GENERAL ELECTRIC COMPANY

OSHRC Docket No. 15037

Occupational Safety and Health Review Commission

January 31, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Regional Solicitor, USDOL

J. H. Beusse and R. W. O'Keefe, GENERAL ELECTRIC COMPANY, for the employer

Business Representative, Local 506, International Union of Electrical, Radio and Machine Workers, for the employees

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 Henry K. Osterman is before the Commission for review under section 12(j) of the Act, 29 U.S.C. §   661(i).   At issue is whether the judge correctly ruled that the Respondent, General Electric Co. ("GE"), violated the Act by noncompliance with the standard at 29 C.F.R. §   1910.132(a) n1 by failing to provide and require the use of hard hats to protect employees from the hazard of falling objects from both overhead cranes and crane loads. n2

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n1 The standard reads in pertinent part:

§   1910.132 General requirements.

(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. . . .

n2 Eight citations alleging various nonserious and repeated violations of the Act were issued to GE.   Judge Osterman affirmed the only contested nonserious violation alleged in Citation Number 1 and he reduced to nonserious and affirmed all of the alleged repeat violations set forth in Citations 2 through 6 and 8.   The judge vacated Citation Number 7, which alleged a failure to comply with the standard at 29 C.F.R. §   1910.212(a)(5).   A direction for review was issued in this case by former Commissioner Moran on October 19, 1976.   The direction for review did not specify issues to be reviewed by the Commission.   In its petition for review and its brief before the Commission, GE raised objections only to that portion of the judge's decision affirming the section 1910.132(a) allegation.   The Secretary did not file a brief.   Neither party has taken exception to any other parts of the judge's decision and there is no compelling public interest warranting Commission review of other items of the citations.   Accordingly, they will not be considered on review.   See Champion Construction & Engineering Co., Inc., 78 OSAHRC 102/A2, 6 BNA OSHC 2116, 1978 CCH OSHD P23,186 (No. 76-2576, 1978); 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).

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I

At its Erie, Pennsylvania plant, GE is engaged in manufacturing transportation equipment.   Building 63, which houses GE's Direct Motor and Generator Products Department, was inspected on August 14, 1975, by two authorized representatives of OSHA.   As a result of that inspection, GE was cited for the aforementioned violations of the Act.

Building 63 is approximately 600 feet long and 300 feet wide.   The building is divided into five bay areas; each bay area is approximately 65 feet wide and extends the full length of the building.   Approximately twenty-five feet above the floor of each bay area are one or more pendantcontrolled overhead cranes that are capable of traversing the entire length of the building.   These cranes are used to move motor control cabinets, materials, and various machine parts to different locations within the building.   Small parts are carried by the crane in square metal corrugated pans. n3

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n3 The testimony concerning the size of the pans and, in particular, the height of the pan sides is conflicting.   James Hertel, the supervisor of plant engineering for GE, testified that the pans were of a standard size approximately four feet wide or long with four foot high sides and that sides of any less height would render the pans essentially useless in that smaller-sized loads would be necessary.   However, compliance officer Joseph Vogel testified that he remembered the height of the "combing" around the pan as four to six inches.   The judge did not resolve this conflict in the testimony.

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To avoid carrying loads over the heads of employees, GE has an established practice of moving loads as close to the floor or "work level" as possible and over and through aisles marked for that purpose.   The testimony indicates that GE's practice is, for the most part, followed.   However, there is some employee testimony indicating that on occasion strict adherence to this practice is not possible in that loads are occasionally moved outside of the restricted area to the work stations and, in the case of very large loads, moved at a level higher than six feet.

When loads are moved through the bays warnings are given to the employees in the path of the load. Further, when loads are moved at a height greater than "a few feet off the ground", employees in the area are also warned of the movement of the load. These warnings are made by means of whistles or manually operated sirens or are given orally by employees walking ahead of the load. The compliance officer testified that he observed these warnings being given during his inspection and one employee, James Hooker, testified that he had never observed [*4]   a load being moved without prior warnings.

GE's employees did not and were not required to wear hard hats while working beneath cranes. GE's engineering supervisor, James Hertel, testified that GE did not require employees to wear hard hats in these circumstances because GE had determined that there was no hazard warranting the use of that type of personal protective equipment.   However, when hazardous conditions existed, such as during overhead construction or crane inspection, GE required hard hats to be worn by its employees.   Hertel also testified that he reviewed the accident records of Building 63 for the period of April 1971 to April 1976 and found no evidence of head injuries from objects falling from overhead cranes.

Compliance officer Vogel's testimony concerning the existence of a hazard is inconsistent.   He admitted that at the time of the inspection he did not actually observe a hazard that would require the use of a hard hat. Moreover, he acknowledged that he did not wear a hard hat during the inspection and that at the closing conference with the employer he did not discuss the necessity of wearing personal protective equipment or the possibility of a citation for [*5]   employees' failure to wear hard hats. Further, the compliance officer did not recommend the issuance of a citation.   According to the compliance officer, it was the Area Director who decided to issue the citation based on the compliance officer's recitation of the facts.   However, the compliance officer also stated that there was a hazard of employees being struck in the head from (1) parts falling from the load, (2) the load becoming disengaged from the crane, (3) the load swinging and striking an employee, and (4) parts falling from the crane itself.

GE's supervisor of maintenance for cranes and elevators, Matt Belovaric, testified that inspections, which include checking for loose parts, are performed on the cranes every three months.   According to Belovaric, any discovered defects are immediately reported and "repairs are made as soon as possible." He also testified that additional preventive maintenance is performed every six weeks by employees under his supervision.

The compliance officer testified that, although he spent approximately one hour inspecting the cranes, he did not closely examine the cranes and he did not examine the bridge structure at all.   He stated that,   [*6]   after making a cursory examination of the crane hooks and slings, he concluded that they appeared to be in good condition and that there were no problems with the physical structure of the cranes. However, he did note that employees worked beneath the cranes as the cranes passed through the bay.

John Molovich, a compliance officer who was accepted as the Secretary's expert on cranes, testified that there were thousands of crane parts capable of becoming loose and falling to the floor. He expressed the opinion that cranes are inherently dangerous. n4 Molovich relied on a publication of the American Society of Safety Engineers that shows a high incidence of head injuries caused by falling objects.   However, the witness conceded that the publication did not reveal how many injuries, if any, were the result of objects falling from overhead cranes. Although Molovich stated that crane maintenance, inspection, and repairs have a direct relationship to the safe operation of a crane, he admitted that in forming his opinion that parts could fall from these cranes he did not inspect the cranes and did not consider GE's maintenance program.

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n4 Molovich's testimony is inconsistent on this point.   Earlier in his testimony, Molovich testified that he did not consider cranes to be inherently dangerous. Later, he testified that he felt that cranes are inherently dangerous. He acknowledged this inconsistency and admitted that he had misunderstood the question.   Further, he indicated that he meant to answer affirmatively when initially queried as to whether he considered cranes to be inherently dangerous.

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In affirming the violation of the Act for failure to comply with the standard at section 1910.132(a), Judge Osterman noted that it is the Secretary's burden to prove the existence of a hazard in order to establish the alleged violation.   The judge found that the evidence established "that [crane] loads did move over heads of unprotected workers and that the potential for accidental injury from these loads was always present." n5 GE argues on review that the judge erred in affirming the violation because the record does not establish by a preponderance of the evidence the existence of a hazard from falling [*8]   objects either from the cranes or from the loads being carried. n6

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n5 The judge also found that the employees were exposed to the possibility of being struck by objects falling from the overhead cranes themselves.   However, the judge's decision contains no reference to any evidence in support of that finding.

n6 GE also argues that the citation should be vacated on two procedural grounds.   First, GE contends that the citation was issued in violation of the Department of Labor Field Operations Manual, Chap. 10, §   D(1), because the compliance officer did not personally observe the alleged violative condition.   The judge rejected GE's argument, stating that the manual was "merely a tool for the guidance of Labor Department personne." The contention that a citation must be vacated if the compliance officer does not personally observe the violation has previously been rejected in Combustion Engineering, Inc., 77 OSAHRC 182/A2, 5 BNA OSHC 1943, 1977-78 CCH OSHD P22,241 (No. 76-2210, 1977), where we held that the Manual acts only as an internal guide, and does not have the force and effect of law.   The judge's ruling on this issue is consistent with Commission precedent and is affirmed.   Second, on review GE renewed the contention it had made defore the judge that the citation should be vacated because the compliance officer did not discuss the alleged violation of §   1910.132(a) at the closing conference, in contravention of the requirements of 29 C.F.R. §   1903.7(e).   The judge did not address this argument.   However, we have previously held that unless prejudice is shown the failure to discuss an alleged violation at a closing conference is a technical and harmless violation of procedure.   Kast Metals Corp., 77 OSAHRC 173/B11, 5 BNA OSHC 1861, 1977-78 CCH OSHD P22,165 (No. 76-657, 1977).   GE has neither asserted nor proven that it was prejudiced.   Consequently this argument is also rejected.

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III

The test for determining the existence of a hazardous condition requiring the use of personal protective equipment within the meaning of section 1910.132(a) is whether a reasonable person familiar with the circumstances surrounding an allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard warranting the use of personall protective equipment.   Owens Corning Fiberglas Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1979 CCH OSHD P23,509 (No. 76-4990, 1979), appeal filed, No. 79-2516 (5th Cir. June 26, 1979).   See S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), appeal filed, No. 79-2358 (5th Cir. June 7, 1979).   Based on the evidence before us, we find that Judge Osterman erred in affirming the citation.

The Secretary's evidence, which consists of GE employees' testimony, that crane loads pass over the workers' heads is largely ambiguous. n7 All of the employees, save for one, who testified that loads pass over their heads, also responded on cross-examination that it [*10]   is not the practice to carry loads over employees' heads and that warnings are given before loads are moved through the bay. n8 The warnings alert employees to move and avoid the loads passing in their vicinity.

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n7 The Commission is the ultimate fact-finder, and is responsible for the findings entered.   See Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 834 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976). The judge's finding that "there was uncontradicted testimony that on many occasions loads . . . were passed over the heads of employees who were not provided with head protection" is not supported by a preponderance of the evidence and is therefore vacated.

n8 The one exception is Wayne Leise, who testified that the wood that is used to crate the finished variators is carried 25 to 30 feet above the floor. He did not testify to the company practice of warning employees that loads are coming through the bay.   Nor did he testify concerning the practice of carrying crane loads through the designated aisles and as close to the bay floor as possible.

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It is unclear, therefore, whether the employees work directly beneath crane loads as the loads move through the bays or whether the loads move at a height higher than head level but not directly above the workers. n9 The evidence establishing that there is a warning system to alert the workers that a load is moving through the bay, along with the testimony that it is not the practice to carry loads overhead, suggests that the employees remove themselves not only from beneath crane loads, should they be beneath the loads, but also from the immediate vicinity of the crane load.

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n9 See footnote 8 supra. Leise's testimony that large wood loads are carried approximately 25' above the bay floor does not clarify this issue for it is similarly unclear whether the wood is carried at that height but only within the restricted aisle and therefore not directly above the employees.

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Beyond this, it is not entirely clear, despite the testimony that loads are carried "overhead",   [*12]   at what height the crane loads are moved. n10 James Nelson, the chief divisional steward, testified that although it is not the practice to carry loads overhead it does occur on occasion.   However, he also admitted that it is the top of the loads that are at head level or above.   We note that, if the top of the load is at head level or slightly above, the bulk of the load is below the crane operator's head, as it is below the heads of other employees in the vicinity of the load, and there is little danger that objects will fall or "fly" onto the worker.   We find this significant, given the language of the citation that workers are to be protected from the "impact and/or penetration from falling and/or flying objects," in that this method of transporting loads seems to eliminate the possibility of being struck by falling or flying objects from crane loads. n11

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n10 We are cognizant of Leise's testimony.   See footnote 8.   However, we note that it stands alone in its estimation of load heights and does not mention GE's warning practices.   The record must be examined in its totality and we note that James Hertel unequivocally testified that loads are never carried above employees' heads.

Finally, even if we accept the testimony of Leise that large wood loads are transported 25 to 30 feet above the work surface, we note that the identified means of abatement, to wit, hard hats, would not abate the hazard of a load of this dimension falling onto the worker.

n11 We note respondent's photographic exhibit number 6, which corroborates Nelson's testimony.   The exhibit shows an employee moving a cabinet within the designated area and at a height of approximately 1 to 2 feet above the work surface.   The top of the load is clearly above the head of the employee, as it would be if the cabinet were standing on the ground, yet it does not appear to present a hazard from falling or flying objects as a result of its transportation by the crane. This is particularly true in the case of pan loads. If the top of the pan load is head level or slightly above then almost the entire pan is below the employees' heads and the danger from objects falling or flying is almost nonexistent.   See footnote 12 infra.

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We further note that compliance officer Vogel testified that he did not observe any loads directly above any of the workers during his inspection, and did not observe a hazard requiring the use of a hard hat. For this reason, he did not wear a hard hat during the inspection and did not return to the car or office to obtain one.

Accordingly, we conclude that a reasonable person familiar with the operation of the cranes at respondent's workplace would not recognize the existence of a hazard from objects falling from crane loads. n12 Further, we also conclude from the evidence that this reasonable person would not recognize the existence of a hazard from loads swinging and striking the employee. n13

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n12 The evidence concerning the pans is clear.   We credit the testimony of Hertel that the corrugated pans had sides that were approximately 3 to 4 feet high because it is corroborated by photographic exhibits.   Furthermore we note that the inconsistency between the compliance officer's testimony concerning the existence of a hazard and his contrary opinion formed at the time of the inspection casts doubt on the reliability of his testimony as a whole.   C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977-78 CCH OSHD P22,481 (No. 14249, 1978).   The sides of the pans are of sufficient height to prevent the small parts from falling out of the pan and there is no evidence that the height of the loads in the pans exceeded the height of the pan sides.

n13 Respondent's photographic exhibit 6 depicts a load being moved with hand guidance from the crane operator and there is testimony that loads are "guided" by the crane operators as they transport the loads throughout the bay areas.   The practice of guiding the loads and the practice of carrying the loads as close to the work surface as possible belie the compliance officer's allegation that these loads presented swinging hazards to the employees.

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With respect to the asserted hazard caused by falling crane parts, the compliance officer testified that he examined the cranes and found them to be in good condition.   The Secretary's expert, Molovich, did not testify that the particular cranes at issue were dangerous, apparently because he never inspected or observed them.   He also gave unsupported contradictory testimony regarding whether cranes in general are inherently dangerous. Moreover, although Molovich declared that crane maintenance, inspection, and repair had a direct relationship to the safety of a crane, he admitted that he did not consider GE's maintenance program when he determined that a hazardous condition existed.   GE inspected its cranes for loose parts every three months, performed preventive maintenance every six weeks, and made necessary repairs as soon as possible.   The Secretary did not show that these inspection and maintenance procedures were inadequate to eliminate the alleged hazard and the evidence indicates that the preventive measures are effective.   Accordingly, the record fails to show the presence of the hazard of   [*15]   falling parts. n14

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n14 Although neither the Commission nor the Secretary is bound by the interpretation or opinion of a compliance officer, Holman Erection Co., Inc., 77 OSAHRC 196/A2, 5 BNA OSHC 2079, 1977-1978 CCH OSHD P22,318 (No. 13529, 1977), the testimony of the compliance officer in this case and his conduct during the inspection reveal that he did not believe that personal protective equipment was required under the cited conditions.

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Furthermore, the record contains no evidence indicating any injuries to GE employees resulting from the allegedly violative condition.   The absence of injuries supports our conclusion that a reasonable person would not recognize the existence of a hazard of objects falling from the crane or its load. n15 Cf. Continental Oil Co., 79 OSAHRC    , 7 BNA OSHC 1432, 1979 CCH OSHD P23,626 (No. 13750, 1979) (absence of injuries supports the Commission's finding of a de minimis violation).

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n15 The absence of injuries is only one factor to be considered in determining the existence of a hazard. Contrary to GE's assertion, it is not conclusive evidence proving the absence of a hazard. A hazard requiring abatement may exist in the absence of recorded injuries.   Arkansas-Best Freight Systems, Inc. v. OSHRC, 529 F.2d 649, 654-55 (8th Cir. 1976).

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V

The Secretary of Labor did not file a brief in this case because of what the Secretary discerned to be the Commission's policy of vacating issueless directions for review. n16 However, the Secretary requested "that further notice be given and the briefing period extended if in fact the Commission determines not to vacate the direction for review." Ten days prior to the Secretary's submission in this case, the Commission had published a policy statement in the Federal Register stating that, when an issueless direction for review has been issued, the Commission would review the issues raised by a party's petition for review or brief on review and, when appropriate, would afford the parties an opportunity to file additional briefs.   41 Fed. Reg. 53015 (1976).

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n16 See note 2 supra.

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Accordingly, the judge's decision is reversed and the alleged violation of the Act for failure to comply with the standard at 29 C.F.R. §   1910.132(a) is [*17]   vacated unless, within ten days of the issuance of this decision, the Secretary requests the opportunity to submit a brief.   Upon receipt of a brief by the Secretary, should he elect to file one, the Commission will determine whether additional briefs are necessary and the parties will be so notified.   The Commission then will reconsider its decision in this case in light of the submissions received.

It is so ORDERED.  

DISSENTBY: CLEARY

DISSENT:

CLEARY, Chairman, Dissenting:

I cannot agree with my colleagues that hard hats should not be provided and required for employees working under an overhead crane that moves loads of production parts and materials above work areas.   As the lead opinion states, the test for determining the existence of a hazardous condition under §   1910.132(a) is whether a reasonable person familiar with the factual circumstances surrounding the allegedly hazardous conditions, including any facts unique to a particular indistry, would recognize a hazard warranting the use of personal protective equipment.   The employer recognizes such a hazardous condition by the implementation of its practice to route the loads of materials through restricted aisles away from its employees whenever [*18]   possible.   As the record clearly demonstrates, however, there are times when loads must be moved over the heads of workers, because the cranes are used to bring parts in and out of work stations that are not immediately adjacent to the restricted aisles normally used to move loads through the bays.   Workers in bays A, B, and E testified that loads were from time to time moved overhead, and one employee in Bay B stated that he had to guide loads into his work station.   This overhead hazard is partially abated by the use of a warning system alerting workers to the movement of the overhead load. With minimal cost and effort, the workers exposed to the overhead loads could be better protected by the use of hard hats when loads pass overhead.

I also cannot agree with the lead opinion that the Secretary's crane expert gave "unsupported contradictory testimony regarding whether cranes in general are inherently dangerous." It is true that the Secretary's expert at first stated that overhead cranes are not inherently dangerous, but upon questioning from the judge, he corrected his testimony.   His statement of an inherent hazard is consistent with his testimony that thousands of parts can [*19]   become loose and fall off a crane despite a good maintenance program.   His initial conclusion upon cross examination that cranes are not inherently dangerous is simply not compatible with the rest of his testimony.   Thus, I would give credence to his corrected conclusion as being consistent with the substance of his testimony.

Although he did not inspect the cranes in Building 63, the Secretary's expert established his expertise on cranes by testifying about his extensive experience in the inspection of cranes at other major industrial plants.   He stated that every crane he has ever inspected has posed the hazard of falling parts.   Although respondent's safety consultant on cranes testified that there were no loose parts upon his inspection of the cranes, he also conceded that parts could work loose and fall from any section of the crane where loads are being lifted over employees.   Furthermore, although he stated that he found no loose parts on the crane upon his inspection, this testimony is not inconsistent with the statement of the Secretary's expert that crane parts become loose and fall despite good maintenance.   Thus, to protect against this hazard too, I would find that the [*20]   use of hard hats is not burdensome, and may prevent a serious injury caused by falling bolts or rivets from the crane itself.

In conclusion, I am not convinced that respondent's work operations are substantively different from any other operation where cranes are used to move heavy objects in the vicinity of employees, and where the use of hard hats is almost universally required.   See, Danco Construction Co., 75 OSAHRC 51/C1.   3 BNA OSHC 1114, 1974-75 CCH OSHD P19548 (Nos. 4681, 4682 and 4683, 1975); Rothschild Washington Stevedoring Co., 75 OSAHRC 84/C6, 3 BNA OSHC 1549, 1975-76 CCH OSHD P20,007 (No. 4671, 1975).   Even if efforts are made to avoid lifting loads over the heads of employees, the loads themselves are not the only hazard. The load block with its hook or shackle, frame, and hoist chains must be raised, lowered, adjusted and detached by employees.   I think it is a rather myopic view of the potential hazards involved here to apparently disregard the dynamics of respondent's workplace.   By failing to recognize the varied hazardous conditions in respondent's workplace that require the use of hard hats, we are allowing respondent's employees to be needlessly exposed [*21]   to head injuries.