DANIEL CONSTRUCTION COMPANY OF ALABAMA
OSHRC Docket No. 13874
Occupational Safety and Health Review Commission
June 30, 1981
[*1]
Before: CLEARY and COTTINE, Commissioners.
COUNSEL:
Office of the Solicitor, USDOL
George D. Palmer, Assoc. Reg. Sol., USDOL
Robert T. Thompson, for the employer
OPINION:
DECISION
BY THE COMMISSION:
This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). A decision of Administrative Law Judge John S. Patton is before the Commission for review under section 12(j) of the Act, 29 U.S.C. § 661(i). In his decision, Judge Patton disposed of citation 1, in which the Secretary of Labor ("the Secretary") alleged 14 other-than-serious violations of the Act, by affirming items 1 through 8 and 13 and by vacating item 11. n1 The judge also affirmed citation 2 which alleged one serious violation of the Act. The two citations were issued as the result of an inspection of a worksite in Dothan, Alabama, where Respondent, Daniel Construction Company of Alabama ("Daniel"), was constructing a nuclear power plant. The judge assessed a total penalty of $855 for the violations. Former Commissioner Moran directed review of the case "for error." Both Respondent and the Secretary filed objections to portions of the judge's decision.
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n1 The judge also vacated item 12. Inasmuch as neither party has taken issue with that portion of the judge's decision and there being no compelling public interest warranting further Commission action, the judge's disposition of item 12 will not be considered on review. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976). It is accorded the significance of an unreviewed judge's decision. Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976). Items 9, 10, and 14 were withdrawn by the Secretary less than one month after the hearing and therefore were not ruled upon by Judge Patton in his decision.
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I
Initially Daniel argues that both citations should be vacated because the cited construction standards, contained in 29 C.F.R. Part 1926, were invalidly promulgated under the Construction Safety Act, 40 U.S.C. § 333, and were therefore [*3] improperly adopted as established federal standards under section 6(a) of the Act, 29 U.S.C. § 655(a). n2 We have held recently that an employer's challenge to the validity of standards contained in Part 1926 based on an alleged irregularity in the procedures by which Part 1926's ancestor standards were promulgated under the Construction Safety Act will not be considered. We therefore affirm the judge's conclusions concerning items 2, 3, 4, 5, 6, 7, and 13. Having considered the criteria in section 17(j) of the Act, 29 U.S.C. § 666(i), we assess the penalties found appropriate by the judge, i.e., $110, $30, $40, and $30 for items 2, 5, 6, and 7, respectively, with no penalty for the remaining items. n3
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n2 Daniel's only defense to items 2, 3, 4, 5, 6, 7, and 13 is that the standards cited, i.e., respectively, § § 1926.402(a)(5), 1926.402(b)(3), 1926.402(a)(12), 1926.302(b)(4), 1926.303(b), 1926.303(c)(2), and 1926.500(d)(1), were invalidly promulgated.
n3 Daniel also argues that the judge erred in denying its motion to suppress the evidence obtained during the inspection on the ground that the inspection procedures set forth in § 8(a) of the Act, 29 U.S.C. § 657(a), violate the fourth amendment of the United States Constitution, and therefore the evidence in this case was obtained as the result of an unconstitutional search. The Supreme Court has held that the Act's inspection procedure violates the fourth amendment only to the extent that it authorizes warrantless inspections without consent. Marshall v. Barlow's, Inc., 436 U.S. 307 (1978). We have held that the fourth amendment principles announced by the Supreme Court in its Barlow's decision are "without retroactive remedy." Meadows Industries, Inc., 79 OSAHRC 74/F2, 7 BNA OSHC 1709 at 1712, 1979 CCH OSHD P23,847 at p. 28,952 (No. 76-1463, 1979). Inasmuch as the inspection in this case, which was conducted on June 3, 1975, predated the Court's decision in Barlow's, the Respondent's request to suppress the evidence is rejected. See, e.g., Bomac Drilling, a Division of TRG Drilling Corp., 81 OSAHRC / , 9 BNA OSHC 1681, 1981 CCH OSHD P25,363 (Nos. 76-450 & 76-2131, 1981); Daniel International Corp., 80 OSAHRC 25/A2, 8 BNA OSHC 1142, 1980 CCH OSHD P24,326 (No. 77-3121, 1980), appeal docketed, No. 80-1357 (4th Cir. May 22, 1980).
Moreover, the Barlow's decision does not affect the validity of an inspection to which the employer voluntarily consented. The record in the instant case establishes that Daniel consented to the search. However, Daniel argues that any consent was involuntary because it was unaware of its right to refuse entry. The issue of voluntariness requires the consideration of several factors. Knowledge of the right to object is only one factor to be considered when determining whether a search was voluntary. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Other factors to be considered in assessing voluntariness are coercion and misrepresentation. Schneckloth, supra; Bumper v. North Carolina, 391 U.S. 543 (1968). In this case the compliance officer duly presented his credentials and Daniel was fully apprised of the nature and purpose of the inspection. 29 U.S.C. § 657(a); Occupational Safety and Health Administration, U.S. Dep't of Labor, Field Operations Manual, Chap. V, Sec. D, P2(a). No evidence of coercion or misrepresentation has been introduced by Daniel. Finally, Daniel has not brought to our attention any record evidence revealing that it intended to object to the entry at the time of the inspection. We conclude that Daniel voluntarily consented to the inspection. See Stephenson Enterprises, Inc. v. OSHRC, 578 F.2d 1021 (5th Cir. 1978); Walter C. Mehlenbacher, 78 OSAHRC 72/A2, 6 BNA OSHC 1927, 1978 CCH OSHD P22,985 (No. 15904, 1978).
[*4]
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II
A
The Secretary alleges in item 1 of citation 1 that Daniel failed to comply with the standard at section 1926.28(a) n4 by failing to assure that seat belts were used by operators of earthmoving machinery equipped with rollover protection. The evidence establishes that two of Daniel's employees operated bulldozers without wearing the seat belts that had been provided with the vehicles. The compliance officer concluded that each operator was exposed to the danger of being thrown into the path of his vehicle if a seat belt was not used. In addition, these bulldozers were fitted with roll bars. The compliance officer testified that each operator could be pinned beneath the roll bar if his bulldozer overturned while being driven over the uneven terrain on the worksite. This testimony was not refuted. On this evidence, Judge Patton found that Daniel should have recognized the hazards confronting the bulldozer operators and concluded that Daniel violated the standard by failing to assure that protective seat belts were worn.
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n4 The standard provides:
§ 1926.28 Personal protective equipment. (a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.
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On review, Daniel contends that Judge Patton's affirmance of the alleged violation should be reversed. Daniel argues that the judge incorrectly interpreted the requirements of section 1926.28(a). It contends that the standard should be read to require the use of seat belts only where there is both proof of a hazardous condition and another standard in Part 1926 requiring the use of seat belts.
The Commission has rejected the interpretation of the standard urged by Daniel. We read section 1926.28(a) to invoke the personal protective equipment requirement when there is either: (1) exposure to a hazardous condition, or (2) another referrable standard in Part 1926 that indicates the need for the use of personal protective equipment. S & H Riggers [*6] and Erectors, Inc., 79 OSHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), appeal docketed, No. 79-2358 (5th Cir. June 7, 1979). In addition to establishing one of these preconditions, the Secretary must identify the particular type of personal protective equipment that should have been used. S & H Riggers, supra. n5
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n5 In S & H Riggers, the Commission reversed prior Commission decisions that required the Secretary to establish the feasibility and likely utility of the suggested personal protective equipment. The majority in S & H Riggers concluded that it is inappropriate to assign to the Secretary the burden of proof reserved for cases arising under § 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1), the "general duty clause."
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It is clear from the record that the Secretary has established noncompliance with section 1926.28(a). The compliance officer described the hazards confronting Daniel's employees as they operated the earthmoving machinery. Furthermore, it is evident that [*7] the hazards associated with the operation of the bulldozers could have been eliminated by the use of seat belts. n6
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n6 The Commission has previously held that the use of seat belts was required under similar circumstances. See Sweetman Construction Company, 76 OSAHRC 35/A2, 3 BNA OSHC 2056, 1975-76 CCH OSHD P20,466 (No. 3750, 1976); cf. Ed Cheff d/b/a Ed Cheff Logging, 81 OSAHRC / , 9 BNA OSHC 1883, 1981 CCH OSHD P25,431 (No. 77-2778, 1981) (failure to use seat belts on crawler tractor found to be noncompliance with section 1910.132(a), the general industry standard for personal protective equipment).
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Daniel also maintains that Judge Patton erred by holding that it "failed to assure" the wearing of seat belts. Daniel argues that the Act does not impose the duty of an "assurer" upon the employer. It asserts that the standard can only be read to provide that seat belts be "required" by the employer and maintains that the evidence fails to establish that seat belts were not in fact required. [*8]
Daniel misconstrues the judge's holding. The Act requires employers to comply with safety and health standards which define the employer's responsibilities under particular circumstances. 29 U.S.C. § 654(a)(2). Daniel was cited for noncompliance with section 1926.28(a), which imposes upon the employer the duty to require the use of appropriate personal protective equipment. An employer's liability is measured against that duty, regardless of whether the pleadings purport to impose a greater obligation. Therefore, despite the terminology used by Judge Patton, his holding is restricted by the terms of the standard to a finding that Daniel failed to require the use of seat belts.
In response to the evidence adduced by the Secretary regarding noncompliance, it was incumbent upon Daniel to support its assertion that it did in fact require seat belts by proving that its employees' failure to wear seat belts was unpreventable employee misconduct. To establish this defense an employer must prove that its employee's action constituting noncompliance with a standard was a departure from a workrule that was effectively communicated to employees and was uniformly and effectively enforced [*9] by the employer. Stuttgart Machine Works, Inc., 81 OSAHRC / , 9 BNA OSHC 1366, 1981 CCH OSHD P25,216 (No. 77-3021, 1981); H.B. Zachry Co., 80 OSAHRC 9/D8, 7 BNA OSHC 2202, 1980 CCH OSHD P24,196 (No. 76-1393, 1980), aff'd, No. 80-1357 (5th Cir. March 2, 1981). However, Daniel did not adduce any evidence tending to show that it has adopted and enforced a workrule requiring that seat belts be worn. In fact, when questioned by Daniel's safety director during the course of the inspection, the operators stated that they did not believe seat belts were necessary. Moreover, neither employee indicated that Daniel required its operators to wear seat belts. Thus, we conclude that Daniel has failed to establish that its employees' failure to wear seat belts was unpreventable misconduct. We therefore affirm the judge's conclusion concerning item 1 of citation 1. Having considered the penalty criteria in section 17(j) of the Act, we assess the proposed penalty of $45.
B
Item 8 of citation 1 alleges that Daniel failed to comply with the standard at section 1926.100(a) n7 by failing to assure that employees wear hard hats. The compliance officer testified that four out [*10] of the approximately 1,000 employees that he observed at the project were not wearing hard hats. He testified that the four were identified as Daniel employees. Daniel's safety director testified that company policy requires hard hats to be worn at all times and that recalcitrant employees are subject to disciplinary action. Judge Patton affirmed the violation, finding that the four Daniel employees were exposed to the hazard of falling objects. The judge specifically rejected Daniel's "isolated incident" defense. He concluded that the failure to four employees to wear head protection could not be characterized as an isolated occurrence. On review, Daniel challenges the correctness of this finding.
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n7 The standard reads as follows:
§ 1926.100 Head protection. (a) Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be protected by protective helmets.
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Daniel's argument raises the affirmative defense [*11] that the hard hat violation resulted from the unpreventable misconduct of its employees. To establish this defense Daniel must prove that the failure of four employees to wear hard hats was a departure from a workrule that had been effectively communicated and is uniformly and effectively enforced. See Stuttgart Machine Works, Inc., supra; H.B. Zachry Co., supra. A review of the record convinces us that Daniel has sustained the defense. Between 2,500 and 3,000 workers were employed at the construction project. n8 The evidence establishes that Daniel had a workrule requiring hard hats to be worn. Daniel implemented its safety policy by providing each employee with a safety manual specifically setting forth the requirement and by disciplining employees who failed to abide by the rule. Thousands of employees worked at the site yet only four were observed without hard hats. This overwhelming degree of compliance with the workrule is convincing evidence that Daniel's workrule on hard hats was uniformly and effectively enforced n9 and that the noncompliance was unpreventable. We therefore conclude that the judge erred in rejecting Daniel's unpreventable employee [*12] misconduct defense.
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n8 Daniel's precise contractual responsibilities at the project are not clearly described in the record. However, there is ample evidence indicating that Daniel actively managed the construction project and exercised control over the various subcontractors. Daniel's responsibility for maintaining compliance with the hard hat regulation, therefore, extended to all employees at the worksite. See Knutson Construction Company, 76 OSAHRC 131/F3, 4 BNA OSHC 1759, 1976-77 CCH OSHD P21,185 (No. 765, 1976), aff'd, 566 F.2d 596 (8th Cir. 1977).
n9 This is not to say that the obligation to protect each employee diminishes as the size of the work force increases. The holding is limited to the facts of this case establishing that Daniel had taken all steps that could reasonably be expected in order to afford employees necessary head protection.
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However, when a general direction for review has been issued and the Commission is considering reversing the judge in response to objections raised [*13] on review by the aggrieved party, as in the instant case, our practice has been to afford the opposing party an opportunity to brief the issue. MCC of Florida, Inc., 81 OSAHRC / , 9 BNA OSHC 1895 at 1897 n. 7, 1981 CCH OSHD P25,420 at p. 31,681 n. 7 (No. 15757, 1981). See, e.g., Dick Corp., 79 OSARHC 101/E8, 7 BNA OSHC 1951 at 1956 n. 15, 1979 CCH OSHD P24,078 at p. 29,252 n. 15 (No. 16193, 1979). The Secretary in this case should thus be allowed to present his arguments for rejecting the unpreventable employee misconduct defense. We therefore conditionally reverse the judge and vacate item 8 in citation 1. Our decision on this issue will become a final order of the Commission unless the Secretary files a statement of intent to submit a brief challenging Respondent's unpreventable employee misconduct defense within ten days of the issuance date of this decision.
C
Item 11 of citation 1 alleges that Daniel violated the standard at section 1926.500(b)(5) n10 by failing to guard one side of a "pit" located ten feet outside a nuclear reactor containment building. The cavity was approximately 12 feet long, 12 feet wide, and 12 feet deep. It was completely [*14] lined with concrete, and three of its sides were protected by standard railings. Six of Daniel's employees were seen walking beside the pit. Judge Patton vacated this item, concluding that the cited standard does not apply to a cavity located outside of a building such as the one in the instant case.
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n10 The standard provides:
§ 1926.500 Guardrails, handrails, and covers.
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(b) Guarding of floor openings and floor holes.
* * *
(5) Pits and trap-door floor openings shall be guarded by floor opening covers of standard strength and construction. While the cover is not in place, the pit or trap openings shall be protected on all exposed sides by removable standard railings.
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In his petition for discretionary review, the Secretary concedes that section 1926.500(b)(5) is inapplicable. However, the Secretary contends that the judge erred by failing to amend the citation sua sponte to allege a violation of section 1926.651(t). n11 In addition, the Secretary moves to amend the citation pursuant to Rule [*15] 15(b) of the Federal Rules of Civil Procedure n12 and urges that Daniel has failed to comply with section 1926.651(t).
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n11 The standard reads:
§ 1926.651 Specific excavation requirements.
* * *
(t) Adequate barrier physical protection shall be provided at all remotely located excavations. All wells, pits, shafts, etc., shall be barricaded or covered. Upon completion of exploration and similar operations, temporary wells, pits, shafts, etc., shall be backfilled.
n12 Fed. R. Civ. 15(b) reads as follows:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to confrom to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.
[*16]
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Daniel contends that an amendment to section 1926.651(t) would be inappropriate because Daniel did not consent to trial of the issues relevant to the unpleaded charge. Moreover, Daniel claims that it would be prejudiced by this amendment because it could have presented different defenses had it been cited originally for a violation of section 1926.651(t).
The requirements for guarding cavities set forth in sections 1926.500(b)(5) and 1926.651(t) are similar. Both regulations require covers or some form of barricade. Furthermore, both standards are intended to protect against the same hazard, i.e., falling into open cavities. The important distinguishing feature between the standards is that section 1926.500(b)(5) is limited in applicability to interior cavities. However, Daniel did not object to evidence establishing the location of the unguarded cavity outside the nuclear containment building.
We conclude that section 1926.500(b)(5) is inapplicable to the cavity at issue in this case because it was located ten feet outside the building and thus was not a "floor opening" or "floor hole". [*17] We deny the Secretary's motion to amend the citation at this time under Federal Rule of Civil Procedure 15(b) to allege noncompliance with section 1926.651(t). An amendment pursuant to Rule 15(b) is permissible when the parties have expressly or impliedly consented to try the amended issue. See generally Rodney E. Fossett d/b/a Southern Lightweight Concrete Co., 79 OSAHRC 95/D2, 7 BNA OSHC 1915, 1979 CCH OSHD P23,989 (No. 76-3944, 1979). If the amendment would change only the legal theory from that alleged in the pleadings, then consent to the amendment will be implied when the party opposing amendment has not objected to evidence relevant to the unpleaded charge, provided it is not prejudiced by the amendment. Mississippi Power & Light Co., 79 OSAHRC 109/D12, 7 BNA OSHC 2036, 1980 CCH OSHD P24,146 (No. 76-2044, 1979).
In the instant case, the Secretary essentially argues that the amendment would change only the legal theory, leaving the factual issues the same as they would be under the section 1926.500(b)(5) charge. We do not agree. An amendment on review is impermissible when the party opposing amendment did not have an opportunity to try issues relevant to [*18] the amended charge and thereby would be prejudiced by the amendment. Texaco, Inc., 80 OSARHC 68/A2, 8 BNA OSHC 1677, 1980 CCH OSHD P24,574 (No. 77-2014, 1980). The parties did not recognize during the hearing that whether the cavity was a "pit" or an "excavation" within the meaning of section 1926.651(t) was an issue in this case. Because Respondent did not have the opportunity to introduce evidence on the issue, it would suffer prejudice if we were to permit an amendment to section 1926.651(t). When an amendment pursuant to Federal Rule of Civil Procedure 15(b) is first sought on review, as it is in this case, "the policy of achieving finality in adjudications militates against reopening a record to cure prejudice." Texaco, Inc., 8 BNA OSHC at 1679, 1980 CCH OSHD at p. 30,146. See R.A. Pohl Construction Co. v. Marshall, No. 79-1512 (10th Cir. February 3, 1981); Mississippi Power & Light Co., supra. We therefore affirm the judge and vacate item 11 and the $30 penalty proposed therefor.
III
Citation 2 alleges that Daniel committed a serious violation of the Act based on its noncompliance with the standard at section 1926.451(a)(4) n13 in that it failed [*19] to install guardrails and toeboards on all open sides and ends of a platform or scaffold more than 10 feet above the ground. The evidence establishes that four of Daniel's employees were standing on a plank described by the compliance officer as a "dressed 2 X 10." The plank was 35 feet above the concrete floor of the nuclear containment building. One of these four employees was welding. The plank was not equipped with guardrails or toeboards nor were the employees wearing safety belts.
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n13 The standard provides in pertinent part:
§ 1926.451 Scaffolding. (a) General requirements. (1) Scaffolds shall be erected in accordance with requirements of this section.
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(4) Guardrails and toeboards shall be installed on all sides and ends of platforms more than 10 feet above the ground or floor.
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The compliance officer did not know the precise structural support for the plank. However, he concluded that the plank was probably supported by a part of the permanent building structure or a device that had been specifically [*20] erected for this purpose. The inspecting officer concluded that the plank should be classified as a scaffold because it was used as a work platform.
Daniel argued before the judge that the Secretary had failed to establish the applicability of the standard because it was not proven that the plank was a scaffold. Daniel maintained that the compliance officer's equivocal testimony was insufficient to establish that a scaffold was used. The judge rejected this argument. He held that the plank on which the employees were standing constituted a scaffold within the meaning of section 1910.21(f)(27) n14 because it was an elevated platform on which an employee worked. In addition, the judge pointed out that the plank was a scaffold as various courts have construed that term in cases involving other statutes. Furthermore, he concluded that working on a narrow board 35 feet above the concrete floor without appropriate protection could have resulted in serious injury or death. Judge Patton assessed the $600 penalty that had been proposed by the Secretary.
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n14 29 C.F.R. § 1910.21(f)(27) defines "scaffold" as follows:
Any temporary elevated platform and its supporting structure used for supporting workmen or materials or both. The definition of "scaffold" in the construction standards, which appears at § 1926.452(b)(27), is worded identically to the general industry definition relied on by the judge.
[*21]
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On review, Daniel reasserts essentially the same arguments it made before the judge. n15 Having reviewed the record as it pertains to the serious citation, we conclude that the judge properly decided the issues before him and we adopt his decision. See Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14231, 1977). The judge's conclusion concerning citation 2 is affirmed, and we assess a penalty of $600.
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n15 On review, Daniel additionally asserts that the judge improperly relied upon various courts' interpretations to arrive at the meaning of the term "scaffold." Judge Patton characterized the platform as a scaffold within the definition of OSHA regulations. Therefore, his reference to other court opinions is supplementary and does not affect the correctness of his ultimate disposition.
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IV
Accordingly, it is ORDERED that: items 1, 2, 3, 4, 5, 6, 7, and 13 in citation 1 are affirmed; item 8 in citation 1 [*22] is vacated unless the Secretary submits a statement of intent to file a brief to challenge Respondent's unpreventable employee misconduct defense within ten days of the issuance date of this decision; item 11 in citation 1 is vacated; and citation 2 is affirmed. We assess a total penalty of $855.