MARQUETTE CEMENT MANUFACTURING COMPANY

OSHRC Docket No. 4725

Occupational Safety and Health Review Commission

January 27, 1976

  [*1]  

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Francis V. LaRuffa, Regional Solicitor, U.S. Dept. of Labor

George W. Moehlenhof, for the employer

Robert Wynne, President, United Cement, Lime & Gypsum Workers, Local 50, for the employees

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

A September 24, 1974 report of Review Commission Judge William E. Brennan is before this Commission for review pursuant to 29 U.S.C. §   661(i).   The report vacates an alleged violation of 29 U.S.C. §   654(a)(1). n1 We affirm.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The section provides that each employer ". . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely because death or serious physical harm to his employees."

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Complainant's citation alleged a violation of 29 U.S.C. §   654(a)(1), the so-called general duty clause of the Occupational Safety and Health Act of 1970.   The charge, however, was amended by the complaint to allege that respondent violated 29 U.S.C. §   654(a)(2),   [*2]   the Act's so-called special duty clause, by failing to comply with the occupational safety and health standard codified at 29 C.F.R. §   1926.852(a). n2 The Judge decided the case on the basis of a stipulation of facts by the parties in which it was agreed that the issues before the Commission were whether the respondent was properly cited for failing to comply with §   1926.852(a) and whether the proposed penalty was appropriate.   In complainant's Memorandum of Law to the Judge, which was filed after the stipulation, a motion in the alternative was tendered to amend the charge so as to once again allege a violation of 29 U.S.C. §   654(a)(1).   Pursuant to Fed. R. Civ. P. 15(b), n3 the motion was granted.   This was error.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 The Judge subsequently determined that this construction standard was inapplicable because the work in issue was not "work for construction, alteration, and/or repair" within the meaning of 29 C.F.R. §   1910.12(b).   We agree.

n3 29 C.F.R. §   2200.2(b) requires the application of these procedural rules in the absence of a specific Commission rule.

- - - - - - - - - - - - - - - - -End [*3]   Footnotes- - - - - - - - - - - - - - - - -

Rule 15(b) provides:

"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. . . ." n4

Thus, no amendment will be granted thereunder unless express or implied consent can be found. n5

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 Rule 15(b) can also apply to conform the pleadings to evidence objected to but allowed at the hearing.   However, this part of the rule is inapposite to the instant situation.

n5 See, e.g., Systems, Inc. v. Bridge Electronics Co., 335 F.2d 465 (3rd Cir. 1964).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Nothing in the record before us establishes an express consent by the respondent to amend the pleadings to a §   654(a)(1) charge or any issues related thereto.   To the contrary, it expressly objects in its trial and review briefs to such amendment.

Likewise, consent cannot be implied.   Under Rule 15(b), implied consent will only be found when the party against whom the amendment is sought was fairly [*4]   apprised that the unpleaded charge was in issue.   Niedland v. United States, 338 F.2d 254, 258 (3rd Cir. 1964); Kuhn v. Civil Aeronautics Board, 183 F.2d 839, 842, (D.C. Cir., 1950).   If both parties introduce evidence relevant to the amended charge, or if such evidence is introduced without objection, this indicates that the parties consented to trial of the issue.   Petersen v. Klos, 426 F.2d 199, 202-203 (5th Cir. 1970); Arkla Exploration Co. v. Boren, 411 F.2d 879, 883 (8th Cir. 1969); Niedland v. United States, supra. But it must appear that the parties understood that such evidence went to the amended charge, and was not introduced solely because it was relevant to another issue being tried.   Freitag v. The Strand of Atlantic City, 205 F.2d 778, 781 (3rd Cir. 1953); Simms v. Andrews, 118 F.2d 803, 807 (10th Cir. 1941).

Here, the parties stipulated to the facts.   At that time the only pending charge was the alleged noncompliance with §   1926.852(a).   The first indication of the amendment occurred thereafter - in complainant's brief to the Judge.   Allowing an amendment at this late stage of the proceeding not only implies consent by the respondent when [*5]   there has been none, but could prejudice the respondent by not allowing it an opportunity to introduce rebuttal evidence on elements of a §   654(a)(1) violation which are not part of a §   654(a)(2) charge, such as whether the alleged violative condition constituted a recognized hazard.

Although we have concluded that it was error for the Judge to allow the amendment, we agree with the Judge's finding that the evidence of record does not establish violation of §   654(a)(1) for the reasons given by him.   Accordingly, the error was not prejudicial, and the Judge's disposition on the merits is affirmed.  

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I agree with Chairman Barnako's opinion.   However, since it relies in part on a finding by Judge Brennan, his decision is attached hereto as Appendix A.  

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

I dissent from the findings by my colleagues that no violation of section 5(a)(1) of the Act was shown on the facts of this case and that the Administrative Law Judge erred in granting the Secretary of Labor's motion to amend the pleadings pursuant to Rule 15(b) n6 of the Federal Rules of Civil Procedure.

- - - - - - - - - - - - - - - - - -Footnotes- - -   [*6]   - - - - - - - - - - - - - - -

n6 The application of Rule 15(b) depends upon the Commission's Rule 2(b), 29 CFR §   2200.2(b), that reads as follows:

(b) In the absence of a specific provision, procedure shall be in accordance with the Federal Rules of Civil Procedure (emphasis added).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Respondent operates a cement manufacturing plant located in Catskill, New York.   The stipulated facts establish that one of respondent's employees was killed when he was struck by debris which had been dropped outside the exterior wall of one of respondent's buildings 26 feet into an alleyway. The debris was dropped into the alleyway as a result of respondent's procedure for relining a kiln used in the manufacture of cement products.   Four times per year, respondent removes worn brick, which line the interior of the kiln and replaces them with new bricks. In the instant case, after removing the worn bricks from the kiln, which is located on the second floor of the kiln Building, respondent dropped them out of an opening in the building's exterior wall. Respondent discarded the worn bricks without using an enclosed [*7]   chute and without blocking off the area into which they were dropped.

On the merits, the majority affirms the findings by the Judge that no "recognized hazard" existed at respondent's workplace and that it was not shown that respondent knew or reasonably could have known that the described condition could result in serious physical harm to its employees.

It is well established that to prove a violation of the general duty clause, the Secretary must show (1) that the employer failed to render its workplace "free" of a hazard, (2) that the hazard was "recognized", and (3) that it was "causing or likely to cause death or serious physical harm." National Realty & Const. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1265 (D.C. Cir. 1973). An employer's actual knowledge of a hazardous condition satisfies the general duty clause requirement of recognition.   Brennan v. O.S.H.R.C. and Vy Lactos Laboratories, Inc., 494 F.2d 460, 464 (8th Cir. 1974).

Paragraphs 6 through 9 of the jointly stipulated facts clearly establish each of the elements of a violation of section 5(a)(1) of the Act.

6.   Respondent disposes of debris resulting from the demolition of the kiln brick by dropping the   [*8]   material outside the exterior wall into the alleyway between the Kiln Building and the Crane Storage Building by means of an unprotected chute approximately 26 feet above the ground.

7.   Respondent did not provide any protection to employees working near the alleyway between the Kiln Building and the Crane Storage Building from hazards created by falling bricks. Protective devices such as danger signs, barricades or an enclosed chute were not provided as a means of preventing employee exposure to falling bricks.

8.   At approximately 8:45 p.m. on August 29, 1973, Respondent'e employee, Frank F. Rysavy, while in the alleyway separating the Kiln Building and the Crane Storage Building, was struck by a large quantity of debris being dumped out the chute from the interior of the Kiln Building.   Mr. Rysavy was killed immediately as a result of a crushed skull caused by the falling bricks.

9.   The condition of said chute described above was known to Respondent's representatives.

The dumping of bricks into an unprotected alleyway from a height of 26 feet is a patent hazard to anyone below.   The evidence establishes that employees had access to the alleyway, and their presence there was [*9]   foreseeable.   There also can be no doubt regarding the seriousness of potential injuries.   This is regrettably demonstrated by the death of an employee on August 29, 1973.

I disagree also with respect to the majority's dicta that the Judge erred in granting the motion of the Secretary of Labor to amend the pleadings to allege a violation of the general duty clause pursuant to Rule 15(b) of the Federal Rules of Civil Procedure.

Section 5(b)(3) of the Administrative Procedure Act, 5 U.S.C. §   551 et seq., is applicable here by virtue of section 10(c) of the Act. n7 It requires that the parties be put on notice of the issues in controversy.   The "key to pleading in the administrative process is nothing more than opportunity to prepare." Davis, Administrative Law Treatise, §   8.4 (1958).   If no prejudice ensues to the adverse party, the shifting of legal theories is permissible.   N.L.R.B. v. Pecheur Lozenge Co., 209 F.2d 393, 402 (2d Cir. 1953), cert. denied 347 U.S. 953 (1954).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n7 By its own terms, Commission Rule 2(b) does not apply the Federal Rules here.   The "specific provision" makes applicable section 5(b)(3) of the Administrative Procedure Act.   See note 1.

  [*10]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The history of this case from the outset may be described as an effort by the parties to determine whether the general duty clause or the standard at 29 CFR §   1926.852(a) is applicable.   The stipulated issue on the applicability of the cited standard simply reflects this problem.   The stipulated facts regarding the hazard and accident are unrelated to the characterization of respondent's activities as construction or manufacturing. To decide a case, as the majority suggests it would here, upon the formal wording of the stipulation is contrary to the purpose of notice pleading.

Because respondent alleges in its brief before the Commission that it would be prejudiced by the allowance of the amendment here, I would remand the case for the presentation of evidence to that effect.   In any event, the Judge's granting of the amendment should not be reversed upon the mere allegation of prejudice.

Appendix A

DECISION AND ORDER

Francis V. LaRuffa, Regional Solicitor and Theodore T. Gotsch, for the Secretary of Labor

George W. Moehlenhof, for the Respondent

United Cement, Lime and Gypsum Workers, Local [*11]   50, Robert Wynne, President, for the Employees

Brennan, W.E.; A.L.J.

This is an action arising under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 659(c), (hereinafter the Act), to review a Citation for Serious Violation and Notification of Proposed Penalty issued pursuant to Sections 9(a) and 10(a) of the Act (29 U.S.C. 658(a) and 659(a)) on September 14, 1973, by the Secretary of Labor through the Area Director of the Occupational Safety and Health Administration for Syracuse, New York, (hereinafter Complainant) to Marquette Cement Manufacturing Company of Catskill, New York, (hereinafter Respondent).

This case arose from a fatal accident to one of Respondent's employees which occurred on August 29, 1973 at the Respondent's cement manufacturing plant located on Route 9W, Catskill, New York (hereinafter worksite).

Following an inspection by Complainant's representative, a Citation for Serious Violation of Section 5(a)(1) of the Act (29 U.S.C. 654(a)(1)) was issued to Respondent on September 14, 1973, which set forth the following "Description of alleged violation":

"The employer failed to furnish to each of his employees working [*12]   near the passageway between the Kiln Building and the Crane Storage Building a place of employment which is free from recognized hazards that were causing or likely to cause death or serious physical harm to his employees in that the employer did not provide suitable means to protect employees from the hazards created by falling bricks, such as; providing danger signs to alert employees that an immediate hazard exists from falling bricks; providing barricades to deter and prevent employees from entering the brick dumping area; providing an enclosed chute for the dumping of bricks from a 26 foot level; or providing other suitable means of preventing employee exposure to falling bricks."

A penalty of $600.00 was proposed based upon this alleged Serious Violation.

By its letter dated September 20, 1973, Respondent noted its contest to this Citation and proposed penalty.

Pursuant to Section 10(c) of the Act, (29 U.S.C. 659(c)), this case was forwarded to the Review Commission.

On October 17, 1973 the Complaint herein was filed with the Commission, which amended the Citation to charge a violation of Section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) by failure to comply with the Occupational [*13]   Safety and Health Standard set forth at 29 CFR 1926.852(a).

Paragraphs V and VI of the Complaint set forth the following:

V

"On August 29, 1973, respondent violated section 5(a)(2) of the Act and the Occupational Safety and Health Standard found at 29 C.F.R. 1926.852(a) promulgated pursuant to section 6 of the Act at its workplace located at Route 9W, Catskill, New York in that respondent failed to insure that no material shall be dropped to any point lying outside the exterior walls of the structure unless the area is effectively protected.   While respondent was engaged in the demolition and reconstruction of a brick kiln in the kiln building it subjected its employees working near the passageway between the kiln building and the crane storage building to the hazards created by falling bricks. On August 29, 1973, employee Frank F. Rysavy was fatally injured by debris, including brick removed from the kiln, dumped out of an unprotected chute from the interior of the building.

"In accordance with section 9(a) of the Act the citation provided that the above violation was to be abated by October 8, 1973.   Such period was a reasonable period for the abatement of this violation.   [*14]  

VI

"Item 1 of the citation has been amended by paragraph V of this complaint to allege a serious violation of 29 C.F.R. 1926.852(a) in place of the serious violation of section 5(a)(1) of the Act.   The reason for the amendment is that investigation has disclosed that respondent was engaged in the demolition and reconstruction of a brick kiln and therefore the safety and health regulations for construction found at 29 C.F.R Part 1926 properly apply to this alleged violation."

Respondent, through its counsel, filed its Answer to this Complaint with the Commission on November 5, 1973, in which it admitted the jurisdictional allegations of the Complaint, but denied the substantive allegations of the alleged violation including a denial of the applicability of the cited Standard to the conditions alleged to be violative of the Act.

After assignment of this case to the undersigned the trial date of February 26, 1974, was vacated upon notice from the parties that the case was to be submitted upon stipulated facts and briefs.

The Stipulation of Facts and Briefs from both counsel were filed by April 10, 1974.

In the last paragraph of this Stipulation, the parties consented to a determination [*15]   of two questions based upon the stipulated facts. These two questions were set out as follows in the Stipulation:

"1.   Was Respondent properly cited for a serious violation of 29 C.F.R. 1926.852(a)?

2.   If Respondent was properly cited, should the proposed penalty of $600.00 be affirmed?

In order to determine these, and additional questions raised in this case, the following stipulated facts are material.

All jurisdictional facts are established in paragraphs numbered 1, 2, and 3 of the Stipulation of Facts.

The Stipulation further provides:

* * *

"2.   At all times herein mentioned, Respondent was engaged principally in the manufacture of cement.

* * *

"4.   On August 29, 1973, the Respondent was engaged in the demolition and reconstruction of a kiln in the Kiln Building at its plant located at Route, 9W, Catskill, New York.

"5.   Respondent utilizes the kiln in the cement manufacturing process to dry the material and form the compounds which are the elements of cement, by means of heating the kiln up to 2800 degrees Fahrenheit.   The raw material is brought into the kiln by a conveyor system.   The kiln rotates and the material is transferred through the kiln by gravity.    [*16]   As the material is dumped through the kiln the brick lining of the kiln is worn away.   When the brick lining is worn to slightly less than one-half its original width, those bricks which are worn must be removed and that portion of the kiln must be relined with new bricks. At least partial relining is necessary a minimum of four times annually, and requires a period of five days to complete on the average.   It is the position of the Respondent that the above described relining process does not constitute construction within the meaning of the Regulations and the contrary position is taken by Complainant.

"6.   Respondent disposes of debris resulting from the demolition of the kiln brick by dropping the material outside the exterior wall into the alleyway between the Kiln Building and the Crane Storage Building by means of an unprotected chute approximately 26 feet above the ground.

"7.   Respondent did not provide any protection to employees working near the alleyway between the Kiln Building and the Crane Storage Building from hazards created by falling bricks. Protective devices such as danger signs, barricades or an enclosed chute were not provided as a means of preventing employee [*17]   exposure to falling bricks.

"8.   At approximately 8:45 p.m. on August 29, 1973, Respondent's employee, Frank F. Rysavy, while in the alleyway separating the Kiln Building and the Crane Storage Building, was struck by a large quantity of debris being dumped out of the chute from the interior of the Kiln Building.   Mr. Rysavy was killed immediately as a result of a crushed skull caused by the falling bricks.

"9.   The condition of said chute described above was known to Respondent's representatives.

"10.   The Secretary of Labor as a result of an investigation of the accident involving Mr. Rysavy thus issued a citation which was amended by the Complaint to allege a serious violation of Occupational Safety and Health Standard 29 C.F.R. 1926.852(a).   This Standard provides 'Chutes. (a) No material shall be dropped to any point lying outside the exterior walls of the structure unless the area is effectively protected.'

"11.   Mr. Rysavy was hired April 22, 1946 and, accordingly, was an employee of 27 years experience at the time of his fatal accident.   At the time he was assigned to perform maintenance work inside the Kiln Building and no witnesses are available to testify to any circumstances [*18]   which explain his presence outside the Kiln Building."

The first question presented by this record is whether the Standard cited in the Complaint as allegedly violated, 29 CFR 1926.852, is applicable to Respondent's activities being carried on at its worksite on the day of the accident, August 29, 1973.

The Complainant's Regulations set forth at 29 CFR 1910.12, entitled "Construction Work" provide as follows:

"(a) Standards.

The standards prescribed in Part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work. Each employer shall protect the employment and places of employment of each of his employees engaged in construction work by complying with the appropriate standards prescribed in this paragraph.

(b) Definition.

For purposes of this section, 'construction work' means work for construction, alteration, and/or repair, including painting and decorating. See discussion of these terms in §   1926.13 of this title." (Emphasis added)

The Regulation cited under paragraph (b)   [*19]   supra, and the laws therein cited, contain substantially the same language as above quoted.   Thus, the question is raised - What is "construction work"?

Webster's Third New International Dictionary, (Unabridged, 1971) defines "construct" to mean:

"to form, make, or create by combining parts; build, fabricate"

"construction" is defined as:

"the act of putting parts together to form a complete integrated object; fabrication".

Thus "construction work" means the expenditure of effort to form, make or create a complete object, such as a building, bridge, highway, etc.   That is, to build or fabricate an object by combining parts.   Consequently, all work expended in initially fabricating a building (the complete integrated object), or in altering, repairing, painting or decorating the building, qualifies as "construction work" under the cited definition.

However, work performed not on the building of an integral part thereof, such as upon machinery within the building, can not be considered as "construction work" as defined in the Complainant's Regulations.

As to the case at bar, there is no evidence that the kiln being relined with new brick, was an integral part of the building   [*20]   within which it was located, i.e., the "Kiln Building".   Rather, the evidence of record most strongly supports the conclusion that the kiln was a piece of manufacturing equipment, used exclusively by Respondent in its business of manufacturing cement.

Therefore, the periodic repair of this kiln, made necessary by Respondent's manufacturing processes, involved the repair of manufacturing equipment, not the type of "repair" intended in the definition of "construction work" set forth supra.   To conclude otherwise would lead to absurd results, i.e., the repair of drill presses in a manufacturing building could be construed to be "construction work".   It is therefore concluded that Respondent's activity of relining a kiln on the day in question, was not "construction work" as contemplated by the Complainant's "Construction Standards" n1 and consequently these activities were not within the purview of these Standards.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 A similar result has been reached by Judge Chalk in a strikingly similar case, Sec. of Labor v. Keibler Industries, Inc., Docket No. 1689, 6/28/73.   This decision has become the final order of the Commission pursuant to Section 12(j) of the Act, (29 USC 661(j)) as no review was directed.

  [*21]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Assuming arguendo and for purposes of a complete determination of this case, that Respondent's activities on the day in question could be construed to be within the scope of the Complainant's "Construction Standards", the specific Construction Standard relied upon, 29 C.F.R. 1926.852(a), does not apply to Respondent's activity.

This Standard is found in Subpart T of Complainant's Standards, which is labeled "Demolition".

Again, Webster's Unabridged Dictionary, cited supra, defines the word "demolition" as:

"the act or process of demolishing."

The word "demolish" is defined as

". . . to pull or tear down (as a building) . . . to raze; to break to pieces or apart usually with force or violence; ruin completely; shatter, smash. . ."

The obvious activities intended to be covered by the Standards in Subpart T, are those involving the demolition of structures, that is the razing or tearing down of structures.   This coverage is clearly evident from a reading of these standards in this Subpart (29 CFR 1926.850 - 1926.860).

The activity of Respondent, in relining a kiln cannot reasonably be labeled the [*22]   "demolition" of the kiln. It is clear from the Stipulation of Facts, that the kiln involved was not demolished, or torn down, rather its worn brick lining was removed preparatory to installing a new brick lining.   This constituted the repair of the kiln, not its demolition. n2

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 Paragraph 4 of the Stipulation states ". . . the Respondent was engaged in the demolition and reconstruction of a kiln in the Kiln Building . . ." at the worksite.   This conclusuory statement, is not binding upon the Commission when it is contradicted by other factual statements in the Stipulation, (see paragraph 5 thereof), is contrary to the generally recognized meaning of the term "demolition", and where justice dictates otherwise.   Sec. of Labor v. Colonial Craft Reproductions, Inc., 1 OSAHRC 933 at footnote 1.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Having answered question number 1 as proposed by the parties in the negative, that is, Respondent was not properly cited for a serious violation of 29 CFR 1926.852(a), there remains another question raised in Complainant's [*23]   Brief.

Part III of this Brief, in effect moves to amend the ". . . pleadings, pursuant to F.R.C.P. 15(b) to conform them to the proof"., in the event it is found that the Standard relied upon in its Complaint is inapplicable.

By this motion, Complainant moves to amend the pleadings to once again charge a violation of Section 5(a)(1) of the Act, as initially charged in its Serious Citation herein, believing that the proofs establish such a violation.

The Respondent in its brief, addresses the question of whether the proofs establish a violation of Section 5(a)(1) of the Act.   Thus, the legal issue, on this record, has been expressly tried.   Further, the factual or evidenciary basis for a Section 5(a)(1) charge, has not changed, i.e., the Stipulation of Facts.   Therefore, my understanding of Commission precedent, n3 judicial precedent n4, and Rule 15 of the Federal Rules of Civil Procedure, leads me to conclude that the Complainant's Motion should be granted as I am unable to conclude on this record that the Respondent is prejudiced thereby.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 See: Sec. of Labor v. Brisk Waterproofing Co., Inc., Dkt. No. 1046, 7/27/73;

Sec. of Labor v. J. L. Mabry Grading, Inc.; Dkt. No. 285, 4/27/73;

Sec. of Labor v. Advance Air Conditioning, Inc.; Dkt. No. 1036, 4/4/74;

Sec. of Labor v. Copelan Plumbing Co.; Dkt. No. 867, 6/17/74;

Sec. of Labor v. Gerstner Electric, Inc.; Dkt. No. 997, 8/1/74.

n4 National Realty and Construction Co., Inc. v. OSHRC and Sec. of Labor 489 F.2d 1257 (C.A.D.C., 1973).

  [*24]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

There consequently remains for detemination, one last question, whether the evidence of record establishes a violation of Section 5(a)(1) of the Act.

This section of the Act provides:

"(a) Each employer -

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;" (29 U.S.C. 654(a)(1)).

In order to sustain a violation of this Section of the Act, the Complainant must establish, among other things, that Respondent's place of employment was not free from recognized hazards ". . . that are causing or are likely to cause death or serious physical harm to his (Respondent's) employees."

In order to sustain a "serious" violation of this Section, as charged herein, the Complainant must establish that the employer knew, or with the exercise of reasonable diligence could have knowwn, of the presence of the violation (Section 17(k), 29 U.S.C. 666(h)).

There is no evidence in this record that Respondent's method of discarding the used brick taken from the [*25]   kiln under repair, was causing or was likely to cause death or serious physical harm to any employee engaged in employment activity.   The Stipulation establishes that the employee accidentally killed on August 29, 1973, was an employee of 27 years experience with Respondent.   Further, on this date, ". . . he was assigned to perform maintenance work inside the Kiln Building and no witnesses are available to testify to any circumstances which explain his presence outside the Kiln Building." (Para. 11 Stipulation of Facts).

Paragraph 6 of this Stipulation describes the area between the Kiln Building and Crane Storage Building as an "alleyway".

In short, there is no evidence to support a conclusion that this area was used by Respondent's employees as a passageway, nor as an area within which any work was to be performed.   The contrary inference is possible, although not necessary, by denominating the area an "alleyway".   The record is similarly devoid of any evidence to establish any reason for any employee to be in this area.

It is therefore concluded that Complainant has not sustained the requisite burden of establishing that the condition existing at this worksite was causing or [*26]   was likely to cause any employee serious physical harm, n5 or that Respondent knew or reasonably could have known that this condition could result in serious physical harm to any of its employees.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 The mere occurrence of an accident does not necessarily mean a hazard exists as defined in 29 U.S.C. 654(a)(1).   Sec. of Labor v. Koppers Co., Inc., 1 OSAHRC 666 (1972).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

There is insufficient evidence in this record to support a violation of Section 5(a)(1) of the Act.

Now, therefore, based upon the evidence of record and pursuant to the provisions of Sections 10(c) and 12(j) of the Act, (29 U.S.C. 659(c) and 661(j)), it is hereby,

ORDERED:

That the Citation for Serious Violation, as amended, and civil penalty proposed thereon are VACATED.

Dated: September 24, 1974

Washington D.C.

WILLIAM E. BRENNAN, Judge, OSHRC