WILLIAMS ENTERPRISES, INC.
OSHRC Docket No. 4533
Occupational Safety and Health Review Commission
April 17, 1979
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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Marshall H. Harris, Reg. Sol., USDOL
James Brent Clarke, Jr., for the employer
OPINION:
DECISION
BY THE COMMISSION:
For a second time in this case, a decision of Administrative Law Judge Ben D. Worcester is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ("the Act"). In his initial decision issued on June 26, 1974, Judge Worcester dismissed the Secretary's citation and complaint, which alleged that Respondent Williams Enterprises, Inc., ("Williams") violated section 5(a)(1) n1 of the Act, on the basis that the Secretary's case in chief was insufficient to establish the alleged violation. In so deciding, he was affirming his earlier ruling orally given at the close of the Secretary's case in chief granting Williams' motion for involuntary dismissal, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, n2 challenging the sufficiency of the Secretary's case. Subsequently the Commission reversed the judge, in a decision issued on September 8, 1976, n3 and concluded the Secretary's [*2] case was sufficient to establish the alleged violation. Because Williams had yet to present its case in defense, the Commission remanded the case to the judge to permit further hearing. After Williams presented its evidence and the parties agreed to close the evidentiary record, Judge Worcester issued his decision, on August 11, 1977, again vacating the citation but on the basis that the Secretary failed to prove Williams violated section 5(a)(1) in the manner alleged in view of ". . . the testimony of Respondent's witnesses that the procedures utilized by the Respondent met the requirements of industry standards." The Secretary submitted a petition for discretionary review taking exception to this disposition, which petition Chairman Cleary granted. For the reasons that follow, we reverse the decision of the judge, affirm the citation, and assess a penalty of $800.
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n1 29 U.S.C. 654(a)(1). This 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 to cause death or serious physical harm to his employees."
n2 The proceedings are governed by the Federal Rules of Civil Procedure unless the Commission has adopted a different rule. 29 U.S.C. 661(f).
The pertinent portion of Fed. R. Civ. P. 41(b) states that "[a]fter the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant . . . may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff. . . ."
n3 4 BNA OSHC 1663, 1976-77 CCH OSHD para. 21,071 (No. 4533, 1976).
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On August 24, 1973, Williams, who was engaged in constructing an addition to the Library of Congress at First and Independence Avenue, S.E., in Washington, D.C., was assembling a Manitowoc crane for use at the site. Williams planned to attach two counterweights, the larger of which was ten feet by nine feet by twenty-eight inches in size and weighed 43,000 pounds, but because Williams did not have room on the street to attach them directly to the crane on unloading them from a trailer, Williams placed them directly on the street behind the Manitowoc. The street sloped at a rate of two inches in four feet. Because of the slope, the larger counterweight would not stay upright on a base comprised of the ten-foot and twenty-eight-inch dimensions, with the latter dimension running parallel to the direction of the slope. Williams therefore constructed a base or platform of wood, described by the witnesses in the evidentiary record as "cribbing," to offset the slope. Thereafter the counterweight remained upright while unsecured in any other manner for about twenty minutes, after which it toppled down the [*4] slope, hitting the smaller of the two counterweights, and crushing two employees to death. As a result of his investigation of this double fatality, the Secretary issued to Williams a citation alleging Williams violated section 5(a)(1) by failing ". . . to secure, place, or fasten a crane counterweight weighing approximately 40,000 pounds in a manner that would prevent it from . . . falling or toppling."
In his opening argument before presenting his case in chief, the Secretary pointed to the failure to secure the counterweight, in way that would prevent it from toppling, as the precise hazard, and thereafter he presented the following evidence to show this hazard was recognized by the industry. A compliance officer, Wiseman, who had worked for the District of Columbia as well as for the Federal Government, and who had had fifteen years experience in construction as a journeyman iron worker, testified on the basis of his experience that after a counterweight is unloaded at a worksite, it generally is attached directly to the crane on which it will be used, to eliminate any possibility that it can topple. He further testified that when the counterweight cannot be attached directly [*5] to the crane but instead must be placed on the ground, it should be secured upright with cables, chains, or any other supporting device that will prevent it from toppling. The area director who issued the citation also testified Williams' handling of the counterweight was hazardous because Williams did not secure it against falling, and he stated he determined this hazard was recognized inasmuch as the District of Columbia has enacted the following Industrial Safety Standard concerning the secure placement and fastening of objects used in construction:
11-21011. Securely Placed and Fastened. (a) Any material, equipment, tool, or other object being used, handled, transported, stored, or serving as a workplace shall be so held, fastened, secured, placed, or piled that it cannot fall, topple over, roll, sway, slide, otherwise move about, or get beyond control, in any manner to endanger employees or others.
To show it was feasible to secure this counterweight, the Secretary adduced testimony, from both the compliance officer who investigated the accident and the crane operator who had been on the site, that Williams had secured the larger counterweight to the rear of the Manitowoc [*6] after the accident. Wire was passed through the lifting eyes of the counterweight to secure it to the rear of the crane.
To defend against this prima facie case, Williams adduced testimony at the hearing on remand from its project manager, who had had thirtyeight years of construction experience throughout the nation using cranes and counterweights. He stated that the industry practice for stabilizing a counterweight on a slope when it cannot immediately be secured to the crane for use is to crib the counterweight against the slope. He knew of neither a requirement nor a practice to secure the counterweight in any other way than by cribbing, and he moreover never knew a cribbed counterweight to fall.
Because the Secretary did not establish what caused the cribbed counterweight to fall, Judge Worcester initially determined the Secretary's case was insufficient lacking proof of what Williams should have done to prevent the accident and avoid the citation. n4 On review of the judge's decision, the Commission analyzed the Secretary's evidence in light of his allegations in the citation and his arguments concerning the thrust of his case, and the Commission concluded the judge [*7] erred in his determination of its insufficiency. Whereas Judge Worcester implicitly considered the hazard being tried by the Secretary was the use of cribbing, the Commission determined that the alleged hazard was the failure to secure a heavy counterweight to prevent its toppling. The Commission further concluded there was sufficient evidence to prove Williams' industry recognized a hazard in the failure to secure the counterweight. The Commission particularly referred to Wiseman's testimony that generally a counterweight is secured immediately to the crane where it will be used, and that, correspondingly, the counterweight should be secured with cables and chains whenever it is not possible to attach it immediately to the crane. The D.C. safety provision concerning secure placement and fastening of objects was seen by the Commission as further support, showing recognition of the hazard in the local construction industry. Additionally, the Commission found sufficient proof of what Williams should have done to prevent the accident and avoid the citation because the crane operator testified Williams successfully used wire to secure the counterweight through its lifting eyes to [*8] the rear of the Manitowoc after the accident.
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n4 The judge relied on National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). Therein, the court stated that, to establish a 5(a)(1) violation, the Secretary must prove that (1) the employer failed to render its workplace free of a hazard which was (2) recognized and (3) causing or likely to cause death or serious physical harm. The court further stated that because the duty to eliminate all recognized hazards from the workplace must be an achievable duty, the Secretary must specify the particular steps the employer should have taken to avoid the citation and must demonstrate the feasibility and likely utility of those measures. Supra at 1265-68.
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On remand, when Judge Worcester decided the case on the completed record, he again determined that the Secretary failed to show what Williams should have done to prevent the accident and avoid the citation. He based his determination on Williams' evidence demonstrating cribbing "met all of the safety requirements [*9] ordinarily used in the construction industry," which he considered was not refuted by Wiseman's testimony concerning securing, and he again emphasized, in making his determination, that the Secretary had entirely failed to establish why the cribbed counterweight fell. Judge Worcester considered that ". . . the Secretary has the burden of proving that the accident was the logical, probable and likely result of the Respondent's failure to do what similar employers in the same industry would have done." Because the Secretary did not show how the cribbing was hazardous or that the industry recognized it as such, the judge concluded the Secretary's proof insufficient to show Williams "neglected to use safety precautions normally relied upon in the industry."
The Secretary asserts that Judge Worcester misapprehended both the Secretary's burden of proof in a 5(a)(1) case and the Commission decision setting forth that the Secretary had satisfactorily met his burden here during his case in chief. To establish a violation of section 5(a)(1), the Secretary must show that the alleged hazard is recognized by either the employer or his industry and that there are feasible measures the employer [*10] could have taken to eliminate the hazard. The Secretary argues that Judge Worcester erred in additionally requiring the Secretary to show the industry's recognition of the feasibility of abatement measures, and, on finding he failed in this respect, vacated the citation. In its decision, the Commission determined explicitly that Wiseman's testimony established the local industry's recognition of the toppling hazard, presented by an upright counterweight, absent securing or fastening. The Secretary contends that the testimony of Williams' project manager cannot be considered to rebut Wiseman's testimony because the project manager referred only to the custom of the national construction industry to use cribbing in circumstances in which, as Wiseman's testimony shows, the local industry recognizes there is a hazard absent securing or fastening. Because of this difference in the thrust of the testimony of these two witnesses, the Secretary emphasizes, it is plain that Williams' evidence really concerns only whether the industry recognizes cribbing, rather than securing, as a feasible method of abatement of the hazard presented by an unsecured, upright counterweight, and accordingly [*11] the evidence is not relevant to determining whether the Secretary established Williams violated section 5(a)(1). The Secretary asserts that, on the basis of the evidence to which it referred in its decision, the Commission should affirm the citation.
Williams argues in support of the judge's decision, asserting essentially that the judge correctly considered the Secretary's evidence concerning recognition of the hazard to have been rebutted by the testimony of Williams' project manager. Williams notes that a recognized hazard is a working condition or practice existing at the employer's worksite despite his industry's or his own actual recognition that it is dangerous, and on the basis of this definition, Williams argues the hazard that must be proven here is the use of cribbing to stabilize a counterweight. Inasmuch as the testimony of the project manager was that neither the industry nor Williams recognized this use of cribbing as a hazard, by implication Wiseman's testimony that the industry recognizes a hazard from a lack of securing has been refuted. Moreover, in view of Williams' evidence and the failure to the Secretary to show any inadequacy in the cribbing that caused [*12] the accident, the judge, in Williams' view, correctly determined the Secretary failed to show what Williams should have done to prevent the accident and avoid the citation. To hold Williams responsible for a failure to secure when the industry views cribbing as adequate amounts to making Williams strictly liable.
We adhere to the determination made in the earlier Commission decision that the hazard alleged and tried by the Secretary here was the failure to secure the counterweight. The citation alleged failure "to secure, place, or fasten [the counterweight] . . . in a manner that would prevent it from . . . falling or toppling," and the Secretary focussed his proof on the industry's recognition of a requirement to secure the counterweight from toppling, from whatever cause. Accordingly, we think Williams misdefines the hazard as the use of cribbing to stabilize the counterweight, and we think Judge Worcester erroneously viewed the hazard as the cribbed counterweight rather than the failure to secure the upright, free-standing counterweight against toppling. He continued to place emphasis on the lack of proof of what caused the cribbed counterweight to fall, and he accorded overriding [*13] weight to Williams' evidence that cribbing is considered in the industry generally to meet all safety requirements to stabilize a counterweight.
We agree with the Secretary that Williams' evidence in this regard is not sufficient to rebut Wiseman's testimony based on his construction experience and the corroborating evidence of the D.C. safety provision, showing that the failure to secure a counterweight is recognized in the industry as a hazard. By its project manager's testimony, Williams established only that the industry customarily seeks to prevent a counterweight from falling or toppling by cribbing it. It is implicit in this testimony that the industry is aware of the hazard presented by an upright, free-standing counterweight that is not secured. Accordingly, it does not rebut the Secretary's evidence showing the local industry recognizes failure to secure a counterweight as a hazard, and on the basis of this latter evidence, we conclude the Secretary has proven the failure to secure was a recognized hazard.
Inasmuch as it is apparent here that the hazard was causing or likely to cause death or serious physical harm, the only remaining question is whether Williams rendered [*14] its workplace free of the hazard. Although Williams' evidence tends to demonstrate that its industry relied on cribbing to abate the hazard, rather than fastening or tying the counterweight upright, we have held that section 5(a)(1) may require work practices and safety precautions above and beyond those considered customary or reasonable by the industry itself. The Secretary must establish hazard recognition by reference to the level of awareness or knowledge in the industry or by the employer himself, but the required abatement is determined by reference to feasibility rather than industry custom or knowledge. Continental Oil Co., 78 OSAHRC 63/E1, 6 BNA OSHC 1814, 1978 CCH OSHD para. 22,903 (No. 1829, 1978), referring to Southern Railway Co., 75 OSAHRC 88/C2, 3 BNA OSHC 1657, 1975-76 CCH OSHD para. 20,091 (No. 5960, 1975), and cases cited therein. Here, through the testimony of the crane operator, with the corroborating testimony of the investigating compliance officer, the Secretary established Williams actually did tie or fasten the counterweight to the rear of the Manitowoc after the accident. Therefore, we conclude he proved the feasibility of the proposed abatement, [*15] and we accordingly affirm the citation.
The Secretary proposed $10,000 in penalty for this citation, which originally was characterized as willful. In the earlier Commission decision, the Commission determined the Secretary failed to make a prima facie case on the issue of willfulness, and the Secretary has not subsequently revised his proposed penalty to conform to section 17(b) of the Act regarding penalty for a serious violation. n5 The record establishes that Williams has a history of serveral prior, uncontested citations, and is a large employer. Its good faith is evidenced to some extent by the fact that it cribbed the counterweight with the intention of keeping it from falling or toppling, but the gravity of the violation is high in view of the indisputable severity of the injury to be expected from an accident. Accordingly, we assess a penalty of $800.
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n5 Section 17(b), 29 U.S.C. 666(b), provides in pertinent part that "[a]ny employer who has received a citation for a serious violation of the requirements of section 5 of this Act . . . shall be assessed a civil penalty of up to $1,000 for each such violation."
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Accordingly, we reverse the judge, affirm the serious citation alleging violation of section 5(a)(1), and we assess a penalty of $800. SO ORDERED.