Brennan v. Occupational Safety and Health Review Com'n
| Decision Date | 16 August 1974 |
| Docket Number | No. 73-1304,73-1304 |
| Citation | 501 F.2d 1196 |
| Parties | 2 O.S.H. Cas.(BNA) 1109, 1974-1975 O.S.H.D. ( 18,454 Peter J. BRENNAN, Secretary, United States Department of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Republic Creosoting Company, Division of Reilly Tar & Chemical Corporation, Respondents. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Walter H. Fleischer and Karen K. Siegel, Attys., Dept. of Justice, Washington, D.C., for petitioner.
Carl T. Reis, Indianapolis, Ind., for respondents.
Before SWYGERT, Chief Judge, and PELL and STEVENS, Circuit Judges.
The Secretary of Labor appeals from a decision of the Occupational Safety and Health Review Commission, 1 which found that the respondent Republic Creosoting Company had not committed any violations of the Occupational Safety and Health Act, 29 U.S.C. 651. The underlying facts are not in dispute on appeal, these facts being either stipulated by the parties or testified to at the hearing before the administrative law judge.
Republic Creosoting Company (Republic), a division of Reilly Tar and Chemical Corporation, operated five railroad tie marshalling yards in southern Indiana, including one in Jeffersonville, Indiana. Despite its name, Republic did not at the Jeffersonville yard engage in the creosoting process but it did, upon the acquisition of newly cut or 'green' ties, undertake the first step of seasoning or drying the wood for its eventual use. Republic ultimately resold the ties to railroad companies. These ties weighed approximately 150 to 235 pounds each.
The truckloads of ties arriving at the Jeffersonville yard were secured by chains to the transporting trucks. In twenty to twenty-five percent of the truckloads, the ties were bound together into packages, with each package held together by a single narrow steel band. Each package contained 25 to 45 ties, five ties high, five to nine ties across and one tie in length. The packaged ties were loaded lengthwise along the length of the truck, generally one package high and two packages across.
Republic unloaded the truckloads of banded ties in the following manner. The truckdriver ordinarily removed the chains holding the packages of ties onto the truck. The unloader operator (an employee of Republic) then moved the unloader (a forklift truck) into position so that it supported a package of banded ties. Only after the unloader was supporting a package, did the truckdriver, standing on an adjacent package, cut the band on the package to be unloaded. Under no circumstances would the band be cut before the unloader was in position. The unloader then removed the loosened ties from the truck. This process was repeated package by package until the truck was completely unloaded. During the entire operation, all Republic employees, other than the unloader operator, remained a safe distance from the truck.
On July 9, 1971, a truckload of banded ties was delivered to the Jeffersonville yard. Raymond Davis, a new employee working his fourth day for Republic, was present at the yard on that date. Davis had been hired to sort and stack ties after the completion of the unloading process. The unloader operator, James Wiseman, suggested to Davis on the day in question that he come to the unloading so that he could help sort the ties after they had been unloaded. Davis had never witnessed the unloading operation before nor had it been described to him. The field superintendent, Wallace Worley, however, when hiring Davis had told him 'not to get around no trucks; the unloader done all the unloading.'
Davis was originally standing some distance from the truck and Worley and Wiseman expected him to remain there until the unloading was completed. The chains had, at this time, already been removed from the truck but the unloader had not yet been moved into position. Without being ordered to do so and without informing anyone of what he intended to do, Davis went up to the truck and while standing on the ground next to the truck, cut the steel band on a package of ties with an ax. As a result, five of the ties fell on Davis, fatally injurying him.
On July 30, 1971, a compliance officer for the Secretary of Labor conducted an inspection of the Jeffersonville yard. On the basis of the inspection, the Secretary issued two citations to Republic for alleged violations of the Occupational Safety and Health Act: 2 a 'Citation for Serious Violation' based on the Davis accident; a 'Citation' based on the lack of warning signs and barricades around the piles of ties in the yard.
Republic filed a notice of contest and a hearing was held before an administrative law judge, who affirmed both citations but raised the second citation from a nonserious to a serious violation. The total penalty imposed was $1300.
Republic petitioned for discretionary review by the Occupational Safety and Health Review Commission. 29 C.F.R. 2200.91 (1973). The Commission (with one Commissioner dissenting) reversed the administrative law judge and vacated the citations.
The Secretary raises two issues on appeal: (1) whether the Occupational Safety and Health Review Commission erroneously held that the employer had not violated the 'general duty clause' (Section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 654(a)(1)), by failing to instruct and supervise properly an untrained employee regarding the hazards of unloading railroad ties; (2) whether the Commission erroneously held that the employer had not violated Section 5(a)(1) in permitting railroad ties to be stacked in unstable piles without warning signs or barricades.
The Occupational Safety and Health Act seeks to provide 'so far as possible every working man and woman in the Nation safe and healthful working conditions.' 29 U.S.C. 651(b). Penalties may be imposed by the Commission on employers in interstate commerce who violate the Act by failing to eliminate preventable dangers.
We note at the outset that the Occupational Safety and Health Review Commission is presumed to have technical expertise and experience in the field of job safety. A court must, therefore, defer to the findings and analysis of the Commission unless such findings are without substantial basis in fact. Federal Power Comm'n v. Florida Power & Light Co., 404 U.S. 453, 463, 92 S.Ct 637, 30 L.Ed.2d 600 (1972). The Act itself states: 'The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive.' 29 U.S.C. 660. In addition, the Commission's interpretations regarding the meaning of the Act should be given substantial deference by a court.
The citation issued to Republic on the basis of the Davis accident 3 alleged a serious violation of the 'general duty clause' of the Act, 29 U.S.C. 654(a)(1), which provides:
'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 . . ..' 4
A 'serious violation' is present only where there is 'a 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 violations.' 29 U.S.C. 666(j). Republic does not dispute that the cutting of the band before the unloader was in place gave rise to 'a substantial probability that death or serious physical harm could result.' The issue on appeal is whether an employer, using reasonable diligence, would have foreseen the danger in question.
The Secretary contends that where an inexperienced, untrained employee is placed at the site of a potentially dangerous operation, the employer should foressee that the employee is likely, because of his ignorance of the safe procedures, to injure himself. Davis, the Secretary points out, was a new employee, working his fourth day for Republic. He had neither seen the unloading operation nor had it described to him. Davis was, nonetheless, asked by the unloader operator to be present at the place of the unloading. Since Davis did not know what the safe procedure for unloading the ties was, it was foreseeable, the Secretary argues, that Davis would do something unsafe and, thereby, injure himself-- even if the exact nature of his unsafe actions, i.e., cutting the band, could not have been foreseen. The fact that Davis was not assigned to assist in the actual unloading operation itself is irrelevant, according to the Secretary, since Davis was requested to be present at the unloading site. In such a situation, it is argued, the employee should be instructed in the safe procedure for the operation which is going on in his presence.
The Commission rejected the Secretary's argument on the theory that the Act does not require that a new employee always be trained in proper procedures for a task simply because he is required to be present at the place of the operation in question in which he is not a participant. We agree with the Commission's interpretation of the Act. The Act clearly requires that, for a serious-violation citation to be sustained, the danger must be one of which the employer knew or, with reasonable diligence could have known. Whether training is necessary and the amount of any training required will depend on a number of factors, such as the experience of the employee in the particular field of work, the extent of the employee's participation in the operation in question, and the complexity and danger involved in the operation. Where an employee is directly participating in a job, the employer may...
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