SECRETARY OF LABOR,
Complainant,

v.

ALABAMA POWER COMPANY,
Respondent.

OSHRC Docket No. 84-0357

DECISION

Before:  BUCKLEY, Chairman, and WALL, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(j), 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).

Administrative Law Judge Edwin G. Salyers affirmed the Secretary's citation alleging that Alabama Power Company ("APCo") violated section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1).[[1]]  The judge determined that APCo had not taken adequate precautions to protect its employees receiving deliveries of coal from being crushed by an overturning coal truck.  We reverse the judge's decision and vacate the citation.

I.

APCo operates a coal-fired generating plant, known as the Gorgas steam plant, in Parrish, Alabama.  This facility receives between 5 and 6 million tons of coal annually, delivered by rail, barge, and truck.  To determine whether the coal conforms to its specifications, APCo analyzes a sample of coal from each shipment.  Employees known as "lab helpers" take the samples from the two locations where coal is delivered by truck--a coal pile, and a hopper that supplies coal to the pile by conveyor belt.  The sampling operation requires that the employees come within close proximity to the trucks.  The inspection that resulted in the Secretary's citation was conducted the day after a lab helper was killed when a truck overturned at the coal pile.  The parties agree, and APCo was aware, that trucks can and do overturn while unloading at the coal pile.  The coil hopper, however, does not present this problem; trucks do not overturn at the hopper because it is surrounded by a level and smooth concrete surface.  The Secretary alleges that APCo failed to protect its employees from the hazard of trucks overturning at the coal pile.  The Secretary does not allege that any hazard exists at the coal hopper.  Although the citation did not distinguish between the two locations, at the hearing the Secretary's counsel stated that the hopper is not involved in the case.

The trucks in question are owned and/or operated by independent contractors who are paid by APCo on the basis of weight and grade of the coal delivered.  Deliveries are made by tractor-trailers that have a hydraulic dump mechanism.  Approximately 400 to 500 truckloads are delivered per day; approximately 5-10 truck overturnings occur at the coal pile each year.

The hydraulic dump mechanism raises the trailer bed and dumps the coal out of the rear of the trailer.  A truck can overture at the pile only when the trailer bed is raised for dumping, because the load of coal may shift.  The Secretary's compliance officer, Starika, was concerned with the distance an employee at the coal pile would have to be from a truck with a raised trailer in order to be clear of the trailer should the truck overturn.  According to Starika, the safe clearance distance would be determined by adding the height of the trailer above the ground when lowered (6 feet) and the depth of the trailer body (10 feet) to the height at which the trailer has been elevated; since the elevating mechanism consists of five 4-foot sections, the maximum extension is 20 feet, and the closest an employee could safely come to a truck whose trailer bed was at that height would be 30-35 feet.

In investigating the fatality, Starika determined that the deceased, Mallory, had walked between two trucks when they were 15 feet apart, and that the bed of the truck that overturned had been raised as much as 12 feet.  Starika did not conclude that a lab helper would necessarily be in danger of being struck should the truck overturn while the employee was at the rear of the truck taking the sample.  Rather, Starika felt that a hazard existed when the lab helper walked alongside or approached a truck in preparation for taking the sample.  In her opinion, employees could continue to walk past the truck as it was dumping so long as they maintained a safe clearance distance.  Otherwise, lab helpers should not sample until after the truck had dumped, lowered its bed, and moved away.  If a safe clearance distance could not be assured, they should remain in front of the truck or behind where they could be seen by the driver when the bed when the bed was being raised or lowered.

APCo informs its employees that trucks can overturn during dumping.  APCo also has two safety rules for the sampling operation, one specific, the other more general.  First, employees are prohibited from taking a sample of any load until after that load has been fully dumped and the trailer bed lowered back down.[[2]]  More generally, APCo's written procedures for the sampling operation state that "[a] safety precaution to observe while monitoring the unloading is not to get too close to the trailer while it is in the air, as it may turn over."  All lab helpers receive a copy of these procedures, which is dated and acknowledged on receipt.  In addition, Laye, APCo's superintendent, conducts an orientation with all new lab technicians.  This orientation normally includes a caution against standing "close" to a dumping truck.  APCo also has told employees in safety meetings generally to "watch" trucks and "stay away" from them, and not to stand "beside" trucks while they are dumping.  Although APCo did not specify a particular distance that employees should remain away from trucks, two lab helpers, Nixon and Tucker, testified that they were expected to keep a sufficient distance away from a truck during unloading so that they could not be struck should the truck overturn.  They further were aware that the minimum safe distance would depend upon the height to which the trailer bed had been elevated.

The Secretary attempted to prove that APCo's supervisors were aware that lab helpers routinely failed to maintain a safe distance from the trucks and failed to take adequate steps to prevent such hazardous behavior.  Both Nixon and Tucker testified that they had been within close proximity of trucks with elevated trailer' beds, and Nixon further testified that his foreman, Mullin, had accompanied or observed him when he came close to or was beside trucks.  However, although Nixon and Tucker had worked at both the coal hopper and the coal pile, neither employee specified at which location he was taking samples when he came close to trucks that were unloading.  Mullin, on the other hand, specifically denied that he had ever accompanied or observed Nixon within an unsafe distance of a truck dumping on the coal pile.  According to Mullin, the instances to which Nixon referred took place at the hopper, where no danger of overturning existed, and not at the coal pile.  Mullin also testified that he observed Nixon close to trucks only at the hopper.

There was evidence of one incident in which an employee came too close to an elevated truck on the coal pile.  In that instance, Mullin pulled another lab helper, Bruner, away from a truck.[[3]]  Except for the incident involving Bruner and the fatal accident involving Mallory, there is no specific evidence that lab helpers came too close to elevated trucks at the coal pile.  Mullin did concede that employees went within an unsafe distance of trucks "occasionally" but felt that it was not a "common practice" for them to do so.  Mullin stated that he realized the danger of an overturning truck and did not and would not permit an employee to come close enough to a truck to be struck in the event the truck were to turn over.  Although Mullin's other duties precluded him from spending all his time at the coal pile, whenever he did observe an employee standing or walking too close to a truck during dumping at the pile, he would call to the employer or physically remove him from the area of the truck, as he did in the case of employee Bruner.

APCo maintains a safety enforcement system that progresses from initial oral warnings to written warnings for second offenses through additional disciplinary measures and, finally, discharge.  APCo has disciplined employees at the Gorgas plant for safety violations in coal handling operations, including one instance in which Tucker received a written reprimand for running on the coal pile.  Mullin admitted that he had never given more than an oral reprimand to an employee who went too close to a truck on the coal pile and that he had never been told to apply the more severe forms of discipline required for repeated violations under APCo's safety program.  However, there is no indication that any employee supervised by Mullin had ever violated APCo's truck clearance rules on more than one occasion.

Although the Gorgas plant receives between 400 and 500 truckloads of coal daily, only 5 to 10 trucks overturn each year.  Until the accident occurred that resulted in the Secretary's inspection, the plant had operated for at least 24 years without any injuries resulting from overturned trucks.

Judge Salyers concluded that both APCo and its industry are aware that coal trucks are unstable and subject to overturning when dumping their loads of coal.  The judge further concluded that APCo had not taken adequate measures to protect its employees from overturning trucks.  The judge did not find any deficiency in the content of APCo's safety rules; rather, the judge determined that APCo's rules for the sampling operation were not effective because its employees were not properly supervised.  Specifically, the judge found that APCo's supervisors were aware that its employees "routinely" placed themselves in close proximity to trucks during dumping operations.  The judge also found that APCo's supervisors either ignored these infractions of its rules or gave only oral reprimands when these violations occurred.  The judge faulted APCo for not having implemented "a system of progressive discipline" to ensure employee compliance with its safety rules.

The Secretary generally argues in support of the judge's findings, except that the Secretary also contends that APCo's safety rules are not adequate because they are not sufficiently specific.  The Secretary argues that APCo should have prescribed an exact distance that its employees were to keep away from trucks during dumping operations.  APCo contends that the evidence does not establish any practical way to define a safe clearance distance other than a general admonition that employees are to stay clear of or avoid trucks during dumping operations.  APCo also asserts that the judge's finding that its supervisor's routinely permitted employees to come within an unsafe distance to trucks is contrary to the record.  APCo contends that the evidence establishes that it did not tolerate employees going too close to trucks during dumping operations and that the Secretary failed to show any repeated violations of its safety rules or any prior injuries from overturning trucks sufficient to give APCo notice that it had not adequately implemented its safety rules.

To prove a violation of section 5(a)(1) of the Act, the Secretary must show that the cited employer failed to free its workplace of a hazard that was recognized by the cited employer or its industry, that was causing or likely to cause death or serious physical harm, and that could have been materially reduced or eliminated by a feasible means of abatement.  E.g., Pelron Corp., 86 OSAHRC ________,12 BNA OSHC 1833, 1835, 1986 CCH OSHD ¶ 27,605, p. 35,871 (No. 82-368, 1986).  There is no dispute that employees who come too close to trucks dumping coal at the coal pile are exposed to the hazard of being struck by an overturning truck, a hazard likely to cause serious physical harm or death.  The parties also agree that this hazard can be materially reduced or eliminated by measures to insure that employees will remain a safe distance away from trucks during dumping operations.  The question is whether the Secretary proved that APCo's abatement methods were inadequate or that there was a more effective feasible means by which APCo could have freed its workplace of the hazard.[[4]]  See Cerro Metal Products Division, Marmon Group, Inc., 86 OSAHRC ___, 12 BNA OSHC 1821, 1822, 1986 CCH OSHD ¶ 27,579, p. 35,829 (No. 78-5159, 1986).

III.

In determining whether APCo's safety program was sufficient to protect its employees from exposure to the hazard, we must consider whether APCo has established workrules designed to prevent exposure, has properly communicated those rules to its employees, has taken steps to discover noncompliance with the rules, and has effectively enforced its rules in the event of noncompliance.  Inland Steel Co., 86 OSAHRC ____, 12 BNA OSHC 1968, 1976, 1986 CCH OSHD ¶ 27,647, p. 36,003 (No. 79-3286, 1986).  We reject the Secretary's contention that APCo's safety rules were inadequate because APCo did not specify a particular clearance distance.

As the Secretary correctly notes, general admonitions to employees to avoid a hazard or to act in a safe manner do not afford adequate guidance.  Brown & Root, Inc., 80 OSAHRC 97/A2, 8 BNA OSHC 2140, 2144, 1980 CCH OSHD ¶ 24,853, pp. 30,656-57 (No. 76-1296, 1980).  On the other hand, a safety rule is not inadequate merely because it requires employees to exercise a certain degree of judgment and discretion.  In determining whether a work rule is sufficiently specific to protect employees, the nature of the hazard and the overall circumstances of the work operation must be considered.  In certain situations a specific and detailed safety rule may be necessary, whereas in other situations such detail may be impractical, and it may be necessary to rely on employee judgment.  See Pennsylvania Power & Light Co. v. OSHRC, 737 F.2d, 350, 357 (3d Cir. 1984); Capital Electric Line Builders of Kansas, Inc. v. Marshall, 678 F.2d 128, 131, (10th Cir. 1982).

Contrary to the Secretary's contention, APCo's rule that lab helpers are to avoid or keep clear of trucks during dumping operations is not a mere generalized caution to employees to work safely.  APCo's rule directs its employees to avoid the area which could be struck by an elevated truck bed should the truck overturn.  This rule is sufficiently specific considering the fluid and dynamic nature of the work environment at the coal pile.  Conditions at the coal pile are constantly fluctuating as trucks move in and out.  The extent of the hazardous area also continuously varies since it depends upon the height to which each trailer bed has been elevated. APCo's employees were aware of the hazard that trucks could overturn when dumping coal and understood the correlation between the height of the truck bed and the safe area.  There is no evidence to show that employees could not evaluate the proper clearance distance for any particular dumping operation.  In these circumstances, APCo's reliance on its lab helpers to make a judgment as to how far to remain away from each truck does not impermissibly shift responsibility for compliance with the Act from APCo to its employees.  See Capital Electric Line Builders, 678 F.2d at 131.

In fact, APCo did not rely solely on the judgment of its lab helpers to ascertain and avoid the hazardous area.  It also had a specific rule prohibiting employees from taking any samples while the trailer bed was elevated.  APCo's employees understood that the sampling operation could not be conducted safely when the trailer was in an elevated position.  We conclude that APCo's existing rules were adequate to free APCo's worksite of the hazard.

IV.

The Secretary further argues in support of the judge's conclusion that APCo had not been adequately enforcing its safety rules.  The Judge relied on Nixon's testimony that he had been observed or even accompanied by his foreman, Mullin, in close proximity to trucks during dumping operations without any enforcement action being taken.  The judge also based his conclusion on Tucker's testimony that he had been "permitted" or "allowed" to come within an unsafe distance of trucks that were unloading coal.  We agree with APCo that the judge's conclusion is not supported by the record evidence.

As APCo correctly points out, the judge overlooked the difference between the coal hopper and the coal pile.  The judge therefore erroneously disregarded Mullin's unrebutted testimony that the instances described by Nixon did not occur at the coal pile but rather only at the coal hopper.  Since no hazard of trucks overturning existed at the hopper, APCo had no need to insure compliance with its rules at that location.[[5]]  The judge also did not consider Mullin's testimony that he was cognizant of the hazard presented when a truck overturns and would not permit employees to expose themselves to that hazard.  The record provides no reason to disbelieve this testimony.

The record does not directly establish whether Tucker was working at the coal pile when he came within close proximity to trucks unloading coal.  Even if we assume that Tucker was taking samples at the coal pile on these occasions rather than at the hopper, we find that the judge erred in concluding from Tucker's testimony that APCo did not properly enforce its rules.  Unlike Nixon, Tucker did not testify that supervisors were aware that he had approached near trucks engaged in unloading.  Tucker simply answered in the affirmative when the Secretary's counsel asked if he had been "permitted" and "allowed" to come overly close to trucks.  This testimony does not establish that APCo's management acquiesced in Tucker's actions.  Broad terms such as "permit" and "allow" may convey a variety of meanings.  See National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1263-64 & nn. 26-27 (D.C. Cir. 1973).[[6]]  The only specific evidence of the attitude of APCo's supervisors is that APCo did not condone violations of its clearance or other safety requirements.

The judge made no specific finding on whether APCo took adequate measures to detect violations of its safety rules.  The evidence is that foreman Mullin was at the coal pile some but not all of the time and that Mullin did observe the lab helpers when he was in that area.  Neither Nixon nor Tucker stated how frequently they may have come within close proximity to trucks whereas Mullin testified that employees did so only "occasionally."

In evaluating the adequacy of an employer's efforts to implement a safety program, the Commission must consider all the circumstances of the employer's work environment, including the degree of compliance with its safety rules.  See Jones & Laughlin Steel Corp. 82 OSAHRC 34/A2, 10 BNA OSHC 1778, 1782, 1982 CCH OSHD ¶ 26,128, p. 32,887 (No. 76-2636, 1982) (employer is not a guarantor of employer safety).  The Secretary has presented no evidence from which we could conclude that APCo's measures to monitor employee compliance were inadequate or that additional efforts would have been more effective. Compare Jones & Laughlin, 10 BNA OSHC at 1780, 1982 CCH OSHD at p. 32,885 (safety program adequate even where violations occurred 10 percent of the time), with K-Mart, 82 OSAHRC 49/A2, 10 BNA OSHC 2202, 2203, 2205, 1982 CCH OSHD ¶ 26,333, pp. 33,343, 33,345 (No. 77-270, 1982) (monitoring efforts inadequate where violations occurred daily for two months preceding an accident).   For the same reason, we disagree with the judge's conclusion that APCo should have imposed a "progressive" disciplinary system prior to the accident.  APCo was not aware of any repeated violations of its safety rules.  Absent evidence that violations occurred with greater regularity than is shown here, an employer would have no reason to impose discipline on an employee beyond an initial oral warning.

V.

Although the Secretary primarily argues that APCo's safety rules and their enforcement were inadequate to protect employees, he also contends in his review brief that, under the procedures followed before the accident, work rules alone could not have adequately prevented employees from being too close to dumping trucks.  In the Secretary's view, lab helpers could not maintain a safe clearance distance when a large number of trucks were dumping coal at one time.

He contends that it was only after the accident that APCo gave the lab helpers control over the number of trucks at the pile.  Thus, the Secretary argues that APCo had not taken sufficient feasible measures to free its worksite of the hazard because at the time of the accident APCo had not authorized the lab helpers to control the activity at the pile.

We reject the Secretary's argument that placing the trucks under the control of the lab helpers is a feasible means of reducing the hazard because the issue was not raised in the pleadings nor was it tried by the consent of the parties.  McWilliams Forge Co., 84 OSAHRC 36/C12, 11 BNA OSHC 2128, 1984-85 CCH OSHD ¶ 26,979 (No. 80-5868, 1984).  The Secretary's citation and complaint did not allege that giving the lab helpers control over the activity at the pile was a means of abatement, and the parties did not try it by consent because they did not squarely recognize it as an issue at the hearing.  The Secretary's compliance officer, who investigated the accident and offered the opinion that a feasible means of abatement was for APCo to improve its safety program, did not mention control of the trucks.  The two lab helpers called as witnesses by the Secretary, Nixon and Tucker, were not questioned about control on direct examination.  Nor did the Secretary pursue the point when Nixon briefly mentioned it on cross-examination and on examination by the judge.  The only other witness who testified as to control was Laye, and he did so in responding to questions by the judge, not the parties.  Laye simply remarked in a cursory fashion that lab helpers had "always" had control.  Finally, neither party mentioned the issue in argument at the hearing or in their post-hearing briefs; the point was first raised by the Secretary in his brief on review.  The meagerness of the record that was developed on the matter of control and the lack of argument on the point demonstrates that the parties did not squarely recognize it to be in issue as a feasible abatement method.  See McWilliams Forge, 11 BNA OSHC at 2129-30, 1984-85 CCH OSHD at pp. 34,669-70.  As the D.C. Circuit stated in another case arising under section 5(a)(1), the Secretary's theory of what the employer should have done to avoid citation must be developed at the hearing, not after it.  National Realty, 489 F.2d at 1267-68 & nn. 40-41.  It clearly would be unfair for us to find APCo in violation for failing to institute an abatement method that was not raised nor litigated below.  Id. at 1267.

In any event, even if we were to address the merits of the Secretary's argument, the evidence of record does not establish that the lab helpers could not control the number of trucks at the pile before the accident.  Nixon's testimony, even if viewed in the manner most favorable to the Secretary, is at best ambiguous as to whether the lab helpers had such control before the accident.   Although at one point Nixon stated they did not, other testimony he gave suggests they did. [[7]]  Moreover, when Nixon was first asked on direct examination to state the changes that had been made at the pile after the accident, he did not mention anything about the lab helpers being able to control the trucks after the accident but not before. Nixon's failure to mention control over the number of trucks dumping when specifically asked to describe any changes APCo had made indicates that he did not regard the degree of activity at the coal pile as a significant factor prior to the accident.  On the other hand, Laye testified that the lab helpers could control the trucks both before and after the accident.  The preponderance of the evidence of record does not establish that the lab helpers did not have control over the trucks before the accident occurred.

Our conclusion that APCo took the necessary steps to free its workplace of the hazard is supported by the fact that despite the rate at which truck coal is delivered (400 to 500 truck loads each day), APCo had experienced no injuries front overturning trucks during at least a 24-year period prior to the fatality.  The Secretary presented no evidence from which we can conclude that APCo should have more effectively protected its employees from the hazard.

Accordingly, the judge's decision is reversed and the citation vacated.

FOR THE COMMISSION

RAY H. DARLING, JR.
Executive Secretary

DATED:  APR 17 1987

SECRETARY OF LABOR,
Complainant,

v.

ALABAMA POWER COMPANY,
GORGAS STEAM PLANT,
Respondent.

OSHRC Docket No. 84-0357

APPEARANCES:

Debra H. Goldstein, Esquire, Office of the Solicitor, U. S. Department of Labor, Birmingham, Alabama, on behalf of complainant

John Richard Carrigan, Esquire, Birmingham, Alabama, on behalf of respondent

Mr. Jeff Blanton, International Brotherhood of Electrical Workers, Birmingham, Alabama, on behalf of employee representative

DECISION AND ORDER

SALYERS, Judge:  The respondent, Alabama Power Company, is a public utility engaged in the generation and distribution of electricity.  On February 7, 1984, one of its employees, Arlene Mallory, was crushed to death when a coal truck overturned while dumping coal at respondent's Gorgas Steam Plant located in Walker County, Alabama.  As a result of this accident, the Occupational Safety and Health Administration conducted an inspection of respondent's operations and charged respondent with a serious violation of the Occupational Safety and Health Act. (29 U.S.C. § 651, et seq.).  The charge was lodged under section 5(a)(1) of the Act, and the citation reads as follows:

Section 5(a)(1) of the Occupational Safety and Health Act of 1970:  The employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees in that employees were exposed to:

(a) On February 16, [[1/]] at 2:30 pm, laboratory helpers were exposed to being struck by or crushed by large coal trucks which were backing and dumping coal.  These trucks are subject to overturning.  Among other methods, one feasible and acceptable method to correct the hazard is to establish and enforce a safe job procedure such as sampling the coal after the truck has dumped the coal, lowered the trailer bed and pulled away from the dump area to prevent employees from ever being in the near proximity of the coal trucks as they back or dump.

The Secretary proposes a penalty of $640.00.

Reduced to its basic terms, the Secretary's citation charges respondent violated the Act's general duty clause by exposing employees to a recognized hazard (being crushed by an overturning truck).  The Secretary urged this hazard could and should have been obviated by instructing employees concerning the hazard and implementing a program to prevent employee exposure.  Respondent counters that employees were made aware of the hazard through respondent's safety program and were instructed and advised to stay clear of trucks while coal was being dumped.   Respondent also asserts the action of employee, Arlene Mallory, on the day of the accident was an isolated incident of employee misconduct for which respondent should not be held accountable.

Both parties agree it is well known in the coal handling industry that coal trucks when in the process of dumping become unstable and subject to overturning.  This hazard is emphasized in respondent's safety manual (Ex. C-2, page 119) and in the operator manual published by the truck manufacturer (Ex. C-1, page 26).  The serious consequences which flow from exposing employees to this recognized hazard are all too well demonstrated by the tragic turn of events which occurred at respondent's facility on February 7, 1984.

On the day of the accident, the deceased employee was engaged in duties as a "laboratory helper."  One of these duties required the employee to take a sample of coal from loads dumped at respondent's yard by trucks driven by independent contractors.  The samples were obtained at the time each delivery was made by removing a shovelful of coal at random from the pile formed as each load was dumped.  This sample was placed in a receptacle identified with the vendor's name and was subsequently analyzed in the laboratory to assure proper quality control and for other purposes.  The helper also signed a delivery ticket presented by each driver at the time the coal was dumped.  Activity at the coal yard was maintained at a high level since four to five hundred loads of coal were received daily (Tr. 58), and each delivery required the sampling procedure as just described.

The Secretary recognizes that respondent has a "well developed safety program encompassing many areas" but argues that the sampling procedure performed by the lab helpers "was not regulated at the time of the fatality" nor when the procedure was observed by the Secretary's compliance officer during the inspection conducted on the day following the accident (Secretary's Brief, page 2).  In support of this charge, the Secretary cites the testimony of two lab helpers who indicate before the accident they were allowed or permitted by supervisors to be in close proximity to coal trucks engaged in dumping operations and were not restricted from being near the sides of trailer beds as they were raised or lowered (Tr. 107-108, 121-122).

The record also discloses that, on the day following the accident, the Secretary's compliance officer observed and photographed this procedure during the course of her inspection (Ex. C-3; Tr. 34-35).  The Secretary argues further that respondent took no disciplinary action to deter employees from the practice even though the practice was observed by respondent's supervisory personnel.

Respondent contends employees were exposed to a hazard only when they were in an area immediately adjacent to a truck while dumping was in progress and that employees were "trained and repeatedly advised to stay clear of dumping trucks" (Respondent's Brief, page 5).  To support this assertion, respondent refers to its safety manual and to respondent's Exhibit 1 which indicates Arlene Mallory was warned during her indoctrination to "watch trucks on coal piles."  Reference is also made to respondent's Exhibit 2, which is a summary of a safety meeting conducted on January 5, 1984, wherein the deceased employee and others were advised to "watch 'raised' truck beds and stay clear of them" and "never turn your back to a coal truck."  Respondent also argues the evidence fails to show the deceased had engaged in the hazardous practice prior to the accident or that respondent knew or should have known the deceased or other employees were standing in close proximity to dumping trucks.

The question posed for resolution is whether the evidence reflects the respondent in this case acted in a responsible manner or that it acted or failed to act in such a fashion as to constitute a culpable disregard for its employees' safety.

The Act does not impose strict liability upon an employer.  National Realty and Construction Co., Inc. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973); Home Plumbing and Heating Co. v. OSHRC, 528 F.2d 564 (5th Cir. 1976).  The imposed duty relates only to those hazards which are foreseeable and can be prevented through the employer's exercise of reasonable diligence.  Id.   As these cases make clear, an employer cannot anticipate or reasonably foresee reckless acts of employees which may occur despite well conceived and vigorously enforced safety programs.  On the other hand, an employer cannot use an ineffective safety program as a shield to circumvent its clear-cut duty to furnish employees with a danger-free work environment.  Brennan v. Butler Lime and Cement Co., 520 F.2d 1011 (7th Cir. 1975).

In the instant case, respondent had a safety program consisting of written rules which were called to the attention of employees at periodic safety meetings.  The Secretary concedes the safety program worked in many areas but was virtually ignored with respect to the work practices of the lab helpers.   The testimony of witnesses appearing on behalf of both parties support the conclusion that minimal supervision was provided at the dumping sites to oversee the work practices of lab helpers and that these employees, in performing their duties, routinely placed themselves in close proximity to dumping trucks (Tr. 107, 121-122, 125-126, 129-131, 152, 154-155, 163-164, 169-170).  The evidence also supports a conclusion that the practice, when observed by supervisors, was either ignored or was met with oral reprimands but without the implementation of a system of progressive discipline to deter future acts of transgression.

The Secretary relied heavily on the testimony of Compliance Officer Starika to establish the basic elements of the Secretary's case. Starika inspected respondent's premises on the day following the accident, observed lab helpers performing their duties, and concluded these employees were exposed to the hazard of overturning trucks.  While her testimony was of some value to the Secretary's case, it was largely hearsay and was not conclusive of the ultimate issue; i.e., an ongoing, hazardous practice which continued unabated despite actual or constructive knowledge by respondent's management employees.  The Secretary called two witnesses who were engaged as lab helpers before and after the accident who gave clear and convincing testimony concerning the practice.  Richard Tucker worked with the deceased on the day of the accident and described the procedure:

A.  Well, when a truck would pull in, at that time we would go up to its door.  They'd always stick their tickets out on the door. That way you would have something to write on.  We'd put our initials on it.   We would read the numbers on the tickets, make sure it's at the right location, everything, sign it and let the man dump and just get the sample.

Q.  Were you permitted to sample before the bed of the truck--while it was either going up or while it was coming down?

A.  Yes, ma'am.

Q.  Were you allowed to walk by the truck while it was being moved up or down?

A.  Yes, ma'am.

Fred Nixon, employed as a lab helper for over six years, confirmed the long-standing practice and verified knowledge of the practice by supervisory employees:

Q.  Did Management ever come down on you for being too close to trucks?

A.  No, ma'am.

Q.  Are you aware of either yourself or anybody else being progressively disciplined for being too close to dumping trucks?

A.  No, ma'am.

Q.  Have you ever been close to the truck, prior to the accident--Prior to the accident or the day after, February 7th or 8th, have you yourself even been close to a truck when the bed was going up?

A.  Yes, ma'am.

Q.  Have you walked beside it?

A.  Yes, ma'am.

Q.  Has any Management Official ever walked beside it with you or --

A.  Yes, ma'am.

Q.  -- or that you've observed?

A.  Yes, ma'am.

Q.  Can you name some of the ones that you've observed or walked with?

A.  Mr. Mullin.  There's another man that was in our department.  He's not there now.  That was a Mr. Hudson who used to be Lab Foreman.  Most all the Lab Foremen back prior to the accident, if they were on the pile talking to us and we were doing our sampling, they were either with us, beside our truck or around the truck.

Q.  Are the Management people aware that trucks turn over?

A.  Yes, ma'am.

Q.  Since the time of Ms. Mallory's death, has the sampling procedure changed?

A.  Yes, ma'am.

Q.  What are the differences before and after the accident?

A.  Well, before there were no stipulations set about how close to get to the truck or walking beside it.  And after the accident they have come up and now they want to take disciplinary action if a person is caught signing a ticket before the bed goes down, walking around it.  You're not supposed to climb up on the cab or the bed and talk to the truck driver.  Several different things have changed.

The testimony of these two witnesses was not controverted by other evidence and fully supports a conclusion that the practice complained of by the Secretary was an everyday occurrence which, if not condoned by respondent's supervisory personnel, was ignored.  Respondent's failure to deal with this problem in a positive fashion constituted a failure to meet obligations imposed upon respondent by the Act.

In summary, the Secretary has established respondent's breach of the Act's general duty clause by a preponderance of the evidence, and respondent has failed to establish a defense of unpreventable employee misconduct.   H. B. Zachry Company, 80 OSAHRC 9/D8, 7 BNA OSHC 2202, 1980 CCH OSHD ¶ 24,196 (No. 76-1393, 1980); Brennan v. Butler Lime and Cement Co., supra.

FINDINGS OF FACT

1.  The respondent, Alabama Power Company, is a public utility engaged in the generation and distribution of electricity.  On February 7, 1984, one of its employees, a laboratory helper, was fatally injured when a coal truck overturned while dumping coal at respondent's Gorgas Steam Plant located in Walker County, Alabama.  This accident precipitated an inspection of respondent's operations by the Occupational Safety and Health Administration which resulted in a charge that respondent had seriously violated the provisions of the Occupational Safety and Health Act (29 U.S.C. § 651, et seq.).

2.  During the period preceding the accident, respondent engaged a number of employees as laboratory helpers whose principal duty was to sample coal as it was delivered to respondent's coal yard by independent truckers.  In performing the sampling procedures, these employees were allowed and permitted by respondent to come in close proximity to trucks which were engaged in the dumping process.  This practice was an everyday occurrence and was ignored by respondent's supervisory personnel.

3.  It is well known and recognized in the coal handling industry that coal trucks when in the dumping process become unstable and subject to overturning.  Employees working in close proximity to trucks engaged in the dumping process are exposed to a hazard which may result in death or serious bodily injury.

4.  Respondent has a safety program consisting of written rules and periodic safety meetings.  In general, this program is effective as it relates to most areas of respondent's operations.  However, the practice engaged in by the laboratory helpers was not effectively abated by respondent's safety program as it operated on and prior to the date of the accident.

5.  The penalty proposed by the Secretary in the amount of $640.00 is reasonable under the circumstances of this case.

CONCLUSIONS OF LAW

1.  Respondent is engaged in an industry affecting commerce and is subject to the jurisdiction of the Occupational Safety and Health Review Commission.

2.  Respondent has seriously violated section 5(a)(1) of the Occupational Safety and Health Act through its failure to furnish employment and a place of employment which were free from recognized hazards.

3.  Respondent has not sustained its burden of proof that the practice complained of was an isolated incident of employee misconduct.  

ORDER
It is hereby ORDERED:

1.  Serious Citation No. 1 is hereby affirmed.

2.  A civil penalty in the amount of $640.00 is hereby assessed.

EDWIN G. SALYERS
Judge
Date:  February 7, 1985

FOOTNOTES:

[[1]] This provision requires as follows:

Sec. 5. (a) Each employer--
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

[[2]] The Secretary contends that this rule was not in effect at the time of the fatality.  The testimony is to the contrary.   The Secretary's brief confuses this rule with another rule, which was not instituted until after the inspection, requiring that a lab helper not take the truck driver's delivery ticket until after the load is dumped.

[[3]] According to Mullin, the truck would have fallen over onto Bruner because it was "up on a bank" above where Bruner was standing.  Shortly after Mullin directed Bruner to move away, the truck overturned.

[[4]] There is some disagreement between the Secretary and APCo as to precisely how the hazard at issue should be described for the purpose of satisfying the requirement of section 5(a)(1) that the hazard be "recognized."  APCo concedes that it was aware that employees would be exposed to a hazard if they came excessively close to trucks dumping coal.  It contends that the recognized hazard must be defined as employees approaching within an unsafe distance of trucks during dumping operations.  The Secretary argues in support of a broader definition of the recognized hazard as simply the hazard that trucks could over-turn.  However, in his trial and argument of the case the Secretary implicitly accepted APCo's definition.  He did not argue that APCo could prevent trucks from overturning, but that it should have taken further measures to prevent employees from approaching too close to trucks during dumping operations.

In any event, since we find that the safety measures the Secretary contends APCo should have taken either were in effect at the time of the alleged violation or were not necessary in the circumstances, the citation is properly vacated for failure of proof regardless of how the recognized hazard at issue is defined.  See Inland Steel Co., 86 OSAHRC, 12 BNA OSHC 1968, 1971, 1986 CCH OSHD ¶ 27,647 p. 35,997 (No. 79-3286, 1986).

[[5]] Nixon testified that another foreman, Hudson, had also observed him in close proximity to trucks during dumping operations without enforcing APCo's rules.  We note, as does the Secretary, that unlike the instances involving foreman Mullin, Nixon specifically stated that he had been working at the coal pile when observed by Hudson.  However, Hudson was not a lab foreman and was not working in the lab department at the time of the accident.  Nixon, who had been a lab helper for 6 1/2 years, did not specify when the observations by Hudson occurred but indicated that they could have taken place any time within the preceding five years.   Because Hudson's actions are remote in time and he was not a supervisor at the time of the accident, we do not find his conduct to be convincing evidence of APCo's enforcement practices at the time the alleged violation occurred.

[[6]] Since counsel did not ask any follow-up questions to clarify Tucker's testimony, we cannot determine what meaning the Secretary's counsel intended to convey or how Tucker may have interpreted counsel's inquiry.

[[7]] For instance, Nixon also testified that the trucks are weighed before they dump and that, before the accident, the lab helper would tell the employee at the scale how many trucks can be handled at the pile.   Nixon concluded his testimony on this point by saying that before the accident, control over the number of trucks dumping depended "on who was up on the pile."

[[1/]] The date used in the original citation was a clerical error.  The inspection was conducted on February 8, 1984, the day following the accident.  Although respondent objected to the Secretary's motion to amend, no showing was made that respondent was prejudiced by the motion, and the motion was granted (Tr. 9) subject to renewal upon a showing of surprise.  No renewal objection was made by respondent.