FARTHING & WEIDMAN, INC.
OSHRC Docket No. 78-5366
Occupational Safety and Health Review Commission
December 29, 1982
[*1]
BEFORE: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
COUNSEL:
Office of the Solicitor, USDOL
T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor
Blanchard, Van Fleet, Martin, Robertson & Dermott, for the employer
OPINION:
DECISION
BY THE COMMISSION:
An amended citation issued by the Secretary of Labor alleges that Farthing & Weidman, Inc. ("F&W") violated four crane safety standards. Administrative Law Judge Vernon Riehl vacated the citation on the ground that any violations were caused by employee misconduct for which F&W is not liable. The case is before us under 29 U.S.C. § 661(i). We affirm the judge's disposition in part and reverse in part.
Items 1(b) and (c); 29 C.F.R. § § 1910.180(h)(3)(vi) and (h)(4)(ii).
Items 1(b) and (c) of the amended citation allege violations of 29 C.F.R. § § 1910.180(h)(3)(vi) and (h)(4)(ii). These standards stated that "[t]he operator should avoid carrying loads over people" and "[n]o person should be permitted to stand or pass under a load on the hook." These standards, like their source standards, sections 5-3.2.3.f and 5-3.2.4.b of ANSI B30.5 -- 1968," Crawler, Locomotive and Truck Cranes," use the word "should." Section V of the [*2] introduction to the ANSI source standard states that "should" signifies an advisory standard. Such standards are not mandatory and may not be applied here. n1
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n1 See General Electric Co., 80 OSAHRC 127/F10, 9 BNA OSHC 1185, CCH OSHD P25,079 (No. 76-2982, 1980); Brown & Root, 80 OSAHRC 112/D2, 9 BNA OSHC 1027, 1029, 1980 CCH OSHD P24,958, p. 30,795 (No. 76-2938, 1980) (involving section 5-3.2.3.f of the same ANSI standard, adopted indirectly under section 1926.550(a)(17)), pet. for rev. dismissed, No. 81-4003 (5th Cir. Jan. 20, 1981); A. Prokosch & Sons Sheet Metal 80 OSAHRC 96/A2, 8 BNA OSHC 2077, 2080-81, 1980 CCH OSHD P24,840, pp. 30,628-9 (No. 76-406, 1980) (same, adopted under section 1926.550(b)(2)), pet. for rev. dismissed, No. 80-4241 (2d Cir. March 27, 1981); McHugh & McHugh, 77 OSAHRC 35/A2, 5 BNA OSHC 1165, 1977-78 CCH OSHD P21,629 (No. 13010, 1977) (involving section 1910.180(h)(4)(ii)).
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We also do not inquire whether F&W violated 29 U.S.C. § 654(a)(1), section 5(a)(1) of the [*3] Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678, which the Secretary pleaded in the alternative. The adoption by the Secretary of a standard covering a condition -- here, the presence of an employee under a load -- precludes citation under section 5(a)(1) of the Act, whether the standard is mandatory or advisory. n2 Items 1(b) and (c) are therefore vacated. n3
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n2 See Prokosch, 8 BNA OSHC at 2080-81, 1980 CCH OSHD at pp. 30,629-30.
n3 Commissioner Cottine dissents from this disposition for the reasons stated in his dissenting opinion in Prokosch. As in Prokosch and John T. Brady & Co., 82 OSAHRC 9/D10, 10 BNA OSHC 1385, 1982 CCH OSHD P25,941 (No. 76-2894, 1982), rev'd, No. 82-4082 (2d Cir. Oct. 14, 1982), he believes that the merits of the Secretary's allegations under section 5(a)(1) should be determined by the Commission.
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Item 1(a); section 1910.180(h)(3)(i)(b)
Item 1(a) alleges noncompliance with section 1910.180(h)(3)(i)(b), which requires that a load be "well [*4] secured and properly balanced in the sling or lifting device before it is lifted more than a few inches." F&W employees had attached sling hooks to an opening in the top of a very large aluminum tank. The sides of the opening that the sling hook contacted were not strong enough to support the tank's weight. One end of the tank was lifted. An employee crawled underneath. The sling hooks then ripped through the metal and the tank fell on the employee, killing him.
F&W operated a truck, crane, which is governed by section 1910.180. See section 1910.180(b)(1) (application of section). Also the parties do not dispute that a load was not well secured in a sling. In any event, a load is obviously not well secured within the meaning of the standard when it is suspended by sling hooks attached to a portion of the load too weak to support the load's weight.
F&W's argument at the hearing n4 was that the load was not "lifted" within the meaning of the standard because only one end of the load was raised into the air. We are unconvined. To say that the tank involved here was "lifted" hardly strains the meaning of the word, and, indeed, accords well with its plain meaning. In any event, [*5] we must construe this standard in light of its purpose: n5 to prevent loads from falling to the ground. To hold that partially suspended loads may be poorly secured, and hence may fall to the ground, would be inconsistent with that purpose. n6
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n4 F&W did not file a brief before either the judge or the Commission.
n5 See, e.g., Anaconda Aluminum Co., 81 OSAHRC 27A/A2, 9 BNA OSHC 1460, 1477, 1981 CCH OSHD P25,300, p. 31,349 (No. 13102, 1981).
n6 F&W's argument is founded on the premise that the "load" is the tank. This may not be so. Section 1910.180(a)(26) defines "load (working)" as the "external load, in pounds, applied to the crane . . .," i.e., as the weight of the matter being raised. See Havens Steel Co., 78 OSAHRC 53/C11, 6 BNA OSHC 1740, 1743 n. 8, 1978 CCH OSHD P22,875, p. 27,673 n.8 (No. 15538, 1978); Alfred A. Austin Constr. Co., 76 OSAHRC 50/A2, 4 BNA OSHC 1166, 1976-77 CCH OSHD P20,660 (No. 4809, 1976). It may therefore be that the weight of one end of a tank is itself a load and therefore may not be lifted more than a few inches without being well secured in a sling.
[*6]
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Given the presence of employees in close proximity to the lifting operation, we also have no difficulty in concluding that the record sufficiently shows access to the violative condition. We emphasize that our case law, which requires that the Secretary show access, does not require that the Secretary precisely track the movements of employees to show that they will be or have been in a zone of danger. We have rejected such a brinkmanship approach to employee safety and health. See Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 2050, 1978 CCH OSHD P23,135, p. 27,952 (No. 16057, 1978); Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD P20,448 (No. 504, 1976) (concurring opinion). In any event, the driver of the truck that was to be backed up to the raised end of the tank would have been in the zone of danger had the work proceeded as planned. Also the deceased employee was under the tank. Access has been clearly established. n7
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n7 If the deceased employee's presence in the zone of danger had been contrary to an enforced workrule of the employer, his presence could not be the predicate for a finding of access. See Frank Swidzinski Co., 81 OSAHRC 4/E14, 9 BNA OSHC 1230, 1232, 1981 CCH OSHD P25,129, p. 31,032 (No. 76-4627, 1981). F&W does not argue, however, and nothing in this record shows that F&W employees had ever been told to not go under a suspended load.
[*7]
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We also find that F&W is responsible for the conduct and knowledge of its supervisory employee at the site. Mr. Kirklin, F&W's foreman and crane operator at the site, personally inspected and approved the sling arrangement before he lifted up the tank. Inasmuch as Mr. Kirklin was a supervisor, and a corporation such as F&W can have knowledge and take action only through persons such as Mr. Kirklin, Mr. Kirklin's knowledge and conduct ordinarily would be imputed to F&W. n8 We have held, however, that an employer may not be held liable for the knowledge and conduct of a supervisor if his actions were contrary to effectively communicated and enforced work rules. n9
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n8 See Daniel Construction Co., 82 OSAHRC 23/A2, 10 BNA OSHC 1549, 1551-2, 1982 CCH OSHD P26,027, p. 32,672 (No. 16265, 1982); H.E. Wiese, Inc., 82 OSAHRC 18/A2, 10 BNA OSHC 1499, 1505, 1982 CCH OSHD 25,985, p. 32,613-4 (No. 78-204, 1982).
n9 Id.
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On the day [*8] before the violation occurred here, the president of F&W showed Mr. Kirklin and the other F&W employees at the site how the tank was to be lifted out of the ground. He told them to secure a chain sling around a railroad tie, drop it into the hole in the tank, and then lift the railroad tie. This would distribute the load so that stress was not placed on only a single spot on the top of the tank. The tank was later lifted out of the ground in this way.
The Secretary claims that this evidence does not warrant a finding that F&W is not responsible for Mr. Kirklin's conduct the next day, when the alleged violation occurred. He maintains that F&W's work rule -- that the tank be lifted with a chain sling wrapped around a railroad tie -- was not shown to be directed or to be understood as being directed at the lifting operation the employees were to perform the next day. He argues that just as F&W itself attempted to draw a distinction at the hearing between lifting the tank entirely out of the ground and lifting up only one end to place it onto the truck trailer, the employees also might not have understood that the tank was to be tilted in the same way it was entirely lifted.
We [*9] have many times emphasized that it is not enough for an employer to merely communicate safety rules. If safety rules are to serve as useful vehicles for implementing an employer's final responsibility for compliance with occupational safety and health standards, employees must understand that the rules will be enforced. n10 This principle is at least as important for supervisors as it is for other employees. When a supervisor violates a safety rule, he not only endangers himself and others; he also suggests to his subordinates that safety rules are not to be taken seriously. It is for this reason that an employer who seeks to avoid liability for the conduct and knowledge of its supervisory employees must show that the rule was accompanied by enforcement. n11
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n10 E.g., Marson Corp., 82 OSAHRC 29/C4, 10 BNA OSHC 1660, 1662, 1982 CCH OSHD P26,075, p. 32,804 (No. 78-3491, 1982). On the necessity for enforcement, see Niagara Mohawk Power Corp., 79 OSAHRC 36/A2, 7 BNA OSHC 1447, 1979 CCH OSHD P23,670 (No. 76-2414, 1979). See also B-G Maintenance Management, 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD P20,744 (No. 4713, 1976).
n11 Judge Riehl erred in failing to consider whether F&W's safety rules were enforced.
[*10]
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We therefore find it critical here that F&W neither claimed nor attempted to show that it ever enforced its safety rules. We note in this connection that F&W's president was present at the hearing and Mr. Kirklin was presumably available to testify on F&W's behalf. Absent evidence that F&W's safety rules were enforced, we impute Mr. Kirklin's knowledge and conduct to F&W, and affirm item 1(a).
Item 1(d); section 1910.180(h)(4)(i).
Item 1(d) alleges noncompliance with section 1910.180(h)(4)(i), which states that "[t]he operator shall not be permitted to leave his position at the controls while the load is suspended." The standard was violated when Mr. Kirklin, F&W's crane operator and supervisor at the site, left the controls while one end of the tank was suspended. The compliance officer testified that F&W's president had said that crane operators always had been told not to leave crane controls while a load was suspended and that he (the compliance officer) believed that was correct. He also testified that he had no reason to believe the crane operator's action was more than an isolated occurrence. [*11] As with item 1(a), however, F&W neither claimed nor showed that its workrule was enforced. We therefore impute Mr. Kirklin's knowledge and conduct to F&W, and affirm item 1(d).
Penalty
The Secretary alleged that the violations as serious within the meaning of section 17(k) of the Act, 29 U.S.C. § 666(j). We agree. Incidents that occur as a result of a violation of either sections 1910.180(h)(3)(i)(b) or (h)(4)(i) present a substantial probability of death or serious physical harm. See Wright & Lopez, Inc., 81 OSAHRC 92/D10, 10 BNA OSHC 1108, 1114, 1981 CCH OSHD P25,728, p. 32,079 (No. 76-256, 1981).
Section 17(j) of the Act, 29 U.S.C. § 666(i), requires that the Commission consider the size of the employer's business, the gravity of the violation, the employer's good faith and history of previous violations. The manner in which the Secretary calculated his proposed penalty indicates that F&W is a small employer, had no history of previous violations and acted in good faith. The gravity of the violations could be severe, as the fatality here demonstrates. However, there was limited exposure to the hazard. Under these circumstances, we find that the Secretary's [*12] proposed penalty of $240 is appropriate.
Accordingly, the judge's decision is affirmed in part and reversed in part. Items 1(b) and 1(c) are vacated; items 1(a) and 1(d) are affirmed. A penalty of $240 is assessed.
SO ORDERED.
DISSENTBY: ROWLAND (In Part)
DISSENT:
ROWLAND, Chairman, dissenting in part:
Although I join in vacating items 1(b) and 1(c), I would also vacate items 1(a) and 1(d). The majority concludes that F&W failed to rebut the Secretary's showing that it knew or with the exercise of reasonable diligence could have known of the violations. I disagree. It is unnecessary in my view for an employer to come forward with evidence that he not only informed a supervisory employee of a workrule but that he warned the supervisor that discipline would be imposed if the rule were not followed.
Under Commission precedent, a violation of the Act cannot be found unless the record establishes that the employer knew or with the exercise of reasonable diligence could have known of the presence of the violation. Prestressed Systems, Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD P25,358 (No. 16147, 1981); General Electric Co., 81 OSAHRC 42/A2, 9 BNA OSHC 1722, 1981 CCH OSHD P25,345 [*13] (No. 13732, 1981), and cases cited. These cases reflect both the long-established principle that the Act does not impose strict liability on employers and the congressional intent that employers be held responsible only for hazards they can reasonably be expected to prevent. See generally Marson Corp., 82 OSAHRC 29/C4, 10 BNA OSHC 1660, 1664, 1982 CCH OSHD P26,075, pp. 32,805 (No. 78-3491, 1982) (dissenting opinion). Because an employer normally acts through agents, however, the actions and knowledge of supervisory employees are ordinarily imputed to their employer. Id. I have previously acknowledged that the employer may rebut a showing of imputed knowledge by going forward with evidence that workrules were communicated to supervisory employees and enforced but I reserved decision on whether the employer need enforce the workrules. See H.E. Wiese, Inc., 82 OSAHRC 18/A2, 10 BNA OSHC 1499, 1508-9 n.8, 1982 CCH OSHD P25,985, p. 32,617 n.8 (No. 78-204, 1982) (dissenting opinion).
There can be little doubt that F&W communicated workrules implementing the cited standards. The president of F&W had only the day before shown Mr. Kirklin, the crane operator and foreman [*14] at the site, the correct way to lift the tank. Kirklin also knew of F&W's rule that crane operators were not to leave the crane controls while a load is suspended. Ths is not enough for the majority, however.
The majority seems to fault F&W for two reasons: first, that F&W did not prove that it had actually disciplined employees for past infractions of its rules; and second, that F&W did not prove that its supervisor understood that F&W's rules would be enforced. Neither of these reasons are persuasive.
To hold an employer in violation of the Act for failing to show that a rule has been enforced in the past is utterly illogical where, as here, where is no suggestion in the record that F&W had ever had occasion to discipline its employees. n12 And if the majority is to be consistent, it cannot fault F&W for not showing that Mr. Kirklin had been disciplined after the violation allegedly occurred, for the majority has held that the imposition of discipline after the fact is insufficient. n13
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n12 See Asplundh Tree Expert Co., 78 OSAHRC 77/E12, 6 BNA OSHC 1951, 1954, 1978 CCH OSHD P23,033, p. 22,841 (No. 16162, 1978); cf. Jones & Laughlin Steel Corp., 82 OSAHRC , 10 BNA OSHC 1778, 1783, 1982 CCH OSHD P26,128, p. 32,888 (No. 76-2636, 1982) (employer unaware of violations of rules; need for monitoring therefore not perceived).
n13 Western Masschusetts Electric Co., 81 OSAHRC 63/B13, 9 BNA OSHC 1940, 1945, 1981 CCH OSHD P25,470, p. 31,766 (No. 76-1174, 1981); Niagara Mohawk Power Corp., 79 OSAHRC 36/A2, 7 BNA OSHC 1447, 1449-1450, 1979 CCH OSHD P23,670, p. 28,702 (No. 76-2414, 1979).
[*15]
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It therefore seems that the majority decision reduces to little more than this: To rebut the Secretary's showing of knowledge, an employer must show that his supervisors were made to understand that work rules would be enforced. Presumably, such understanding would come through admonishment to the supervisor that infractions of the rules will result in discipline. This goes too far. A supervisor has risen to a responsible position because he has demonstrated his understanding that his employer's workrules are to be obeyed and enforced. Indeed, one of his primary functions is to ensure that his subordinates comply with his employer's rules. To require employers to show that supervisors have also been specifically warned not to violate those rules is excessive and insulting. When an employer tells his supervisors of a workrule, he does not offend their intelligence and sense of loyalty with an overbearing reminder of the consequences of disobedience. I therefore do not join the majority in imposing this unnecessary burden of production. The Commission should at least presume that a supervisor understands [*16] that workrules will be enforced. Accordingly, an employer should be held to have successfully rebutted the Secretary's showing of knowledge when the record shows that the employer communicated to supervisors workrules implementing the cited standards. n14 I therefore dissent.
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n14 I express no opinion on whether and to what extent the Secretary could himself come forward with evidence of the employer's failure to enforce workrules against supervisors. I also express no opinion on whether an employer is required to do more than communicate workrules to non-supervisory employees. See Marson Corp., 10 BNA OSHC at 1666 nn.14 & 16, 1982 CCH OSHD at p. 32,807-8 nn.14 & 16.
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