Docket No. 90-998

SECRETARY OF LABOR, Complainant,
v.
FARRENS TREE SURGEONS, INC., Respondent.

OSHRC Docket No. 90-998

DECISION

Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.
BY THE COMMISSION:

Farrens Tree Surgeons, Inc. ("Farrens") was issued a citation alleging a serious violation of the general industry personal protective equipment standard at 29 C.F.R. § 1910.132(a)[[1]] because its employees were not wearing brightly colored vests and hard hats while placing warning cones and signs on or near a highway. At issue is whether Review Commission Administrative Law Judge Edwin G. Salyers erred in concluding that the Secretary had met her burden of proving a violation.

Background

The parties agreed to submit this case for decision based an stipulations, instead of a hearing, in accordance with commission Rule 61, 29 C.F.R. § 2200.61.[[2]] The "Factual Stipulations" consist in their entirety of the following:

A. Respondent is covered by the provisions of the [Occupational Safety and Health] Act [of 1970, 29 U.S.C § 651-78 ("the Act")].

B. Respondent's principal place of business is at Jacksonville, Florida, where it was engaged in tree trimming at all times pertinent to the alleged violations.

C. On January 26, 1990, at about 7:55 a.m., respondent's foreman and two ether employees were preparing to clear brush underneath power[]lines adjacent to Davis Academy Road in Rutledge, Georgia.

D. Neither the foreman, who was placing warning cones along the roadside of a public highway, nor the other employees were wearing brightly colored vests nor hard hats.

E. Said employees were immediately adjacent to a two lane public highway which had a 55 mph speed limit and which was traveled by motor vehicles.

F. One employee was struck by a moving automobile while placing orange cones and "Caution Men Working" signs[,] in the eastbound lane along the length of the company truck which had been used to transport the employees to the worksite and was parked along the road.

G. The driver of the automobile was blinded by the rising sunlight and did not see the employee placing the cones.

H. Under the sunlight conditions which existed, wearing brightly colored vests would not have increased visibility to eastbound drivers.

Judge's Decision

In his decision, the judge stated:

At the outset it is important to note that the submission of a case on stipulated facts under Commission Rule 61 is not without some peril to a party having the burden of proof on particular issues.

After noting that the record was "somewhat scant on detail," the judge concluded that the stipulated facts quoted above, "together with reasonable inferences to be drawn therefrom," are sufficient to prove that "[a] reasonable person under these circumstances would take some precautions to insure that this hazard [contact with vehicles traveling at high speed] was addressed by requiring the use of brightly colored vests which might avert an accident and hard[]hats to minimize head injuries in the event an accident did occur." He therefore found that the Secretary had proven a violation of section 1910.132(a). The judge affirmed the serious citation and assessed the proposed penalty of $490.

Discussion

The Secretary has the burden of proving her case by a preponderance of the evidence. E.g., Regina Constr. Co. 15 BNA OSHC 1044, 1046, 1991 CCH OSHD ś 29,354, p. 39,467 (No. 87-1309, 1991); Astra Pharmaceutical Prods., 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ś 25,578, pp. 31,899-900 (No. 78-6247, 1981), aff'd in pertinent part, 681 F.2d 69 (1st Cir. 1982). The judge concluded that burden here, relying on Commission decisions holding that, in the absence of evidence of actual knowledge of the hazard the Secretary can prove a violation of section 1910.132(a) by showing that a reasonable person familiar with the circumstances surrounding the hazardous condition, including any facts unique to the particular industry, would recognize a hazard warranting the use of personal protective equipment. E.g., Amour Food Co., 14 BNA OSHC 1817, 1820, 1990 CCH OSHD ś 29,088, p. 38,881 (No. 86-247, 1990); General Motor Corp., GM Parts Div., 11 BNA OSHC 2062, 2065, 1984-85 CCH OSHD ś 26,961, p. 34,611 (No. 78-1443, 1984), aff'd, 764 F.2d 32 (1st Cir. 1985). The majority of circuit courts have agreed with the Commission that the reasonable person test is appropriate for section 1910.132(a), as well as the general personal protective equipment standard for the construction industry at 29 C.F.R. § 1926.28(a). E.g., Spancrete Northeast, Inc. v. OSHRC, 905 F.2d 589, 593 (2d Cir. 1990); Voegele Co. v. OSHRC, 625 F.2d 1075, 1078-79 (3d Cir. 1980); Ray Evers Welding Co. v. OSHRC, 625 F.2d 726, 731-32 (6th Cir. 1980); Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717, 722-23 (4th Cir. 1979). The Commission and courts have found industry practice to be relevant to the reasonable person test but not dispositive, because to consider industry practice as determinative would permit an entire industry to avoid liability by maintaining inadequate safety. E.g., Voegele Co., 7 BNA OSHC 1713, 1716, 1979 CCH OSHD ś 23,860, p. 28,940 (No. 76-2199, 1979), aff'd, 625 F.2d at 1078-79; Cape & Vineyard Div., New Bedford Gas & Edison Light Co. v. OSHRC, 512 F.2d 1148, 1152 (1st Cir. 1975).

However, this case can be appealed to the United States Court of Appeals for the Eleventh Circuit because Farrens has its principal office in Florida, and the site of the alleged violation was Georgia. See section 11(a) and (b) of the Act, 29 U.S.C. § 660(a) and (b). The Eleventh Circuit has held that to prove a violation of such generally worded personal protective equipment standards as section 1910.132(a), unless she has proven actual knowledge, the Secretary must show that the protective equipment sought by the Secretary is what the employer's industry would deem appropriate under the circumstances. Florida Machine & Foundry, Inc. v. OSHRC, 693 F.2d 119, 120 (11th Cir. 1982). In that case, where the standard at issue was 29 C.F.R. § 1910.133(a)(1); the general standard for the eyes and face protective equipment noted that the Fifth Circuit precedent concerning sections 1910.132(a) and 1926.28(a), e.g., S & H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273, 1275 (5th Cir. 1981); Cotter & Co. v. OSHRC, 598 F.2d 911, 913-14 (5th Cir. 1979); B & B Insulation, Inc. v. OSHRC, 583 F.2d 1364, 1370-72 (5th Cir. 1978), was the law of the Eleventh Circuit as well, under Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). Id.

Where a case can be appealed to the Eleventh Circuit and an alleged violation of a general personal protective equipment standard is at issue, the Commission has vacated a citation item, alleging a violation of section 1926.28(a), based on the Secretary's failure to prove industry practice or actual knowledge. Williams Enterp. of Georgia Inc., 12 BNA OSHC 2097, 2101, 1986-87 CCH OSHD ś 27,692, p. 36,151 (No. 79-4618, 1986), rev'd on other grounds, 832 F.2d 567 (11th Cir. 1987).(11h Cir. 1987).

In light of the Secretary's failure to introduce into the record in this case any evidence as to whether Farrens was following industry custom in not providing warning vests and hard hats, or whether Farrens had actual knowledge of the hazard, we must vacate the citation alleging a violation of section 1910.132(a) on this basis, without further analysis.[[3]] In doing so, we are compelled to reiterate the warning issued by the judge in his decision: when the Secretary, who has the burden of showing that Farrens committed a violation by a preponderance of the evidence, submits her case on a stipulated record under Commission Rule 61, she does so "not without some peril." As the last sentence of Commission Rule 61 cautions, the burden of proof is not altered where a case is stipulated.

Order

For the reasons stated above, we conclude that the Secretary has not met her burden of proving that Farrens violated section 1910.132(a), and we vacate the citation.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Dated: July 28, 1992

MONTOYA, Commissioner, concurring in part and dissenting in part:

As a Commissioner charged with adjudicating cases under the Occupational Safety and Health Act of 1970, I favor the "reasonable person with knowledge of the industry" test, as adopted by the Commission and the majority of the circuit courts for determining employer knowledge when the violation involves a generally-worded personal protective equipment standard such as section 1910.132(a), in contrast to the industry practice test, where the record shows no actual knowledge. In particular, I find that, as noted by the majority, industry practice is relevant to the reasonable person test but not dispositive, because to consider industry practice as determinative would permit an entire industry to avoid liability by maintaining inadequate safety protection. Hence, I would prefer to affirm the judge's holding that, as Farrens' employees were required to work along a well-traveled 55 m.p.h. roadway, a reasonable person with knowledge of the industry would have recognized the hazard and provided brightly colored vests and hard hats. I would also take administrative notice of ANSI D6.1-1971, Manual on Uniform Traffic Control Devices for Streets and Highways, section 6E-3, which is incorporated by reference in ANSI Z133.1-1979, Safety Requirements for Pruning, Trimming, Repairing, Maintaining, and Removing Trees, and for Cutting Brush, section 3.4.2. These standards, which include traffic control measures, provide that "[t]he use of an orange vest, and/or an orange cap shall be required for flagmen."

However, I recognize that the case law of the Eleventh Circuit, to which this can be appealed, currently requires the Secretary to prove either that the employer actually knew of the hazard or that the employer's industry recognized the particular equipment to be appropriate. Unlike the majority, I would now remand this case with instructions that the judge apply Eleventh Circuit precedent to these stipulated facts. I would instruct the judge to consider the ANSI standards cited above on the issue of employer knowledge, specifically the provision requiring "use of an orange vest, and/or an orange cap." Cf. Ed Taylor Constr. Co. v. OSHRC, 938 F.2d 1265, 1272 (11th Cir. 1991) (employer was charged with knowledge of a hazard based upon the publication of an OSHA standard which addressed the hazard).

Velma Montoya Commissioner

Dated: July 28, 1992

__________________________________________________________________________________________

SECRETARY OF LABOR, Complainant, V.
FARRENS TREE SURGEONS, INC., Respondent.

Docket No. 90-998

DECISION AND ORDER

SALYERS, Judge: On January 26, 1990, respondent's, employees were preparing to clear brush underneath powerlines adjacent to Davis Academy Road in Rutledge, Georgia. While engaged in this operation one of respondent's employees was struck and killed by an automobile. The Secretary of Labor (Secretary) conducted a fatality inspection of this incident under the provisions of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651, et. seq.) and on March 1, 1990, issued the following serious citation to respondent:

29 C.F.R. § 1910.132(a): Protective equipment was not used when necessary whenever hazards capable of causing injury and impairment were encountered:

(a) Davis Academy Road - Employees were not wearing warning vests while putting out warning signs and orange cones on and near the road. On or about January 26, 1990.

(b) Davis Academy Road - Employees were not wearing hard hats while putting out warning signs and orange cones on and near the road. On or about January 26, 1990.

In lieu of a formal hearing in this matter, the parties have filed a joint stipulation of facts for disposition under Review Commission Rule 2200.61[[1]]. The stipulation of facts (J-15) provides:

A. Respondent is covered by the provisions of the Act.

B. Respondent's principal place of business is at Jacksonville, Florida, where it was engaged in tree trimming at all times pertinent to the alleged violations.

C. On January 26, 1990, at about 7:55 a.m., respondent's foreman and two other employees were preparing to clear brush underneath powerlines adjacent to Davis Academy Road in Rutledge, Georgia.

D. Neither the foreman, who was placing warning cones along the roadside of a public highway, nor the other employees were wearing brightly colored vests nor hard hats.

E. Said employees were immediately adjacent to a two lane public highway which had a 55 mph speed limit and which was traveled by motor vehicles.

F. One employee was struck by a moving automobile while placing orange cones, and "Caution Men Working" signs in the eastbound lane along the length of the company truck which had been used to transport the employees to the worksite and was parked along the road.

G. The driver of the automobile was blinded by the rising sunlight and did not see the employee placing the cones.

H. Under the sunlight conditions which existed, wearing brightly colored vests would not have increased visibility to eastbound drivers.

To prove a violation of the cited standard, the Secretary must establish by a preponderance of the evidence that "(1) the cited standard applies, (2) there was a failure to comply with the cited standard, (3) employees had access to the violative condition; and (4) the cited employer either knew or could have known of the condition with the exercise of reasonable diligence." Astra Pharmaceutical Products, Inc., 81 OSAHRC 79/D9, 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ś 25,578 (No. 78-6247, 1981).

In this case, the Secretary cites under 29 C.F.P. § 1910 the so-called General Industry standards. This group of standards has application to all covered employers unless the specific working conditions in a particular case are more appropriately cited under the construction, maritime and longshoring or agricultural standards. Dravo Corp. v. OSHRC, 613 F.2d 1227 (3rd Cir. 1980). The Secretary does not attempt to explain in her brief why respondent was cited under § 1910.132(a) as opposed to citation under construction standards contained in § 1926.28(a) or § 1926.201(a). This Court surmises, however, that this course was chosen as a result of the Review Commission's decision in Consumers Power Co., 77 OSAHC 73/E8 55 BNA OSHC 1423, 1977 CCH OSHD § 21,786 (No. 11107, 1977), in which it was held that employees who were engaged in tree trimming operations were not engaged in "construction." The Secretary is free to cite under a general industry standard even though other standards might also apply, provided the standard chosen by the Secretary adequately addresses the hazard complained of by the Secretary and provides to the cited employer sufficient notice of what is required for compliance.

In this case the Secretary cites under 29 C.F.R. § 1910.132(a), which concerns personal protective clothing and provides:

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

Respondent argues in its brief that the cited standard is limited in scope "to protecting against physical injury from absorption, inhalation or physical contact" and, therefore, does not apply to the operations conducted by respondent at the time of the accident (Respondent's Brief, p. 3). Respondent's interpretation ignores the basic thrust of the standard, which requires that "protective equipment...shall be provided, used and maintained ... whenever it is necessary by reason of hazards of processes." Respondent's focus on the balance of the standard which recites "or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact" (emphasis added) is misdirected. The latter phrase in written in the disjunctive and supplements but does not supersede the basic requirement to use protective equipment and/or clothing "whenever it is necessary by reason of hazards of processes." This court concludes that § 132(a) can be applied in this case provided, of course, the facts warrant its application.

The basis upon which the cited standard can be applied was set forth by the Review Commission in Lukens Steel Company 81 OSAHRC 96/A2, 10 BNA OSHC 1115, 1981 CCH OSHD ś 25,742 (No. 76-1053, 1981):

(1) The broad personal protective equipment standard at section 1910.132(a) applies to the facts of a case if a reasonable person familiar with the the circumstances, including facts unique to an industry, would recognize a hazardous condition requiring the use of personal protective equipment. See,e.g., Ryder Truck Lines, Inc. v. Brennan, supra; Tube-Lok Products, 9 BNA OSHC 1369, 1981 CCH OSHD ś 25,235 (No. 16200, 1981); General Electric Co., 80 OSAHRC 9/B9, 7 BNA OSHC 2183, 1980 CCH OSHD ś 24,268 (No. 15037, 1980); Owens Corning Fiberglass Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1979 CCH OSHD ś 23,509 (No. 76-4990, 1979) appeal filed, No. 79-2516 (5th Cir. June 26, 1979). This objective "reasonable person" test satisfies the due process requirement that a law must be sufficiently clear to give persons of ordinary intelligence a reasonable opportunity to know what is prohibited or so that they may act accordingly. See S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1263 n. 11, 1979 CCH OSHD ś 23,480 at p. 28,436 n. 11 (No. 15855, 1979), appeal docketed, No. 79-2358 (5th Cir. June 7, 1979), citing Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). To determine whether the standard provides fair notice, the Commission considers the standard in light of the specific facts of the case. It does not look exclusively at the text of the standard. See Brennan v. OSHRC & Santa Fe Trail Transportation Co., 505 F.2d 869 [2 OSHC 1274] (10th Cir. 1974); Lombard Brothers, Inc., 77 OSAHRC 155/B2, 5 BNA OSHC 1716, 1977-78 CCH OSHD ś 22,051 (No. 13164, 1977). If the "reasonable person" test is satisfied on the facts, the standard is not impermissibly vague despite its broad wording. Id. at 1123.

At the outset it is important to note that the submission of a case on stipulated facts under Commission Rule 61 is not without some peril to a party having the burden of proof on particular issues. The Rule specifically provides that "The submission of a case under this rule does not alter the burden of proof, the requirements otherwise applicable with respect to adducing proof, or the effect of failure of proof." It is incumbent upon a party making such a submission to insure that the stipulation contains sufficient factual allegations to sustain its position on each issue, including facts which relate to any possible defenses which may apply. The Court can, of course, draw reasonable inferences from the stipulated facts.

Although somewhat scant on detail, this Court concludes that the stipulated facts in this case, together with reasonable inferences to be drawn therefrom, are sufficient to sustain the Secretary's position under the "reasonable person" test. The facts establish that employees of respondent were required to place cones and signs on and adjacent to a highway having a 55 m.p.h. speed limit which was regularly traveled by motor vehicles. This situation exposed there employees to the hazard of being struck by vehicles driving at high rates of speed with the resulting potential for serious injury or death. A reasonable person under these circumstances would take some precautions to insure that this hazard was addressed by requiring the use of brightly colored vests which might avert an accident and hardhats to minimize head injuries in the event an accident did occur.

The Secretary has established that the cited standard has application to the facts of this case; that the respondent's employees did not wear vests and hardhats while working in a zone of danger and that these employees had access to the hazardous condition. The Secretary has also established that respondent corporation had the requisite knowledge of the hazardous condition. The stipulated facts reflect that the work of placing the cones and signs on the highway was done under the direction of respondent's foreman. As a general rule, the actions and knowledge of supervisory employees are imputed to their corporate employer and the employer is responsible for violations created or condoned by the supervisor. Structural Steel Erectors, d/b/a Pecosteel - Arizona., 75 OSAHRC 15/141, 2 BNA OSHC 1506 1975 CCH OSHD ś 19,223 (No. 1930, 1975), Dun-Par Engineered Form Co., 86 OSAHRC 40/A8, 12 BNA OSHC 1962, 1986 CCH OSHD ś 27,651 (No. 82-928, 1986). A corporate employer may overcome the knowledge presumption by proving (1) it had established work rules that effectively implemented the requirements of the standard; (2) these rules were effectively communicated to employees and enforced; and (3) the failure of its employees to comply with the rules was an unforeseeable act and contrary to the rules. Floyd S. Pike Electrical Contractors, Inc., 78 OSAHRC 50/E1, 6 BNA OSHC 1675, 1978 CCH OSHD ś 22,805 (No. 3069, 1978). The stipulated facts in this case do not address this particular issue. Accordingly, respondent has not overcome the presumption and the Secretary prevails.

In its brief respondent argues that the citation should be vacated because the protective clothing would not have prevented the accident under the particular facts of this case. This proposition is based upon, the stipulated facts that the driver was "blinded by the rising sunlight and did not see the employee" and that under these conditions, the wearing of brightly colored vests would not have increased the driver's visibility of respondent's employees nor the accident. This theory was addressed and rejected by the Commission in Concrete Construction Corporation, 76 OSAHRC 47/A2, 4 BNA OSHC 1133, 1976 CCH OSHD ś 18,838, 20,610 (No. 2490, 1976):

We must also disagree with that part of the Judge's report wherein he requires the Secretary to "show what caused a particular accident and that the cause was a violation of the standard cited." The employer's special duty to comply with section 5(a)(2) is not dependent on whether a failure to comply with a standard has or has not been the causative agent of injuries, nor in a finding of noncompliance predicated on the accuracy of a post-hoc accident analysis. The Act may be violated even though no injuries have occurred, and even though a particular instance of noncompliance was not the cause of injuries. Instead, the inquiry here should have been directed to the question of whether or not the employer complied with the standard. In this way, we best enforce the employer's duty to abate and thereby prevent injuries, the keystone of the Act. Brennan v. O.S.H.R.C. & Underhill Const. Corp., 513 F.2d 1032, 1039 [2 OSHC 1641 (2d Cir. 1975).

The Court adopts the stipulation of the parties as its findings of fact.

CONCLUSIONS OF LAW

(1) This Court has jurisdiction of the parties and subject matter in this case.

(2) 29 C.F.R. § 1910.132(a) is applicable to the circumstances described in the stipulation of facts filed by the parties.

(3) Respondent violated the cited standard by its failure to require employees to wear appropriate equipment while working on or near a public highway as described in the citation.

(4) The Secretary's proposed penalty of $490.00 in appropriate under the circumstances.

ORDER

It is hereby ORDERED:

Serious Citation No. 1 is affirmed with a penalty of $490.00 assessed.

EDWIN G. SALYERS Judge

Date: May 8, 1991

FOOTNOTES:

[[1]] The standard provides:
§ 1910.132 General requirements.
(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, . . . and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, . . . or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

[[2]]Commission Rule 61 provides:
§ 2200.61 Submission without hearing.
A case may be fully stipulated by the parties and submitted to the Commission or Judge for a decision at any time. The stipulation of facts shall be in writing and signed by the parties or their representatives. The submission of a case under this rule does not alter the burden of proof, the requirements otherwise applicable with respect to adducing proof, or the effect of failure of proof. . . .
(Emphasis added)

[[3]] While acknowledging that the issue is not before the Commission on review, Commission Wiseman would note that, in his view, employees working in circumstances such as these would receive more effective protection if a traffic control plan were in place. For example, 29 C.F.R. § 1926.201(a)(1), contained in Subpart G of the construction industry standards and quoted by Farrens in its brief before the judge (incorporated by reference in its review brief), provides for such traffic controls. Commissioner Wiseman recognizes, as the judge did in his decision, that the Secretary apparently cited Farrens under section 1910.132(a) because of the Commission decision in Consumers Power Co., 5 BNA OSHC 1423, 1425, 1971-78 CCH OSHD § 21,786 p. 26,190 (No. 11107, 1977). In that decision, the Commission concluded that the tree trimming operations there were not covered by the cited construction standard, 29 C.F.R. § 1926.95)(d), primarily because Subpart V, in which it was located, did not apply to maintenance work. Commissioner Wiseman intimates no view on the applicability of Consumers Power Co. to the facts here.

[[1]] § 2200.61 Submission without hearing.
A case may be fully stipulated by the parties and submitted to the Commission or Judge for a decision at any time. The stipulation of facts shall be in writing and signed by the parties or their representatives. The submission of a case under this rule does not alter the burden of proof, the requirements otherwise applicable with respect to adducing proof, or the effect of failure of proof. Motions for summary judgment are covered by Fed.R.Civ.P. 56.