H.B. ZACHRY COMPANY (INTERNATIONAL)

OSHRC Docket No. 76-2617

Occupational Safety and Health Review Commission

June 30, 1980

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Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Mary Z. Asseo, Associate Reg. Sol., USDOL

Rafael Rodriguez Lebron, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Henry K. Osterman is before the Commission for review under section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").

Respondent, H.B. Zachry Co. (International), was engaged as a subcontractor on a multi-employer construction site in Aguirre, Puerto Rico, on April 13, 1976, when a dump truck leased to Respondent was involved in a fatal accident. n1 Following this accident an authorized representative of the Occupational Safety and Health Administration inspected the worksite and issued two citations to Respondent alleging serious violations of the Act.   Citation 1 alleged that Respondent failed to comply with the standard at 29 C.F.R. § §   1926.601(b)(4)(i) and (ii) by using a dump truck with an obstructed view to the rear, without either a reverse signal alarm or an observer to indicate that it was safe to back up. n2 Citation 2 alleged that Respondent   [*2]   failed to comply with the standard at 29 C.F.R. §   1910.212(a)(3)(ii) by not guarding the point of operation on an alligator shear machine. n3 Respondent contested the citations.   After a hearing, Judge Osterman issued his decision vacating both citations.

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n1 The record indicates that Respondent contracted the services of the truck and its driver, Angel G. Gonzalez, for the purpose of carrying dirt from a trench being excavated by Respondent.

n2 The cited standard provides:

§   1926.601 Motor vehicles.

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(b) General Requirements.

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(4) No employer shall use any motor vehicle equipment having an obstructed view to the rear unless:

(i) The vehicle has a reverse signal alarm audible above the surrounding noise level or:

(ii) The vehicle is backed up only when an observer signals that it is safe to do so.

n3 The cited standard provides:

§   1910.212 General requirements for all machines.

(a) Machine guarding -

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(3) Point of operation guarding.

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(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded.   The guarding device shall be in conformity with any appropriate standards therefore, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.

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The Secretary of Labor ("Secretary") filed a petition for discretionary review of the judge's decision.   Chairman Cleary granted the Secretary's petition and directed review on all issues raised by the petition including:

(1) Whether the administrative law judge erred in vacating the alleged serious violations of 29 C.F.R. § §   1926.601(b)(4)(i) and (ii) on the basis that none of Respondent's employees were exposed to the hazard created by the dump trucks which lacked reverse signal alarms.

(2) Whether the administrative law judge erred in vacating the alleged serious violation of 29 C.F.R. §   1910.212(a)(3)(ii) based on the determination that Respondent's employees were not exposed to injury from an unguarded alligator shear because of the manner in which the machine was constructed and designed to be operated.

The Secretary and Respondent filed briefs on review.   For the reasons that follow, we reverse the judge, affirm the citations, and assess penalties totaling $800.

29 C.F.R. § §   1926.601(b)(4)(i) and (ii) -- Operation of Unsafe Truck

The following facts concerning the violation alleged in [*4]   citation 1 are not disputed.   Part of Respondent's work as a subcontractor at the involved construction worksite consisted of digging and removing earth using a "digger", a "loader," and various dump trucks. In addition to using dump trucks that it owned, Respondent leased several trucks. The trucks that Respondent owned were equipped with reverse signal alarms; the leased trucks were not so equipped. On April 13, 1976, a leased truck with an obstructed view to the rear, while backing down a road 270 feet long to receive a load of dirt, ran over and killed an individual identified as a Mr. Hugh Askew.   The truck lacked a reverse signal alarm and no observer had been assigned to signal the truck that it was safe to back up.

The judge vacated the citation based on his finding that the Secretary failed to prove by a preponderance of the evidence that employees were exposed to the alleged hazard. The judge stated that "persuasive evidence" shows that "only the 'digger,' 'loader,' and dump-truck operator worked on [the] dirt road . . . and no other employees of the Respondent were exposed to the hazard. . . ." He also noted, however, that the digger operator and the loader operator [*5]   worked in an excavation seven to eight feet below the level of the road on which the truck travelled.   Concerning the person who was run over and fatally injured, the judge stated that the record does not establish his identity or whether he was authorized to be on the project "although it is reasonably clear that he was not an employee of Respondent."

The Secretary argues on review that the judge erred in vacating the citation on the basis of lack of employee exposure. The Secretary asserts that the evidence of record establishes that on the day of the fatal accident Respondent's employees as well as employees of other contractors were exposed to the hazard created by Respondent's use of trucks lacking reverse signal alarms. Citing the Commission's decision in Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD P20,691 (No. 12775, 1976), and the Second Circuit's decision in Brennan v. OSHRC (Underhill Construction Corp.), 513 F.2d 1032 (2d. Cir. 1975), the Secretary argues that the judge erred in focusing entirely on the alleged exposure of Respondent's employees to the hazard and in failing to consider the exposure of employees of other [*6]   employers on the construction site. The Secretary relies on the testimony of the compliance officer and an employee of Respondent who was an eyewitness to the fatal accident. The Secretary argues that the judge inaccurately characterized as "speculative" the testimony of the compliance officer that other employees crossed the dirt road on which the dump trucks were operating in order to reach a food stand a parking area.   "Even more egregious," states the Secretary, is the judge's failure to refer to the testimony of Respondent's loader operator who witnessed the accident and who described "a picture of fairly bustling activity" in the area of the truck's operation.   Finally, the Secretary asserts that the "only inference that can reasonably be drawn" from the record is a conclusion that the fatally injured person was an "employee" at the site, and, therefore, that he "was in the class of persons to whom respondent owed a duty of care under the Act." Thus, because employee exposure to the hazardous trucks was established, the Secretary urges reversal of the judge and reinstatement of the citation and penalty.

Respondent contends that the judge's finding that no employees were exposed [*7]   to the hazardous condition is supported by a preponderance of the evidence of record.   Respondent further contends that this finding is a credibility finding based on the weighing of "conflicting testimonies." It was the judge who lived with the case and observed the witnesses, argues Respondent.   Because the judge found Respondent's witnesses more credible than the Secretary's witnesses, Respondent urges affirmance of the judge.   In particular, Respondent argues that the judge weighed the testimony concerning the "unknown" employees of other contractors who crossed the paths of the trucks and found it "speculative." As for its own employees, Respondent submits that the judge properly concluded that the Secretary failed to prove exposure to a hazard by a preponderance of the evidence.   With respect to the deceased, Respondent argues in support of the judge's conclusion that "the record did not establish the identity of the individual who died . . . except that . . . he was not an employee of Respondent." Thus, Respondent urges the Commission to affirm the decision of the judge vacating the citation.

We reverse the judge's vacation of citation 1 for the reasons that follow.

We disagree [*8]   with Respondent's characterization of the judge's decision as resting on credibility findings appropriately made by the trier of fact.   No specific credibility findings were made by the judge nor are any necessary for proper resolution of the issues presented.   Rather, we find that the judge improperly weighed the evidence and applied an erroneous test for determining whether there was employee exposure to the hazardous condition.

An employer is in prima facie violation of section 5(a)(2) of the Act if it fails to comply with a safety or health standard and its own employees or employees of another employer are exposed to the resulting hazard. Brennan v. OSHRC (Underhill Constr. Corp.), 513 F.2d 1032 (2d Cir. 1975); Marshall v. Knutson Constr. Co., 566 F.2d 596 (8th Cir. 1977); Beatty Equipment Leasing, Inc. v. Secretary, 577 F.2d 534 (9th Cir. 1978); Harvey Workover, Inc., 79 OSAHRC 72/D5, 7 BNA OSHC 1687, 1979 CCH OSHD P23,830 (No. 76-1408, 1979); Gil Haugan, 79 OSAHRC 107/A2, 7 BNA OSHC 2004, 1979 CCH OSHD P24,105 (Nos. 76-1512 & 76-1513, 1979); Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD P20,690 (Nos. 3694 & 4409, 1976); and [*9]   Grossman Steel & Aluminum Corp., supra. n4 Employee exposure to a hazard is established if it is shown that an employee had access to the violative condition.   Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD P23,135 (No. 16057, 1978).

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n4 Commissioner Barnako does not agree with his colleagues statement that "[a]n employer is in prima facie violation of section 5(a)(2) of the Act if it fails to comply with a safety or health standard and its own employees or employees of another employer are exposed to the resulting hazard." The Commission has held that employers who create or control noncomplying conditions are responsible for the exposure of employees of other employers, as well as exposure of their own employees.   Originally this principle was limited to multi-employer construction worksites. Grossman Steel & Aluminum Corp., supra; Anning-Johnson Co., supra. However, it was subsequently extended by a majority of the Commission to non-construction worksites in Harvey Workover, Inc., supra. Commissioner Barnako did not address whether the Grossman Steel and Anning-Johnson principle should be extended to non-construction worksites in Harvey Workover, however, since he found a violation on other grounds.   Similarly, in this case, he notes that Respondent is engaged in activities at a multi-employer construction worksite and therefore the principles to be applied if Respondent were working at a non-construction worksite are immaterial.

Commissioner Barnako further objects to the majority's citation to Marshall v. Knutson Constr. Co. and Gil Haugan, in support of the above-referenced statement.   Those cases dealt exclusively with general contractors on a multi-employer construction worksite. In them the Eighth Circuit and Commission, respectively, held that a general contractor is responsible for violations of its subcontractors that the general contractor could reasonably be expected to prevent or to detect and abate by reason of its supervisory capacity over the entire worksite, even though its own employees were not exposed to the hazard. To the extent that the majority extends the holding of those cases to non-construction worksites and to employers who are not general contractors, Commissioner Barnako objects.   Not only is this a departure from past precedent and unnecessary for resolution of this case but it involves important policy considerations which should not be overlooked or resolved without mention in the one sentence holding in the text herein.

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We find that the record establishes employee exposure to the hazard posed by the noncomplying trucks. Although his testimony was not discussed in the judge's decision, Mr. Rosello, one of Respondent's heavy equipment operators and the only eyewitness of the fatal accident, testified at the hearing.   He stated that at the time of the accident he was sitting on his loader on the road awaiting a truck into which he could load the excavated dirt.   He described how the deceased walked by his loader and stood in the middle of the road examining plans.   He testified that despite his attempt to warn the deceased of the approach of the truck, the deceased failed to remove himself from the truck's path and was run over.   Rosello testified that, at the time of the accident, Respondent's foreman, two of Respondent's laborers, and both of Respondent's heavy equipment operators were working at the excavation site. Rosello estimated that the excavation that these employees were working in was 50 to 60 feet from the site of the accident.   He stated that a "barrier" surrounded the excavation. He testified that the [*11]   workers in the excavation were working with a water hose and "they would come back and forth." According to Rosello, "[t]here were people there but everbody was paying attention to their own work, nobody was paying attention to what was going on with the movement there." Also, a statement previously given and sworn to by Rosello was entered into the record.   In that statement Rosello stated, "There were a lot of people in the area from Water Resources, Twombly and Zachry, working with pipes in the excavation, and others working with drillers and pumps, extracting water from the excavation on the side of the road. . . ."

Carlos Costas, a safety engineer employed by Respondent, testified for Respondent.   He stated that the road on which the truck travelled was 7 to 8 feet higher in elevation than the adjacent area.   Costas testified that the only employees of Respondent at the excavation site, apart from the truck drivers, were Rosello, operating the loader on the road, and Malave, operating a digger in the excavation. Costas stated that there were no barriers along the road except for a barrier at the end.   Costas testified that he had not examined the leased trucks to determine   [*12]   whether they were equipped with reverse signal alarms "because we believed that's unnecessary because we are not going to expose anybody to that road, no Zachry employee is going to work in that road, we don't put anybody to work over there."

The compliance officer, Radames Santisteban, testified concerning his investigation following the fatal accident. His inspection began on the day that the accident was reported, seven days after it had occurred.   Santisteban opined that the excavation work appeared to be of an ongoing nature.   At the time of his inspection, the truck involved in the accident was no longer being used, the vehicles being used were equipped with reverse signal alarms, barriers were erected at the end of the road, and a supervisor was acting as a flagman.   He testified that on the day of his inspection three of Respondent's employees were involved in the excavation project: a truck driver, the loader operator, and the digger operator.   He further testified that the excavation had "a gentle slope, running about three feet lower" than the road.   Santisteban testified that workers on the site would cross the road in order to reach food stands and a parking area.

We [*13]   find that the testimony of these various witnesses establishes employee exposure to the hazard posed by Respondent's use of trucks without reverse signal alarms or observers. We find the testimony of Rosello, an employee of Respondent and the only eyewitness to the accident to testify at the hearing, sufficient to establish that laborers employed by Respondent were working in the area of the excavation. We find that these employees, as well as the operators of Respondent's loader and digger, had access to the violative condition. n5 Otis Elevator Co., supra. Furthermore, based on the testimony of Rosello and the compliance officer, we find that the preponderance of evidence of record establishes that employees of other employers present at this construction worksite also were exposed to the hazard presented by Respondent's use of trucks without reverse signal alarms or observers. Id. Even if the evidence most favorable to Respondent is accepted, the testimony of Respondent's safety engineer, we would find a violation based on the exposure of the loader operator who was working on the road on which the truck at issue was operating. n6

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n5 Commissioner Barnako's test for employee exposure as expressed in Cilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD P20,448 (No. 504, 1976), differs from the majority in that access, absent an admission, must be shown by evidentiary facts.   The Secretary must establish that employees either while in the course of their assigned working duties, their personal comfort activities while on the job, or their normal means of ingress-egress to their assigned workplaces will be, are, or have been in the zone of danger.   Applying this test, Commissioner Barnako would find that Zachry's loader operator was exposed to the zone of danger created by the reverse operation of the dump truck since the operator was working on the road traversed by the truck. Commissioner Barnako would find that Zachry's digger operator was not exposed since this operator was operating his machine several feet below road level and the evidence does not establish any reason why it would be necessary for him to go onto the road.   As to employees of other employers on the worksite, Commissioner Barnako would find exposure of the following: 1) Those employees who were using the water hose and were "walking back and forth" in the area where the dump truck was backing up and, 2) Those employees who had to cross the road in traveling from stag 2 north to the parking area to get to their cars and to food canteens.   Finally, Commissioner Barnako would find that other employees, not previously mentioned, who were in the excavation were not exposed to the hazard since it was not shown that they would have reason to go into the zone of danger.

n6 Because we find a violation based on the exposure of other employees to the hazard, we find it unnecessary to resolve the issue of the deceased's employment status.

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For these reasons, we reverse the judge's vacation of the citation alleging a serious violation of the Act for failure to comply with the standard at 29 C.F.R. § §   1926.601(b)(4)(i) and (ii). n7

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n7 In order to establish a serious violation of the Act the Secretary must prove that "there is a substantial probability that death or serious physical harm could result from a condition which exists . . . unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation." 29 U.S.C. §   666(j).   We find that with the exercise of reasonable diligence Respondent could have known that the leased truck, unlike the trucks that it owned, was not equipped with a reverse signal alarm and therefore required an observer to signal that it was safe to back up.   We further find that, as evidenced by the fatality that occurred, the record establishes that a substantial probability of death or serious physical harm was posed by the violative condition.

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29 C.F.R. §   1910.212(a)(3)(ii) -- Unguarded Alligator Shear

Citation 2 alleged that Respondent violated the standard at 29 C.F.R. §   1910.212(a)(3)(ii) because its employees were exposed to the hazard of "cut or maimed fingers or arms" when operating an alligator shear machine that lacked a point of operation guard. The shear is powered by a 2-cycle engine and was used by Respondent to cut steel rods. The shear has two "jaws": the lower jaw remains stationary while the upper jaw moves downward at an angle.   Two employees are used in the rod cutting operation, an operator and a helper to assist in the placement and removal of the rods. At the hearing, two conflicting descriptions of the rod cutting operation were given.

The compliance officer testified that the rods being cut by Respondent's employees were 18 feet in length.   He stated that the rods are placed on a bench on the left hand side of the shear and are moved towards the point of operation until the rod is properly positioned.   According to the compliance officer, the operator, positioned on one side of the shear, holds the rod with one hand and presses a lever to [*17]   activate the jaws with the other, while the helper, positioned on the other side, holds the rod to prevent it from moving upward from the force of the cut and removes the rod after the cut has occurred.   The compliance officer estimated that the operator's hand holding the rod is six inches from the point of operation. One hand of the helper is six inches and the other eighteen to twenty-four inches from the point of operation. He testified that the point of operation was not equipped with a guard, that guards are designed for this specific machine, and that a guard was placed on the machine after the inspection. On cross-examination the compliance officer admitted that a piece of protruding iron near the point of operation would prevent the operator's hand from moving further along the bench toward the point of operation, but he testified that the operator could reach over the obstruction and place his hand closer to the point of operation. The compliance officer further testified on cross-examination that the distance of the helper's hands from the point of operation depended on the length of rod being cut.

The helper on the shear machine testified that he was assisting the [*18]   operator when the inspection occurred.   The helper stated that he places the rods on the bench and, from a position five or six feet from the shears, he pushes the rods toward the point of operation. He stated that his hands come as close as "more or less fourteen inches" from the shear's blades and that the operator is closer to the machine.

The operator of the shears was called as a witness on behalf of Respondent.   The operator testified that the closest his hands come to the blades is twelve to fourteen inches when positioning the rods. He stated that neither he nor his helper have to hold the rods when they are being cut.   On cross-examination, the operator testified that the size of the rods to be cut varies from three feet to twenty feet. He also reiterated that the rods are not held when they are being cut and that the helper's function is to assist in placing and removing the rods.

In his decision, Judge Osterman vacated the citation.   The judge found that based on the manner in which the machine was constructed and designed to be operated, Respondent's employees were not exposed to possible injury.   The judge stated that accidental injury was "unlikely" and determined [*19]   that an injury could only occur "by a deliberate effort" of the operator or his helper to insert a hand into the point of operation. The judge noted that a photographic exhibit of the shears showed that a barrier in front of the machine and the protruding piece of iron to the left of the cutting mechanism provided protection from exposure to a hazard. The judge summarized the testimony of the witnesses and found that the compliance officer's description of the "usual" operation of the machine was "wholly speculative" and contradicted by the description of the operation given by the employees involved.   Accordingly, the judge found that the Secretary failed to prove that Respondent's employees were exposed to a hazard and vacated the citation.

On review the Secretary argues that a violation is not avoided merely because "a particular procedure, properly followed, substantially removes the risk of exposure." There is not, argues the Secretary, only one possible way to operate the machine, even though Respondent's employees may customarily have used only one method of operation.   Thus, the Secretary submits, the method described by the compliance officer was clearly one method of   [*20]   operation that could have been used on the machine. The Secretary asserts that if it was physically possible to place a hand or part of a hand between the jaws of the alligator shears during the operating cycle, regardless of the method of operation customarily used, and if the machine operated with sufficient force to cause injury, a hazard exists which requires guarding. Because Respondent did not contend nor did the judge find that it was physically impossible to reach into the point of operation while the shears were cutting, the Secretary argues that the judge erred in failing to find a hazard and in vacating the citation.

Respondent argues in support of the judge's decision.   Respondent contends that the judge correctly concluded that the physical configuration of the machine prevents the operator and the helper from contacting the point of operation, unless a deliberate effort is made by the employees to insert their hands into the cutting area.   Respondent also submits that the judge correctly resolved the conflicting testimony concerning the method of operating the shear used by Respondent's employees.   For these reasons, Respondent argues that the judge's decision should [*21]   be affirmed.

The cited standard, 29 C.F.R. §   1910.212(a)(3)(ii), requires point of operation guarding only on "machines whose operation exposes an employee to injury." n8 "Since the standard does not presume that every unguarded machine exposes employees to injury, proof of a hazard by a preponderance of the evidence is a necessary element of the Secretary's case." Amforge Div., Rockwell Int'l., 80 OSAHRC 8 BNA OSHC 1405, 1980 CCH OSHD P24,439 (No. 76-3488, 1980).   We find that the evidence establishes a hazard requiring guarding.

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n8 Chairman Cleary notes that Respondent has not raised any issue concerning a lack of notice of the applicability of the cited general industry standard, 29 C.F.R. §   1910.212(a)(3)(ii), to its construction operation.   See Diebold, Inc. v. Marshall, 585 F.2d 1327 (6th Cir. 1978); Western Waterproofing, Inc., 79 OSAHRC 50/C13, 7 BNA OSHC 1499, 1502-1503, 1979 CCH OSHD P23,692, at p. 28,728 (No. 14523, 1979) (Cleary, concurring in part, dissenting in part); see also Commission Rule 92(d), 29 C.F.R. §   2200.91a(d).

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Regardless of whether the employees' description of their usual method of operating the shear or the description of the operation proffered by the compliance officer is accepted, two crucial facts remain: the point of operation of the machine is unguarded and it is possible for either the operator or his helper to place a hand or finger in the point of operation during the operating cycle.   The hazard, though remote, exists.   The standard "requires physical methods of guarding rather than methods of guarding that depend on human behavior." Pass & Seymour, Inc., 79 OSAHRC 101/C13, 7 BNA OSHC 1961, 1979 CCH OSHD P24,074 (No. 76-4520, 1979), appeal dismissed, No. 80-4013 (2d Cir. Mar. 21, 1980), and cases cited therein.   As we stated in Signode Corp., 76 OSAHRC 43/A2, 4 BNA OSHC 1078, 1079, 1975-76 CCH OSHD P20,575 at p. 24,595 (No. 3527, 1976), "Although there is little chance of an injury if the machines are operated properly, the standard is plainly intended to eliminate danger from unsafe operating procedures, poor training, or employee inadvertence." We find this statement equally applicable to the facts of the [*23]   present case.   We do not agree with Respondent that only a deliberate effort by the employees could cause injury.   We find that the unguarded point of operation posed a hazard that could result in injury in the event of employee carelessness or inadvertence.

Accordingly, we reverse the judge and find a serious violation of the Act for Respondent's failure to comply with the cited standard. n9

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n9 Again, we find that the elements of a serious violation are established in the record.   With the exercise of reasonable diligence Respondent could have known that the unguarded point of operation of the shears posed a hazard to its employees.   We note that the compliance officer testified that point of operation guards are designed for the particular machine involved and that an appropriate guard was installed after the citation was issued.   Also, we agree with the testimony of the compliance officer that, in view of the intended function of the machine, a substantial probability of serious injury was presented in the event that an accident occurred.

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Penalties

Applying the penalty criteria of section 17(j) of the Act, 29 U.S.C. §   666(i), to the facts of this case, we find the $700 penalty proposed by the Secretary for citation 1 to be appropriate.

Concerning citation 2, we assess a penalty of $100 rather than the $700 penalty proposed by the Secretary.   In particular, we note that Respondent abated the violation after the inspection by installing an appropriate guard. Also, due to the particular configuration of the machine, we find that the violation was of low gravity.

Conclusion

The judge's decision vacating the citations alleging serious violations of the Act for failure to comply with the standards at 29 C.F.R. § §   1926.601(b)(4)(i) and (ii), and 29 C.F.R. §   1910.212(a)(3)(ii), is reversed.   We affirm the citations and assess penalties totaling $800.

SO ORDERED.