SECRETARY OF LABOR,
Complainant,

v.

DU-MOR ENTERPRISES, ACTION UTILITY
COMPANY, INC., DU-MOR DRILLING AND
BLASTING,
Respondent.

OSHRC Docket No. 83-0540

DECISION

Before: BUCKLEY, Chairman, and CLEARY, Commissioner.
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 ("Secretary") under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. § 659(c).

Following an inspection by a compliance officer of the Occupational Safety and Health Administration, a citation was issued to Du-Mor Enterprises ("Du-Mor") by the Secretary for a violation of 29 C.F.R. § 1926.21(b)(2).[[1]] The citation alleged as follows:

The employer did not instruct each employee in the recognition and avoidance of unsafe condition[s] and the regulation[s] applicable to his work environment to control or eliminate any hazard[s] or other exposure to illness or injury:

(a) Employees gauged trench depth walking immediately posing behind trenching machines conveyer' [sic] chain, exposing them to hazards of revolving chain, dislodged rocks and dirt.

(b) Employees used trenching machines' conveyer chain as means of egress for trench, exposing them to hazards of unintentional movement of chain.

(c) Trenching machine operator operated conveyer chain without determining that employees were not in proximity to hazardous moving parts of the machine.

The citation was issued following an accident involving Kenneth Hampton, a laborer who had worked for Du-Mor for one week. At the time of the accident, Du-Mor was using a Vermeer T-800 to dig a trench for a sewer and water line in Boerne, Texas. The machine excavated a ditch by using a power driven conveyer chain extended vertically into the ditch. It was considered an obvious danger by all of Du-Mor's employees who testified.

Immediately prior to the accident, Hampton was grading the trench, which was about four feet deep. This work consisted of picking up rocks that the Vermeer had left behind and moving them aside. The Vermeer's operator, Ramos, disengaged the clutch, stopping the chain for a short time, although the engine continued to run. When Ramos started the chain again, Hampton was pulled into the chain and killed. Ramos did not check to see if anyone was near the digging chain before he restarted it.

At the hearing, Robert Hargroder, Du-Mor's general manager and partner, testified that it is Du-Mor's policy to instruct its employees who are to be in trenches, to stay at least ten feet behind the digging chain on the trenching machine and not to use the chain as a means of egress from the trench. He further explained that a ladder is used to get in and out of the trench when the trench is over four feet in depth and that the machine operators are instructed not to operate the digging chain on the Vermeer without first ascertaining that no one is in proximity to it. Hanover, Du-Mor's general superintendent, stated that he instructs employees to stay about ten feet away from the conveyer chain and not to use the conveyer chain when getting in and out of the trench. Both Robert Hargroder and Hanover stated that they observed Hampton working too close to the Vermeer and cautioned him to stay away from the machine. Troy Hargroder, Du-Mor's foreman, testified that it is not Du-Mor's policy to allow employees to walk immediately behind a trenching machine or to use the conveyer chain as a means of getting in and out of trenches. He and operator Ramos also spoke to Hampton about the danger of working too close to the Vermeer.

Du-Mor's supervisors stated that a safety meeting is held once a month. The employees are paid a half-hour of overtime to attend the meeting and sign a receipt verifying their attendance. Each crew has its own safety meetings. General safety regulations covering hazards the employees have encountered or are likely to encounter, including the dangers of the Vermeer, are discussed. The foremen are asked to pay particular attention to any new employees.

Du-Mor's laborers, Jamie and Rodriguez, had worked as laborers for one week prior to the fatality[[2]] and stated that they had not received any instructions from Du-Mor not to stand or walk immediately behind the digging chain and not to get on the digging chain. Jamie admitted, however, that "some other employees" had discussed the need to stay away from the chain with Hampton and himself, and he stated that he told Hampton to be careful. In addition he stated that Ramos told employees to be careful when working near the Vermeer. Jamie and Rodriguez admitted that they and other employees had used the chain to get into or out of the trench when the machine was shut off. Ramos guessed the chain was used in this manner 5-10 times. Rodriguez testified that he knew that using the digging chain when the machine was not operating was improper. Jamie stated that Troy Hargroder had seen the employees use the chain, but Hargroder denied having observed such action. The Compliance Officer stated he was told by Du-Mor's employees that they walked between two and ten feet behind the Vermeer. Rodriguez felt that as a general rule employees walked from five to six feet behind the machine. There is no evidence that Du-Mor's supervisors observed and permitted employees this close to the machine.

Judge Schwartz vacated the citation. He credited the testimony of Du-Mor's witnesses that instructions had been given and noted that the employees were aware of the dangers of the machine. He did not, however, make any findings as to whether the employees violated the rules.

The two Commission members are divided on whether the judge's decision should be affirmed. Chairman Buckley would affirm the judge's decision. He concludes that the standard imposes a single duty upon employers: to instruct employees concerning hazards at the worksite. Dravo Engineers & Constructors, __OSAHRC __, 11 BNA OSHC 2010, 2011-12, 1984 CCH OSHD ¶ 26,930 at pp. 34,507-34,508 (No. 81-748, 1984); Sawnee Electric Membership Corp., 77 OSAHRC 24/C10, 5 BNA OSHC 1059, 1060, 1977-78 CCH OSHD ¶ 21,560 at pp. 25,871-25,872 (No. 10277, 1977) (lead and concurring opinions). In his opinion, the evidence establishes that Du-Mor complied with this duty.

The citation lists three separate instances in which Du-Mor failed to give instructions with respect to the Vermeer. The first two involve the requirement that Du-Mor's employees stay a sufficient distance from the trenching machine's conveyer chain and not use the chain as a means of egress from the trench. The evidence is conflicting as to whether instructions about the cited hazard were given. However, after, listening to the evidence, Judge Schwartz made a specific credibility finding that he was giving greater weight to the testimony of Du-Mor's supervisors that instructions were given. The judge explained the reasons for his finding and made it carefully and impartially in light of the entire record. Accordingly Chairman Buckley would defer to the judge's evaluation of the credibility of the witnesses. See C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1297, 1977-1978 CCH OSHD ¶ 22,481 at p. 22,481 (No. 14249, 1978). He agrees with the judge that Du-Mor's employees were instructed regarding the requirement not to walk immediately behind the conveyer chain and not to use the chain as a means of egress.

The Secretary argues that even if instructions were given, they were inadequate with respect to use of the conveyer chain to exit the trench. He relies in part upon the conversations Du-Mor's supervisors had with Hampton, noting that Hampton was not instructed regarding use of the chain as a means of egress. However, in these conversations, Robert Hargroder explained to Hampton that he had lost his thumb on a small chain of the ditching machine and that the larger chain would "cut your whole head off." Hanover told Hampton he needed to stay away from the machine because the chain was very dangerous and "there was no telling what would happen.'' According to Hanover, Hampton replied that he understood the danger involved. Both Troy Hargroder and Ramos also cautioned Hampton about the dangers of the Vermeer. These instructions generally warned of the danger of coming too close to the machine and would indicate that it should not be used as a means of egress. Moreover, Hanover stated that he had instructed employees not to use the machine as a means of egress. Both Troy Hargroder and Hanover stated that they had never seen employees exiting by way of the machine, and Hampton was not observed doing that either. To the extent identified in the record, the general warnings to him were precipitated by Hampton's getting too close to the Vermeer, and did not involve any use by him of the chain as an egress. It also is clear that the accident here would not have occurred if Hampton had heeded the repeated warnings given to him by both Robert and Troy Hargroder, Hanover, Ramos, and other employees. Chairman Buckley therefore concludes that the instructions and warnings to Hampton were adequate.

Chairman Buckley also rejects the Secretary's argument that Du-Mor did not instruct its employees that use of the chain as a means of egress was prohibited when the machine was not operating. The evidence does not support a finding that Du-Mor's instructions were inadequate to cover all instances of the chain's use. Hargroder testified that it was Du-Mor's policy to instruct employees not to use the chain for egress, and that a ladder is used for that purpose when the trench is deeper than four feet. Hanover testified that he instructs employees not to use the conveyer when getting in and out of the trench. Thus, Du-Mor's rule was clear and unequivocal. Employees were instructed not to use the chain as a means of egress; there were no exceptions. Because the dangers from the chain's operation were obvious, a general admonition to the employees to stay away from the chain was sufficient. See Butler Lime & Cement Co. v. OSHRC, 658 F.2d 544, 548, 551-52 (7th Cir. 1981). As the testimony of Rodriguez demonstrates, he understood the instructions to include use of the chain when it was not operating.

In further support of its position that the citation should be affirmed, the Secretary asserts that the practice of using the chain as a means of egress "was not uncommon among employees." In making this statement, the Secretary is apparently arguing that a violation occurred because Du- Mor did not enforce its instructions. However, the duty to enforce is not required by the standard, and Chairman Buckley would not rewrite the standard to impose a duty not otherwise required. Dravo Engineers & Constructors, supra; cf. Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157, 161 (3rd Cir. 1978) (Commission should not strain the plain and natural meaning of words in a standard). In any event, the evidence does not support a finding that Du-Mor knew or reasonably should have known that employees used the chain as a means of egress. Although Jamie claimed that Troy Hargroder saw such conduct, Troy Hargroder denied that he had seen employees use the chain for egress and there is no other evidence that Du-Mor supervisors observed any employees exiting by way of the chain.

Du-Mor was cited in the third instance for failing to instruct the trenching machine operator to determine whether employees are in proximity to the hazardous moving parts of the Vermeer before operating the conveyer chain. Robert Hargroder stated that it is Du-Mor's policy to instruct the machine operators not to operate the digging chain without first looking to see that no one is in proximity to it. The judge credited Hargroder's testimony. Ramos, the machine operator, testified that, he had discussed with Du-Mor's supervisors the operation of the trenching machine when people are in the vicinity and also stated that prior to the accident he had seen an operator's manual and a safety manual published by the Farm and Industrial Equipment Institute, which discuss the requirement that all personnel must be at a safe distance before the operator begins operating the machine. Ramos also stated that he knew better than to turn on the Vermeer when anyone was present and that the dangers of the Vermeer had been discussed at safety meetings. This evidence unequivocally establishes that Ramos was well aware of the hazards of the Vermeer and of the actions he should take as the machine operator. Accordingly, in light of the judge's clear credibility finding and Ramos's understanding as the machine operator, Chairman Buckley would also vacate this portion of the citation.

Commissioner Cleary would affirm the citation. He finds that the evidence establishes that some of the employees at the site were not instructed as to the hazards associated with the Vermeer. Although Du-Mor's supervisors testified that they instructed employees concerning the hazards of the Vermeer, the evidence is that they did not give such instructions to either Rodriguez or Jamie, who had been working as laborers for only one week prior to the accident. Both men testified they had received no instructions from Du-Mor not to stand or walk immediately behind the digging chain and not to use the digging chain as a means of egress from the trench. Moreover Jamie was unaware that safety meetings were held. Rodriguez knew of the safety meetings but there is no evidence that he attended any of these meetings. On the basis of these facts, Commissioner Cleary finds that these employees were not adequately instructed about the hazards of the Vermeer. An employer does not fulfill his duty under the cited standard by waiting to give employees safety instructions after they are performing a job rather than training them in advance to avoid hazards. See Sawnee Electric Membership Corp., supra. (Cleary, dissenting).

The record also fails to establish that Ramos was instructed to determine that employees were not in proximity to the conveyer chain before operating it. As with the instructions to the laborers, none of Du- Mor's supervisors testified that they gave Ramos instructions concerning operation of the chain, and Ramos' testimony is inconsistent as to whether he received instruction.[[3]] Du-Mor has not fulfilled its duty under the standard because Ramos had seen two manuals discussing the need to keep personnel at a safe distance before operating the machine. The record does not disclose whether Ramos read the manuals, and if he did read them whether he was instructed to do so by Du-Mor. The standard places responsibility on the employer to instruct its employees and this duty is not fulfilled if employees can coincidentally learn of or recognize the hazards of the Vermeer. See generally Brown & Root, Inc., 80 OSAHRC 97/A2, 8 BNA OSHC 2140, 2145, 1980 CCH OSHD ¶ 24,853 (No. 76-1296, 1980) (final responsibility for compliance with the Act rests with the employer and cannot be shifted to employees).

Commissioner Cleary also agrees with the Secretary that the instructions were not adequate to keep the employees from using the chain as a means of egress when the Vermeer was not in operation. Clearly, some of the employees believed that it was safe to use the chain when the machine was stopped. Rodriguez did not recall having received instructions that it was improper to use the chain when the machine was off. Jamie said that he had not been instructed that such use was improper. Ramos stated that he did not caution the employees when he saw them using the chain because the machine was off. As the Commission stated in New England Telephone & Telegraph Co., 80 OSAHRC 54/A2, 8 BNA OSHC 1478, 1490, 1980 CCH OSHD ¶ 24,523 at p. 30,000 (No. 76- 3010, 1980), quoting Brennan v. Butler Lime and Cement Co., 520 F.2d 1101, 1018 (7th Cir. 1975), "Rules are more likely to be observed if their rationale is understood and it is made clear that they are not just arbitrary pronouncements but are grounded in practical reasons of safety."

But more importantly the evidence establishes that employees extensively used the machine as a means of egress from the trench, and that this was done over a period in the presence of a supervisor, Troy Hargroder. This is compelling evidence that the employees were not instructed to avoid the Vermeer as a means of egress. Moreover, there was no ladder, and it would appear the machine was the only means of getting out of the trench. Additionally, Du-Mor violated the standard because it did not enforce the safety rules concerning the dangers of the Vermeer. The duty to instruct includes the duty to enforce the instructions. See Dravo Engineers & Constructors, supra (Cleary, dissenting); National Industrial Constructors, Inc. v. OSHRC, 583 F.2d 1048 (8th Cir. 1978). The employer must undertake reasonable efforts to ensure that the instructions are obeyed. If the employer does not do this, and employees are free to ignore instructions, safety rules become a mockery. Commissioner Cleary accordingly would affirm the citation.

Under section 12(f) of the Act, 29 C.F.R. § 661(e), official action can be taken by the Commission with the affirmative vote of at least two members. To resolve their impasse on the merits of the citation and to permit the parties to conclude this litigation, Chairman Buckley and Commissioner Cleary agree to vacate the direction for review. E.g. Texaco, Inc., 80 OSAHRC 74/B1, 8 BNA OSHC 1758, 1980 CCH OSHD ¶ 24,634 (Nos. 77-3040 & 77-3542, 1980). The judge's decision concluding that Du-Mor did not violate section 1926.21(b)(2) therefore becomes the final order of the Commission but is accorded the precedential value of an unreviewed judge's decision.


FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary


DATED: APR 26 1985