General Dynamics Corp., Quincy Shipbuilding Div. v. Occupational Safety and Health Review Com'n, No. 78-1348

• Decision Date: 23 May 1979
• Docket Number: No. 78-1348
• Citation: 599 F.2d 453
• Parties: 7 O.S.H. Cas.(BNA) 1373, 1979 O.S.H.D. (CCH) P 23,573 GENERAL DYNAMICS CORPORATION, QUINCY SHIPBUILDING DIVISION, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION et al., Respondents.
• Court: U.S. Court of Appeals — First Circuit

Page 453

599 F.2d 453

7 O.S.H. Cas.(BNA) 1373, 1979 O.S.H.D. (CCH) P 23,573

GENERAL DYNAMICS CORPORATION, QUINCY SHIPBUILDING DIVISION, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION et al., Respondents.

No. 78-1348.

United States Court of Appeals, First Circuit.

Argued March 12, 1979.

Decided May 23, 1979.

Paul V. Lyons, Boston, Mass., with whom Lewis H. Weinstein, Stephen B. Deutsch, and Foley, Hoag & Eliot, Boston, Mass., were on brief, for petitioner.

Thomas L. Holzman, Atty., Dept. of Labor, with whom Carin A. Clauss, Sol. of Labor, Washington, D. C., Albert H. Ross, Regional Sol., Boston, Mass., Benjamin W. Mintz, Associate Sol., Washington, D. C., for Occupational Safety and Health, and Allen H. Feldman, Acting Counsel for Appellate Litigation, Washington D. C., were on brief, for respondents.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, PETTINE, District Judge. ^*

PETTINE, District Judge.

The employer, a shipbuilder, (Quincy), petitions this court to review a decision of the Occupational Safety and Health Review Commission (the "Review Commission") that the employer committed a serious violation of the general duty clause, section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 654(a)(1), ¹ by failing to provide adequate safety instructions on the procedure for supporting vertically-standing steel plates. The Review Commission levied an $800 penalty. We have jurisdiction to review the Review Commission's order under 29 U.S.C. § 660.

This case arises from an investigation by the Occupational Safety and Health Administration (OSHA) following the death of one of Quincy's employees on Dec. 20, 1974. The employee, Robert LeVangie, died when a 3500 pound web frame fell on him. It is undisputed that this frame fell because certain braces, known as monuments, were removed before the frame was securely fastened. In installing a web frame, a shipfitter tack welds the bottom to the bulkhead (a large steel plate) on at least one side, then tack welds part of the web frame known as stiffeners to steel beams called longitudinals which run along the bulkhead perpendicular to the web frame. While doing this the shipfitter also adjusts the web frame to make sure it is plumb and properly aligned. In performing this operation the longitudinals often must be shifted. Once the aligning and tack welding is completed, the shipfitter's job is complete. Subsequently, a final weld is performed by a welder.

It is undisputed that the monuments supporting the web frame should not be removed until the web frame has been tack welded to the bulkhead on at least one side, ² and also tack welded to the longitudinals. The ALJ found that one Edwin Sullivan, then a second class shipfitter with eight years' experience, who was working in a nearby area, removed three monuments from web frame No. 76 on unit 495-2 before it was proper to do so. This occurred without the knowledge of Robert Coutts, a beginner shipfitter with eight weeks' experience who was installing web frame No. 76. Although the web frame had been tack welded to the bulkhead on one side, the stiffeners had not been tack welded to the longitudinals. Coutts then moved the fourth monument in order to make an adjustment in the position of one of the longitudinals. While he was attempting to do this, the unsupported web frame fell over, killing LeVangie, who had been working on the adjacent web frame, No. 76 1/2.

As a result of the accident, OSHA conducted an investigation, and issued a citation which charged Quincy with a serious violation of section 5(a)(1) of the Act in that

(e)mployer failed to 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.

On December 20, 1974, monuments supporting a web frame on a bulkhead in No. 1 Fabrication Shop, A Platform, were removed before all tack welding on this web frame had been completed, contrary to standard procedure, resulting in a fatal accident.

After Quincy filed a notice of contest a complaint issued, stating the same basis for a violation. ³ Quincy defended on the grounds that the incident involved was an "isolated occurrence" arising from the idiosyncratic behavior of its employees. The case was tried before an Administrative Law Judge (ALJ) on July 9 and 10, September 10 and 11, and October 29, 1975. The ALJ, stating the issue to be "whether the respondent failed in its duty under section 5(a) (1) of the Act to furnish a place to work free of recognized hazards because of insufficient supervision and training of its employees", concluded that the Secretary failed to prove there was inadequate supervision and training of either Coutts or Sullivan and vacated the citation.

The Review Commission rephrased the issue to be whether Quincy failed "to provide adequate safety instructions on the procedure for supporting vertically standing steel plates" to its employees in general, and reversed the ALJ. The Review Commission felt the ALJ had improperly focused on the foreseeability of the accident as it actually occurred, rather than whether Quincy "adequately instructed all its employees who worked with web frames in the practices necessary to prevent the occurrence of inadequately supported web frames. Unless Quincy did so, it cannot be said that the company rendered its workplace free of the recognized hazards such web frames present". Slip op. at 10.

In this appeal, Quincy alleges (1) that the Review Commission improperly affirmed the citation on grounds that were not referred to in the citation and which the parties and the ALJ specifically agreed during the hearing were irrelevant; (2) that the Review Commission improperly ignored certain of the ALJ's credibility findings; and (3) that the conclusion that inadequate employee training caused the hazard is not based on substantial evidence. Although these arguments are not without merit, we conclude that the Review Commission acted properly and affirm.

(1) The alleged change in the grounds for the citation.

Quincy argues that the Review Commission improperly decided the case on the basis of the company's overall training program, rather than the Dec. 20, 1974 removal of monuments supporting web frame 76. It argues that the citation and complaint placed it on notice that its alleged violation was a premature removal of the monuments at a specific time, in a specific location, resulting in the occurrence of a specific "recognized hazard". While safety and training programs were also relevant because an employer can receive up to a 20% Reduction in penalty for an effective safety training program, Quincy alleges it had no reason to present an "all out" defense of its safety and training program because it had no reason to think the affirming or vacating of the citation itself would turn on the value of these programs. Quincy maintains that this was also the position of the Secretary and the ALJ. Consequently, it claims the Review Commission's decision violated due process by changing the charge in mid-case, to the substantial prejudice of Quincy's ability to defend itself.

The basic legal question is whether inadequate training and supervision can form the basis for affirming a citation which is based on the occurrence of a recognized hazard and which does not mention training and supervision, when the employer defends on the basis of idiosyncratic employee behavior. If the answer to this question is yes, then the only other issue is whether Quincy was prejudicially misled into thinking that inadequate training and supervision could not form the basis for affirming the citation. For the reasons which follow, we conclude that the Review Commission acted properly and that Quincy was not prejudicially misled.

The duty imposed by section 5(a)(1) to furnish employees with a workplace free from recognized hazards likely to cause death or serious physical injury requires an employer to take steps to prevent and suppress hazardous conduct by employees, including proper training and supervision of employees. An employer is not an insurer, and need not take steps to prevent hazards which are not generally foreseeable, including idiosyncratic behavior of an employee, but at the same time an employer must do all it feasibly can to prevent foreseeable hazards, including dangerous conduct by its employees. National Realty and Construction Co. v. OSHRC, 160 U.S.App.D.C. 133, 141-42, 489 F.2d 1257, 1265-66 (1974); Brennan v. Butler Lime & Cement Co., 520 F.2d 1011, 1017 (7th Cir. 1975). Consequently, an employer can defend a charge that it violated the Act on the basis that it took all necessary precautions to prevent the occurrence of the violation. Horne Plumbing & Heating Co. v. OSHRC, 528 F.2d 564, 571 (5th Cir. 1976).

The present case follows this approach. Faced with a charge that it allowed the monuments supporting the web frame to be removed prematurely, Quincyresponded that the hazard which resulted (an unsupported web frame) occurred primarily due to the unauthorized, idiosyncratic behavior of Sullivan (and to a lesser extent, similar behavior of Coutts). Therefore, it would normally be incumbent on Quincy to demonstrate it had taken all feasible steps to reduce the incidence of such violations by its employees. I.T.O. Corp. of New England v. OSHRC, 540 F.2d 543, 545 (1st Cir. 1976). Such steps obviously include training employees as to the danger of unsupported web frames, of the need to insure that monuments are in place, and the appropriate time at which monuments can be removed. The amount of supervision given an employee is also highly relevant, although unquestionably an employee need not be supervised every second, especially as the employee becomes more experienced and aware of proper safety procedures. Therefore, when the employer's defense is that the hazard occurred as...