SECRETARY OF LABOR,
Complainant,

v.

GENERAL DYNAMICS CORPORATION,
ELECTRIC BOAT DIVISION,
Respondent.

OSHRC Docket No. 79-6844

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. § 659(c).

Judge Richard DeBenedetto vacated a citation charging that General Dynamics Corporation, Electric Boat Division, willfully violated the general duty clause of the Act with respect to a hatch of a submarine escape trunk under construction.[[1]]  The Secretary petitioned for review of the judge's decision, and review was granted.  For the following reasons, we affirm the judge's vacation of the citation.

General Dynamics Corporation's Electric Boat Division builds nuclear submarines of the "688 attack class" at its shipyard in Groton, Connecticut.  One of the submarine's components assembled at the Groton shipyard is an escape trunk.  Escape trunks are essentially tubes that are large enough for men to climb through and lead up from the interior of a submarine to the hull on top. Each end of an escape trunk has a hatch and hatch cover.  The lower hatch provides access into the escape trunk from inside the submarine, and the cover of the lower hatch opens upward into the escape trunk.  During construction of submarine number 703, an employee was fatally injured when struck by the 1,100 pound lower hatch cover for the submarine's forward escape trunk.  A large spring that was to serve as a counterweight to the hatch cover had not yet been installed.  After an inspection, the Occupational Safety and Health Administration ("OSHA") issued a citation charging that, by "fail[ing] to take positive control measures to prevent an employee from being exposed to the hazard of an unsafe closing of a hatch," General Dynamics willfully violated section 5(a)(1) of the Act.  A penalty of $10,000 was proposed for the violation.

Each "688 attack class" submarine contains two escape trunks, a forward escape trunk and an aft escape trunk.  The forward escape trunk is cylindrical in shape, eleven feet high, and has an inside diameter of fifty-six inches.  The aft escape trunk has similar, but not identical, dimensions.  At the time of the accident, the lower and upper hatches and hatch covers, as well as a locking bar to secure the lower hatch cover in an open position, had been installed on the forward escape trunk in the shipyard's machine shop, and a foundation bracket for the spring (counterweight) had been welded to the outside of the trunk.

On the four prior "688 attack class" submarines that General Dynamics had built, the spring had been attached to the lower hatch cover by machine shop personnel after the foundation bracket was welded to the trunk.  The spring is about forty inches long and eight to ten inches in diameter and extends from the foundation bracket to the end of an arm or lever that protrudes from the side of the escape trunk near the lower hatch.  The arm is connected to the lower hatch cover.  The arm pivots, pulling against the spring, as the hatch cover closes, thus slowing the descent of the hatch cover.

The escape trunks of the prior four submarines had been manufactured entirely by General Dynamics, but the two escape trunks of submarine 703 were made by Martin Marietta Corporation and shipped to General Dynamics for assembly.  In the case of submarine 703, the escape trunk was sent from the machine shop to the North Yard of the Groton facility for the next stage of production without the spring counterweight being attached to the forward escape trunk.  General Dynamics' machine shop did not attach the spring to the forward escape trunk before sending it to the North Yard because the machine shop did not have the spring, apparently because the spring had not yet been received from Martin Marietta.  The spring for submarine 704, which was also in production, was used as a template by the machine shop to properly position the foundation bracket on the escape trunk.  But, this spring was removed from the escape trunk before the trunk was sent to the North Yard, because the spring was to be used on submarine 704.  About a month earlier, the aft escape trunk for submarine 703, which was at a more advanced stage of production than the forward escape trunk for this submarine, had similarly been sent from the machine shop to the North Yard without a spring for its lower hatch cover.  No difficulties were encountered in the final production and installation of the aft escape trunk.

Frank Lopriore, a machinist who worked on submarine 703's forward escape trunk, testified that when he learned that the forward escape trunk was to be sent to the North Yard without a spring on the lower hatch cover, he told supervisor Arnold Paul and general assembly foreman John Azzinaro that it would be unsafe to send it to the North Yard without the spring in place.  However, Paul and Azzinaro denied having a conversation with Lopriore about the safety of the forward escape trunk or receiving any complaints about it.  Moreover, Paul and Azzinaro both testified that, based on their familiarity with the fabrication process for escape trunks, they did not regard it as hazardous to work on escape trunks lacking springs or to send trunks to the North Yard in this condition.  Lopriore also testified that frequently in the course of his job he had occasion to work with, and to open and close, the lower hatch cover without the spring assembly.  In any event, Lopriore had his helper secure the locking bar with strong wire to a "pad eye" inside the escape trunk.  The locking bar was used to secure the lower hatch cover in an open position.  Even without the wire, the locking bar would have to be pulled hard or pried with a two-by-four to start it moving, and, once wired in place, a pliers or other tool would be needed to remove the wire from the locking bar.  When Lopriore told foreman Azzinaro that he had wired the locking bar to keep the hatch cover open, Azzinaro said that was a good idea.

Lopriore believed that he had eliminated any hazard by wiring the hatch cover open.  The wire protected against the hatch cover being accidentally hooked and pulled down.  Moreover, the absence of a spring - which Lopriore believed to be obvious - as well as the wiring around the locking bar would alert anyone working on the escape trunk about the missing spring.  He also knew that a hatch cover without a spring could be safely raised and lowered by using a crane or a "chain fall," which was the standard procedure used before a spring was installed.  Employees in the North Yard were accustomed to using cranes and chain falls for this purpose because springs normally were not attached to the top hatch covers of escape trucks in the North Yard.

On the afternoon that the forward escape trunk arrived at the North Yard, two machinists there, George Palmisano and Kenneth Matteau, noticed that there was no spring on the lower hatch cover and ascertained from the position of the arm that the hatch was open.  Palmisano told his foreman, Conrad Kosegarten, that the spring was missing and the hatch was open.  According to Palmisano and Matteau, Palmisano also said to Kosegarten that someone might get hurt from the open hatch cover, but Kosegarten denied being told this by Palmisano.  However, neither Palmisano nor Matteau, had looked inside the trunk and did not know that the locking bar was wired so that the hatch cover would stay open.  Matteau, however, thought that the open hatch cover was safe despite the absence of a spring because open hatch covers normally were secured by wire.   Palmisano thought that an employee might approach the escape trunk from a side away from the side where the spring was to be attached or could "come up from the bottom" into the hatch, and, in either case, could enter the trunk without knowing that the spring was missing.

Foreman Kosegarten did not consider the absence of the spring to present a hazard, because he believed the lower hatch cover probably was secured and because the work of employees he was supervising did not involve the lower hatch at that time. Therefore, at the end of the shift he did not inform the second shift machinist foreman, Richard Zalusky, that the lower hatch cover lacked a spring.

At the beginning of the second shift, Zalusky assigned Edward Smith, a machinist, to open the upper hatch of the escape trunk, a task which included welding an "angle iron A-frame" or brace assembly to support opening the hatch.   Zalusky went to the escape trunk and checked on Smith's work three times during the first three hours of the shift.  At this time other employees, called testers, were in the vicinity of the escape trunk preparing to perform hydrostatic tests on the trunk to assure that it was watertight.  However, Zalusky testified that he did not know that tests were planned to take place during that shift.  In order for the tests to be performed the lower hatch on the escape trunk had to be closed.  About three-and-a-half hours after the shift started, Smith entered the escape trunk through the lower hatch in order to close the hatch in preparation for the hydrostatic tests.  When he saw the wire around the locking bar, he exclaimed, "Who wired this up?"  He then removed the wire and pulled on the locking bar, which started the hatch cover in motion.  The cover came down on Smith, causing fatal injuries.

According to Lynn Jessee, a tester who witnessed the accident, Smith had been assigned to close the lower hatch by foreman Zalusky and both Zalusky and tester foreman Walter Lototski had told Jessee that Smith would close the hatch.  However, both Zalusky and Lototski denied this.  Nevertheless, the witnesses agreed that machinists rather than testers normally perform the function of closing hatches.  Lototski also testified that he did not know of the absence of the lower spring until after the accident, and he considered its absence to be "significant."

II.
In vacating the citation, the judge found that binding an open hatch cover with wire is a safe method to secure the cover against accidental closing.  The open hatch cover, thus, was safe until Smith removed the wire.  The judge also found that the absence of a spring for the lower hatch cover was an obvious condition and that Smith should have been aware of the absent spring and the hazard presented by removing the wire.  The judge reasoned that the dispositive question was whether General Dynamics had taken proper steps in training its employees as to when a wire bound around a locking bar that was holding an open hatch cover in place could be removed.  However, the issue of training was not tried by the parties.  Therefore, the Secretary did not prove that General Dynamics failed to render its workplace free of a recognized hazard, the judge concluded.

In the course of his decision, the judge declined to credit Jessee's testimony that Zalusky had assigned Smith the task of closing the lower hatch and that both Zalusky and Lototski had told Jessee that Smith would close the lower hatch.   Rather, the judge accepted the testimony of Zalusky and Lototski to the contrary.   However, the judge did not resolve the conflicting testimony concerning whether Lopriore had complained to Paul and Azzinaro about sending the escape trunk to the North Yard without a spring or whether Palmisano had told Kosegarten that someone might get hurt from the open hatch cover.

On review, the Secretary argues that General Dynamics created a hazard when it shipped the forward escape trunk to the North Yard without attaching the spring for the lower hatch, because machinists in the North Yard were accustomed to working on escape trunks with the lower spring attached and were not warned that this escape trunk lacked a spring.  As evidence that this hazard was recognized, the Secretary points to the testimony of machinists Lopriore and Palmisano that they had told their supervisors that the lack of a spring on the open hatch cover was unsafe or that someone might get hurt because of it.  The Secretary also refers to testimony that assembly foreman Azzinaro said that it was a good idea when told that the locking bar had been wired open and to testimony of tester foreman Lototski that he considered the lack of a lower spring to be "significant."  The Secretary contends that General Dynamics could have abated the hazard by following the prior practice of installing the spring for the lower hatch cover before the escape trunk was sent to the North Yard.  The Secretary maintains that it would have been feasible for General Dynamics to do this, and that, in fact, the machine shop at one point had installed a spring but had removed it because it was to be used on the forward escape trunk of submarine 704.

III.
The provision of the Act that General Dynamics is alleged to have violated, section 5(a)(1), imposes the following requirement: "Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees."  In order to establish a violation of section 5(a)(1), the Secretary must prove that (1) the employer failed to render its workplace free of a hazard, (2) the hazard was recognized by the cited employer or generally by the employer's industry, (3) the hazard was causing or likely to cause death or serious physical harm, and (4) there was a feasible means by which the employer could have eliminated or materially reduced the hazard.  E.g., Phillips Petroleum Co., 84 OSAHRC ______, 11 BNA OSHC 1776, 1984 CCH OSHD ¶ 26,783 (No. 78-1816, 1984).  It is apparent from the accident that prompted the inspection that, under some circumstances, the closing of a lower hatch cover on a submarine escape trunk without a spring presents a hazard.  However, the Secretary failed to prove that General Dynamics recognized this hazard under the circumstances of this case.  Moreover, he did not show a feasible means to abate the hazard.

The Secretary does not attempt to show that the hazard in this case was recognized by the shipbuilding or submarine building industry.  Rather, he contends that General Dynamics itself recognized the hazard.  To this end, he relies largely on two items of evidence:  machinist Lopriore's testimony that he told supervisor Paul and foreman Azzinaro that it would be unsafe to send the escape trunk to the North Yard without the spring in place, and the testimony of machinists Palmisano and Matteau that Palmisano told foreman Kosegarten that someone might get hurt from the open hatch cover.  There is conflicting testimony as to whether these statements were made, and the judge did not resolve the conflicts.  Nevertheless, even assuming, without deciding, that Lopriore and Palmisano made these statements, they fall short of proving that General Dynamics recognized the hazard.

Supervisor Paul and foreman Azzinaro believed that the absence of a spring for the lower hatch cover was not a hazard because employees routinely opened and closed hatch covers safely using chain falls or cranes when hatch covers lacked springs.   Also, the danger of the hatch cover closing accidentally was eliminated when it was wired open.  Moreover, Lopriore himself felt that the hazard had been eliminated when his helper wired the hatch cover open.  Thus, even Lopriore was satisfied that the lower hatch did not pose a hazard by the time it was sent to the North Yard.

Similarly, foreman Kosegarten did not consider the absence of a spring for the lower hatch to be a hazard because he assumed that the hatch cover was secured.   Employees under his supervision were not going to be working on the lower hatch at that time, so he had no reason to check further.  Moreover, Palmisano and Matteau, who thought that the open hatch without a spring might be dangerous, were not working on the escape trunk and did not check inside the trunk to see if the hatch cover was wired open. Additionally, Matteau thought that the hatch cover was safe if it was wired.  Therefore, even assuming that Paul, Azzinaro, and Kosegarten received complaints about the absence of a spring for the lower hatch, they did not believe that this condition presented a hazard.  See, Roystar Co., 77 OSAHRC 207/C3, 6 BNA OSHC 1144, 1977-78 CCH OSHD ¶ 22,389 (No. 13331, 1977) (Commissioner Barnako, separate opinion) ("An employer need not accept an employee's opinion that a hazard exists, but may in good faith reach a different conclusion.")  It was reasonable for them to hold this belief, since the wire prevented the lower hatch from shutting accidentally, and there was a commonly used method by which the hatch could be shut safely when it was necessary to close the hatch.  That the aft escape trunk previously had been sent to the North Yard without a lower hatch spring and apparently had caused no problem adds credence to this belief.  To be sure, when Smith later closed the lower hatch, he did not use the crane or chain fall method but, rather, used a method that was unsafe without the spring in place.  Nevertheless, Smith's subsequent accident does not make unreasonable the views of Paul, Azzinaro, and Kosegarten that the absence of a spring did not present a hazard, given the circumstances at the time they purportedly received complaints about the lack of a spring.

The Secretary also maintains that recognition of the hazard was shown by Azzinaro's statement to Lopriore that wiring up the locking bar of the hatch cover was a good idea.  However, the statement actually indicates that the supervisor believed there was no hazard due to the lack of a spring because the wire was used.  Also, a supervisor might regard any simple measure that adds to safety a good idea even if he does not think there is really a hazard.  Thus, a supervisor's statement that a particular measure is a good idea is hardly tantamount to an admission that the supervisor recognized that a hazard was present prior to the measure being taken.

The Secretary also notes that foreman Lototski stated that he considered the lack of a spring to be significant when he learned of it after the accident.   However, the meaning of this remark is uncertain.  Moreover, as this statement came after the accident had occurred, it cannot prove recognition of the hazard prior to the accident.

The Secretary's proof of a feasible means of abatement also falls short.   The only abatement method proffered by the Secretary was for General Dynamics to install on the escape trunk of submarine 703 the spring for submarine 704's escape trunk.   However, the Secretary does not explain how this could be done without creating a hazard by requiring the escape trunk for submarine 704 to be sent to the North Yard without a spring.  Thus, this abatement method does not really abate the hazard but merely transfers it to a different submarine.

Having determined that the Secretary failed to establish either a recognized hazard or a feasible abatement method, we affirm the judge's vacation of the citation.

SO ORDERED

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATE:  JUN 21 1984

CLEARY, Commissioner, dissenting:

I dissent from the conclusions of the majority in regard to both the recognition of the hazard and the feasibility of abatement.  By its conclusions, the majority is improperly shifting the duty to provide a safe and healthful workplace from the employer to the employees.  I would affirm a violation of the general duty clause here, but I would not characterize the violation as willful.

I
The recognized hazard alleged in this case is the danger on a submarine escape trunk of an unsafe closing of the lower hatch cover because it was not yet equipped with a spring to slow its descent.  The hatch cover weighed approximately 1100 pounds.   The missing spring would operate as a counterweight so that a person manually could open or close the hatch.  The hatch cover was left open.  It was held in this position by a locking bar.  Two employees took the precaution of wiring the locking bar in place as a safety measure.  Apparently, the precaution of wiring was adequate to prevent the hatch cover from closing accidentally.  It is clear from the events that occurred, however, that the wired locking bar would not prevent someone who was unaware of the missing spring from attempting to close the hatch manually.  It is clear also that the wiring did not warn an employee that the spring was missing. The majority vacates the citation because they find that General Dynamics did not know of this hazard.

The undisputed facts are these.  General Dynamics' supervisory personnel both in the machine shop, where the hatch was wired open, and in the North Yard, where the accident occurred, knew that the spring was missing.  Supervisor Paul and foreman Azzinaro in the machine shop and foreman Kosegarten in the North Yard also knew that the hatch was in the open position.  At least foreman Azzinaro was aware that the locking bar had been wired in place.  Thus, all of General Dynamics' supervisory personnel, except possibly machinist foreman Zalusky, knew that the hatch was open and that the spring was missing.  The extent of Zalusky's knowledge is unclear; however, Zalusky was the foreman who assigned the deceased employee to work on the escape trunk.  Nevertheless, despite intimate knowledge of the physical conditions here, Respondent's supervisor Paul and foremen Azzinaro and Kosegarten testified that they did not consider the condition a hazard.  There is testimony to the contrary by three employees.  Yet despite the contrary assertion, I find this testimony to be incredible in view of the obviousness of this hazard, unless one conditions implicitly the foremen's testimony on an assumption that the machinists would notice the absence of the spring.

Such an assumption, however, was totally unwarranted.  The escape trunks of the prior four submarines had been manufactured by Respondent and all were sent to the shipyard with the spring counterweights attached to the lower hatch cover.  It would have been reasonable, therefore, for employees to expect the hatch cover on submarine 703 to be similarly equipped.  Despite this departure from usual conditions, no warning was given.  More importantly, machinist George Palmisano testified, however, that if you stand on the "blind side" of the trunk, the absence of the spring canister is not noticeable.  In questioning by the Judge, machinist Palmisano testified as follows:

JUDGE DE BENEDETTO:  Well, I'm not quite sure I follow you.  If there is a missing spring canister, it's obvious whether it's on the lower hatch or an the upper hatch.  Isn't that true?

THE WITNESS:  Not once they're - once they're in the boat, you don't see either canister.  Outside the boat, you can open - you open that hatch up to secure it to something.  And the upper hatch is right out in the opening.  You can see if it's secure.

It would either have a turnbuckle on there going into a pad eye, which is welded if it is open, or you would have a stancheon up there with a chain fall on it which you could see it was open.  And you know you couldn't just release it because there wouldn't be a one-time chain fall on it if you could release it.

The lower hatch, if someone comes up from the bottom, there's no way - if you're unaware, if you don't work with a particular job and you didn't know, there's no way of telling.

Furthermore, both foreman Walter Lototski, Jr., the supervisor of the Shipyard Test Organization, and foreman Conrad Kosegarten testified that even though they looked at the escape trunk they did not notice the absence of the spring mechanism.  Finally, Lynn Jessee, who was working with Smith, the deceased employee, testified that Smith asked him who wired up the hatch before he unraveled the wire.  Obviously, Smith, not noticing the absence of the spring, failed to discern a hidden purpose behind the wiring. Apparently, neither did Jessee.

For these reasons, I cannot accept that General Dynamics' foremen perceived no hazard from the conditions cited here.  The hazard was obvious and severe.   Respondent's employees, those who were aware the spring was missing, recognized the hazard.  If the supervisory personnel simply assumed the employees would notice the missing spring before attempting to close the hatch, that assumption was totally unwarranted.  It also is contrary to the Act in that it impermissibly attempts to shift the responsibility for safety to the employees.  Accordingly, the Secretary established that relying on employees to observe the absence of
the spring was not sufficient to free the workplace of the hazard.  The step of wiring open the cover without any warning of the reason behind the action did not free the workplace from the hazard to an employee attempting to close the hatch with the spring missing.

II
I would also find that feasible means of reducing the hazard were established.  At several points during the hearing, the Secretary adduced the testimony establishing that there were no signs or instructions informing employees of the absence of the spring mechanism or warning them not to remove the wires.  From Smith's inquiry as to who wired up the hatch and the other testimony, it is abundantly clear that a simple warning sign would have prevented this accident. [[2]]

The record also establishes that, after the accident, Respondent secured open hatch covers with chains and padlocks.[[3]]  Keys to the locks were put in the possession of the ship's manager and the outside machinists.  This system should also eliminate the danger to employees unaware of the absence of the spring.

Accordingly, I would find a violation.

The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] Section 5(a)(1) of the Act, referred to as "the general duty clause," provides:  "Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees."

[[2]] As brought out on cross-examination, it is also apparent that the hazard could have been obviated by simply closing the hatch before moving it to the North Yard.

[[3]] Respondent's attorney objected to this testimony.  Under Rule 407 of the Federal Rules of Evidence, evidence of subsequent measures is admissible to prove feasibility of precautionary measures.  The rule states:

Rule 407.  Subsequent Remedial Measures

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event.   This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if contraverted, or impeachment.