New York State Elec. & Gas Corp. v. Secretary of Labor
| Citation | 88 F.3d 98 |
| Decision Date | 03 July 1996 |
| Docket Number | D,No. 604,604 |
| Parties | 17 O.S.H. Cas. (BNA) 1650, 1996 O.S.H.D. (CCH) P 31,099 NEW YORK STATE ELECTRIC & GAS CORPORATION, Petitioner, v. SECRETARY OF LABOR and Occupational Safety and Health Review Commission, Respondents. ocket 95-4073. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
James S. Gleason, Binghamton, New York (Leslie Prechtl Guy, Hinman, Howard & Kattell, Binghamton, New York, of counsel), for Petitioner.
Charles F. James, Washington, D.C. (Thomas S. Williamson, Jr., Solicitor, Joseph M. Woodward, Associate Solicitor for Occupational Safety and Health, Barbara Werthmann, Counsel for Appellate Litigation, U.S. Department of Labor, Office of the Solicitor, Washington, D.C., of counsel), for Respondents.
Before NEWMAN, Chief Judge, and FEINBERG and CARDAMONE, Circuit Judges.
Before us is an appeal from a decision and order of the Occupational Safety and Health Review Commission (Commission), dated March 24, 1995. The decision affirmed two citations and a $1,500 penalty issued against petitioner New York State Electric and Gas Corporation (NYSEG, employer or petitioner) arising from a violation of the Occupational Safety and Health Act (OSH Act or Act), 29 U.S.C. §§ 651-678 (1994), from the failure of one of its employees to use safety equipment while operating a jackhammer.
On the morning of July 30, 1991 NYSEG employees Jim Webb, a first-class gas fitter, and Raymond Price, an equipment operator, drove in a company truck to the intersection of Front Street and Valley Street in Binghamton, New York. Their mission was to "tie in" a section of newly laid natural gas pipe. Upon arrival Webb put out cones and signs to protect the work site from vehicular traffic, while Price unloaded a backhoe to excavate the area surrounding the pipe. Because the existing break in the pavement was not wide enough for the tie-in, Price used a jackhammer from the truck to widen it.
While Price was so engaged, William Marzeski, an Occupational Safety and Health Administration (OSHA) compliance officer, happened to be driving through the intersection, and noticed that Price was operating the jackhammer without protective eyewear. He stopped and asked Price to identify his immediate supervisor, and was told that Webb was the crew leader. Marzeski then identified himself to Webb as an OSHA compliance officer and explained that Price was not wearing safety glasses. Webb agreed that Price should have been using protective goggles. Upon being further questioned, Price said he was not wearing steel-toe shoes either. At Webb's behest, Price then retrieved goggles and protective toe covers from the truck, put the equipment on, and resumed work.
As a result of the compliance officer's report, the respondent Secretary of Labor issued a citation alleging a violation of 29 C.F.R. § 1926.28, a regulation the Secretary had promulgated as head of OSHA. The regulation makes employers "responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates a need for using such equipment to reduce the hazards to the employees." To show that the Secretary's regulations indicated a need for relevant safety gear, the citation also referred to 29 C.F.R. § 1926.102(a)(1) (1995), which requires that employees be provided with eye and face protection equipment when there is a potential for eye or face injury. The allegations set forth in the citation stated that Price had been "exposed to eye and toe injuries while operating ... [a jackhammer] without using protective eye equipment and safety-toe footwear."
The Secretary subsequently filed a complaint with the Commission amending the citation and asserting a slightly different theory of liability. With respect to the lack of toe protection, the Secretary now asserted a violation of 29 C.F.R. § 1910.132(a) (1995), a standard requiring the use of "[p]rotective equipment, including personal protective equipment for eyes, face, head, and extremities ... wherever it is necessary by reason of hazards ... encountered in a manner capable of causing injury...." With respect to Price's failure to use eye protection, the complaint additionally alleged a violation of the "general duty clause" of the OSH Act, 29 U.S.C. § 654(a)(1).
A hearing was held before an Administrative Law Judge (ALJ) pursuant to 29 U.S.C. § 659(c). The Secretary's case consisted primarily of Marzeski's testimony. He related his observations and conversation with Price and Webb at the work site on July 30, 1991. NYSEG called John Durfee, its manager of industrial relations for health and safety Because Price and Webb were both newly hired employees of NYSEG--it had taken over their former employer's Binghamton business a few months earlier--they had been required to attend an orientation meeting covering safety practices and rules. As part of petitioner's safety program, safety meetings were held monthly to discuss selected topics. Supervisors were obligated to check work sites once or twice a day to ensure that safe work practices were being observed. When safety violations were discovered, they were corrected immediately, and NYSEG disciplined those responsible, imposing progressive discipline for further violations of its safety rules. In addition to the daily supervisor checks, Jones conducted quarterly safety audits of each work crew. Hrywnak testified it was company policy for crew members to report safety lapses to "the lead person on the crew"--in this case, Webb.
Jack Jones, the supervisor for the Binghamton area in July of 1991, and John Hrywnak, the gas supervisor in charge of the Webb-Price crew when the citation was issued. Petitioner's witnesses described NYSEG's safety program, which included a rule requiring employees to wear eye and foot protection equipment when cutting pavement with a pneumatic tool
Following the hearing the ALJ sustained both violations alleged in the amended citation. With respect to the § 1910.132(a) violation (failure to wear protective footwear), the ALJ noted that the Secretary has the burden of showing, inter alia, that the employer knew or could have known of the violation of the standard requiring the wearing of protective equipment. The hearing officer also observed that such knowledge or constructive knowledge may be imputed to the employer through the employer's supervisory personnel. Here Webb was the "lead man" of the two-person crew at the site, and though he was not actually aware of the safety violation, he would have known had he exercised reasonable diligence. Thus, the ALJ concluded that Webb--and NYSEG, by imputation--had constructive knowledge of the safety violation.
The ALJ rejected the defense of "unpreventable employee misconduct" for two alternative reasons. He concluded that if Webb was indeed a supervisory employee, he did not do enough to discover Price's non-compliance; but, if Webb was not a supervisor, NYSEG's safety supervision was inadequate. Either way, NYSEG violated the relevant safety standards. The ALJ ruled on the "general duty clause" violation (failure to wear protective eyewear) in the same fashion.
Reviewing the ALJ's decision, the Commission determined that the citation could not appropriately be based on the statutory "general duty clause." The Secretary may not rely on this general clause when it is "preempted" by a more specific standard, in this case 29 C.F.R. § 1926.28(a), which requires an employee to wear "appropriate personal protective equipment" where there is a need. The Commission therefore amended the complaint sua sponte to restore the original basis for the eye safety violation set forth in the citation--29 C.F.R. § 1926.28(a).
The Commission agreed with the ALJ's conclusion that Webb had constructive knowledge of Price's safety violations. It affirmed the hearing officer's findings that Webb was the "lead man" on the crew and reasonably should have known of the violation because he and Price were in close proximity to one another and the violations were readily observable. Although NYSEG challenged the ALJ's finding that Webb held a supervisory position for purposes of imputing knowledge to his employer, the Commission declined to reach that question. Instead it adopted the ALJ's reasoning concerning NYSEG's affirmative defense and found that if Webb was a supervisor, his constructive knowledge could be imputed to NYSEG; if not, then NYSEG failed to provide adequate safety supervision. Ruling in this fashion, the Commission determined that the Secretary carried his burden and proved that the petitioner had constructive knowledge of the safety violation regardless of whether Webb was or was not a supervisor.
With respect to the employer's defense of unpreventable employee misconduct, the Commission further held that NYSEG failed to demonstrate it enforced its safety rules effectively. The Commission declined to follow cases from the Third and Tenth Circuits placing the burden...
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