ACME FENCE & IRON CO., INC.  

OSHRC Docket No. 78-0982

Occupational Safety and Health Review Commission

February 15, 1980

  [*1]  

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Ronald D. Fulkerson, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This case is before us pursuant to a direction for review entered in accordance with Rule 91a(a) of the Commission's Rules of Procedure, 29 C.F.R. §   2200.91a(a), and section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").

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

n1 29 U.S.C. §   661(i).

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

Respondent, Acme Fence and Iron Co., Inc., manufactures galvanized wire fencing at its plant in Norman, Oklahoma.   During the galvanizing process, the wire is pulled through vats of molten zinc. On January 9, 1978, a newly-hired employee was injured when he stepped off the edge of a vat into molten zinc, sustaining extensive burns.   An inspection was conducted by an authorized representative of the Secretary of Labor ("the Secretary") to investigate the conditions surrounding that injury.

As a result of the inspection,   [*2]   two citations were issued on February 14, 1978.   Respondent timely filed a notice of contest, and a hearing was held before Administrative Law Judge James A. Cronin, Jr. on September 29, 1978.   One citation alleged two serious violations, which the judge affirmed.   Neither party has sought to have his disposition of these items reviewed.   The other citation alleged a willful violation of the Act for noncompliance with the occupational safety and health standard at 29 C.F.R. §   1910.22(c), n2 for failure to have guardrails or covers in place to protect employees working around the vat of molten zinc. The judge affirmed the violation as serious, but concluded that it was not willful within the meaning of section 17(a) of the Act, 29 U.S.C. §   666(a). n3 Review was directed on the question of whether the judge erred in concluding that the violation was not willful.

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

n2 The standard at 29 C.F.R. §   1910.22(c) provides in pertinent part:

Covers and guardrails.

Covers and/or guardrails shall be provided to protect personnel from the hazards of open pits, tanks, vats, ditches, etc.

n3 29 U.S.C. §   666(a) provides:

Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of not more than $10,000 for each violation.

  [*3]  

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

The record shows that, in manufacturing galvanized fencing, Respondent passes woven wire (chain link) fencing through a vat of molten zinc to make the wire rust-resistant.   The vats used by Respondent at the time of the accident were all designed and built by Respondent.   The vats are generally sixteen to twenty feet long, and three to four feet wide.   The walls of the vats are about three feet thick and stand about four feet above floor level.   Each vat contains a removable submerger or divider, to push the wire down into the zinc so that it will be coated.   The divider consists of one or more rollers extending the width of the tank. As the wire is pulled from one end of the tank to the other, it passes under the divider.

During the galvanizing, salts are added to the zinc to clean the wire and make the zinc adhere better.   The salts form a "flux" on the top of the vat and the crust must be broken up and removed from the vat. This process is called skimming.   The workers stand on the edge of the tank and use a long-handled shovel to skim the flux off the top of the molten zinc. The surface on which [*4]   they stand is approximately 2 1/2 to 3 feet wide.

Employees also mount the sides of the tank during "drossing," which is performed every two to three weeks.   During this process, a forklift truck is used to pull a large scoop from one end of the vat to the other to remove the slag on the bottom of the vat. Two employees walk along the edge of the vat, one on each side, holding the handle of the scoop to see that it scrapes the slag off the bottom.

The incident that precipitated the inspection occurred when an employee was helping skim the tank on his first day of employment.   He stood on the tank wall and broke up the zinc at one end of the tank. When he turned to leave the tank, he stepped onto the unbroken crust of zinc on the other side of the divider and fell through into the molten zinc. Two other employees quickly pulled him out, but he suffered first, second, and third degree burns on both legs and one hand, requiring extensive skin grafting.   At the hearing, he testified that the crust on the top of the zinc was a different color than the zinc he had broken up, that it was level with the surrounding walls of the vat, and that it looked like solid concrete to him.   He   [*5]   stated that no one had warned him about the danger.

There had been an inspection of Respondent's plant in 1974, resulting in the issuance of citations.   The standard under which Respondent was cited here was also one of the standards under which Respondent was cited in 1974.   Among the facts alleged at that time to constitute a violation was the failure to have guardrails around galvanizing kettles and acid tanks. Those citations were not contested and became final orders of the Commission by operation of law under section 10(a) of the Act, 29 U.S.C. §   659(a).   Following the 1974 citation, Respondent erected guardrails around its galvanizing taks and acid vats, but the rails were removed by the employees and frequently were not replaced.

Judge Cronin held that the record established a serious violation of the Act for noncompliance with the standard at 29 C.F.R. §   1910.22(c).   He also concluded that Respondent had established neither the affirmative defense of "impossibility" nor the affirmative defense of "greater hazard" as those defenses are defined by Commission precedent.

The judge's decision continues, however:

[The] characterization of "willful" is struck.   This Judge is [*6]   persuaded that Acme Fence sincerely believed on January 9, 1978 that compliance with the violated standard was impossible and more dangerous, and that alternative means of equivalent protection were unavailable.   Acme Fence did install guardrails in 1974 and subsequently in 1978, and removed them only upon being convinced that they created a greater danger and prohibited an essential operation from being performed.   The record does not establish an intentional disregard of the standard or a plain indifference to the standard's requirements.

* * *

Acme Fence sincerely believed that installation of guardrails during the skimming and drossing operations was impossible and more dangerous to its employees, and that an alternative means of equivalent protection was unavailable.   With the exercise of reasonable diligence, however, Acme Fence should have perceived that an alternative means of protection was available.

The Secretary petitioned for review, arguing that the judge erred when he concluded that the record did not establish an intentional disregard of the standard or an indifference to the standard's requirements.   The Secretary further maintains that the judge erred in finding [*7]   that Respondent believed that compliance was impossible and was more dangerous than noncompliance, and that alternative protection was not available.   The Secretary argues that there can be little dispute that Respondent knew of the standard's requirements but substituted its own judgment for the requirements of the standard and deliberately chose not to comply.   As a result, the Secretary contends that Western Waterproofing Co., Inc. v. Marshall, 576 F.2d 139 (8th Cir. 1978) is dispositive and that the violation must be characterized as willful. He argues that Western Waterproofing stands for the proposition that, where the standard prescribes a course of conduct and unambiguously forecloses an employer from deciding that the required conduct is unnecessary, a deliberate choice to ignore the standard's requirements is properly categorized as willful.

In response to the Secretary's petition, review was directed by Chairman Cleary on the question of whether the judge erred in finding that the violation was not willful as alleged.   In response, Respondent argues that the judge did not err, that he was correct in finding that Respondent never made a deliberate choice to disregard [*8]   the requirements of the standard but removed the guardrails only upon being convinced that they created a greater danger and prevented the performance of an essential operation. n4 Respondent further argues that the particular vat in question had never been the subject of a previous citation and that it had been replaced at great expense with a safer vat by the date of the hearing.   Respondent argues that Western Waterproofing, relied on by the Secretary, is distinguishable because Respondent never made a deliberate choice to disregard the requirements of the standard.

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

n4 The existence of the violative condition is not before us on review.   To the extent that Respondent's arguments urge that there was no violation, we do not consider them.

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

We conclude that the judge erred in finding that the violation was not willful and reverse his decision as to the characterization of the violation.   A willful violation is established when it is shown that an employer made a conscious, deliberate, voluntary decision not to   [*9]   obey the requirements of the standard.   Communications, Inc., 79 OSAHRC    , 7 BNA OSHC 1598, 1979 CCH OSHD P23,759 (No. 76-1924, 1979).   If, however, there is a reasonable, good-faith difference of opinion as to a critical fact and the resolution of this question determines whether there is a violation, a violation will not be found to be willful. C.N. Flagg & Co., d/b/a Northeastern Contracting Co., 75 OSAHRC 32/C6, 2 BNA OSHC 1539, 1974-75 CCH OSHD P19,251 (No. 1409, 1975).

In National Steel & Shipbuilding Co., 78 OSAHRC 48/A2, 6 BNA OSHC 1680, 1978 CCH OSHD P22,808 (Nos. 11011 and 11769, 1978), aff'd No. 78-2695 (9th Cir. Oct. 29, 1979), the Respondent, in its determination to expedite production, had allowed an employee to oerform work without the protection of guardrails as required by the standard cited there.   The Commission said:

National had actual knowledge that the cited standard required guardrails . . .; nevertheless, it allowed its painter to work from a scaffold unequipped with guardrails.

* * *

Clearly where the standard unambiguously forecloses an employer from deciding that guardrails . . . are unnecessary, such conduct, at the least, constitutes [*10]   careless disregard of the standard and is therefore properly denominated willful.

* * *

Moreover, the record establishes that National did not act in good faith since the record established it allowed its painter to work from the noncompliant scaffold for practical reasons rather than a serious belief that the standard did not apply.

* * *

C.N. Flagg and Co., supra, does not require a different result.   In that case, the employer and the Secretary had a good faith difference of opinion as to the nature of the soil in which the employer had dug a trench.   Thus, in that case a critical fact was in dispute; if the employer's belief in the fact had been correct, the standard under which it was cited would not have been applicable.   Here, however, the facts are undisputed and the applicability of the standard is patent.

78 OSAHRC at 48/A12-13, 6 BNA OSHC at 1683, 1978 CCH OSHD at p. 27,559.

In National Steel, supra, the employer argued that it sincerely believed that the standard did not apply to scaffolds that were being dismantled, although the employee on the scaffold was painting, not dismantling the scaffold. This argument differs from that made by Acme Fence,   [*11]   in that Acme claims that it sincerely believed that it would be impossible to perform its operation with the guardrail in place and that the guardrail posed a greater hazard to its employees than working without guardrails. We believe, however, that the rationale of National Steel applies here.   The record shows that Acme Fence was aware that its vats should be protected but that it chose not to comply because compliance hampered its operation.   We therefore conclude that the violation was willful. n5

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

n5 The judge grounded his vacation of the willful characterization on his determination that Respondent "sincerely" believed that the guardrails created a greater hazard, that they made certain operations impossible to perform, and that alternative protection was not available.   He also found, however, that Respondent failed to exercise reasonable diligence to find alternative protection.   The exercise of reasonable diligence to ascertain the facts is an essential element of any good-faith belief.   In view of the fact that Respondent failed to exercise reasonable diligence, we hold that its belief, however "sincere," could not be a good-faith belief.

  [*12]  

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

Both parties have presented arguments concerning Western Waterproofing Co., Inc. v. Marshall, supra. That decision was followed in Communications, Inc. and National Steel & Shipbuilding, the cases on which we rely.   Our holding here is consistent with the holding in Western Waterproofing.

As noted above, Respondent had been cited previously for failure to comply with the standard at 29 C.F.R. §   1910.22(c) and was aware of the requirements of that standard.   Before the judge, Respondent attempted to distinguish the facts of the prior violation from the facts of the present citation on the ground that the processes were different and the hazard there was acid while here it is molten zinc. In its brief to the Commission, Respondent makes no reference to the facts of the prior citation but argues that the device where the incident occurred had never before been the subject of a citation and that it had been dismantled after the injury and replaced at great expense by a safer machine.

These facts do not alter our decision.   The standard applies to all open pits, tanks, vats, and [*13]   ditches and openings of a similar nature.   The standard does not differentiate between the contents of the vessel or cavity, so the fact that one vat contained acid and one vat contained molten zinc is immaterial.   The determinative fact is that Acme knew the requirements of the standard and chose not to comply.   The fact that Respondent removed the cited vat after the citation was issued does not vitiate the willful character of the violation.   Abatement efforts subsequent to the citation, however, may be considered in evaluating a respondent's good faith for purposes of determining the penalty.   Hodgson Shingle & Shake Co., 74 OSAHRC 70/B3, 2 BNA OSHC 1215, 1974-75 CCH OSHD P18,722 (No. 1315, 1974).

Respondent argues that it did not make a deliberate choice to disregard the requirements of the standard but removed the guardrails only upon being convinced that the guardrails created a greater hazard and prevented an essential operation from being performed.   The record indicates that Acme permitted its employees to remove the guardrails and to perform work without the guardrails in place.   This constitutes a knowing failure to comply with the requirements of the standard.   Despite [*14]   Mr. Thedford's statements at the hearing that Acme would do anything it could to make its operation safer, Acme had not explored the use of safety harnesses or safety belts and lifelines, which the judge found would eliminate the hazard. Acme indicated that it had a work rule prohibiting the removal of guardrails but the record demonstrates that the rule was not enforced.

The judge assessed a penalty of $1000, the maximum penalty permitted by the Act for a serious violation, because he found the gravity of the violation to be very high.   We agree with the judge as to the high degree of gravity of this violation.   We have independently weighed the factors to be considered under section 17(j) of the Act, 29 U.S.C. §   666(i).   According to the evidence, the entire galvanized wire fence manufacturing industry has had difficulty complying with the standard, and Respondent has spent a large amount of money since the incident designing and constructing a process to make it easier to comply.   Additionally, the Secretary has issued several variances to the galvanized wire fence industry.   We therefore find that a penalty of $1,000 is appropriate, despite the willful characterization of the [*15]   violation and the high degree of gravity.

Accordingly, the judge's decision is modified to hold that Respondent's noncompliance with section 1910.22(c) constituted a willful violation of the Act, and a penalty of $1,000 is assessed.

So ORDERED.