Whirlpool Corp. v. Occupational Safety and Health Review Com'n

Decision Date12 March 1981
Docket Number80-2426,Nos. 79-1692,s. 79-1692
Citation645 F.2d 1096
Parties, 9 O.S.H. Cas.(BNA) 1362, 1981 O.S.H.D. (CCH) P 25,224 WHIRLPOOL CORPORATION, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent, and Ray Marshall, Secretary of Labor, Respondent. WHIRLPOOL CORPORATION, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION et al., Respondents.
CourtU.S. Court of Appeals — District of Columbia Circuit
Opinion After Remand

Robert E. Mann and Willis J. Goldsmith, Washington, D. C., were on the brief for petitioner. Zachary D. Fasman, Washington, D. C., also entered an appearance for petitioners.

Dennis K. Kade, Asst. Counsel, and Thomas L. Holzman, Atty., Dept. of Labor, Washington, D. C., were on the brief for respondent. Allen H. Fedman, Atty., Dept. of Labor, Ronald R. Glancz and Marleigh Dover Lang, Attys., Dept. of Justice, Washington, D. C., also entered an appearance for respondent.

Before BAZELON, Senior Circuit Judge, and TAMM and WILKEY, Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge BAZELON.

BAZELON, Senior Circuit Judge:

The Occupational Safety and Health Act of 1970 1 (OSHA) employs two devices to protect workers from the unconscionably high risk 2 of tragic death or injury: regulations, which define safety standards for specific industrial environments; and, a catch-all "general duty" clause 3 which requires employers to abate "recognized hazards" in the workplace. 4 As this court recognized in National Realty & Constr. Co. v. OSHRC, 5 the laudable and sweeping mandate of the general duty clause must be focused through clear notice of any specific hazard, in order to ensure fairness to employers and open, reasoned decisionmaking by OSHRC (the "Commission").

As the Commission acknowledges, the Secretary of Labor's (the "Secretary") citation here provided Whirlpool Corp. (the "petitioner") with inadequate written notice of the alleged general duty violation, and the evidence presented at the administrative hearing was not a "model of precision." 6 The predictable result of these haphazard procedures was a poorly developed record which fails to support OSHRC's findings. Because we cannot discern whether this lack of evidence reflects the confusion caused by the Secretary's procedures rather than an unmeritorious charge, we must remand this record for further development.

I. THE GENERAL DUTY CLAUSE
A. Substantive Elements

Section 654(a)(1) of OSHA, the general duty clause, provides that

(a) 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. 7

As OSHA's legislative history makes clear, 8 this subsection does not impose strict liability on employers, but instead limits their liability to "preventable hazards." 9 The three elements of a general duty violation are: (1) a hazard likely to cause death or serious bodily harm; (2) recognition of the hazard either by the specific employer or generally within the industry; and (3) existence of a feasible method of abatement. 10

The Secretary has the burden of coming forward with evidence on the feasibility issue. 11 This procedural burden is closely related to the broad sweep of the clause, 12 for proof of the specific method of abatement, perhaps more than the other substantive elements, helps provide the employer with notice of the precise hazard at issue.

B. Notice requirement

Section 658 of OSHA provides that an employer charged under the general duty clause must be given notice in the form of a citation which "shall be in writing and shall describe with particularity the nature of the violation ... (and) shall fix a reasonable time for the abatement of the violation." 13

Ideally, the citation should provide the employer with notice of the Secretary's contentions pertinent to each of the three elements underlying a general duty violation. Where detailed prehearing notice has been lacking, the reviewing court must carefully scrutinize the Secretary's presentation of evidence to ensure that the cited employer has been afforded a fair opportunity to address the specific violation charged. 14 As this court found in National Realty, the virtues of adequate notice extend even beyond due process: "To assure that citations issue only upon careful deliberation, the Secretary must be constrained to specify the particular steps a cited employer should have taken to avoid citation, and to demonstrate the feasibility and likely utility of those measures." 15

II. PROCEDURAL HISTORY OF THE INSTANT VIOLATION

Petitioner manufactures appliances at its Marion, Ohio plant. Overhead conveyors move parts through the manufacturing process. To protect employees working beneath the conveyors from falling parts, petitioner maintains a huge protective guard screen, which consists of multiple steel mesh panels secured by metal clips to angle iron frames, which are joined together by bolts. Maintenance personnel routinely traverse the guard screen to retrieve fallen parts.

In years prior to the instant violation, maintenance personnel fell partially through the guard screen. In 1974, an employee fell to his death when the bolts joining two frames failed. 16 After an OSHA compliance officer's inspection, petitioner was cited for: "failure to provide a safe walking and working surface on the screens under the conveyor." 17 The citation further required "immediate" abatement. 18 Petitioner contested the citation.

At the hearing, the Secretary offered the testimony of employees who described occasions on which workers had fallen partially through the screen. The Secretary's compliance officer refused to specify whether the source of the hazard was the bolts linking the panel frames or the tensile strength of the screen mesh. 19 A civil engineer testified for the Secretary, and suggested a third theory of the hazard: the absence of a heavy steel catwalk. 20 Petitioner's engineer testified on cross-examination that one-third of the screen's panels had been replaced by heavier gauge mesh, but he added that complete replacement was architecturally infeasible. 21

The Administrative Law Judge ("ALJ") vacated the citation without deciding whether the Secretary had proven a general duty clause violation. 22 OSHRC remanded the matter to the ALJ for findings under the general duty clause. One Commissioner dissented from the remand order, however, on the grounds that the Secretary had failed to specify or prove a feasible abatement method. 23

On remand, the ALJ again dismissed the citation, this time on the grounds 24 that the record did not reveal a feasible abatement method. 25 The ALJ assumed 26 that the hazard contemplated by the Secretary was the tensile strength of the screen panels. However, the ALJ accepted the unrefuted testimony of petitioner's expert, who stated that complete screen panel replacement was infeasible.

OSHRC again overruled the ALJ. The Commission was admirably candid in acknowledging the substantial deficiencies in the notice provided petitioner.

(T)he citation failed to specify (what condition rendered the screen unsafe) and accordingly facially lacked particularity. (In addition) a foundation had been laid in the citation for (the Secretary's) own confusion of focus and for (petitioner's) possible misconception of the case, not only by the absence of reference to the (tensile strength of the mesh) as the hazard, but by the requirement of immediate abatement, which most likely suggested abatement by replacing the bolts rather than by replacing a substantial part of the guard screen panels. 27

The Commission concluded that, notwithstanding the confusion precipitated by its citation, the "purposes of the particularity requirement (were) fulfilled in subsequent stages of the proceeding." Although the "Secretary's evidence at the hearing was not a model of precision in identifying the hazard," 28 the Commission found that repeated reference to the strength of the steel mesh gave petitioner constructive notice of the hazard. Moreover, according to the Commission, petitioner apparently perceived that the tensile strength of the screens was the hazard, for it introduced rebuttal evidence on this point.

The Commission also rejected the ALJ's findings regarding the lack of evidence on the feasibility issue. 29 The Commission relied on the "record as a whole," 30 and specifically: (1) the testimony of petitioner's engineer that heavier gauge screens were safer; 31 and, the testimony of petitioner's employees, who acknowledged that heavier screen panels were typically deployed to replace screens that had torn. The Commission concluded

Because Whirlpool systematically was replacing the mesh panels with heavy duty wire throughout the plant, the feasibility of the heavy duty wire to eliminate the hazard and its likely utility in Whirlpool's plant is apparent. 32

The Commission reversed the findings of the ALJ, and amended the citation to provide an abatement period of six months. 33 This appeal followed.

III. NOTICE AND EVIDENCE OF A FEASIBLE ABATEMENT METHOD
A. Notice

OSHRC points to employees' references to the guard screen panels and to rebuttal testimony on the tensile strength of the screen as evidence that petitioner had adequate notice of the hazard. In so doing, the Commission ignores the importance of detailed notice to the fair administration of the general duty clause.

Assuming arguendo that petitioner's rebuttal suggests a general awareness of the hazardous condition, 34 it hardly follows that the Secretary ever gave petitioner a fair opportunity to address a necessary and independent issue: how the hazard could have been feasibly abated. The Commission acknowledges that there was no written notice. Nor was there constructive notice, for no witness outlined "the Secretary's own theory of what steps...

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