 the Respondent knew, or could have known with the exercise of reasonable diligence, of the conditions set forth in Finding 2.
4. There was a substantial probability that death or serious physical harm could result from the conditions set forth in Finding 2.
5. At the time of the inspection on April 26, 1973 the power transmission units of Respondent's edger were being operated without guards and when no maintenance operations were being conducted.
6. The evidence does not permit a finding that the Respondent knew, or could have known with the exercise of diligence, of the conditions set forth in Finding 5.
7. Respondent employs between 70 and 90 employees.
8. Respondent has been issued prior citations resulting in final orders of the Commission and official [*34] notice of these orders has been taken.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act and obliged to comply with those standards promulgated under Part 1910, section 265 et seq., of Title 29 of the Code of Federal Regulations.
2. On April 26, 1973 Respondent was in violation 29 CFR § 1910.265(d)(1)(i)(b) and this violation was "serious" within the meaning of Section 17(k) of the Act.
3. A penalty of $850 for Respondent's violation of 29 CFR § 1910.265(d)(1)(i)(b) is appropriate.
2. On April 26, 1973 Respondent was not in "serious" violation of 29 CFR § 1910.265(c)(22).
5. On April 26, 1973 Respondent was in non-serious violation of 29 CFR § 1910.265(e)(6)(i)(c) and 29 CFR § 1910.265(c)(20)(iii).
6. A penalty of $75 for Respondent's violation of 29 CFR § 1910.265(e)(6)(i)(c) and no penalty for Respondent's violation of 29 CFR § 1910.265(c)(20)(iii) are appropriate.
ORDER
Based on the foregoing findings, conclusions of law and the entire record, it is ORDERED:
1. Violations of 29 CFR § 1910.265(d)(1)(i)(b), 29 CFR § 1910.265(e)(6)(i)(c), and 29 CFR § 1910.265(c)(20)(iii) [*35] are hereby AFFIRMED.
2. A penalty of § 850 for violation of 29 CFR § 1910.265(d)(1)(i)(b) is hereby ASSESSED.
3. A penalty of $75 for violation of CFR § 1910.265(e)(6)(i)(c), and no penalty for violation of 29 CFR § 1910.265(c)(20)(iii) are hereby ASSESSED.
4. The alleged violation of 29 CFR § 1910.265(c)(22), and any proposed penalty based thereon, are hereby VACATED.