C.F. & I. STEEL CORPORATION
OSHRC Docket No. 5619
Occupational Safety and Health Review Commission
August 23, 1976
[*1]
Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Henry C. Mahlman, Assoc. Regional Solicitor
Paul R. Hundt, C.F. & I. STEEL CORP, for the employer
Miles C. Cortex, for the employer
Wayne Anzick, President, UNITED STEELWORKERS OF AMERICA, for the employees
OPINIONBY: MORAN
OPINION:
DECISION
MORAN, Commissioner: A February 27, 1975, decision of Review Commission Judge John J. Morris, which is attached hereto as Appendix A, n1 is before this Commission for review pursuant to 29 U.S.C. § 661(i). That decision, holding respondent in serious violation of 29 U.S.C. § 654(a)(1), is hereby reversed because of complainant's failure to comply with 29 U.S.C. § 657(e). n2
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n1 Chairman Barnako does not agree to this attachment.
n2 Following the initial direction for review in this case, former Commissioner Van Namee added an issue thereto which questions the timeliness of the direction for review. See 29 U.S.C. § 661(i).
[*2]
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Section 657(e) provides:
"Subject to regulations issued by the Secretary, a representative of the employer . . . shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace . . ." n3 (Emphasis added.)
That decision is controlling in this case.
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n3 Complainant's regulations effectively reiterate 29 U.S.C. § 657(e) by providing at 29 C.F.R. § 1903.8(a) that:
"A representative of the employer . . . shall be given an opportunity to accompany the Compliance Safety and Health Officer during the physical inspection of any workplace . . . ."
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The record in this case establishes that [*3] complainant's inspectors arrived at respondent's steel mill to investigate a fatal accident involving two employees of State, Inc., n4 another employer who was performing work at the mill and was not affiliated with respondent. Although the evidence is somewhat unclear as to whether respondent was specifically excluded from the opening conference that preceded the inspection on November 1, 1973, no question exists that respondent was not informed that it was going to be inspected until the day after it had occurred. n5
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n4 State, Inc., was also cited for the same section 654(a)(1) violation as this respondent.
n5 Complainant's assistant regional director testified as follows:
"Q. [W]asn't [the November 1 conference] . . . identified as an opening conference with State, Inc.?
A. That is correct.
Q. And never represented to be an opening conference with CF&I?
A. No.
Q. All right; . . . did you, prior to the time you told [respondent] that you'd like to have a closing conference . . . on November 2nd, ever indicate . . . that this was an OSHA inspection of CF&I?
A. No."
[*4]
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As a result of this failure, respondent was effectively foreclosed from any opportunity to have its representative accompany the compliance officer during the inspection. Respondent's general supervisor for safety and security testified as follows:
"Q. [D]oes CF&I have a policy with respent to what management representatives will accompany OSHA's inspectors during the course of an OSHA inspection?
A. Yes, sir; . . . we first notify our front office top supervisor of the plant. Then we make arrangements with the department that the OSHA inspector wishes to visit. We make arrangements for the superintendent or assistant superintendent to accompany the group.
Q. Why is it CF&I's policy that the superintendent or the management personnel in charge of the shop being inspected accompany the OSHA inspector?
A. The superintendent is totally responsible for the operation of that department. So obviously, he should be there to answer whatever questions.
Q. Did any of the management people . . . accompany Mr. Torrey, Mr. Ogard and Mr. Proctor [complainant's inspectors] . . .?
A. No, sir.
Q. Why [*5] . . .?
A. We were told this was strictly a State, Incorporated, investigation and CF&I personnel would not be needed."
We find no extraordinary circumstances which justifies complainant's failure to afford respondent the § 657(e) walkaround right. n6 Furthermore, it cannot be said, as in Chicago Bridge & Iron Co. v. OSAHRC, No. 75-1163 (7th Cir., May 10, 1976), that complainant had substantially complied with section 657(e). In fact, the actions of complainant's representatives led respondent to believe that it would not be inspected. Consequently, respondent had no cause to attempt to assert its right to accompany the inspectors.
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n6 It would be an unusual situation if complainant was in possession of any evidence which was not tainted by the failure to afford an employer his walkaround right. In the instant case, the complainant has not requested a remand in order to present additional evidence nor has our attention been directed to any untainted evidence which would warrant affirmance of the citation or a remand for further proceedings.
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Accordingly, the decision below is reversed, and the citation and penalty assessed therefor are vacated.
DISSENTBY: CLEARY
DISSENT:
CLEARY, Commissioner, DISSENTING:
In order to understand more fully the implications of the majority's decision it is advisable to begin by briefly setting forth the events, as found by the Administrative Law Judge, that led to the issuance of a citation to C.F. & I. Steel Corporation (C.F. & I.).
On October 31, 1973, C.F. & I.'s safety officer informed the Secretary of Labor (Secretary) that two fatalities had occurred at his employer's place of business on that day. At this time the Secretary's representative was also informed that the deceased employees were not employees of C.F. & I. Rather, they were employees of State, Inc. (State), an independent contractor performing construction work on C.F. & I.'s premises.
The next day compliance officers of the Secretary visited C.F. & I.'s safety offices and announced their desire to conduct an opening conference with representatives of State. Presumably because of the fact that the compliance officers were known to C.F. & I.'s safety personnel, credentials were not presented to authorized [*7] representatives of C.F. & I. at this time.
An opening conference was then held with representatives of State. Although the Judge found that the opening conference was not identified as one with C.F. & I., he also found that a representative of C.F. & I. was present at the opening conference with State. n7 Following this conference, interviews were held with employees of both State and C.F. & I. and a visit was made to the scene of the fatalities. Representatives of C.F. & I. were present at all the above phases of the investigation.
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n7 The majority notes that the evidence is "somewhat unclear" as to whether all C.F. & I. personnel were specifically excluded.
Although Judge Morris found that C.F. & I.'s safety officer was specifically excluded from the opening conference, he nevertheless found that "respondent's engineer Nochman (in charge of the construction being performed by State, Inc.) was present."
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The Secretary's investigation of the accident was concluded on November 2, 1973. A closing conference was then [*8] held with representatives of both C.F. & I. and State. At this time C.F. & I. was first informed that it might be issued a citation. At the hearing, C.F. & I. asserted that the Secretary's failure to present formally credentials to C.F. & I. and his failure to inform it at the outset of the investigation that it, as well as State, was being investigated warranted the vacating of the citation issued to C.F. & I.
Judge Morris responded to C.F. & I.'s contentions in the following manner:
These contentions must be considered in the factual context of this case. Respondent's safety officer advised the compliance officer of the two fatalities. One would expect from this initial impetus that the compliance officers would commence their investigation with State, Inc. personnel. Respondent was advised it was being investigated; whether the meeting was designed a closing conference or opening conference is a matter of semantics. Respondent's supervisory personnel were present at all times when its employees were interviewed and no prejudice is shown. As to the remaining issues the law does not require a useless act. The C.F. & I. safety officer anticipated an OSHA inspection. He [*9] had read the Act, was familiar with OSHA procedures and its enforcement regulations. In this Judge's view respondent's complaints have no substance (transcript references omitted).
I agree with the Judge's statements, and would adopt them to dispose of this case. Under the somewhat unique circumstances presented in this case, it is absurd to vacate a valid citation solely on the grounds that the Secretary technically failed to comply with the so-called "walkaround" provision of the Act.
Nevertheless, this is precisely the result reached by the majority when it holds that this Commission's decision in Western Waterproofing Co., Inc., supra, with its three separate opinions is controlling in the instant case. n8 Several flaws are, however, readily apparent in the majority's decision.
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n8 In Western Waterproofing, I dissented from those portions of my colleagues' opinions dealing with the interpretation and enforcement of the Act's "walkaround" provision.
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The majority cites the Commission's decision in [*10] Western Waterproofing for the proposition that:
. . . except in extraordinary circumstances, we would vacate a citation which resulted from an inspection where this opportunity [for a walkaround] was not provided to the employer (emphasis added).
This is plain error. A majority of this Commission never agreed to vacate the citations at issue in Western Waterproofing solely because the employer was not furnished an opportunity to accompany the Secretary's authorized representatives during their inspection.
Indeed, only Commissioner Moran urged that, based upon the Secretary's alleged failure to comply with both subsections (a) and (e) of section 8 of the Act, the citations were "improperly issued". Chairman Barnako did not agree that the Secretary did not comply with section 8(a) of the Act. Rather, the Chairman stated only that the inspection did not comply with section 8(e). More important to the instant case, however, is the fact that the Chairman did not agree to vacate the citations solely because of this alleged noncompliance with section 8(e) of the Act. All the Chairman stated was that, absent extraordinary circumstances excusing such noncompliance in the [*11] Western Waterproofing case, the employer's motion to suppress the evidence resulting from the inspection must be granted. According to the Chairman, an order of remand and retrial would normally be necessary under such circumstances. The Chairman stated, however, that the citations should be vacated without resort to a remand because the Secretary did not allege that he could present independent evidence in support of the allegations in the citations and additionally because the record showed only a "small number of minor violations."
In light of the above, my colleagues' reading of their opinions in Western Waterproofing as authority for vacating the citation at issue in the instant case is baffling. It would seem that under Western Waterproofing only the "evidence resulting from the inspection" should be suppressed if in fact the Secretary inexcusably failed to comply with the "walkaround" provision. The extreme sanction of vacating an otherwise valid citation should, according to Western Waterproofing, only be applied when there is insufficient evidence independent from that obtained in the Secretary's inspection to support the allegations in the citation and [*12] when the violation alleged in the citation is "minor".
I submit that neither factor supporting the sanction of vacating the citation exists on this record. Eight of the ten witnesses who testified for the Secretary were employees of either C.F. & I. or State. This should be contrasted with the situation as it existed in Western Waterproofing where the only evidence on the merits was the testimony of the compliance officer who conducted the inspection. In addition, unlike the situation existing in Western Waterproofing, the violation in the instant case that was affirmed by Judge Morris cannot be fairly deemed "minor" inasmuch as the Judge found that the hazard to employees was the possibility of being struck on exposed skin with molten steel from explosions in the pouring (charge) of scrap metal by hot metal from the blast furnace.
Thus, if the majority insists on following whatever distillation of applicable law it can glean from the three opinions in Western Waterproofing, it should remand this matter to the Judge or, at the very least, advance some convincing reasons why under the unique facts of this case that such a remedy is inappropriate. n9
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n9 The majority relies heavily upon the Secretary's failure to request either a remand or to direct the Commission to "untainted evidence" that would support an affirmance of the citation or a remand for further proceedings. The reliance is unfair.
The Secretary received a favorble ruling on the section 8(e) issue from Judge Morris. Moreover, reference to the issue upon which this case was directed for review by Commissioner Moran indicates that the Secretary may have had no reason to believe that this Commission would be contemplating a suppression rule to enforce the mandate in section 8(e) of the Act. Indeed, the direction for review merely requested submissions on the following issue:
Was the action validly initiated in accordance with the requirements of 29 U.S.C. § § 657(a) and (e) [sections 8(a) and (e) of the Act] (emphasis added)?
The issue is directed only to the valid initiation of the action. It neither states nor suggests the possibility of the procedures to be followed in the event that noncompliance with section 8(e) of the Act were to be found.
Thus, inasmuch as the majority is announcing a new rule of law that was not suggested in the order for review, I submit that it should at least give the Secretary an opportunity to submit additional argument on this new issue or to request a remand for the purpose of reopening the hearing in light of the novel disposition. See M. Ruhlen, MANUAL FOR ADMINISTRATIVE LAW JUDGES 68-69 (Administrative Conference of the United States, 1974); Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, May 12, 1976); Anning-Johnson Co., 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (Nos. 3694 & 4409, May 12, 1976).
[*14]
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In my view, however, it is unnecessary under the facts of this case to sanction the Secretary for his alleged inexcusable failure to comply either literally or substantially with section 8(e) of the Act. I would not suppress the evidence of the inspection, nor would I impose the extreme sanction of vacating the citation.
Instead, as did Judge Morris, I would take a realistic look at the events surrounding the post-fatality investigation to determine whether any irregularities occurred that would substantially prejudice C.F. & I.'s ability to prepare an adequate defense in this matter. Absent a clear showing of substantial prejudice, I see no reason to consider what sanction, if any, is appropriate in the event that the record shows that the Secretary inexcusably failed to comply either literally or substantially with the "walkaround" provisions of the Act.
In Western Waterproofing Co., Inc., supra, my colleagues announced that section 8(e) conferred a "substantial right" on employers. Moreover, it was stated that any violation of this "substantial right" would be strictly sanctioned by means [*15] of a suppression rule even in the absence of resulting prejudice to an employer. In Western Waterproofing, I expressed my opposition to the majority's holding that, in enacting section 8(e), Congress intended to confer such a "substantial right" on employers. It is unnecessary to restate those reasons in full here.
It is interesting to note that, in announcing the rule that evidence resulting from an inspection would be suppressed even if a purported failure to comply with section 8(e) did not prejudice an employer's ability to present a defense, the Chairman began by stating that:
. . . [I]n enacting § 8(e), Congress intended to confer a substantial right on both employers and employees, and the failure of Complainant to comply with this section can significantly detract from the utility of inspections conducted pursuant to the Act.
Western Waterproofing Co., Inc., supra (emphasis added). While I disagree with the Chairman's conclusion regarding the conferral of a "substantial right", I agree with his statement that failure to comply with section 8(e) can detract from the utility of inspections. Moreover, I submit that it is conceivable how in a given case [*16] the Secretary's noncompliance could prejudice substantially an employer's ability to present a defense. Unlike the Chairman, however, I would not announce a suppression rule that in effect conclusively presumes that all technical failures to comply with the "walkaround" provisions do result in substantial prejudice to an employer.
As noted in the lead opinion in Western Waterproofing, the "walkaround" right was intended to be a "beneficial tool designed to further the purpose of the Act [,]" i.e., the realization of rapid abatement of hazardous conditions. I submit, however, that it can also fairly be implied that Congress never intended the "walkaround" right to be subverted into a device to vacate valid, fully and fairly litigated citations on the ground that there was a failure to comply technically with section 8(e) of the Act and the Secretary's regulations thereunder.
In the instant case, C.F. & I. has not shown any prejudice flowing from the Secretary's failure to follow literally the "walkaround" provision. In fact, C.F. & I. does not assert that it was prejudiced. To the contrary, this record as noted above indicates that C.F. & I. was present at all [*17] phases of the post-fatality investigation, and had a full and fair opportunity to defend against the merits of the citation. Under these circumstances, the Judge properly rejected C.F. & I.'s contentions regarding the "walkaround" as being without substance.
Any other disposition of C.F. & I.'s contentions permits the effective enforcement of the Act to become "trivialized by formal objections that have no substantial bearing on the ultimate rights of the parties." Market Street Ry. v. Freight Commission of California, 324 U.S. 548, 562 (1945). Assuming arguendo that the Secretary inexcusably failed to substantially comply with section 8(e) of the Act, n10 a remedy should not be available to the employer unless he can demonstrate substantial prejudice resulting from any failure to comply with the "walkaround" provision.
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n10 As the text that follows will demonstrate, the majority's conclusion that the Secretary inexcusably did not "substantially comply" with section 8(e) of the Act is not beyond dispute.
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The above approach is consistent with the teaching of three different circuit court decisions interpreting section 8(e) of the Act. See Accu-Namics, Inc. v. O.S.H.R.C., 515 F.2d 828 (5th Cir. 1975), cert. denied, 96 S.Ct. 1492 (1976); Chicago Bridge & Iron Co. v. O.S.H.R.C., No. 75-1163 (7th Cir., May 10, 1976); Hartwell Excavating Co. v. Dunlop, No. 74-3275 (7th Cir., June 18, 1976). The records in these cases indicated, however, that the Secretary complied substantially with section 8(e) and that the employers had not shown prejudice due to the Secretary's failure to strictly follow section 8(e) of the Act. Thus, no court addressed squarely the question of what remedy, if any, is required when the Secretary does not comply substantially with the "walkaround" provision, but his noncompliance does not prejudice the employer's ability to defend on the merits. n11 Nevertheless, a close reading of the courts' opinions suggests that the primary test to be applied in determining whether a remedy is imposed for the Secretary's failure to comply with the "walkaround" provision is whether prejudice was shown by the employer.
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n11 Indeed, the Seventh Circuit stated that it expressly was not reaching the question of whether either the failure of the employer to demonstrate concrete prejudice or the failure of the Secretary to show substantial compliance would alone be sufficient to deny a remedy under section 8(e) of the Act. Chicago Bridge & Iron Co. v. O.S.H.R.C., supra n.16.
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In its decision dealing with section 8(e) of the Act, the Fifth Circuit stated that:
We merely hold that even if the Secretary conducted an illegal inspection (which we assume only for argument's sake), under the curcumstances here these violations cannot operate to exclude evidence obtained in that inspection when there is no showing that the employer was prejudiced in any way.
Accu-Namics, Inc. v. O.S.H.R.C., supra at 833 (footnote omitted) (emphasis added). The above language was quoted with approval by the courts' in Chicago Bridge & Iron Co. v. O.S.H.R.C., supra and Hartwell Excavating Co. v. Dunlop, supra. All three courts seemed [*20] to be in general agreement that
". . . technical violations of the statute [sections 8(a) and (e)] . . . do not justify any sweeping exclusionary rule in the absence of a showing of substantial prejudice by the petitioner.
Hartwell Excavating Co. v. Dunlop, supra (emphasis added). While I realize that the courts in these cases were presented with unique factual circumstances, I, nevertheless, submit that their requirement of a showing of prejudice should be applied to all alleged failures to comply with section 8(e) of the Act. At the very least, however, I maintain that the Secretary's failure to adhere to the "walkaround" provision in the instant case is excusable, thereby necessitating a showing of substantial prejudice by C.F. & I. before any sanctions should be imposed.
In this regard, the majority errs by not finding that the circumstances excused technical noncompliance with the "walkaround" provision. It is clear on this record that the Secretary's failure to inform C.F. & I. at the outset of the investigation that it was being investigated was neither intentional nor negligent. The Secretary was faced with investigating two fatalities involving an employer [*21] who at the time of the accident happened to be one of two employers at a jobsite. It seems logical that any investigation would commence with that of State, the employer of the deceased employees rather than with C.F. & I. Indeed, as noted by Judge Morris:
On would expect from this initial impetus [the reported fatalities of State's employees] that the compliance officers would commence their investigation with State, Inc. personnel.
The fact that during the course of the investigation of State a possible violation by C.F. & I. was discovered should not operate to exclude all evidence relating to this violation. This is especially true when one considers that the Secretary informed C.F. & I. of the possibility of citation early in the second day of the investigation and that C.F. & I. has not alleged that it was prejudiced in any way by this delay in being formally informed of an investigation.
Accordingly, I dissent. I would adopt the Judge's disposition of this case in all respects.
APPENDIX A
DECISION AND ORDER
Thomas E. Korson, Office of Associate Regional Solicitor of Denver, for the Secretary of Labor
Paul R. Hundt and Miles C. Cortez, Jr., for the respondent
Wayne [*22] Anzick, President of Local 2102, Steelworkers of America, AFL-CIO, for the employees
Hearing conducted March 13 and 14, 1974 in Pueblo, Colorado; and April 29, 1974 in Denver, Colorado, Judge John J. Morris presiding.
Morris, Judge, OSAHRC: Respondent seeks an adjudication pursuant to 29 U.S.C. 659(c) that it did not violate the general duty clause of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.), hereafter called the Act. The statutory directive forming the basis for the citation provides that:
(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 are likely to cause death or serious physical harm to his employees. (29 U.S.C. 654)
The citation issued November 26, 1973 under the authority of 29 U.S.C. 658 alleges a serious violation of the general duty clause in that:
"The employer failed to furnish to each of his employees employment and place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees in that on October 31, 1973 employer failed to remove or otherwise [*23] protect the employees in their working areas during the charging operations at the "W" basic oxygen furnace thus exposing employees to a hazardous exposure to flame and extreme heat during possible eruption of combustible materials."
Respondent contends that complainant failed to prove the evidentiary elements which would establish a violation of the general duty clause citing National Realty and Construction Co. v. Occupational Safety and Health Review Commission 489 F. 2d 1257 (D.C. Circ., 1973). Specifically, respondent urged that the evidence fails to establish employee exposure to the hazard of flame and extreme heat to an extent likely to cause death or serious physical harm to such employee. Respondent's argument directed to certain specific employees at the worksite will be hereafter discussed. Respondent further argued that the irregularity of the inspection requires vacating the citation and the proposed civil penalty of $900. For authority respondent relies on Secretary v. Accunamics, Inc., 8 OSAHRC 890.
The defenses require a detailed analysis of the evidence:
The two oxygen steelmaking furnaces (on one hundred foot centers) at respondent's Pueblo, Colorado [*24] plant are 150-ton refractory-lined, pear-shaped vessels mounted on pivots so they can be tilted a full 360 degrees. One vessel is operated at a time while the other one is being relined. Scrap metal, about 25% of the total charge, is first loaded into the vessel with a charger, then hot metal from the blast furnace is poured into the mouth of the tilted vessel. After charging, the vessel is tipped upright. A water-cooled, copper-tipped oxygen carrying lance is lowered to a point four to eight feet above the bath where clamps center it in the furnace. Oxygen is then blown onto the surface to the metal. Reaction starts immediately and the temperature at the center of the vessel climbs close to iron's boiling point of about 3,000 degrees Fahrenheit. Carbon, manganese and silicon are oxidized at this point; lime and fluxes are added which retain impurities such as phosphorous and sulphur in slag form. When the refinishing process is completed, the vessel is tilted for "tapping." The molten steel runs into a ladle and is then poured into ingot molds. (Tr. 213; resp's. ex. 4)
The incident herein occurred in the four story Basic Oxygen Furnace Building (BOF) when in the work process [*25] hot metal from the furance poured into the mouth of the tilted vessel, ie., during the charge of some 140,000 pounds of hot metal (Tr. 10, 43, 132, 135-136). The duties of respondent's electrician employee Archuleta involved working outside and inside the BOF. He was more frequently in the BOF than elsewhere (Tr. 10, 11, 31). Maintenance people had been instructed to stay clear of the ladles and certain hazardous areas when hot metal was being poured (Tr. 37-39, 211). On October 31, 1973 Archuleta proceeded into the BOF at the open northeast entrance on his way to his shop located midway between the two vessels (furnaces) (Tr. 11). At the entrance he paused and heard, for a split second, an eruption sounding like a "puff" or "whoosh" (Tr. 12, 14, 25-26, 29-30, 32, 33-35). He heard no boom or concussion (Tr. 25). Some steel fell directly down as if dropped; floating metal from the vessel appeared as sparks and rained down like hail (Tr. 12, 26, 27, 29, 36). The metal did not strike Archuleta's clothing (Tr. 28). There were no further flames or sparks (Tr. 32). After entering a fellow employee hollered that a man was burning (Tr. 12-13, 32). Archuleta had not seen the man [*26] fall, but he observed a rope burning on one of the beams (Tr. 23, 32, 35). The burning man was an employee of the construction contractor, State, Inc. (Tr. 12-13). When the explosion occurred Avalos was on the second deck of the BOF sixty feet above the ground and two hundred feet in a straight line from the vessel (Tr. 49, 50, 57). He did not see the explosion but heard a "big rumble" as flames came out between the corrugated iron and the holes on the east wall (Tr. 50, 57). In bending over with Archuleta to assist the deceased Avalos felt particles falling on his heavy jacket. Smoldering particles of molten steel were on the ground (Tr. 52, 58, 59).
Respondent's employee Chavez records all data concerning the hot metal from his position in the 10 by 12 foot glass and steel pulpit located five feet from the operating furnace (Tr. 88, 91, 92, 177-178). A boom will frequently shake the rafters (Tr. 104). Chavez, familiar with unsafe areas in the BOF, testified that no furnacemen stand in the area around the mouth of the vessel during the charging operation (Tr. 106, 107). The first furnaceman (of total of three such furnacemen) stands adjacent to the door of the pulpit; employees [*27] outside the pulpit are without protective cover; they run for cover during eruptions or explosions (Tr. 111, 112, 190). During the day shift any number of people could be on the operations floor (Tr. 115). Particles about the size of dust come out of the vessel discharging with almost any explosion (Tr. 115, 119, 290). The hot metal charge makes "one hell of a racket" (Tr. 123). There is no mechanical warning system immediately prior to, or at the time of, the hot metal charge which is when the explosions occur (Tr. 121, 125-127). However, a siren is sounded when the charging operator completes pouring the hot metal (Tr. 124). No regulations exist to position employees during the charge of the vessel (Tr. 127, 128). Eruptions occurred prior to 1973 (Tr. 94); Chavez had seen eruptions like this previously. Various witnesses indicated that an explosion occurs because of moisture in the scrap (Tr. 75, 93, 107, 180); such moisture is more likely during the winter and the rainy season (Tr. 107). Water leaks occur occasionally (Tr. 112-113); the hood, the covering above the vessel, showed signs of leakage (Tr. 94-95). Other water leaks which run into the furnace can occur from [*28] water pipes around the vessel (Tr. 102). At one point (unidentified in time) Chavez refused to work unless the leaks were fixed. They were thereafter repaired (Tr. 109, 110). Chavez had seen the hot metal charge when the hood was leaking (Tr. 113-114). [The evidence fails to establish that the hood was leaking on October 31, 1973.]
As to Archuleta and similar employees respondent should establish an automatic visual (flashing light) and/or audio (siren) warning device which would warn someone at the entrance of the BOF immediately prior to the hot metal pour (Tr. 235-236). In cross-examination complainant's witness admitted the scrap metal charge was about the loudest thing he had ever heard (Tr. 241).
On October 31 respondent's crane operator heard a slight rumble. He then moved the ladle toward the vessel to block excessive flames and any hot metal from coming out (Tr. 130, 132-134). Flames commonly envelop the ladle and mouth of the vessel; the flames and smoke around his cab on this occasion were the worst he had ever seen (Tr. 140-143, 150) He was not injured but the flames burned a newspaper in his cab (Tr. 134). A gap in the glass door of the crane had been reported [*29] but not corrected (Tr. 150, 161-162). The crane operator heard something like fine gravel hitting the windshield during this incident (Tr. 139-140). Respondent's exhibit 2 is a photograph of the crane and windshield (Tr. 143-144). As to the flames entering the cab of the crane, complainant contended that a preventative maintenance program would have avoided this incident (Tr. 223-224). The record is clear that no employee of respondent has ever reported an injury in the BOF during the charging operation (Tr. 53, 105, 115, 143, 180).
On August 27, 1973 during a molten steel pour an explosion occurred in the vessel (Tr. 45-47). Respondent's engineer advised State, Inc. people that respondent would correct the cause (Tr. 71, 72, 74). A combination of hot slag and water caused the explosion of August 27 (Tr. 75); between August 21 and October 31 there was another booming and rattling explosion. No one was injured as it was before working hours (Tr. 82-84). Respondent's superintendent determined that the August 27 incident was an explosion due to a small amount of water entering the furnace from a leak in a spark box cooler elbow (Tr. 192-195, compl's. ex. 4). Some slag was thrown [*30] out of the vessel (Tr. 202). After the August 27 incident respondent's engineer in charge of the particular project promised that no similar event would endanger State, Inc. employees (Tr. 49, 63, 73). Respondent's witnesses contended that fixing the leak and rotating the vessel so it would not be under the hood eliminated the explosions (Tr. 197-198). Respondent's superintendent did not know what caused the October 31 explosion but there was no concussion, boom or loud noise, only a whoosh type sound (Tr. 198, 202, 203). Respondent's general supervisor for safety characterized the October 31 incident as a flareout, not an explosion (Tr. 184, 185).
Complainant offered no evidence as to the proposed civil penalty of $900 (notification of proposed penalties; in a letter of March 26, 1974 he sought leave to make an additional offer, but letter of April 2, 1974 expressed contrary intention). At the adjourned trial on April 29, 1974 complainant declined to reopen his case in chief (Tr. 254).
Respondent's evidence asserts an impropriety in the investigatory process. Having been informed by a C.F. & I. safety officer of two fatalities the compliance officers arrived at respondent's [*31] safety officer to conduct an investigation (Tr. 256, 257, 272-274, 291-292). Credentials were not presented (they were allegedly presented in 22 prior inspections), but respondent's safety personnel knew the compliance officers from prior inspections (Tr. 263, 264, 269, 270, 276, 283). The evidence sharply conflicts as to whether C.F. & I. personnel were present at the opening conference with State, Inc. officials; this Judge finds that respondent's engineer Nachman (in charge of the construction being performed by State, Inc.) was present. However, respondent's safety officer was excluded from the meeting with State, Inc. personnel (Tr. 257, 264, 265, 268, 294, 305). The record indicates that no opening conference with C.F. & I. personel was ever identified as such; however such conferences had occurred in 20 or 22 other inspections (Tr. 281-282, 294, 306). Respondent was initially advised that a citation was being considered at a meeting designated as a "closing conference" held November 2, 1973 (Tr. 259, 261, 263, 277, 289-290, 301, 311-312). Respondent's supervisors were present at all times when its employees were interviewed (Tr. 260, 261). Respondent's safety director [*32] anticipated an OSHA inspection (Tr. 280, 283). In order to answer questions respondent's management accompanied compliance officers during inspections but this did not occur on this occasion (Tr. 265, 283, 296).
National Realty and Construction Company, cited supra, at 1265 recites the general elements necessary to support a violation of the general duty clause enacted at 29 U.S.C. 654(a)(1). In relying thereon respondent in its post trial brief (pg. 2-3) contends that complainant failed to establish by any evidentiary test whatsoever that any employee of respondent was exposed to the hazard of flame and extreme heat on October 31, 1973 to an extent likely to cause death or serious physical harm to such employees. The hazard must be delineated before the issue of exposure is explored. Flame and extreme heat failed to endanger any of respondent's employees. Molten steel erupting into the worksite was the hazard. The parties litigated this point. The compliance officer testified that when Archuleta entered the BOF he was exposed to whatever metal was falling (Tr. 234). n1 Respondent briefed this issue (Brief pg. 7-8) as did complainant (Brief pg. 4-5). Section 12 of the [*33] Act, now 29 U.S.C. 661(f) provides that ". . . unless the Commission has adopted a different rule its proceedings shall be in accordance with the Federal Rules of Civil Procedure." There is no Commission rule under the circumstances present here; Section 15(b) of the Federal Rules of Civil Procedure prevails:
"(b) Amendments to conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. . . ." (emphasis supplied).
There can be no surprise as the parties litigated and briefed this issue and no possible prejudice could result from an appropriate amendment, even at this stage. Consequently, the citation and complaint are deemed amended to allege an exposure to "flame and extreme heat and molten metal". See Decker v. Korth, 29 F. 2d. 732, 739 (1955); Christie v. [*34] United States, 179 F. Supp. 709, 721 (1959); Secretary v. Otis Elevator Company, OSAHRC Docket Number 688 (Rev. Comn., October, 1974).
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n1 Respondent's objection that there was no evidence to support a question incorporating a reference to falling metal is denied (Tr. 234-235). This evidence was directly in the record by witness Archuleta (Tr. 12-14, 26); inferentially by witness Avalos (Tr. 52, 58, 59).
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As to respondent's craneman the evidence establishes that the protection available sufficiently reduced the exposure to heat, flames, and molten steel so as to render his place of employment free from a hazard likely to cause death or serious physical harm. Employee Collins heard something like fine gravel hitting the windshield (Tr. 139-140); Resp's. Ex. 2). He further moved the ladle to block the hot metal (Tr. 133-134). Flames entered his cab and burden a newspaper (Tr. 134) but this incident was not one likely to cause death or serious physical harm under 29 U.S.C. 654(a)(1). The craneman was not burned [*35] nor had he ever been injured in his 15 years at this job station (Tr. 130, 131, 148).
The evidence establishes a violation of the general duty clause in connection with respondent's employee Archuleta. As he entered the BOF some steel fell like hail or sparks directly down landing about six inches from his feet (Tr. 14, 15, 27). Archuleta worked inside and outside the BOF and he was in his line of travel to the shop (Tr. 12-13, 15). In assisting Archuleta when bending over the deceased Avalos felt particles falling on his heavy jacket; smoldering particles of molten steel were on the ground (Tr. 52, 58, 59). Respondent's reliance on Secretary v. Arizona Public Service Company, OSAHRC, Docket Number 329 (Rev. Comn., October 1973) is misplaced. In Arizona the Review Commission ruled that:
(1.c. 4) "the employee . . . was not in fact exposed to the hazard. The mere fact that his path of travel could have exposed him to the recognized hazard if he followed it to the end, is not enough to create a violation. The path only gave rise to a possibility of exposure."
In Arizona the recognized hazard was a stationary electrical shock hazard created by the energized state [*36] of the lightning arresters. An employee could come as close as two feet to an arrester without being exposed to the hazard. Meade's nearest actual approach was three feet. In the instant case the hazard molten steel floated from the furnace without any space limitation as in Arizona. Employee Chavez had seen such eruptions before; the crane operator attempted to block the hot metal (Tr. 130, 132-134); some slag is usually thrown out of the vessel when an explosion occurs (Tr. 202). The exactitude sought by respondent was not contemplated by the Congressional madate which is:
". . . to assure so far as possible every working man and woman in the nation safe and healthful working conditions. . . ." 29 U.S.C. 651(b)
Respondent's theory that Archuleta and other maintenance personnel were not likely to be exposed because of specific instructions to stay clear of the ladles when hot metals were being poured ignores the evidence (Tr. 37-39, 211). Archuleta has no means of knowing when a hot metal charge is to occur. While the charge makes "one hell of a racket" the explosions occur at the time of the hot metal charge pour (Tr. 121, 123, 125-127). A siren sounding after a pouring [*37] is of no value to employees on the operating floor (Tr. 124).
Respondent argues that complainant failed to carry the burden of proof to establish that a burn would constitute "serious physical harm" [29 U.S.C. 654(a)(1)]. "Serious physical harm" is not defined in the Act, or the regulations. On the other hand, it is defined in the Compliance Manual, Chapter VIII(B)(2) as follows:
"(2) What is meant by "Serious Physical Harm?"
Serious physical harm is that type of harm that could cause permanent or prolonged impairment of the body in that (1) a part of the body would be permanently removed (e.g., amputation of an arm, leg, finger; loss of an eye); or rendered functionally useless or substantially reduced in efficiency on or off the job (e.g., leg shattered so severely that mobility would be permanently reduced); or (2) a part of an internal bodily system would be inhibited in its normal performance to such a degree as to shorten life or cause reduction in physical or mental efficiency (e.g., lung impairment causing shortness of breath). On the other hand, breaks, cuts, bruises, concussions or similar injuries would not fit into either of these categories and would not constitute [*38] serious physical harm. . . ." n2
Respondent's argument is directed to the potential injury to employee Collins the craneman and not to Archuleta the electrician. The record is barren as to specific evidence of serious physical harm, but it must be declared as a matter of law that serious physical harm is likely where an employee is struck on bare skin by molten metal (Tr. 58). Archuleta was fortunate to be wearing a hard hat, goggles and work clothes including a long sleeve shirt (Tr. 11, 27-28). The death of the State, Inc. employee, the burning rope, the burden off sections of clothing on the deceased workman all constitute evidence of the potential here for serious physical harm (Tr. 12-13, 32, 53). As in National Realty, cited supra at 1265 footnote 33; "the potential for injury is indicated on the record by Smith's death and, of course, common sense." The Review Commission is not bound by the foregoing compliance manual definition. Respondent's contentions are denied.
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n2 This paragraph is from respondent's brief; there is additional relevant text in the manual.
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Respondent attacks the propriety of the inspection relying on Secretary v. Accunamics, Inc. 8 OSAHRC 890. Generally inspectors must present credentials to the owner at the outset of any investigation or inspection. The purpose of presenting credentials is for identification. Such procedures hardly seem required as the C.F. & I. personnel knew the compliance officers from prior inspections (Tr. 263, 264, 269, 270, 276, 283). On this point cases ruled adversely to respondent are Secretary v. T. Smith and Son, Inc., OSAHRC Docket Number 2240 (Rev. Comn., August 1974) citing Accu-Namics; and Judge Martin's decision in Secretary v. Gulf Stevedore Corporation, OSAHRC Docket Number 5581 (Final order October, 1974). The final contentions of respondent are set forth in its brief as follows:
The inspectors must explain the nature and purpose of the inspection and indicate generally the scope thereof. 29 C.F.R. § 1903.7(a); Compliance Operations Manual, Chapter V(D)(2)(a).
The CSHO must have an opening conference with the employer at which he (a) specifically informs the employer that he is being investigated [*40] to determine whether he is in compliance with the Act, (b) outlines generally the scope of the inspection, (c) gives the employer to designate its representative for this purpose. Compliance Operations Manual, Chapter V(E)(1)(a-f), (F). As provided in the Compliance Operations Manual, the CSHO shall also inform the employer that the purpose of his visit is to make an investigation to ascertain whether the employer is in compliance with the requirements of the Act."
These contentions must be considered in the factual context of this case. Respondent's safety officer advised the compliance officer of the two fatalities (Tr. 256, 257, 272-274, 291-292). One would expect from this initial impetus that the compliance officers would commence their investigation with State, Inc. personnel. Respondent was advised it was being investigated; whether the meeting was designed a closing conference or opening conference is a matter of semantics. Respondent's supervisory personnel were present at all times when its employees were interviewed and no prejudice is shown (Tr. 260, 261, 290). As to the remaining issues the law does not require a useless act. The C.F. & I. safety officer anticipated [*41] an OSHA inspection. He had read the Act (Tr. 277), was familiar with OSHA procedures (Tr. 276) and its enforcement regulations (Tr. 277). In this Judge's view respondent's complaints have no substance.
No evidence was offered as to a dollar amount for a proposed civil penalty in this case. 29 U.S.C. 666(i) vests sole authority in the Review Commission to determine an appropriate penalty, if any. Such evaluations must be made independently of complainant's proposals. Secretary v. Dreher Pickle Company, 2 OSAHRC 497. In Secretary v. Nacirema Operating Company, Inc., 1 OSAHRC 33, it was held that of the four statutory factors bearing on the appropriateness of penalties, the gravity of the violation should generally be accorded the greatest weight. Four elements have been identified as calling for specific, though not exclusive, consideration in determining gravity. These are the number of employees exposed; the duration of exposure; the precautions taken against injury; and the degree of probability of the occurrence of injury. Secretary v. Baltz Brothers Packing Company, 2 OSAHRC 384. In the instant case electrician Archuleta was exposed; the duration was short [*42] and no substantial precautions had been taken to prevent the injury. The degree of probability of an occurrence is moderate. Considering all of the statutory criteria a civil penalty of $300 is appropriate.
FINDINGS OF FACT
1. Respondent steel manufacturer employs approximately 5000 persons. (Complaint; Answer, Tr. 6).
2. Respondent's goods are shipped in interstate commerce (Complaint, Answer; Tr. 6).
3. Respondent's electrician Archuleta worked inside and outside the Basic Oxygen Furnace (BOF) Building (Tr. 10).
4. On October 31, 1972 Archuleta entered the BOF intending to go to his ground level shop located midway between two furnaces (Tr. 15, 27, 32).
5. Pausing at the entrance Archuleta observed hot metal falling which landed within six inches of his feet (Tr. 12-15, 25, 26, 33). He further went to assist a burning man, an employee of State, Inc., (Tr. 12-13).
6. When assisting the burning man it was noted that smoldering particles of molten steel were on the ground; a person adjacent to Archuleta felt particles falling on his jacet (Tr. 52, 58, 59).
7. If molten steel strikes exposed portions of skin it is likely to cause serious physical harm (matter [*43] of law declaration).
8. Respondent's job analysis since 1961 recognized the hazard of explosions in the pouring (or charge) of the scrap metal by hot metal from the blast furnace (Tr. 165-166), 180).
9. The proposed civil penalty of $900 is excessive.
CONCLUSIONS OF LAW
1. Respondent at all times relevant to the issues herein was engaged in a business affecting commerce within the meaning of 29 U.S.C. 652. (Facts 2)
2. Respondent is an employer within the meaning of 29 U.S.C. 652(5) and subject to the general duty clause (29 U.S.C. 654(a)(1). (Facts 1).
3. Respondent violated 29 U.S.C. 651(a)(1). (Facts 3, 4, 5, 6, 7, 8).
4. The proposed civil penalty of $900 should be reduced to $300 (Facts 9).
ORDER
Based on the foregoing findings of fact and conclusions of law it is hereby ORDERED AND ADJUDGED as follows:
1. Citation number 12 for the alleged violation of Public Law 91-596, Section 5(a)(1) [29 U.S.C. 654(a)(1)] is affirmed.
2. The proposed civil penalty of $900 for the violation established in the preceding paragraph is vacated and a civil penalty of $300 is assessed in lieu thereof.
So ordered in the City and County of Denver, Colorado.
John J. Morris, [*44] Judge, OSAHRC
Date: February 27, 1975