Docket No. 81-0748

SECRETARY OF LABOR,
Complainant,

DRAVO ENGINEERS AND CONSTRUCTORS,
Respondent.

OSHRC Docket No. 81-0748

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. ї 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. її 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. ї 659(c).

In this case, Administrative Law Judge Edwin G. Salyers affirmed a citation alleging that Dravo Engineers and Constructors violated 29 C.F.R. ї 1926.21 (b) (2), [[1]] which requires that an employer instruct its employees in the recognition and avoidance of unsafe conditions. Although the judge found that Dravo gave its employees adequate instructions, he concluded that the company violated the standard because it did not enforce the instructions. We reverse the judge's decision and vacate the citation.

Dravo oversaw a construction site in Racine, Ohio. At the site, there was a wooden trestle with a large crawler crane situated in the middle of the trestle.

In 1980, Dravo was cited for violating 29 C.F.R. ї 1926.550(a)(9)[[2]] because it had failed to barricade the area of trestle where the crane was located. To bring itself into compliance with the barricade standard, Dravo built recessed walkways alongside the trestle and barricaded the sides of the trestle with nylon rope. Dravo also posted signs cautioning employees to "watch counterweight." In addition, the employees were instructed at tool box meetings about the hazard of the swinging counterweight.

In February, 1981, an OSHA compliance officer conducted a follow-up inspection of the Dravo construction site. At the hearing, the compliance officer testified that Dravo was in compliance with section 1926.550(a)(9) at the time of the follow-up inspection. The officer observed three Dravo employees in the span of fifteen to twenty minutes enter the barricaded area to cross the trestle. As a result, the Secretary cited Dravo for a serious violation of 29 C.F.R. ї 1926.21(b)(2) and proposed a penalty of $490.

Judge Salyers found that Dravo had violated the instruction standard. Judge Salyers found that implicit in the cited standard was a duty for Dravo to enforce the safety instructions it gave to its employees. Concerning the hazard of the swinging counterweight, the judge stated, I find as a fact that Respondent made an honest effort to warn employees of the hazard and instruct them in ways to avoid it. What I cannot find in the record of this case is an honest effort by Respondent and its supervisory employees to carry out enforcement of the announced policy.

Dravo contends that the judge erred in finding a violation based on its failure to enforce the instructions it gave employees. The company argues that the standard requires only that instructions be given and that it complied with that requirement. We agree. The clear language of the standard requires only that an employer instruct its employees.

In Sawnee Electric Membership Corp.,77 OSAHRC 24/C10, 5 BNA OSHC 1059, 1977-78 CCH OSHD І 21,560 (No. 10277, 1977), the Commission found that the employer's monthly safety meetings and on the job training were sufficient to comply with section 1926.21(b)(2). The Commission held that the standard only required that the employer instruct its employees of hazards. See also Marshall v. M.W. Watson, Inc., 652 F.2d 977 (10th Cir. 1981); H.C. Nutting Co., v. OSHRC, 8 BNA OSHC 1241, 1980 CCH OSHD І 24,548 (6th Cir. 1980).

The undisputed facts of this case establish that Dravo complied with the standard. Judge Salyers found and both parties agree that Dravo instructed its employees about the dangers of the swinging counterweight. Dravo supervisors conducted regular tool box meetings in which workplace hazards, including the hazard of the counterweight, were discussed. Dravo instructed its employees not to go on the trestle without a legitimate work-related purpose. The trestle was properly barricaded and signs warned employees to "watch counterweight."

The Secretary argues that the Commission has held that employers must effectively enforce their work rules to avoid being found in violation of standards, and that the Commission should therefore uphold the judge's decision in this case and find a violation based on the lack of enforcement of Dravo's instructions. The Secretary relies in support on cases concerning the unpreventable employee misconduct defense. These cases are inapposite since they deal with a defense raised by employers in arguing that they should not be held responsible for failing to prevent their employees' misconduct. This case, on the other hand, involves the burden of the Secretary to prove a violation of a particular standard which imposes the duty to instruct employees. This duty was not breached. The Secretary would read into the standard the additional duty to enforce the instructions. We decline to rewrite the standard to impose a duty not otherwise required. See Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157, 161 (3d Cir. 1978) (Commission should not strain the plain and natural meaning of words in a standard).

The Secretary also argues that Dravo supervisors should have continued to warn their employees about the danger of the counterweight whenever they saw employees up on the trestle. The record reflects that the trestle was a work area requiring employees to enter the barricaded space on occasion, and it is not clear that Dravo supervisors ever saw employees on the trestle who did not have legitimate reason to be there. In any event, the course of action which the Secretary suggests would have necessitated that Dravo post a guard to identify and warn away unauthorized workers. The standard does not require this.

Since the standard only requires that the employer instruct its employees of workplace hazards and the facts establish that Dravo did so, Dravo complied with 29 C.F.R. ї 1926.21(b)(2). [[3]]

Judge Salyers' decision is reversed and the citation is vacated.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: JUN 12 1984

CLEARY, Commissioner, dissenting:

The Judge decided this case in a manner consistent with the design of both the Act and the cited standard and his decision should be affirmed.

The cited standard, 29 C.F.R. ї 1926.21(b)(2) states that:

The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.

The evidence establishes that Respondent instructed its employees about the dangers of the swinging counterweight. Nevertheless, the record also establishes that Dravo took no measures to enforce those instructions. During the inspection, the compliance officer observed three different employees in the crane area of the trestle in the span of ten to fifteen minutes. Moreover, the union safety representative testified that walking on the trestle was common, and that it was done several times a day. He further testified that Dravo employees even took lunch breaks on the trestle. The Judge's decision concluded that employees routinely used the crane trestle as a walkway without warnings or reprimands from Dravo supervisors (Findings of Fact No. 6).

The majority decision vacates the citation on the grounds that the cited standard requires only that the employer instruct employees of workplace hazards, with no concomitant requirement that the employer undertake reasonable efforts to ensure that those instructions are obeyed. I concede that the language of section 1926.21(b)(2) reads as the majority recites, that employers must instruct each employee in the recognition and avoidance of unsafe conditions. The majority then would apply the standard according to its literal term, i.e., perhaps one instruction will suffice. At this point the employer is then free to disregard an unsafe condition even if his supervisors observe employees in a zone of danger. The employer's duty is complete; the potential for actual injury is irrelevant once the employer has recited certain catchwords to employees. However, one would have to ask if an employee had been adequately instructed if he is observed entering a dangerous area after he had been "instructed" previously to avoid that area. He obviously does not "recognize" the unsafe condition, or has not avoided it as contemplated by the standard. Or, should he not be "instructed" again if he is observed in proximity to a hazard? I do not think a standard need be or should be interpreted woodenly and mechanically in disregard of the intent of the standard which is, essentially, to cause employees to avoid unsafe conditions. It is a familiar rule that "A thing may be within the letter of the statute and yet not within its spirit, nor within the intention of its makers." Un. Steelworkers, Etc., v. Weber, 443 U.S. 192, 99 S. Ct. 2721 (1979); United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 95 S. Ct. 2051 (1975).

In a case directly in point, the Eighth Circuit concluded that ї 1926.21(b)(2) requires supervisory personnel, when they observe activity that is hazardous or violative of a regulation, to instruct workers accordingly. National Industrial Constructors, Inc., v. OSAHRC, 583 F.2d 1048 (8th Cir. 1978). In that case, Respondent was cited under 29 C.F.R. ї 1926.21(b)(2) for permitting employees to climb diagonal beams to gain access to their work area. The court agreed with the Administrative Law Judge's factual findings that employees were instructed during an orientation program, as well as at weekly safety meetings, not to climb diagonal beams. Nevertheless, a foreman was aware of the activity, but did not instruct the employees to cease. The court held that,

Reasonably applied, the standard requires supervisory personnel to advise employees, especially new employees, of the hazards associated with actual dangerous conduct in which they are presently engaging.

583 F.2d at 1056.

The objective of 29 C.F.R. ї 1926.21(b)(2) is to ensure that employees are instructed in the detection and avoidance of hazards that may be encountered in their work. To interpret the standard as not requiring employers to take steps to enforce those instructions improperly shifts responsibility for occupational safety and health from the employer to the employee. See Brennan v. OSAHRC and Gerosa, Inc., 491 F.2d 1342 (2d Cir. 1974).

I would also find that the other exceptions taken by Respondent are without merit.

First, Respondent argues that the citation should be vacated because the compliance officer talked to Dravo employees in private, in violation of its rights under section 8(e) of the Act to accompany the compliance officer. Private interviews are, however, specifically authorized under section 8(a)(2) of the Act and do not conflict with the employer's statutory right to accompany the inspector. Wollaston Alloys, Inc., v. Donovan, 695 F.2d, 1, 8-9 (1st Cir. 1982).

Second, Respondent argues that the citation should be vacated because 29 C.F.R. ї 1926.550(a)(9) is a more specifically applicable standard and it was in compliance with that standard. The Commission has held that the failure to instruct employees in the detection and avoidance of hazards, as required by ї 1926.21(b), is a violation separate and distinct from the violation created by a failure to abate the underlying hazard, and may be separately cited. H. H. Hall Construction Co., 81 OSAHRC 91/D12, 10 BNA 1042, 1049, 1981 CCH OSHD І 25,711 (No. 76-4765, 1981).

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]] 29 C.F.R. ї 1926.21(b)(2) provides as follows:

[[2]] 29 C.F.R. ї 1926.550(a)(9) provides:

Accessible areas within the swing radius of the rear of the rotating superstructure of the crane, either permanently or temporarily mounted, shall be barricaded in such a manner as to prevent an employee from being struck or crushed by the crane.

[[3]] Because the Commission finds that Dravo complied with 29 C.F.R. ї 1926.21(b)(2), it is unnecessary to address whether 29 C.F.R. ї 1926.550(a) (9) is the more specifically applicable standard or whether the citation should be vacated because the compliance officer spoke to Dravo employees without management representatives present.