EVERGLADES SUGAR REFINERY, INC.
OSHRC Docket No. 76-2643
Occupational Safety and Health Review Commission
May 30, 1979
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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor
Charles A. Edward, for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Chairman:
A decision of Administrative Law Judge Cecil L. Cutler, Jr. is before the Commission for review under section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter referred to as "the Act"]. Respondent, Everglades Sugar Refinery, Inc., was cited n1 for an alleged serious violation of section 5(a)(1) of the Act, the general duty clause, as the result of a fatal injury suffered when two of respondent's employees attempted to repair a defective payloader. At the November 16, 1976 hearing, over respondent's objection, n2 complainant moved to amend the citation to plead in the alternative a violation of section 5(a)(2) of the Act for noncompliance with seven specific provisions of 29 CFR § 1910.178. n3 The citation charged respondent with a serious violation of the Act, and a penalty of $650 was proposed.
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n1 Respondent was initially cited for a violation of section 5(a)(1) of the Act for failing to program the small payloader for maintenance, thereby exposing employees to hazards generated when making field repairs which were not prohibited by company policy. Subsequently, in its complaint filed with the Commission, the complainant amended this to charge a failure to adequately train and supervise employees in the safe operation and maintenance of the payloader.
n2 Respondent's attorney objected to the amendment when it was offered at the hearing and stated that "we are at least to some extent operating in the aura of surprise, in that all of our preparation to this point has been directed to the question of a general duty violation." Transcript at 7. Counsel added, however, that respondent was prepared to defend on either the general duty clause or the amended citation. The judge found that although respondent was surprised, it was prepared to defend against the amended citation. Furthermore, the judge found that there was no showing in the record that respondent was prejudiced by the amended pleadings. He granted complainant's motion to amend under Fed. R. Civ. P. 15(b). Although we agree that the judge was correct to allow the amendment, leave to amend under Fed. R. Civ. P. 15(a) should have been granted at that time, inasmuch as the motion to amend was made prior to the taking of evidence and the original and amended charges arose out of the same conduct. See P.A.F. Equipment Co., 79 OSAHRC / , 7 BNA OSHC 1209, 1979 CCH OSHD P23,421 (No. 14315, 1979).
n3 The complainant alleged violations of subsections (1), (m)(2), (m)(5)(i), (m)(5)(iii), (p)(1), (q)(1), and (q)(7).
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Judge Cutler vacated both the section 5(a)(1) and the section 5(a)(2) charges. The Secretary's petition for review was granted by the Commissioner Cleary on March 9, 1977. Former Commissioner Moran directed the decision for review to determine if the evidence warrants the judge's findings of fact and conclusions of law. n4 The issues presented in this case are whether the judge erred in vacating the alleged violations of 29 CFR § 1910.178(p)(1) and (q)(1). n5
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n4 Although the Secretary's petition for discretionary review takes exception to the judge's conclusions of law vacating the citation for violation of section 5(a)(1) and 29 CFR § 1910.178, in its brief the Secretary no longer takes exception to the judge's disposition of the alleged violation of 5(a)(1). In addition, the Secretary's brief takes exception to the judge's ruling on only subsections (p)(1) the (q)(1) of 29 CFR § 1910.178. In light of the Secretary's failure to brief these issues, and in the absence of compelling public interest, these issues will not be considered on review. See Water Works Installation Corporation, 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976); Champion Construction & Engineering Company, Inc., 78 OSAHRC , 6 BNA OSHC 2116, 1978 CCH OSHD P21,448 (No. 76-2576, 1978).
n5 29 C.F.R. § 1910.178 Powered industrial trucks
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(p) Operation of the truck. (1) If at any time a powered industrial truck is found to be in need of repair, defective, or in any way unsafe, the truck shall be taken out of service until it has been restored to safe operating condition.
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(q) Maintenance of industrial trucks. (1) Any power-operated industrial truck not in safe operating condition shall be removed from service. All repairs shall be made by authorized personnel.
[*3]
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The evidence in this case establishes that on Saturday, May 8, 1976, two of respondent's employees, Ricky Carter and Ronnie Sauls, were performing regular weekend maintenance work at respondent's sugar refinery in Clewiston, Florida. The employees were assigned the task of cleaning "mud," a filtering agent, from syrup presses. An International Harvester Payloader, Model H-25, a small payloader with a front-end, hydraulically operated bucket, was frequently used by these two employees to accomplish this task.
Carter had been employed by respondent for three months, but prior to that had worked on respondent's premises for about six months as an employee of Blackwell Welding Company, an independent contractor doing maintenance work for respondent. Sauls had been employed by respondent for about one year as a maintenance man doing general repairs on machinery. Both Carter and Sauls had been trained to operate the small payloader, but neither had been trained to repair it. Sauls had been told by one of respondent's supervisors never to get underneath a raised load. Carter, while still working for [*4] Blackwell on respondent's premises, had also been told not to get beneath a raised load.
At least three or four days before the accident, the throttle linkage of the small payloader became disconnected. Respondent decided that the payloader should be repaired by an outside maintenance contractor. It was parked in its regular storage space beneath a canopy outside the refinery with its bucket fully lowered. According to respondent's supervisor, all employees who had reason to use the payloader during the week were told about the defective linkage and were instructed to leave the machine alone. Neither Carter nor Sauls, however, both of whom frequently used the payloader on weekends, were told not to use the machine or not to attempt to repair it. Furthermore, the ignition keys were not removed nor was the payloader tagged as out of service, even after the supervisor discovered other maintenance employees attempting to repair it.
There is some conflict about whether respondent has a work rule dealing with the removal of defective equipment from service. The supervisor testified that if the throttle linkage became disconnected on any of the forklifts or on the large payloader, [*5] the regular procedure would be to park the machine, pull the keys, and call in an outside maintenance contractor. Respondent's general manager, however, contradicted the supervisor's testimony by stating that he had never told any of his supervisors to pull the keys from the ignition of defective rolling stock.
On the morning of May 8, 1976, the two employees were told only that the throttle linkage was "messed up." Respondent's general manager testified that company policy prohibits employees from working on rolling stock equipment, however, he also stated that all of respondent's employees are given discretion to try to make minor repairs on defective machinery. This discretion includes determining what is a minor repair. The only criterion for making this determination is that the repair work should not take too long to complete. After being told that the payloader was "messed up," the two employees examined the machine and decided that it would be easy to repair.
Because the throttle linkage was disconnected, the payloader could not be moved, nor could the bucket be raised without manually operating the linkage rod or throttle to race the engine. Carter and Sauls decided [*6] that the bucket should be raised to make the repair. The two employees cranked the engine, raced the engine by reaching through the floorboard to manipulate the linkage rod, raised the bucket, placed a steel rod through the scissors of the boom mechanism to prevent the bucket from falling, and reconnected the linkage from beneath the bucket. The rod in the scissors mechanism was then removed. When the engine was raced again, the linkage fell apart. Carter stepped back under the bucket without reinserting the rod in the scissors mechanism, and asked Sauls to manipulate the linkage rod once more to raise the bucket higher. As Sauls reached into the passenger compartment to manipulate the linkage rod, he apparently brushed against the boom release lever, inadvertently causing the bucket to fall on Carter. Carter was fatally injured by the bucket.
The administrative law judge ruled that 29 CFR § § 1910.178(p)(1) and (q)(1) should be read in pari materia, because they both deal with the removal of unsafe equipment from service. He found that a violation of either "should not be found absent an effect on workers' safety" and that the disconnected throttle linkage "in [*7] no way affected safety." Although both provisions deal with the removal of unsafe powered industrial trucks from service, their source standards and purposes are different. The source of (p)(1) is the American National Standards Institute (ANSI) standard B56.1-1968, section 6, dealing with operating safety rules and practices. Subsection (q)(1) has its source in the National Fire Protection Association (NFPA) standard No. 505-1969, within Part B, dealing with maintenance of industrial trucks. The OSHA regulations themselves designate subsection (p) as "Operation of the truck" while subsection (q) is titled "Maintenance of industrial trucks." Although titles and topic headings are merely tools of statutory interpretation which cannot limit the plain meaning of the text, Wary Electric Contracting, 78 OSAHRC 78/A2, 6 BNA OSHC 1981, 1978 CCH OSHD P23,031 (No. 76-119, 1978), they clearly do indicate or characterize the subject matter of the standard. n6 The use of the topic headings here is not intended in any way to limit the plain meaning of the text, but only to show that (p)(1) and (q)(1) were designed to deal with different safety problems.
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n6 Commissioner Barnako adheres to his dissenting opinion in Wray Electric Contracting, supra, wherein he stated that an employer is entitled to rely upon the topic headings under which a standard appears so that the employer is not placed in the position of guessing whether a standard applies to a particular condition. Hence he agrees that titles and topic headings characterize the subject matter of the standard but believes it follows therefrom that they also limit the meaning of the text.
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The different problems are illustrated by the different effects on safety posed by operation and maintenance. When the throttle linkage is disconnected, the engine will only idle. The payloader cannot be driven, and the bucket cannot be raised without manually manipulating the linkage rod to race the engine. As was admitted by the compliance officer at the hearing, a defective throttle linkage by itself poses no safety hazard in regard to the operation of the payloader. There is, however, an effect on safety if unauthorized personnel are allowed [*9] to make repairs. An unauthorized employee attempting a repair for which he is not properly trained is certainly exposed to dangers that authorized personnel would know to avoid. Thus, since the sources, purposes, and effects on safety are different, (p)(1) and (q)(1) should not be read in pari materia.
Furthermore, we find that subsection (p)(1) is inapplicable to the facts of this case. Subsection (p)(1) applies to the unsafe operation of industrial trucks and provides for removal of the equipment from service until the equipment is repaired and safe to operate. Subsection (q)(1), in addition to requiring the removal of unsafe equipment from service, is addressed to assuring safe practices during the repair of equipment. n7 The hazard posed here is the danger of allowing unauthorized personnel to make repairs when respondent has decided that the repairs should be made by an outside authorized maintenance contractor. Section 1910.5(c)(1) of Title 29 CFR provides in pertinent part that:
If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might [*10] otherwise be applicable to the same condition, practice, means, method, operation, or process. . . .
Although both (p)(1) and (q)(1) deal with the removal of unsafe powered industrial trucks from service, (q)(1) is specifically addressed to the maintenance problem presented by the evidence of record. Even though (q)(1) states that powered industrial trucks not in safe operating condition shall be removed from service, it additionally, without any conditional language, requires that "[a]ll repairs shall be made by authorized personnel." Since this latter requirement was not followed, we find that the judge erred in vacating the alleged violation of 29 CFR § 1910.178(q)(1).
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n7 Compare § 1910.178(q)(1) with § 1910.178(q)(2) and (3).
(2) No repairs shall be made in Class I, II, and III locations.
(3) Those repairs to the fuel and ignition systems of industrial trucks which involve fire hazards shall be conducted only in locations designated for such repairs.
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Respondent determined that the payloader was to be removed [*11] from service and repaired by an outside contractor. Respondent did not, however, adequately remove the payloader from service by removing the ignition key and tagging it. Nor did respondent communicate to Carter and Sauls its decision to have the payloader repaired by outside authorized personnel. In sum, respondent failed to ensure that the small payloader would be repaired only by authorized personnel.
The judge also found that the citation should be vacated because the conduct of the two employees was unforeseeable. We disagree. Respondent's safety program can best be characterized as informal. There are no formal safety meetings or written work rules. Instead, respondent's shift supervisors are each responsible for discussing safety rules with their employees. Although the supervisors are supplied with weekly safety literature and are expected to discuss the material, or at least to make it available for employees to read, there is no formal procedure to ensure that the supervisors carry out these safety responsibilities. The general manager testified that in lieu of formal safety procedures, he personally oversees the work of about thirty-five employees n8 for about [*12] two hours a day and talks with his supervisors every day. Respondent also uses safety warning signs throughout the worksite.
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n8 Respondent employs a total of 42 employees which includes the top supervisory positions.
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Safety instruction in the operation of the payloaders and forklifts is given during on-the-job training rather than by a specific safety training program. The record does not indicate whether any training is provided in the maintenance and repair of equipment, although it is undisputed that neither Carter nor Sauls had been trained to repair the small payloader.
The effectiveness of respondent's safety program is largely dependent upon each employee looking out for his own safety and that of his co-workers. Enforcement of the unwritten safety rules is usually achieved by oral reprimand, and although some employees have been threatened with dismissal for breaking a safety workrule, no employee has ever actually been dismissed. According to the general manager's testimony, all of respondent's employees [*13] and supervisors are well aware of the sanctions imposed for breaking a safety workrule.
Unforeseeable employee conduct is an affirmative defense which requires a showing that the employee conduct was in violation of a well-established and uniformly enforced work rule. B-G Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OAHD P20,744 (No. 4713, 1976). The evidence of record does not support the judge's conclusion that the employees' conduct was unforeseeable. The two employees involved in this case, Carter and Sauls, regularly used the payloader in question. The payloader was not tagged out of service, and the keys were not removed from the ignition. Neither Carter nor Sauls were told that they were not to use or repair the payloader. Moreover, company policy gave each employee the discretion to determine whether a minor repair should be made, the discretion to determine what is a minor repair, and the authority to make the repair. Furthermore, respondent's supervisor had discovered other maintenance employees attempting to repair the payloader a few days before the fatal accident. Thus, it was not only foreseeable but predictable that Carter [*14] and Sauls would try to repair the payloader.
The respondent tries to buttress the unforeseeability argument by showing that the company had a well-known and uniformly enforced work rule against getting beneath the bucket and that Mr. Carter violated this rule. That Carter got beneath the raised load to repair the payloader is not the gravamen of the violation. The violation is respondent's failure to assure that the repairs were performed by authorized personnel. Because of the informal nature of its safety program, respondent not only gave each employee broad discretion to make minor repairs but relied on word of mouth to communicate its decision to remove the payloader from service and to have it repaired by an outside contractor. This informal policy resulted in unqualified and unauthorized employees attempting the repairs. Therefore, we reverse the judge's decision and affirm the violation of 29 CFR § 1910.178(q)(1).
A penalty of $650 was proposed for the alleged serious violation of the Act. Under section 17(j) of the Act, the following factors should be considered in assessing the appropriateness of a proposed penalty: (1) gravity of the violation, (2) size of the business, [*15] (3) good faith effort to assure the employees a safe and healthful workplace, and (4) the history of previous violations. Everglades employs only 42 employees, which includes the three top supervisory positions. They have no prior history of safety violations, and the record supports a finding of a good faith effort to maintain a safe workplace. Safety instruction is given emphasis during employees' on-the-job training, and although respondent's safety program is informal, it had been effective until this incident. This is, however, a serious violation that resulted in death, largely because of the informality of the safety program. Thus, the proposed penalty is affirmed.
Accordingly, the judge's decision is reversed. The serious violation of section 5(a)(2) of the Act for failure to comply with 29 CFR § 1910.178(q)(1) is affirmed and a penalty of $650 is assessed.