Daniel Intern. Corp. v. Occupational Safety and Health Review Com'n, 81-7602

• Citation: 683 F.2d 361
• Decision Date: 19 August 1982
• Docket Number: No. 81-7602,81-7602
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Parties: 10 O.S.H. Cas.(BNA) 1890, 1982 O.S.H.D. (CCH) P 26,185 DANIEL INTERNATIONAL CORPORATION, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and the Secretary of Labor, Respondents.

Page 361

683 F.2d 361

10 O.S.H. Cas.(BNA) 1890, 1982 O.S.H.D. (CCH)

P 26,185

DANIEL INTERNATIONAL CORPORATION, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and the Secretary of Labor, Respondents.

No. 81-7602.

United States Court of Appeals Eleventh Circuit.

Aug. 19, 1982.

Thompson, Mann & Hutson, George A. Harper, Greenville, S.C., for petitioner.

Counsel for Regional Litigation, Charles I. Hadden, Thomas L. Holzman, U. S. Dept. of Labor, Edward G. Hoban, Earl R. Ohman, Jr., Occupational Safety & Health Review Commission, Washington, D.C., for respondents.

Petition for Review of an Order of the Occupational Safety and Health Review Commission.

Before GOLDBERG ^*, HILL and HATCHETT, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Daniel International Corp. petitions this court to review an order of the Occupational Safety and Health Review Commission citing the company for a violation of 29 C.F.R. § 1926.28(a). ¹ The Commission maintains that Daniel's failure to take all steps necessary to insure that its employees wear personal protective equipment, resulted in a fatal accident at the company's Macon, Georgia construction site. Because we find that Daniel took all steps feasible to assure compliance with safety regulations, we conclude that the Commission's citation is not supported by substantial evidence on the record.

I.

Daniel is a construction company which employs 700 employees, 175 of whom are ironworkers. In October, 1975, the company was constructing a tobacco plant for Brown and Williamson Co. in Macon, Georgia. As part of the project, ironworkers were to erect permanent catwalks around air conditioning systems located in various areas of the building. George Woolsey was the company's iron crew foreman at the Macon site, and was in charge of the seventeen man crew assigned to erect the catwalks.

On October 16, 1975, at 4:15 in the afternoon, Woolsey assigned Clyde Cannon, Robert Lamkin, Claude Taylor, and leadman Bruce Rule the task of removing a temporary catwalk and placing it where a new section of permanent catwalk would be installed the next day. Woolsey carefully instructed his crew to use a scissor lift to move the temporary catwalk through the structural steel. ² The men were not supposed to slide the catwalk over the structural steel. Woolsey further instructed the crew to tie off their safety belts while up on the structural steel and while on the scissor lift. Daniel safety rules require that safety belts be worn and tied off whenever employees perform elevated work. ³

As Woolsey watched, the crew moved the scissor lift into position directly beneath the catwalk. Because everything appeared to be under control, Woolsey then returned to his desk which was about ninety feet away from the work area. Unfortunately, this was the last assignment on a pay day, and the men were in a hurry. In their haste, and contrary to all instructions, they chose the faster method of moving the catwalk, and attempted to slide it across the structural steel rather than using the slower but safer scissor lift method. Cannon and Taylor, who were standing on the elevated duct walk slid the catwalk toward Rule and Lamkin who also were up in the steel. The catwalk, however, accidentally struck Lamkin at the knee causing him to lose his balance. As a result, Lamkin fell thirty-seven feet to a cement floor and died. At the time of the accident all four men were wearing safety belts, but all four had neglected to tie off as Woolsey had instructed, and as required by Daniel safety rules. This was despite the fact that they could have attached their safety belts to a number of nearby locations. ⁴

Following an investigation on October 17, 1975, the Secretary of Labor filed a complaint alleging that Daniel "failed to assure the wearing of appropriate personal protective equipment" in violation of 29 C.F.R. § 1926.28(a). ⁵ Daniel contested the citation and an evidentiary hearing was held on February 26, 1976 before an Administrative Law Judge (ALJ). The ALJ dismissed the citation by concluding that the failure of the four crewmembers to tie off was an isolated incident which could not have been foreseen by Daniel. In support of this conclusion, the ALJ pointed to Daniel's "strongly stressed and enforced safety programs which included regular meetings at which the tie-off rule was always emphasized." The Occupational Safety and Health Review Commission, however, concluded that Daniel failed to establish an affirmative defense of isolated incident of employee misconduct, and reversed the decision of the ALJ.

II.

In evaluating the decision of the Commission, we recognize that its findings and conclusions must be upheld if supported by substantial evidence on the record considered as a whole. 29 U.S.C. § 660(a) (1976); Cleveland Consolidated, Inc. v. OSHRC, 649 F.2d 1160, 1167 (5th Cir. 1981); H. B. Zachry Co. v. OSHRC, 638 F.2d 812, 815 (5th Cir. 1981); Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 834-35 (5th Cir. 1975), cert. denied, 425 U.S. 903, 96 S.Ct. 1492, 47 L.Ed.2d 752 (1976). Nevertheless, the effectiveness of Daniel's safety program, as evidenced by the record, negates any conclusion that the company violated 29 C.F.R. § 1926.28(a).

Daniel maintains that the accident on October 16, 1975 was the product of isolated and negligent misconduct on the part of four employees who simply wanted to get their paycheck and go home early. To prevail on this affirmative defense, Daniel must demonstrate that it took all feasible steps to prevent the accident, and that the actions of its employees were a departure from a uniformly and effectively communicated and enforced work rule of which departure Daniel had neither actual nor constructive knowledge. H. B. Zachry Co. v. OSHRC, 638 F.2d 812, 818 (5th Cir. 1981); see General Dynamics Corp. v. OSHRC, 599 F.2d 453 (1st Cir. 1979); Horne Plumbing & Heating Co. v. OSHRC, 528 F.2d 564 (5th Cir. 1976). Daniel points to several crucial findings in the record which indicate that the company effectively supports and enforces a strong safety program.

When Daniel employees are hired, they are given full instructions on all of Daniel safety rules. They also receive a published pamphlet outlining each of the rules and describing in detail compliance standards. As a follow up to this preliminary training program, employees attend safety meetings every Monday for half an hour. At these meetings, the need to tie off safety belts whenever an employee is over ten feet off the floor always is emphasized. The company also provides all necessary safety equipment. Thus, we have little doubt that Daniel has a work rule requiring employees to tie off and which is communicated effectively to all of its employees.

The only real question on appeal is whether Daniel took all feasible steps to prevent employee misconduct. The Commission concludes that, because all four men involved in the accident had failed to tie off, tie off violations by Daniel employees were frequent. The Commission acknowledges that Daniel discharged employees for violating tie off rules, but argues that Daniel failed to communicate these discharges to other employees. Finally, the Commission maintains that Daniel enforcement practices are not uniform.

The evidence, however, overwhelmingly points to the conclusion that Daniel is a company which takes its safety program seriously and indeed took all steps to enforce its safety rules effectively. Initially, Daniel employs a full time safety engineer at construction sites whose primary duty is to enforce the company's safety rules. Any employee who violates the tie off rule is reprimanded immediately, and prior to this...