WILLIAMS ENTERPRISES, INC.
OSHRC Docket No. 4533
Occupational Safety and Health Review Commission
September 8, 1976
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
I. Introduction
The decision of Aministrative Law Judge Ben D. Worcester, rendered June 26, 1974, is before the full Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter "the Act"]. Judge Worcester vacated the Secretary of Labor's (complainant) allegation of a willful violation of section 5(a)(1), the "general duty clause" of the Act, as well as the Secretary's $10,000 proposed penalty. The citation is based upon the alleged failure of Williams Enterprises, Inc. (respondent) to "secure, place, or fasten a crane counterweight . . . in a manner that would prevent it from endangering his employees by falling or toppling."
In his decision, Judge Worcester notes that the "proximate cause of the accident is unknown." He concludes that not only did the Secretary of Labor fail to sustain his burden of proof, but he "also failed to adduce any evidence to show what respondent should have done to prevent the accident."
II. Background
On August 24, 1973, a compliance officer of the Department of Labor's [*2] Occupational Safety and Health Administration was dispatched to the scene of a double fatality accident. The accident took place on First Street between Independence Avenue and C Street, Southeast in Washington, D.C. At the time of the accident, respondent was engaged in the construction of an addition to the Library of Congress.
On the morning of the accident, respondent had moved a 135 ton Manitowoc crane from Seventh Street to the First Street worksite. The crane was parked facing north on the east side of the street. In order to move the large crane, it had to be partially dismantled. On the day before the accident, the two counterweights on the rear of the crane were removed with the aid of a Lima 90 ton crane and loaded onto a flatbed trailer, termed a "lowboy." After the Manitowoc crane was positioned on Frist Street, the crane operator brought the Lima from Seventh Street and positioned it approximately 13 to 20 feet south of and directly behind the Manitowoc. At the same time, the lowboy was positioned behind the Lima.
First Street, as the site of the accident, is inclined at a ratio of two inches for every four feet. As a result, the Manitowoc was parked at a slightly [*3] higher elevation than the Lima.
After the "rush hour" traffic had subsided, the police closed First Street between C and Independence to allow the lowboy to be positioned next to the two cranes. Inasmuch as the police were anxious to reopen the street, it was decided to off-load the Manitowoc's counterweights to the area between the two cranes, rather than off-loading directly from the lowboy to the Manitowoc. The latter method was the usual procedure, but by off-loading to the street, the lowboy would be in use for a shorter period and the street could be reopened sooner.
The larger counterweight was approximately 10 feet long by 28 inches wide by 9 feet high. It had a slight curve running through its length and weighed 43,000 pounds. It was off-loaded first by the Lima crane from the lowboy. When it was placed on the street between the cranes it became clear that, because of the grade of the street, it would be unstable. The crane operator relifted the counterweight and a base was prepared to offset the incline and receive the weight.
Construction of the base began by placing a sheet of 5/8 inch plywood directly on the street surface. Next, two four-by-four inch timbers, [*4] longer than the 28-inch width of the weight, were placed on the plywood. Finally, a smaller piece of 5/8 inch plywood was placed on the back part of the four-by-fours. The counterweight was lowered onto this base so that it rested in part directly on the timbers and in part on the smaller piece of plywood. In this manner, the counterweight was "tipped" to partially compensate for the grade of the street. After it was placed on this base, an employee climbed onto the weight and unshackled it from the Lima crane. The counterweight remained free standing in this upright position for approximately 20 minutes.
During that twenty-minute period, the smaller counterweight was off-loaded and placed between the Lima crane and the larger counterweight. The smaller weight was approximately 17 inches wide, 10 feet long, 6 feet high and weighed approximately 30,000 pounds. Shortly after the smaller counterweight was placed on First Street, the larger counterweight toppled over striking the smaller counterweight, which in turn toppled into the Lima crane. Two of respondent's employees, a foreman and an oiler, were trapped by the falling counterweights and killed.
Pursuant to the accident [*5] investigation, the Secretary issued a citation charging respondent with a willful violation of section 5(a)(1) of the Act. Respondent duly filed its notice of contest. Subsequent to respondent's notice of contest, the Secretary filed his complaint with this Commission. Issue was joined and the case was assigned for disposition to Administrative Law Judge Worcester.
Respondent filed a motion for discovery and a motion for a more definite statement. These motions culminated in a prehearing conference before Judge Worcester. The Judge ordered depositions to be taken of the Secretary's Compliance Officer, James Amato, and Assistant Regional Director, David Rhone. During their depositions both Amato and Rhone relied on the informers privilege as the basis for refusing to answer some of the questions asked by defense counsel. Respondent filed a successful motion to compel answers propounded upon oral examination. On June 3, 1974, the Secretary filed with Judge Worcester a petition seeking certification by the Judge of his ruling for interlocutory appeal and an order staying the proceeding until the appeal was resolved. The Secretary also filed with the Commission a petition for [*6] special permission to file an interlocutory appeal and for the issuance of a stay order.
On June 6, 1974, respondent notified the Secretary that it intended to file a waiver of its right to further depose Amato and Rhone. n1 It also notified the Secretary that at least two employee witnesses would not be available to testify at the hearing scheduled for June 10, 1974. The Secretary notified respondent by letter of his intent to call William Lucas and Clyde Farrar. The letter was received on the morning of the hearing, June 10, 1974.
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n1 On June 7, 1974, respondent filed a written waiver with the Commission on the condition that the hearing be held as scheduled on June 10, 1974.
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The hearing was convened before Judge Worcester. The issue of the most recently added witnesses was raised by the Judge. After argument by counsel the Judge refused to allow the Secretary the opportunity to present his "unscheduled" witnesses. Moreover, he did not allow the Secretary to make an offer of proof concerning the probable testimony [*7] of the excluded witnesses.
Later, during the hearing, the Judge excluded testimony from the crane operator that, after the accident, the large counterweight was wired to the Manitowoc crane. The basis for this ruling was the tort oriented rule that evidence of subsequent repairs is not admissible to show prior defects. In another ruling the Judge admitted evidence of the D.C. safety standard requiring the securing of material. He limited the use of that evidence to show the basis of the Area Director's conclusion that the hazard was recognized and not for the purpose of establishing that the hazard was recognized.
At the conclusion of the Secretary's case, respondent's counsel moved to dismiss the citation on the ground that the Secretary had failed to sustain his burden of proof. After listening to the arguments of both counsels, the Judge granted respondent's motion.
Subsequent to the issuance of the Judge's decision, the Secretary filed a petition for discretionary review wherein he excepted to the exclusion of four prospective witnesses. He excepted also to the Judge's refusal to accept an offer of proof as to their testimony. The Secretary excepted to the Judge's [*8] ruling wherein he refused to admit 214 citations issued to respondent by the District of Columbia Minimum Wage and Safety Board. He further excepted to the use by the Judge of the tort-law "repair" doctrine as the basis for refusing to admit evidence relevant to the Secretary's burden of proving what respondent could have done to prevent the accident. Finally, the Secretary excepted to the vacation of the citation.
The case was called for review before the full Commission by Commissioner Cleary.
III. Discussion
The first two exceptions to the Judge's decision taken by the Secretary of Labor involve the exclusion of certain witnesses and the refusal of the Judge to accept an offer of proof as to their probable testimony. In considering these two exceptions, we have carefully reviewed the rather extensive prehearing proceedings in this matter. Judge Worcester, in an effort to narrow the issues and expedite the hearing procedure, properly encouraged the parties to exchange information. The Judge's actions in this regard are most consistent with one of the principal objectives of modern procedure under the Federal Rules; n2 that is, the elimination of the "old sporting theory [*9] of justice" by substituting the "more enlightened policy of putting the cards on the table". Clark v. Pennsylvania Railroad Company, 328 F.2d 591, 594 (2d Cir. 1964), cert. denied, 377 U.S. 1006 (1964). In other words, modern procedure attempts to keep "surprise tactics down to a minimum." Clark v. Pennsylvania Railroad Company, supra at 594.
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n2 Procedure before the Occupational Safety and Health Review Commission is in accordance with the Federal Rules of Civil Procedure in the absence of a specific provision in the Commission's own Rules of Procedure. Rule 2 of the Commission's Rules of Procedure, 29 CFR § 2200.2.
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Matters settled during the prehearing stage, e.g. the names of prospective witnesses, will control generally the remainder of the proceeding unless later modified by the Judge to prevent manifest injustice. See 3 J. Moore, Federal Practice para. 16.19, at 1130 (2d ed. 1974). The decision whether or not to permit the modification of a witness list settled upon during [*10] the prehearing stage is a matter left to the discretion of the Judge. See Texas & Pacific Railway Co. v. Buckles, 232 F.2d 257 (5th Cir. 1956), cert. denied, 351 U.S. 984 (1956); Scott v. Spanjer Bros., Inc., 298 F.2d 928 (2d Cir. 1962). Hence in reviewing a Judge's decision to exclude certain witnesses because they were not listed on a party's prehearing witness list, the issue before us is whether or not the Judge abused his discretion. See Clark v. Pennsylvania Railroad Company, supra at 594. Having closely examined Judge Worcester's actions with regard to the excluded witnesses, we conclude that there was no abuse of discretion.
The Judge did err, however, in refusing to accept an offer of proof as to the probable testimony of the excluded witnesses. Rule 74 of the Commission's Rules of Procedure n3 clearly permits such offers to be made whenever evidence is excluded from the record as the result of a party's objection. Upon remand, therefore, the Secretary will be given the opportunity to make his offer of proof.
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n3 Rule 74 of the Commission's Rules of Procedure, 29 CFR § 2200.74, in pertinent part reads as follows:
§ 2200.74 Objections
* * *
(b) Whenever evidence is excluded from the record, the party offering such evidence may make an offer of proof, which shall be included in the record of the proceeding.
[*11]
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The Secretary's next exception to the decision before us goes to the Judge's refusal to admit into evidence 214 citations issued to respondent by the District of Columbia Minimum Wage and Safety Board. On this matter, we note simply that the Secretary's counsel, at the hearing, acceded to the Judge's ruling. Error not preserved by counsel at the hearing level is not properly an issue for subsequent review. Haynes v. United States, 418 F.2d 1380, 1382 (Ct. Cl. 1969). Therefore, we decline to pass upon the Judge's refusal to admit evidence of the 214 citations.
We next consider respondent's motion to dismiss under Rule 41(b) of the Federal Rules of Civil Procedure n4 and the effects of the Judge's decision to grant the motion.
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n4 See note 2 supra. Rule 41(b) reads as follows:
Rule 41. Dismissal of Actions
* * *
(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff, in any action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, 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 or may decline to render any judgment until the close of all evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.
Fed. R. Civ. P. 41(b).
[*12]
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When respondent makes a motion to dismiss under Rule 41(b), the Judge is called upon not only to decide the law, but, in addition, to weigh and evaluate the evidence without making "special inferences" in complainant's favor. Emerson Electric Co. v. Farmer, 427 F.2d 1082 1086 (5th Cir. 1970). If after considering the law and facts, the Judge concludes that complainant has successfully carried his burden of establishing a violation of the Act, he must deny respondent's motion to dismiss. See 5 J. Moore, Federal Practice para. 41.13, at 1146 (2d ed. 1976); Emerson Electric Co. v. Farmer, supra at 1086. We have reviewed the record in this case, including the briefs of the parties, and conclude that the Judge erred in granting respondent's motion to dismiss.
Respondent is alleged to have willfully violated section 5(a)(1) n5 of the Act for its failure "to secure, place or fasten a crane counterweight weighing approximately 40,000 pounds in a manner that would prevent it from endangering . . . employees by falling or toppling." In order to carry his burden of proving a violation of [*13] section 5(a)(1) of the Act, the Secretary must establish "(1) that 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'." National Realty & Construction Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1265 (D.C. Cir. 1973). Moreover, a violation of the general duty clause cannot be sustained unless the Secretary is able (a) to establish the type of employer conduct necessary to avoid citation under similar circumstances and (b) "to demonstrate the feasibility and likely utility" of such conduct. National Realty & Construction Co., Inc. v. O.S.H.R.C., supra at 1268.
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n5 29 U.S.C. § 654(a)(1). The section, the general duty clause, reads as follows:
Sec. 5(a) Each employer -
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees;
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The hazard in this case was the [*14] failure to secure a crane counterweight. The record clearly supports a finding that the hazard was "likely to cause death or serious physical harm." Indeed, the potential for serious harm is indicated by the actual death of respondent's two employees and, of course, by common sense.
The hazard was recognized. n6 In this regard the record furnishes significant testimony concerning the work practices of respondent's industry. One witness, Mr. John Wiseman, a man with fifteen years experience as a journeyman iron worker in addition to his ten years experience as a compliance officer for both the Federal Government and the District of Columbia, on direct examination testified as follows:
Q. Mr. Wiseman, in your experience working with cranes and counterweights, and that would be 15 years and ten more years in safety following that, do you have any knowledge of the manner in which counterweights should be handled when they are being removed from a trailer to be placed on to a crane?
A. Yes, I do.
* * *
Working as a foreman handling cranes, normally when you unload a counterweight section from a truck or lowboy, whatever they handled it on, you would hook it directly to the crane [*15] that it would be used on.
That way you would have it secured to the crane before the cable or anything was taken out or off - away from it.
So, therefore your counterweight which in my opinion - now, maybe I shouldn't say that - is topheavy to start with, and if it was secured to the crane when the cables are removed from the holding crane, there is no way for it to get out of control, topple over, sway or move about. n7
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Q. Mr. Wiseman, given the street that you saw [respondent's worksite] and the location between the crane that you observed what in your opinion with reasonable foresight and experience would be the method that this counterweight should be placed on the ground so that it would't topple over by reason of the incline or whatever factors you might have seen? I wish you would spell out the factors as you discussed them.
A. The counterweight in my opinion when this was taken loose since it couldn't be hooked directly to the crane before it was secured, so it should have been secured in an upright position before it was ever taken loose from the load line of the crane and swung back to pick up the other load.
Q. You say it was secured - in what manner?
A. [*16] Secured with cables, chains, any kind of supporting members that would hold this amount of weight and keep it from getting out of control and being able to topple over.
In other words, if they secured a cable to each crane to give this stability, then it couldn't have fallen either way and gotten out of control. If they used chain cables, anything to hold it for whatever period of time that they needed they could swing back and get the other counterweight off the truck. n8
* * *
Q. On the basis of that would you have felt you could have foreseen an accident would have happened?
A. I believe so, yes. n9
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n6 A recognized hazard is a condition that is known to be hazardous and is known not necessarily by each and every individual employer but is known taking into account the standard of knowledge in the industry. In other words, whether or not a hazard is 'recognized' is a matter for objective determination; it does not depend on whether the particular employer is aware of it.
116 Cong. Rec. (Part 28) 38377 (1970) (remarks of Representative Daniels).
n7 Transcript at 210-211.
n8 Transcript at 220-221.
n9 Transcript at 222.
[*17]
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In addition to the testimony on the issue of whether this particular hazard is "recognized" in the industry, counsel for the Secretary introduced into evidence an industrial safety standard n10 of the local jurisdiction that lends force to his argument that the failure to secure such equipment from toppling is recognized as a hazard.
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n10 Industrial Safety Standard No. 11-21011 of the District of Columbia reads in pertinent part as follows:
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.
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With respect to the Secretary's effort to establish the type of employer conduct that would have avoided the citation in this instance, we note [*18] that complainant takes exception to the Judge's reliance on the tort-law "repair doctrine" as the basis for refusing to admit the testimony given by respondent's crane operator. The crane operator testified that, following the fatal accident, the large counterweight was secured to the Manitowoc crane.
Traditional common law concepts are generally disregarded when dealing with remedial social legislation such as the Act. Cf. REA Express, Inc. v. Secretary of Labor and O.S.H.R.C., 495 F.2d 822 (2d Cir. 1974); National Realty, supra. Moreover, even if we were to consider certain traditional negligence concepts, the crane operator's testimony would be admissible and probative to demonstrate the feasibility and utility of measures that could have been taken by respondent to avoid the citation. Boeing Airplane Company v. Brown, 291 F.2d 310, 315 (9th Cir. 1961); see Fed. R. Evid. 407. In offering the testimony, the Secretary is not attempting to establish respondent's negligence. He is merely illustrating the feasibility of a reasonable step that could have been taken to prevent the hazardous condition. The Judge's refusal to admit the testimony was error. [*19]
The Secretary has successfully carried his burden of establishing respondent's violation of section 5(a)(1) of the Act. We consider next whether the Secretary has established that respondent's violation was willful as alleged.
In Intercounty Construction Co. v. O.S.H.R.C., 522 F.2d 777, 779 (4th Cir. 1975), cert. denied, 44 U.S.L.W. 3412 (U.S. January 19, 1976) (No. 75-594), the court stated that:
We agree with the position adopted by the Commission in interpreting the statute that 'willful' means action taken knowledgeably by one subject to the statutory provisions in disregard to the action's legality. No showing of malicious intent is necessary. A conscious, intentional, deliberate, voluntary decision properly is described as willful, 'regardless of venial motive'. F.X. Messina Construction Corp. v. Occupational Safety and Health Review Commission, 505 F.2d 701, 702 (1st Cir. 1974). n11
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n11 Concerning the Commission's own precedent, see Dye Construction Company, BNA 4 OSHC 1444, CCH OSHD para. 20,888 (No. 4172, July 12, 1976), and cases cited therein.
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Respondent, on the facts before us, was not indifferent to the hazard. It did not choose to ignore completely the precarious situation. Instead, respondent made an attempt, albeit inadequate, to steady the large counterweight on the inclined street surface. We conclude that this effort removes respondent's action from the pale of willful activity. Cf. United States v. Dye Construction Corp. & O.S.H.R.C., 510 F.2d 78 (10th Cir. 1974).
Thus, the Secretary has established respondent's violation of section 5(a)(1) of the Act, but has failed to prove that such violation was willful as alleged. Where a violation has been established but it is not of a willful nature as alleged, the Commission will find ordinarily the underlying violation. See Toler Excavating Co., 19 OSAHRC 492, BNA 3 OSHC 1420, CCH OSHD para. 19,975 (1975); CPL Constructors, BNA & OSHC 1865, CCH OSHD para. 20,251 (1975).
There remains, however, the problem engendered by the Judge's granting of respondent's motion to dismiss at the conclusion of the Secretary's case. In a non-jury case where the Judge has granted the defendant's [*21] motion to dismiss under Federal Rule of Civil Procedure 41(b) and the Judge's ruling on the motion is subsequently reversed on appeal, the case must be remanded for further proceedings to permit the defendant to present his case. White v. Rimrock Tidelands, Inc., 414 F.2d 1336, 1340 (5th Cir. 1969).
Accordingly, it is ORDERED that the decision of Judge Ben D. Worcester granting respondent's motion to dismiss is reversed and remanded for further proceedings consistent with this opinion.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
Judge Worcester's disposition of this case was correct, and his decision, which is attached hereto as Appendix, A, should be affirmed. His granting of respondent's motion to dismiss was fully justified because of several fatal deficiencies in complainant's case.
As the majority opinion states, proof that a condition constituted a "recognized hazard" is an essential element of proof to establish a violation of 29 U.S.C. § 654(a)(1), the so-called general duty clause. A condition is recognized as a hazard when it is commonly known as such by the public in general or in the cited employer's industry. See National Realty and Construction Company, Inc. [*22] v. OSAHRC, 489 F.2d 1257, 1265 n. 32 (D.C. Cir. 1973). There is no proof of either in the instant case.
My colleagues rely on two elements of proof in concluding that the manner in which respondent chocked the counterweight constituted a recognized hazard. That reliance is misplaced. The testimony of Mr. Wiseman shows on its face that his views represented no more than his own personal opinion and not a consensus of the construction industry or any other industry. Similarly, their reliance on the District of Columbia industrial safety standard is also inappropriate. Not only is there no showing that this standard represents the view of any particular industry, but it is so general in scope that it is of no value in ascertaining the recognition of a hazardous condition in this case. It amounts to little more than an exhortation to store things so they won't fall. It doesn't say "how" to store them yet the crux of the allegation is just that.
The evidence indicates that the counterweight was placed on a street which sloped only slightly - a 2-inch vertical rise for every 4 feet of horizontal distance. Thus, the street was virtually level. The counterweight had a rectangular [*23] base which was about 10 feet long and over 2 feet wide. The adequacy of respondent's chocking was illustrated by the fact that a worker had climbed upon it without it falling in order to detach the Lima crane's cable from the counterweight. Considering this evidence and the photographs of the scene of the accident, it is clear that the measures taken by respondent are not commonly recognized as hazardous by the public in general.
Complainant has not only failed to show that respondent's actions were in any way unreasonable, but the evidence as a whole shows that respondent's precautionary procedures were reasonable under the prevailing circumstances. Respondent's normal procedure, and the preferred one, was to mount the counterweights in their proper position on the Manitowoc crane when off-loading them from the lowboy. This procedure was not followed in this instance because of pressure from the police to expedite the removal of the counterweights from the lowboy in order to eliminate the blockage of the street by the lowboy as soon as possible so that the street could be reopened to traffic. Since the mounting of the counterweights directly onto the Manitowoc crane would have [*24] caused a longer blocking of the street than would result if the counterweights were first placed on the street before mounting, the latter procedure was followed as a temporary expedient. Under these circumstances, the chocking of the counterweight and the other actions of respondent were clearly not unreasonable.
In effect the majority is saying that the condition constituted a recognized hazard because the counterweight fell over. Unfortunately, they have forgotten that the "actual occurrence of hazardous conduct is not, by itself, sufficient evidence of a violation, even when the conduct has led to injury." National Realty and Construction Company, Inc. v. OSAHRC, supra at 1267. They are therefore erroneously applying a standard of strict liability which is not intended by the Act. Horne Plumbing and Heating Company v. OSAHRC, 528 F.2d 564 (5th Cir. 1976); Secretary v. Engineers Construction, Incorporated, 20 OSAHRC 348 (1975), and the cases cited therein.
To establish a violation of the general duty clause, complainant must also show what procedures the cited employer should have taken to avoid citation plus the feasibility and likely utility of those measures. [*25] National Realty and Construction Company, Inc. v. OSAHRC, supra at 1267. Complainant's attorney properly conceded no less than three times at the hearing that the reason for the falling of the counterweight could not be established. Absent evidence of why it fell, there is insufficient evidence to show that the "likely utility" of the measures proposed by complainant to avoid citation were any better than those implemented by respondent. The testimony of Mr. Wiseman amounts to nothing more than his proposal as to what should have been done. Neither this testimony nor any other evidence establishes that the accident would not have occurred if the Wiseman's proposals had been utilized.
The purpose of the Act is to reduce workplace hazards. When the cause of an accident is not known, effective countermeasures cannot be known. The Act is not designed to punish employers, but to tell them how to prevent accidents. Diamond Roofing Co. v. OSAHRC, 528 F.2d 645, 650 (5th Cir. 1976). The majority errs in this case by overlooking that purpose.