UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 4675

CANDLER-RUSCHE,

 

                                              Respondent.

 

 

 

May 19, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BARNAKO, Chairman:

Pursuant to 29 U.S.C. Sec. 661(i), we review whether Judge Louis J. Rubin properly modified a serious citation to find a nonserious violation of the safety standard prescribed at 29 C.F.R. Sec. 1926.550(b)(2), as it incorporates ANSI provision B 30.5–1968, Sec. 5–3.2.3(e)[1] He assessed a penalty of $100. For the reasons that follow we affirm the serious citation and assess a penalty of $550.

The facts are essentially those found by Judge Rubin. On August 7, 1973, Respondent was engaged in construction work at a Ford Motor Company Steel Division site in Dearborn, Michigan. Respondent’s employees had been unloading pile driving tubing from a railroad car located on a siding adjacent to the site. The tubing was lifted from the siding by Respondent’s crane over a ten-foot high fence and piled at a location on the construction site.

When the unloading was completed Respondent’s crane operator, Henry, maneuvered the crane so that employee Horetski, while standing on the railroad car, could have access to the crane’s rigging. Horetski fashioned a sling out of the rigging, signaled the crane operator and was lifted out of the car. Another employee, Wickman, who had been working on the ground by the railroad car, grabbed onto the crane’s spreader Hooks as the rigging went by him. The rigging was attached to a 400 pound weight (headache ball) which in turn was attached to a block. As the crane operator started to lift the men over the fence, the block ‘two-blocked’ by running into the crane boom, and it tipped. The headache ball and suspended rigging were released and fell on the railway side of the fence. Wickmen fell and was crushed by the ball. Horetski was thrown clear but suffered spinal and leg injuries.

Horetski and Wickmen had been transported by the crane on three earlier occasions during the day. And, although it is disputed, Judge Rubin determined that neither of Respondent’s two supervisors on the job site had actual knowledge of any of these riding incidents. The record supports this determination, and we accept the finding.

Respondent asserted in its defense that it had an enforced work rule which prohibited employees from riding the hook or load with only two exceptions. Supervised employees could ride the load while pile-driving to ‘stick sheeting’ and ride test loads. Respondent therefore requested the citation be vacated on the basis that the incidents giving rise to this case were unforseeable.

Judge Rubin found there was no reason to dispute the existence of the company policy. He did note, however, that there was a question about whether the policy was properly communicated and enforced. The record clearly established that Respondent never instructed its crane operator as to when it was appropriate to ride the rigging. As the Judge observed, Respondent did not challenge the veracity of the crane operator who did testify that he had never been told personally by anyone with responsibility as to when it was appropriate for an employee to ride the rigging.

Accordingly, Judge Rubin refused to vacate the citation in its entirety. He found Respondent’s safety program was inadequate because Respondent failed to instruct its crane operator of the prohibition against riding the load. The Judge concluded that a non-serious violation of the cited standard had been established. On the question of whether the violation was serious, the Judge rejected the Secretary’s contention that the two supervisors could have known of the violation through the exercise of reasonable diligence as ‘pure conjecture.’

We agree with the Judge’s finding that Respondent’s program was inadequate. It was inadequate because Respondent failed to inform the crane operator that employees were not to ride the crane’s rigging. It failed to inform the one person who had control of the situation and who could have prevented not only the incident which resulted in a fatality but all the other riding incidents as well.

Although our decision is not predicated on it, we also would find the program inadequate in view of Respondent’s pile driving exceptions to stick sheeting and test loads. At the very least, the exceptions can be said to undermine Respondent’s safety program because they can lead to confusion as to when employees are or are not permitted to ride the rigging. In this regard we note that Wickman had been reprimanded on two prior occasions for riding the rigging and Horetsky understood that he could ride the rigging when circumstances were such that there was no other way.

Under the circumstances, Respondent’s defense that the riding incidents were unforeseeable and unpreventable must fail. Compare, Horne Plumbing and Heating Co. v. OSHRC, 528 F.2d 564 (5th Cir. 1976) and Brennan v. OSHRC (Alsea Lumber Company), 511 F.2d 1139 (9th Cir. 1975).

Since we decide that Respondent’s program was inadequate, it follows that the Judge properly determined not to dismiss the citation. He erred, however, by determining that the violation was other than serious. The question is, and was, whether the serious violation was foreseeable with the exercise of reasonable diligence. The Judge apparently decided this question in the context of whether Respondent’s supervisors could have known of the specific incident which resulted in death and injury. But, as several Courts of Appeals have noted:

A particular instance of hazardous employee conduct may be considered preventable even if no employer could have detected the conduct, or its hazardous nature, at the moment of its occurrence. . . . [where] such conduct might have been precluded through precautions concerning the hiring, training, and sanction of employees. Brennan v. Butler, Lime and Cement Co., 520 F.2d 1011, 1017 (7th Cir. 1975) citing and quoting National Realty & Construction Co., Inc. v. OSHRC, 489 F.2d 1257, 1266–67 n. 37 (D. C. Cir. 1973).

 

Also see Horne and Alses, supra, and Ames Crane & Rental Service, Inc. v. OSHRC, No. 75–1591 (8th Cir., April 1, 1976). Since Respondent’s program was inadequate, the riding incidents were preventable, and Respondent could have known of the violation. There can be no question on the facts of this case as to the potential for death. The violation was serious.

A penalty of $550 is appropriate. The gravity of the violation is high, as indicated by the death and serious injury. Also, the probability of the accident was increased by the fact that there was no safety latch on the block from which the weight ball was suspended. Respondent deserves credit for a measure of good faith in that it has shut down unsafe operations. And, Respondent is reasonably small, since it regularly employs only thirty to forty-five persons. The record is silent as to whether the Respondent has any history of previous violations.

Accordingly, the citation for serious violation is affirmed and a penalty of $550 is assessed. It is so ORDERED.

 

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

By: Gloria W. White

Acting Executive Secretary

Dated: May 19, 1976

 

MORAN, Commissioner, Dissenting:

This is another case where my colleagues apply their rather bizarre review rule which, I gather, can be stated as follows:

If the trial Judge’s findings are favorable to the Secretary of Labor they will not reweigh the evidence on review. If they are adverse to the Secretary of Labor they will reweigh the evidence and substitute findings favorable to the Secretary of Labor.

 

In this case, Judge Rubin was the trier of fact. After observing the demeanor of the witnesses, evaluating their credibility and weighing all the evidence, he correctly concluded that the Secretary failed to prove that respondent possessed either actual or constructive knowledge of the hazardous conduct alleged against it. He concluded that the elements of a serious violation had not been established. 29 U.S.C. § 666(j). In order to permit a full examination of his findings, I attach hereto as Appendix A the full text of his decision and incorporate it by reference herein.

In case after case where Review Commission Judges have, on the same basis, reached conclusions favorable to the Secretary, my colleagues have asserted that they would not reweigh the evidence on which the Judges’ conclusions were based. For example, in Secretary v. Okland Construction Company, OSAHRC Docket No. 3395, February 20, 1976, they stated:

‘[I]t is the judge who as trier of fact had the opportunity to observe the demeanor of the witnesses, evaluate their credibility, and weigh the evidence accordingly. Since his finding is supported by the evidence, it cannot be said that he erred. Under such circumstances, we do not believe it appropriate to reweigh the evidence on review and substitute our view of the evidence simply because a contrary factual finding is also possible. Accordingly, we will adopt the judge’s decision on the merits concerning the existence of the violation.’ (Footnote omitted.)

 

As this case and others[2] illustrate, however, they do not practice what they preach when a Judge’s conclusion is detrimental to complainant’s case.

There is ample support in this record for the Judge’s findings regarding inadequate proof of respondent’s knowledge of the alleged hazard. Accordingly, those findings should be adopted by the Commission.

The record is also replete with evidence that respondent’s employees were well-acquainted with the company’s proscription against riding the crane except under exceptional circumstances. Although the crane operator testified that he was not specifically told by supervisory personnel that such riding was prohibited, it is clear that he knew that such riding was contrary to company rules. In this respect, his testimony was as follows:

‘Q. Was there any question in your mind at that time that it was a company policy that absolutely prohibited riding on the ball except in those exceptional circumstances that we have referred to before?’

 

‘A. That is right.’

 

Obviously, the important thing is that he knew the policy and not how he knew it. My colleagues seem to forget what the charges are in this case. Respondent was not charged with failing to have an adequate safety program.[3] Nevertheless, Messrs. Barnako and Cleary have no trouble affirming the citation on that basis contrary to the rule that:

‘[A]n employer cannot be penalized for failing to correct a condition which the citation did not fairly characterize.’

 

National Realty and Construction Company, Inc. v. OSAHRC, 489 F.2d 1257, 1265 n. 31 (D.C. Cir. 1973).

It is also rather ironic that Mr. Barnako’s lead opinion makes reference to one of the employer’s faults as a lack of employee training. Despite the universal recognition (by Chief Justice Burger, the American Bar Association and others) that a regular program of continuing legal education for judges is essential, it was Mr. Barnako who cancelled such training sessions which had been scheduled for all Review Commission Judges in December 1975 and May 1976. Although two such sessions annually were conducted since this Commission began, none have been scheduled since Mr. Barnako became the Commission’s Chairman in August 1975. Consequently, for him to base an employer’s liability—even in part—upon the lack of an employee training program, brings to mind the immortal words of John Selden: ‘Do as I say, not as I do.’[4]

Additionally, my colleagues forget that employees have some responsibilities under the Act. The evidence shows that all of respondent’s employees who participated in the crane riding were cognizant of the rules prohibiting it and did so despite warnings and reprimands to the contrary. Inasmuch as the Act requires that ‘[e]ach employee shall comply with . . . orders issued pursuant’ thereto,[5] 29 U.S.C. § 654(b), the Congress did not contemplate that a diligent employer would be held accountable for willful employee misconduct as the result of direct disobedience of standing rules regarding job safety.

There are two additional matters in this case which require comment in the context of the erroneousness of the majority’s holding. The first matter is the incorporation by reference of American National Standards Institute standard B30.5–1968 in 29 C.F.R § 1926.550(b)(2). As I stated in Secretary v. Northern Metal Company, 20 OSAHRC 869 (1975), any standard that requires employers to ascertain its substantive requirements from sources other than the Federal Register is not, in my opinion, reasonably available within the context of the Act.

Secondly, I believe that the Commission’s time can better be spent at things other than deciding whether a violation is ‘serious’ of ‘nonserious.’ As I have indicated in Secretary v. California Stevedore and Ballast Company, 4 OSAHRC 642, 647 (1973), Secretary v. Portland Stevedoring Company, 3 OSAHRC 1077, 1079 (1973), and Secretary v. Environmental Utilities, Inc., OSAHRC Docket No. 3141, February 6, 1976, there is no practical difference between ‘serious’ and ‘nonserious’ violations.[6] Both may incur a maximum penalty of $1000.00, and neither has a specified minimum. The majority are therefore adjudicating a question[7] where no practical difference exists simply to supply some type of foundation upon which they can base an increase in the assessed penalty. Why they go through these motions is beyond me. Many times in the past they have sustained penalty-increases against employers—both where there were nonserious violations affirmed and even in cases where the Secretary of Labor himself proposed no penalty whatsoever. Perhaps the time might have been better spent pondering the nature of employee misconduct rather than the mechanics of adding $450 to the penalty assessed by the Judge.

It is my conclusion that Judge Rubin correctly found that the evidence in the instant case failed to establish that respondent had actual or constructive knowledge of the alleged hazardous conduct. Having so found, however, I submit that the case law required that the citation be vacated rather than merely reducing the characterization of the alleged violation from serious to nonserious. Since knowledge of the existence of a violation, either actual or constructive, is also an essential element of a nonserious violation of the Act,[8] the only correct disposition on the record before this Commission is the entry of a finding of ‘no violation.’

 

APPENDIX A

 

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 4675

CANDLER-RUSCHE, INC.,

 

                                              Respondent.

 

 

FINAL ORDER DATE: June 14, 1974

DECISION AND ORDER

Appearances:

John C. Nangle, Esquire, and Karl Overman, Esquire, for the Secretary of Labor

 

Douglas H. West, Esquire, and John D. Mabley, Esquire, for Respondent

 

STATEMENT OF THE CASE

Louis J. Rubin, Judge:

This is a proceeding pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (hereafter called the Act). Respondent contests the Citation and Notification of Proposed Penalty issued by the Secretary of Labor on September 17, 1973, pursuant to Section 9(a) of the Act.

The Citation alleged that an inspection of Respondent’s workplace located approximately 30 feet west of Gate No. 12, Ford River Rouge Plant near Schaeffer Road, Dearborn, Michigan disclosed that Respondent violated Section 5(a)(2) of the Act by failing to comply with an occupational safety and health standard promulgated by the Secretary pursuant to Section 6 thereof.

The alleged violation, abatement date and proposed penalty are as follows:

Serious Violation

Abatement Date

Proposed Penalty

Crawler crane operator in Respondent’s employ moved a load while two other employees were on the load.

29 CFR 1926.550(b)(2) and ANSI B30.5–1968, Section 5–3.2.3(e)

September 19, 1973

$550

 

The case came on for hearing in Detroit, Michigan on February 7, 1974. No affected employee nor authorized employee representative has asserted party status.

ISSUES

The issues to be decided are whether Respondent violated ANSI standard B30.5–1968, Section 5–3.2.3(e) as incorporated in 29 CFR 1926.550(b)(2); and if so, whether this was a serious violation within the meaning of Section 17(k) of the Act and what penalty is appropriate.[9]

SUMMARY AND DISCUSSION OF THE EVIDENCE

ANSI standard B30.5–1968, Section 5–3.2.3.(e) provides:

‘The operator (of a crawler crane) shall not hoist, lower, swing, or travel while anyone is on the load or hook.’

 

The parties have stipulated to the truth of the following facts for the purpose of this proceeding:

Respondent, Candler-Rusche, Inc., is a Michigan corporation whose main office is located at 30303 Beck Road, Wixom, Michigan. Respondent is generally engaged in the construction business.

By reason of Respondent’s use of materials which originate both within and without the State of Michigan, Respondent is engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970 (hereinafter the Act).

On August 7, 1973, the date of the alleged violation of the Act, Respondent was engaged in construction operations in the near vicinity of Gate 12 of the Ford Motor Company Steel Division, near Schaefer Road, in the City of Dearborn, Michigan.

The incident which serves as a basis for the alleged violation of the Act took place at approximately 11:00 a.m. on the abovementioned date at the Respondent’s job site at the Ford Motor Company Steel Division.

At the time of incident in question, certain employees of the Respondent had just completed unloading pile driving pipe to be used by Respondent in its construction operations at the Ford job site. The unloading operation itself had consisted of attaching hooks and rigging to the various lengths of pipe being unloaded. The pipe was then hoisted by a crawler crane from a gondola railroad car, which was parked on a railroad siding at Respondent’s job site, over a 10-foot barbed wire fence, separating the Respondent’s job site from the railroad siding, and was then lowered to the ground and piled at a point within Respondent’s job site.

Immediately prior to the incident in question, one of Respondent’s employees, Edward J. Horetski, was standing in the empty gondola railroad car. Another of Respondent’s employees, Jeffrey Wickman, was engaged in collecting metal banding and scrap on the ground next to the gondola railroad car. Mr. Harold Henry, also an employee of Respondent, who had been the crane operator during the unloading operation, maneuvered the crane into a position which enabled Edward Horetski, who was still standing in the railroad car, to have access to the crane rigging which had been used in the completed unloading operation (See Exhibit A). After fashioning a sling out of part of the crane rigging, Mr. Horetski signalled the crane operator and was lifted out of the railroad car. As the rigging passed by Jeffrey Wichman, he grabbed onto the spreader hooks which had been used in the unloading operation. The crane operator then began to hoist the men over the fence, with Edward Horetski standing on the wire rope spreader (sling) and Jeffrey Wickman hanging by his hands from the spreader hooks.

While the crane was attempting to hoist the two men over the fence, the block attached to the weight ball (or headache ball) ‘two-blocked’ by running onto the end of the crane boom. This action caused the block attached to the weight ball to tip in such a manner as to release the weight ball, and the rigging attached thereto upon which the two men were riding, causing the men, the rigging and the weight ball to fall to the ground on the same side of the fence as the siding upon which the unloaded railroad car was located. Edward Horetski was thrown clear of the falling rigging and sustained a fracture of the leg and injury to his spine. Jeffrey Wickman fell directly beneath the weight ball and was killed by the force thereof as it landed upon him.’ (Exhibit S–2)

            In addition to the above stipulation, there is no real dispute about the following pertinent facts. Respondent had eight employees on the work site at the time of the accident. Ronald LaJoyce, Jeffrey Wickman’s brother-in-law, company superintendent; Robert Davis, foreman; Stillman Eye and John Burger, welders; Harold Henry, crane operator; William Langenburg, Edward Horetsky and Jeffrey Wickman, unloading crew. Jeffrey Wickman and Edward Horetsky had been lifted by the crane across the fence on three occasions earlier that morning. They first crossed over in this fashion when they commenced their day’s work shortly after 8 a.m., and then going to and from their coffee break.

Respondent asserts in its defense that it has a work rule forbidding employees from riding the hook or load, that it enforced this work rule, that the employees knew the work rule, and that in direct contravention of company policy they endangered their own safety in a manner that was not known to Respondent and unforeseeable. Respondent’s witnesses testified that it is contrary to company policy to ride the hook or load with two well-defined exceptions relating to pile driving, ‘sticking sheeting’ and ‘testing a load.’ The exceptions were always performed under close supervision and adequate safety precautions. There is no reason to dispute the existence of the company policy. The question to be resolved is whether the policy was properly communicated and enforced.

LaJoyce testified that he gave explicit instructions to Wickman, Langenburg and Horetsky concerning the company policy. Davis testified that he gave similar instructions to the company employees every Monday morning. The record shows that Wickman had been reprimanded on two prior occasions for the same offense which resulted in his death—first in 1970 and again in the latter part of 1972. There is no question that Wickman knew and understood the company policy. However, Horetsky’s understanding was that it was permissible to ride the crane when circumstances are such that there is no other way. Horetsky decided that he was compelled to ride the crane since the alternative was to walk through an opening in the fence, a distance of 365 feet. He had not been told that this was contrary to company policy. Langenburg testified he had never heard LaJoyce or Davis give instructions concerning riding the hook or load. Henry was employed by Respondent approximately six weeks at the time of the accident. Henry testified that he was never told personally be anyone in responsibility as to when it was appropriate for an employee to ride the rigging. However, as a crane operator, he knew ‘You are not supposed to ride a ball at any time unless absolutely necessary.’

In resolving this conflict, it is noted that LaJoyce does not allege that he gave specific instructions to the crane operator and Davis does not identify the employees to whom he talked concerning company policy. Assuming that Langenburg and Horetsky were told specifically and clearly about the company rule, which they deny, the weak link in Respondent’s case is Henry, a key figure and participant. The interest and veracity of Henry has not been challenged by Respondent.

Brennan v. Occupational Safety and Health Review Commission (Gerosa, Incorporated) 491 F2d 1340 (2d Cir. 1974), sets forth the obligation of an employer under the Act. The Court there observed that the Act:

‘has been called ‘the most revolutionary piece of ‘labor’ legislation since the National Labor Relations Act’ . . . The dramatic legislative history of the Act demonstrates that Congress regarded it as an important piece of remedial legislation, designed to reduce ‘work related injuries and illnesses,’ which cause ‘ever increasing human misery and economic loss.’ S.Rep. No. 91–1282, 91st Cong., 2d Sess. (1970), quoted at 1970 U.S. Code Cong. and Admin. News, p. 5177. . . . Congress hoped to achieve its objective of preventing accidents by encouraging employers ‘to institute new and to perfect existing programs for providing safe and healthful working conditions.’ 29 U.S.C. § 651(b)(1).’

 

In the case cited above, the court held that the term ‘designate’ requires ‘specific and positive action’ by an employer to inform an employee of the existence and nature of his inspection duties. A fortiori, where the standard specifically prohibits the operation of a crane while anyone is on the hook or load, a tacit understanding of a work rule is not enough. Only if the employee is explicitly informed that he is charged with complying with the standard and with company policy is there any assurance that the employee will know his responsibility and take it seriously.

The evidence of record may be questionable as to the instructions given to Horetsky. However, it is not necessary to decide whether Horetsky and Wickman were culpable. In view of the purpose of the statute to set new standards of industrial safety, common law defenses such as assumption of risk or contributory negligence will not exculpate an employer. It is clear that Henry had no more than a tacit understanding of his responsibilities. It is Respondent’s failure to specifically inform Henry of the prohibition against riding the load or hook which provides the basis for finding a violation.

SERIOUS VIOLATION

Section 17(k) of the Act provides that

a serious violation shall be deemed to exist at a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

 

The probability that death or serious physical harm could result from the employees’ activities in riding the crane on the day of the accident is self-evident. Respondent readily admits to this probability. However, a serious violation is not established if the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

LaJoyce and Davis were the two supervisors on the jobsite. The evidence is conflicting and inconclusive as to whether they observed Wickman and Horetsky riding the crane at the time of the accident. If they did, there is no indication that they could have stopped the movement of the crane. Thus, it is not the circumstance of the accident that is controlling but whether the supervisory personnel had prior knowledge and condoned the practice.

The uncontradicted testimony of LaJoyce is that he was working in the office trailer at the time the men first rode the crane in the morning. He was not on the site during the coffee break. Therefore, it cannot be held that LaJoyce knew or with the exercise of reasonable diligence could have known of the violation. Davis was on the site and worked with the men all that morning. None of the witnesses could testify that Davis saw the men riding the crane either when they first reported for work or during the coffee break. Davis denies such knowledge. Although the Secretary contends that with the exercise of reasonable diligence Davis could have know of the violation, this assertion is pure conjecture and not supported by evidence of lack of diligence.

One further matter warrants discussion. The Secretary contends that the company policy of allowing its employees to ride the crane for the purpose of ‘sticking sheeting’ and ‘testing a load’ is contrary to the standard and blurred any work rule with respect to riding the hook or load. No decision is here made as to whether these two activities are in violation of the standard. Respondent’s testimony—that they are well-defined exceptions to company policy and performed under close supervision and adequate safety precautions clearly distinguish the exceptions from the violation in this case. Culpability in the instant case cannot be imputed thereby.

PENALTY

In assessing the proposed penalty, the Secretary considered the criteria set forth in Section 17(j). Computation started with $1,000 for a serious violation, adjusted the maximum of 20 percent for good faith, the maximum of 20 percent for history of previous violations, and 5 percent for size, reducing the proposed penalty to $550. Since the evidence does not establish a serious violation, the proposed amount is not appropriate. It is held that the gravity of the violation is high since death or serious injury could probably result from an accident. However, the incidence is considered to be low since there is no record of previous accident from this type of activity involving Respondent’s employees. The evidence further shows that Respondent has shut down unsafe operations, has taken preventative safety measures in the past, and the company has an excellent reputation for safety. With this background of good faith, a penalty of $100 is deemed to be appropriate.

FINDINGS OF FACT

1. Respondent, Candler-Rusche, Inc., is a Michigan corporation, engaged in the construction business.

2. Materials used by Respondent originate outside the State of Michigan

3. On August 7, 1973, Respondent was engaged in construction operations approximately 30 feet west of Gate No. 12, Ford River Rouge Plant near Schaeffer Road, Dearborn, Michigan.

4. On August 7, 1973 at the above worksite, a crawler crane operated by one of Respondent’s employees lifted two of Respondent’s employees while they were suspended from the rigging or hook.

5. The crane operator had not been given specific instructions by Respondent prohibiting the operation of the crane while anyone is on the load or hook.

6. The activity described in (4) is one wherein there is a substantial probability that death or serious physical harm could, and in fact did, result.

7. Respondent did not know nor, with the exercise of reasonable diligence, could have known of the presence of the violation.

CONCLUSIONS OF LAW

1. Respondent is and, at all times relevant herein, was an employer engaged in a business affecting commerce within the meaning of Section 3 (5) of the Act.

2. The Occupational Safety and Health Review Commission has jurisdiction of the parties and subject matter herein pursuant to Section 10(c) of the Act.

3. On August 7, 1973, Respondent violated Section 5(a)(2) of the Act by its non-compliance with 29 CFR 1926.550(b)(2) which incorporates ANSI B30.5–1968, Section 5–3.2.3(e).

4. Since the requisite knowledge set forth in Section 17(k) of the Act is not shown to be present, a serious violation is not established.

ORDER

1. The Citation is affirmed except that the charge of a serious violation is modified to that of a non-serious violation.

2. The proposed penalty in the amount of $550 is reduced to $100.

 

Louis J. Rubin

Judge, OSHRC

Dated: May 15, 1974


[1] The standard reads:

All crawler, truck, or locomotive cranes in use shall meet the applicable requirements for design, inspection, construction, testing, maintenance and operation as prescribed in the ANSI B30.5–1968, Safety Code for Crawler, Locomotive and Truck Cranes.

The incorporated provision reads:

The operator shall not hoist, lower, swing, or travel while anyone is on the load or hook.

[2] See, e.g., Secretary v. Slyter Chair, Inc., 9 OSAHRC Docket No. 1263, April 8, 1976; Secretary v. Allis-Chalmers Corp., 20 OSAHRC 546 (1975).

 

[3] My colleagues in their dicta also conveniently disregard the fact that the exceptions to the respondent’s crane riding policy is not an issue in this case. Moreover, they point to nothing in the record which contradicts the Judge’s determination that ‘the well-defined exceptions to company policy [were] performed under close supervision and adequate safety precautions.’

 

[4] Table Talk (1689).

 

[5] Senator Williams commented on this provisions as follows:

‘. . . I might point out, too, that in order to make clear that achieving the goals of a safe workplace is not a one-sided matter, we added in committee a provision placing upon employees, as well as employers, the obligation to comply with all applicable requirements under the Act.’

116 Cong. Rec. (Senate) 18250 (1970).

[6] The 9th Circuit Court of Appeals reached the same conclusion:

Considering, as we must, the statute as a whole and 29 U.S.C. § 666 in its entirety, we are convinced that Congress intended the same meaning for the word ‘violation’ wherever it appears. Section (c), containing the only reference to nonserious violations, must be read in conjunction with Section (b). Both relate to employers who have merely ‘received a citation. Neither defines a violation. The sole difference between sections (b) and (c) lies in the mandatory assessment of penalty for serious violations and the permissive assessment for nonserious violations. Brennan v. OSAHRC and Raymond Hendrix d/b/a Alsea Lumber Company, 511 F.2d 1139, 1144 (9th Cir. 1975).

 

[7] It was directed for review by Commissioner Cleary.

[8] Horne Plumbing and Heating Company v. OSAHRC, 528 F.2d 564 (5th Cir. 1975); Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, supra.

[9] Respondent’s Answer affirmatively alleged that the standard cited was invalid being vague, ambiguous, arbitrary, unreasonable and impossible of performance. Respondent reasserted this defense in a Statement of Position dated February 5, 1974, indicating that argument will be fully set forth in its brief. The brief is silent as to this matter. It is noted that the Citation and the Complaint notified Respondent of the place of employment, the hazard and the nature of the violation. The charge provided fair notice and complied with the dictates of due process. Since no evidence or argument has been of offered, the defense of vagueness, etc. is not considered to be an issue.