589 F.2d 270 (7th Cir. 1978), 77-2278, Marshall v. L. E. Myers Co.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation589 F.2d 270
Docket Number77-2278.
PartiesRay MARSHALL, Secretary of Labor, Petitioner, v. L. E. MYERS COMPANY and Occupational Safety and Health Review Commission, Respondents.
Date21 November 1978

Page 270

589 F.2d 270 (7th Cir. 1978)

Ray MARSHALL, Secretary of Labor, Petitioner,

v.

L. E. MYERS COMPANY and Occupational Safety and Health

Review Commission, Respondents.

No. 77-2278.

United States Court of Appeals, Seventh Circuit

November 21, 1978

Argued Oct. 30, 1978.

[*]

Opinion Dec. 21, 1978.

John A. Bryson, II, Washington, D. C., for petitioner.

W. Brand Bobosky, Naperville, Ill., for respondents.

Before CASTLE, Senior Circuit Judge, BAUER and WOOD, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Pursuant to Section 11(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 Et seq., the Secretary of Labor petitions this court to review and set aside an order of the equally divided Occupational Safety and Health Review Commission which permitted the administrative law judge's decision in favor of L. E. Myers Co. (Myers) to become the final order of the Commission.

In May 1974 in the performance of highline electrical work an experienced company journeyman, while working within the bight of the line, was hurled approximately 80 feet to his death. A line, under tension, accidentally released at high velocity. At the time the decedent and his partner had been using a "preform" grip on the line which permitted the line to be pulled to a certain tension so that other operations could be performed in stringing the line. Following the fatal accident, the Secretary, alleging that Myers committed a serious violation of the general duty clause of the Act, issued a citation and proposed a $600 penalty. 1

Page 271

After a hearing the administrative law judge vacated the citation and proposed penalty declaring that "(t)he overall evidence . . . is not persuasive that respondent violated the Act as alleged." Also as a conclusion of law the judge announced that the respondent did not violate Section 5(a)(1) of the Act. In his finding of facts he determined:

(1) (R)espondent's employees used preformed-type grips for a "clipping-in" process which were manufactured by Preform Lines Products Company. Use of the preforms for "pulling-in" was in contravention of the manufacturer's published "Application Procedures," and such use was with respondent's knowledge but did not constitute a recognized hazard.

(2) A preform-type grip which had been improperly applied failed; however, use of the grip for the "clipping-in" procedure was shown to be an acceptable practice, as safe as another recognized type grip which was available at the job site.

(3) The decision to use a particular grip (preform-type or patent-type) was within the discretion of the journeyman linemen employing same, and the respondent had reason to expect journeymen linemen to perform their work in a safe manner consistent with their knowledge and training and its safety rules which were in effect.

(4) Respondent's employee working in the bight of the angle of the line without safetying to the pole, and without use of safety belts, was in violation of respondent's safety rules.

(5) The evidence does not establish that, at the aforesaid time and place, respondent's method of operation was a recognized hazard.

The issue presented on appeal, the same one faced by the administrative law judge, is "whether the respondent failed to provide its employees with a place of employment free of recognized hazards by permitting employees to use certain equipment in a manner for which it was not specifically designed by a particular manufacturer." 2

The general duty clause of the Act, 29 U.S.C. § 654(a)(1), requires that:

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.

A serious violation, 29 U.S.C. § 666, exists only where there is:

substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

Thus the Secretary shoulders the burden of proving "(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 and Construction Co., Inc. v. Occupational Safety and Health Review Commission, 160 U.S.App.D.C. 133, 141, 489 F.2d 1257, 1265 (1973).

Although the mere fact of a death indicates a potential...

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