CORNELL & COMPANY, INCORPORATED
OSHRC Docket No. 8425
Occupational Safety and Health Review Commission
July 8, 1976
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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Marshall H. Harris, Regional Solicitor, USDOL
J. C. Sheppard, Vice President, Cornell & Company, Inc., for the employer
OPINIONBY: MORAN
OPINION:
DECISION
MORAN, Commissioner: A decision of Review Commission Judge Joseph L. Chalk, dated December 16, 1974, is before this Commission for review pursuant to 29 U.S.C. § 661(i).
In my opinion, the Judge's disposition should be affirmed for the reasons stated in his decision which is attached hereto as Appendix A. Chairman Barnako agrees with the Judge's decision for the reasons stated in his concurring opinion. Accordingly, the Judge's disposition is hereby affirmed.
CONCURBY: BARNAKO; CLEARY (In Part)
CONCUR:
BARNAKO, Chairman, concurring.
In this matter Respondent was allegedly in serious violation of the Occupational Safety and Health Act of 1970 n1 because its employees were working over or near the Delaware River in Philadelphia on a pier and were not provided with life jackets, buoyant vests, or a lifesaving skiff. Specifically, it was alleged that Respondent violated 29 C.F.R. 1926.106(a) and 106(d). Paragraph 106(a) requires that employees be protected by life jackets or buoyant work vests when they [*2] are over or near water an a danger of drowning exists. Paragraph 106(d) requires the presence of a lifesaving skiff.
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n1 29 U.S.C. 651 et seq.
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According to the facts of record Respondent's employees were erecting a crane boom at the Packer Avenue Pier. To this end they positioned an American Crane about ten to fifteen feet from the edge of a pier. They lifted the boom once to test the lifting ability of the American Crane and a second time to position the boom. The boom was then lifted a third time, and the crane tilted and fell into the river. The crane operator went into the river with the crane and was rescued. It was specilated that the crane went over as the result of a gust of wind. Employees other than the crane operator approached to within ten feet of the edge of the pier.
In reaching his decision to vacate Judge Chalk reasoned that when the standards speak in terms of employees working over or near water the equipment required by the standards must be used if there is a reasonable possibility [*3] that an employee might fall into the water. I agree with the Judge's reasoning. He went on to say that the evidence only places Respondent's employees within ten feet of the edge of the pier and thus he concluded it would be unreasonable to find they were subjected to the possibility of falling into water. Commissioner Moran agrees. Apparently, the Secretary also agrees with respect to all of Respondent's employees except for the operator of the crane; on review his arguments for reversal of Judge Chalk's decision are limited to exposure of the crane operator.
In essence, the Secretary argues that because the crane operator did fall into the water he was therefore exposed to the hazard and the violation was established. n2 In my view, the Secretary applies post hoc reasoning. The reasonable possibility reasoning relied on by Judge Chalk refers to the circumstances existing before an accident. On this record the American Crane was used to lift the boom twice, and it did not tilt. It was therefore reasonable to assume it would not tilt on the third occasion. In these circumstances I conclude that the Secretary has not established that there was a reasonable possibility that [*4] the operator would go into the water. At most he has established that the crane went into the water as the result of a gust of wind, but he did not establish that the weather conditions were such that it was reasonably possible for the crane to go over.
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n2 Although Commissioner Moran relies on the Judge's decision for his disposition vote in this case, I note that the Judge did not address the argument in his decision.
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I would add that the Secretary's maritime safety standards (29 C.F.R. Parts 1915, 1916, 1917, and 1918) do not appear to require crane operators employed on piers to use personal protective equipment of the type he would require a construction worker to use in this case. See 29 C.F.R. 1918.96(e) and 29 C.F.R. 1918.106.
DISSENTBY: CLEARY (In Part)
DISSENT:
CLEARY, Commissioner, CONCURRING IN PART AND DISSENTING IN PART:
I concur with the result insofar as it vacates the citation alleging noncompliance with the standard at 29 CFR § 1926.106(a) n3 and holds that the record does not support a finding that there was a reasonable [*5] possibility that the crane operator could enter the water. But I do disagree with the majority's interpretation of the two standards at issue here. I would find that respondent has not complied with the provisions of 29 CFR § 1926.106(d). n4
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n3 The standard at 29 CFR § 1926.106(a) reads,
Employees working over or near water, where the danger of drowning exists, shall be provided with U.S. Coast Guard-approved life jacket or buoyant work vests (emphasis added).
n4 The standard at 29 CFR § 1926.106(d) provides,
At least one lifesaving skiff shall be immediately available at locations where employees are working over or adjacent to water.
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The interpretation adopted by the majority would apply the requirements of both cited standards under an identical test, i.e., when there is a reasonable possibility that an employee might fall into the water. This ignores an important difference in text. The clause "where the danger of drowning exists" in 29 CFR § 1926.106(a) is rendered redundant. The two standards [*6] are worded similarly in all other respects. The fact that the two standards address the same hazard, while each affords the employee a significantly different level of protection, further suggests that co-extensive application of the two standards was not intended.
I would, therefore, read the clause "where the danger of drowning exists" as imposing a limitation that it be reasonably foreseeable that an employee might enter the water in order to apply the requirements of the standard at 29 CFR § 1926.106(a). This is consistent with a requirement for the weating of life jackets.
I would distinguish the standard at 29 CFR § 1926.106(d) as requiring the presence of a skiff whenever work is performed in the vicinity of water. The possibilities with respect to employees entering the water need not be shown. This is a specific standard dealing with a water hazard. No resort to a test of reasonableness is necessary. Cf. Cape and Vineyard Divison of the New Bedford Gas & Edision Light Co. v. O.S.H.R.C., 512 F.2d 1148 (1st Cir. 1975) Clearly, operations on a pier in relatively deep and turbulent water, such as here, should be considered within the ambit of the standard.
APPENDIX [*7] A
DECISION AND ORDER
Alan Davis, For Complainant
Jack Sheppard, (Pro se), For Respondent
Chalk, Judge
The Secretary's evidence in this case, in part, invokes the principle that the mere occurrence of an accident, without more, is an insufficient basis to support a charge that the employer violated 29 USC 651 et seq. (Secretary v. Gerosa, Inc., 2 OSAHRC 372 (1973)).
The accident, resulting in the death of an employee, occurred at Respondent's worksite on a pier located at Packer Avenue, Windy Point, Philadelphia, Pennsylvania, on April 25, 1974. A Department of Labor compliance officer inspected the scene of the accident the following day, April 26, 1974. Thereafter, on May 31, 1974, a Citation alleging two serious violations, and penalty proposals for both, were issued. On June 10, 1974, Respondent contested the entire enforcement action.
In his Complaint, the Secretary abandoned item number two of the Citation alleging a serious violation of 29 CFR 1926.105(a) by not providing safety nets for employees working more than twenty-five feet "above the ground or water surface or surfaces" because there was insufficient evidence to support the charge. Accordingly, matters [*8] pertinent only to the remaining charge are as follows:
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29 CFR 1926.106(a) n1 & |
"Employees working over or |
$600.00 |
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106(d) n2 |
near water, at the following |
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location, where the danger |
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of drowning existed, were not |
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provided with U.S. Coast Guard |
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approved life jackets or |
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buoyant work vests, nor was a |
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lifesaving skiff immediately |
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available: |
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a) (Delaware River) at the |
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Packer Avenue Pier, |
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Windy Point, Kocks Bremen |
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Crane #2." |
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n1 "Employees working over or near water, where the danger of drowning exists, shall be provided with U.S. Coast Guard-approved life jacket or buoyant work vests."
n2 "At least one lifesaving skiff shall be immediately available at locations where employees are working over or adjacent to water."
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The record raises no issue relating to lack of jurisdiction, as the record affirmatively establishes that Respondent, a New Jersey based corporation, engaged in business in other states.
I
The accident occurred when a large crane belonging to Respondent toppled over sideways off the pier [*9] into the river where the depth of the water was about fifty feet. The crane operator went into the water with the crane, but he survived the accident. Another employee named Toner, however, drowned. No witness could explain how Toner got in the water, primarily because he was working about thirty to forty feet from the pier's edge at the time. However, one of the witnesses testified that some of the employees "claimed [Toner] jumped into the river" to assist the crane operator (Tr.40).
Photographs taken by the compliance officer (Exs. C-1 thru C-5), and especially one taken by Respondent's vice-president shortly before the accident occurred (Ex. R-1), together with the other evidence of record, portray the circumstances prevailing at the scene immediately before the accident with reasonable certainty. From the testimony of both the vice-president and the crane operator, it appears that the tipping over of the crane was most unusual and totally unexpected. In this connection, the compliance officer testified that from his investigation, he was led to conclude that "a gust of wind, or something" caused the crane to tip over (Tr. 12).
The accident occurred when the crane was [*10] holding a one hundred ton boom in the air, with one end of the boom resting on the pier. A smaller crane nearby was also connected to the boom but was about to be disconnected. The boom had been lifted twice before, once to determine if the large crane could lift the load, and the other, to reposition the boom for the final lift. Appropriate engineering calculations had previously been made to assure that the larger crane would lift the load. At the time, the larger crane was resting on a raised platform of heavy timbers with its right side parallel to and about ten to fifteen feet from the water-edge of the pier.
The crane operator testified that if he had fallen off the crane before the accident occurred, he could not have fallen into the water. The vice-president testified that during the day, he had walked several times between the crane and the edge of the pier and that this probably placed him closer to the water than any other employee would have been. However, according to him he was never closer than about ten feet from the edge of the pier and he could not have gone over the side into the water if he had fallen. Another employee testified that neither he nor any other [*11] employee was closer than "five or 10 feet" from the edge of the pier during the course of the day (Tr. 36). At the time of the accident, most of the employees were working near the deceased Toner, some thirty to forty feet from the pier's edge, at the point where the boom end was resting on the pier (Ex. R-1).
Finally, it was established that Respondent had not furnished life jackets and a skiff that day because, in Respondent's opinion, none of the employees were working over or near the water.
II
When the standard speaks of employees working over, near, or adjacent to the water, it must be construed as requiring the use of protective equipment only when there is a reasonable possibility that an employee might fall into the water; otherwise, unreasonable requirements clearly not within the scope of the Act would be imposed unjustifiably upon employers. For example, it would be unreasonable to charge an employer with a violation of this standard because of his noncompliance with the standard regarding employees repairing a beach house "near the water," where it is established that the beach house is actually located fifty feet from the water's edge. As the Supreme Court has [*12] so widely observed:
"There is, of course no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning . . . When what meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act . . . Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one 'plainly at variance with the policy of the legislation as a whole' . . . this Court has followed that purpose, rather than the literal words." United States et al. v. American Trucking Associations, Inc., et al., 310 U.S. 534, at 543, 60 S. Ct. 1059, at 1061, 1062 (1940).
See also Helvering v. Morgan's, Inc., 203 U.S. 121, 55 S. Ct. 60, (1934), and United States et al. v. Rippetoe et al., 178 F2d 735 (CA, 4th Cir., 1949). Accordingly, each case must turn on its own facts and the Secretary has the burden of proving that employees were working at such a place where a reasonable possibility of [*13] falling into the water exists.
The Secretary normally would fulfill his obligation successfully by showing that employees were working at the edge of a pier or within a few feet thereof; however, his burden becomes increasingly more difficult the further the workplace is located from the edge. Of course, a point of no return is reached once the workplace is shown to have been so far removed from the water's edge that the possibility of falling into the water is not reasonable.
The facts in this case must be construed in the light of the foregoing principles. In so doing, I conclude that the Secretary has not carried his burden of proof in this case because the evidence does not place any employee closer to the water than about ten feet at any time during the entire workday. Under these circumstances, it is unreasonable to conclude that any employee, if he had fallen, would have been subjected to the possibility of falling into the water.
The evidence, of course, does establish that two employees went into the water as the result of an unusual and unforeseen accident and that one of them drowned. The mere fact that an accident occurs, without more, is insufficient to establish [*14] a violation of 29 USC 651 et seq (Secretary v. Gerosa, Inc., supra).
The Citation must be vacated.
III
Based upon the entire record, the following findings of fact and conclusions of law are reached:
FINDINGS OF FACT
1. That at the time and place in question, Respondent did not furnish and require the use of life jackets or buoyant life vests and a skiff.
2. That at the time and place in question, no employee approached closer to the water's edge than about ten feet.
3. That at the time and place in question, there was no reasonable possibility that an employee, if he had fallen, would have fallen into the water.
4. That at the time and place in question, the accident was an unusual and unforeseen occurrence.
CONCLUSIONS OF LAW
1. That this Commission has jurisdiction over the cause.
2. That Respondent did not violate 29 USC 654(a)(2) by not complying with 29 CFR 1926.106(a) and (d).
Citation for Serious Violation number 1 (two items) and the Notification of Proposed Penalty are vacated.
So ORDERED.
JOSEPH L. CHALK, Judge, OSHRC
Dated: DEC. 16, 1974
Hyattsville, Maryland