Petition — Martin Painting & Coating Co. v. Marshall

80 -597 OCT ‘i 1980

Case No.

IN THE MICHAEL RODAK, JR. CLERK

Supreme Court of the United States

OCTOBER TERM 1980

MARTIN PAINTING AND

COATING COMPANY,

Petitioner

vs.

RAY MARSHALL,

Secretary of Labor and

the Occupational Safety

and Health Review Commission

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

a

a ———

R. LARRY SCHNEIDER

COUNSEL OF RECORD

R. LARRY SCHNEIDER

764 London Avenue

Marysville, Ohio 43040

(513) 644-3845

ATTORNEY FOR PETITIONER

QUESTIONS PRESENTED

1. DOES THE OCCUPATIONAL SAFETY AND

HEALTH ACT IMPOSE A STANDARD OF STRICT

LIABILITY FOR EMPLOYEE NEGLIGENCE ON THE

EMPLO YER?

2e DID THE DECISION OF THE OCCUPATIONAL

SAFETY AND HEALTH REVIEW COMMISSION ADOPT

A STANDARD OF ADEQUATE SAFETY INSTRUCTION

THAT IS ONLY VIOLATED IF THERE IS AN INJURY

OR DEATH?

TABLE OF CONTENTS

QUESTIONS PRESENTED cecvoesceeseeeseeee 1

TABLE OF AUTHORITIES weccsccecsccveeeee iii

OPINIONS BELOW cesccccsevsssvescesssreen dL

JURISDICTION pevoeccceesrsccevoeeseesee L

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .eovsccoeseeeeecoe 2

STATEMENT OF THE CASE eeccocrescvevessse 5

ARGUMENT IN SUPPORT OF

GRANTING CERTIORARI ceecvveveseseevsrs 7

a

TABLE OF AUTHORITIES

Cases Page

Atlantic & Gulf Stevedores vs OSHRC,

534 F.2d 541, 547 (3rd Cir. 1976) 2s04.40

Brennan vs OSHRC, 501 F.2d 1196,

£208 49th Gite ISTO) aicvsvressvoansac 9

Brennan vs OSHRC and Hanovia Lamp

Division, Canred Precision

Industries, 502 F.2d 946, 951

(3rd Cir. 1974) cecseccsccecessccccee® LO

Brennan vs OSHRC and Hendricks, dba

Alsea Lumber Co., 511 F.2d 1139,

VINN—NE LOCH C8 1979) cckccceactacive =

Central Georgia Railroad Co. vs

OSHRC, 576 F.2d 620, 623

(5th Cir. 1978) eeeseeeeeeeeeeeeeeeoeee 9

Empire-Detroit Steel Division,

Detroit Steel Corporation vs

OSHRC and Secretary of Labor, 579

F.2d 378, 384 (6th Cir. 1978) woeseeee 10

iii

Page

General Dynamics Corp., Quincy

Shipbuilding Div. vs OSHRC,

599 F.2d 453 (\st Cir. 1979) weeccoe 10

Horne Plumbing & Heating Co.

vs OSHRC, 528 F.2d 564, 568

(5th Cir. 1976) eeeeeeeeee te eoeeesevee 9, 11

Marshall vs L. E. Myers Co.

and OSHRC, 589 F.2d 270

(7th Cir. 1978) eeeeveveee oe ee eeeeeeee 10

National Realty & Construction

Coe vs OSHRC, 489 F.2d 1257

(DC. Cir. 1973) eererovoee ee eos oe eeee g

Ocean Electric Corp. vs

Secretary of Labor, 594 F.2d

396, 399 (4th Cir. 1979) weececesees Jy 12

Rea Express, Inc. vs Brennan

and OSHRC, 495 F.2d 822, 826

( 2nd Cre 1974) eo#eeeeeveeveee cesses oeseee? Q

iv

OPINIONS BELOW

The opinion of the Court of Appeals

for the Sixth Circuit is reproduced in

Appendix A-2, attached hereto; it is as

yet unreported. The opinion of the

Occupational Safety and Health Review

Commission reviewing the decision of Judge

Burchmore is printed in Appendix A-10,

attached hereto; it is reported at

5 BNA OSHC 1946 (1977). The opinion of

Occupational Safety and Health Review

Commission Judge Robert N. Burchmore is

printed in Appendix A-21, attached hereto;

it is unreported.

JURISDICTION

The judgment of the United States Court

of Appeals for the Sixth Circuit was entered

July 17, 1980. The jurisdiction of this

court is involved under 28 U.S.C. Section

1254(i).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

29 C.F.R. Section 1926.400(c)(1)

(c) Protection of employees. (1) No

employer shall permit an employee to

work in such proximity to any part of an

electric power circuit that he may

contact the same in the course of his

work unless the employee is protected

against electric shock by deenergizing

the circuit and grounding it or by

guarding it by effective insulation

or other meanSeeee

29 U.S.C. Section 654

(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;

(2) Shall comply with occupational

safety and health standards promulgated

under this Act.

(b) Each employee shall comply with

occupational safety and health standards

and all rules, regulations, and orders

issued pursuant to this Act which are

applicable to his own actions and con-

duct.

29 U.S.C. Section 666( j)

(j) For purposes of this section, a

serious violation shall be deemed to

exist in a place of employment if 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,

4

and could not with the exercise of

reasonable diligence, know of the

presence of the violation.

5 U.S.C. Section 706(2)(E)

706. Scope of Review - To the extent

necessary to decision and when pre-

sented, the reviewing court shall

decide all relevant questions of law,

interpret constitutional and statutory

provisions, and determine the meaning

or applicability of the terms of an

agency action. The reviewing court

shall -

(2) hold unlawful and set aside

agency action, findings, and con-

clusions found to be -

(E) unsupported by substantial

evidence in a case...otherwise

reviewed on the record of an

agency hearing provided by statute.

STATEMENT OF THE CASE

This case was before the United States

Court of Appeals for the Sixth Circuit upon

the petition of Martin Painting and Coating

Company pursuant to 29 U.S.C. Section

660(a) seeking review of the decision of

the Occupational Safety and Health Review

Commission (OSHARC).

The case involves an accident which

resulted in the death of an employee of

Petitioner. The facts of the accident are

as follows. On October 23, 1975, employee

Glenn Stonerock was working on a water tower

which Petitioner was under contract to paint.

On that date Mr. Stonerock came into con-

tact with some high voltage power lines and

was electrocuted.

The experienced employee had been warned

of the dangerous propensity and location of

the power lines. He had also been subject

to Petitioner's on-going safety program

which included specific instruction on

safety procedures to be used near high

voltage lines.

The Secretary of Labor cited Petitioner

for a violation of the electrical power

safety standard of the Occupational Safety

and Health Act (29 C.F.R. 1926.400(c)(1)).

The case was initially heard by OSHARC

Judge Burchmore who found in favor of

Petitioner. On review by the OSHARC the

administrative law judge was reversed. The

reversal was affirmed by the Court of Appeals

for the Sixth Circuit.

ARGUMENT IN SUPPORT OF

GRANTING CERTIORARI

A. Importance of the Issue

In recent years the small to medium

size business has been subjected to ever

increasing amounts of government regulation.

Good faith compliance with such regulation

no longer assures that a business can be

run peacefully and without government

interference. In addition to these factors

the decision of United States Court of Appeals

of the Sixth Circuit has now imposed such

burdensome safety requirements that compli-

ance is impossible.

The Sixth Circuit has established as

the test for adequate safety precautions

whether or not accidents occur. In the

instant case Petitioner had an active and

on-going safety program that had proved

adequate. The adequacy of this program is

evidenced by Petitioner's excellent past

record. In addition, an experienced .

employee who had participated in the safety

program was warned of the danger of the

power lines and their location at the

particular jobsite. The employee was also

informed that no decision had yet been made

on how or when to paint near the lines. In

spite of this, the employee, in negligent

disregard of all the warnings, safety train-

ing and information, chose to paint near the

power lines. To hold the employer respon-

sible for this employee negligence places

a burden of strict liability on Petitioner

and all other small business. The burden

is too great.

Un°er this standard no amount of safety

instruction or warning will relieve the

employer of liability. Even constant super-

vision would not be adequate. It was never

the intention of the Occupational Safety

and Health Act to impose such a standard.

The protection and safety of workers are an

<2)

important consideration but should not be

used as a bludgeon against small business.

B. Conflicts with Other Circuits

Nearly every United States Court of

Appeals has held that the general duty

clause, 29 U.S.C. Section 654(a)(1), of the

Occupational Safety and Health Act (herein-

after, the Act) does not impose a standard

of strict liability on the employer.

National Realty & Construction Co. vs.

OSHRC, 489 F.2d 1257 (D.C. Cir. 1973);

Brennan vs OSHRC, 501 F.2d 1196, 1200

(7th Cir. 1974); Brennan vs. QSHRC and

Hendricks, dba Alsea Lumber Co., 511 F.2d

1139, 1144-45 (9th Cir. 1975); Horne

Plumbing & Heating Co. vs OSHRC, 528 F.2d

564, 568 (5th Cir. 1976); Central Georgia

Railroad Co. vs OSHRC, 576 F.2d 620, 623

(Sth Cir. 1978); Rea Express, Inc. vs

Brennan and OSHRC, 495 F.2d 822, 826

(2nd Cir. 1974); Ocean Electric Corp. v

10

Secretary of Labor, 594 F.2d 396, 399

(4th Cir. 1979); General Dynamics Corp.,

Quincy Shipbuilding Div. vs OSHRC, 599

F.2d 453 (1st Cir. 1979); Brennan vs QOSHRC

and Hanovia Lamp Division, Canred Precision

Industries, 502 F.2d 946, 951 (3rd Cir. 1974);

Marshall vs L. E. Myers Co. and OSHRC, 589

F.2d 270 (7th Cir. 1978); Empire-Detroit

Steel Division; Detroit Steel Corporation

vs OSHRC and Secretary of Labor, 579 F.2d

378, 384 (6th Cir. 1978).

In addition several circuits have held

that the employer's duty under 29 U.S.C.

Section 654(a)(2) which requires compliance

with the regulations promulgated under the

Act cannot be one of strict liability.

The United States Court of Appeals for the

Third Circuit held in Atlantic & Gulf

Stevedores vs OSHRC, 534 F.2d 541, 547

(3rd Cir. 1976) that the general duty clause

of the Act does not impose strict liability

upon the employer and that the standard of

11

liability for violations of safety regula-

tions is the same as that under the general

duty clause; it cannot be greater.

The United States Court of Appeals for

the Fifth Circuit held in Horne Plumbing &

Heating Co. v OSHRC, °28 F.2d 564, 568 (1976)

that the Act "neither authorizes nor intends"

the imposition of a strict liability standard.

In that case the court set aside and vacated

a citation based on the violation of an

OSHA regulation because upholding the cita-

tion would have imposed a standard of strict

liability for employee misconduct or

negligence.

Similarly, the Ninth Circuit held in

Brennan vs OSHRC_ and Hendricks, dba Alsea

Lumber Co., 511 F.2d 1139, 1144-45 (9th Cir.

1975) that to affirm a citation for violation

of an OSHA regulation “would be to subject an

employer to a standard of strict liability,

under the special duty clause, for deliberate

employee misconduct. We do not find that

12

result to be within the intent of Congress."

The court noted, in addition, that had

Congress intended to impose strict liability

the statutory requirement of employee compli-

ance with the Act, 29 U.S.C. Section 654(b)

would not have been imposed.

In Ocean Electric Corp. vs Secretary

of Labor and OSHRC, 594 F.2d 396, 399

(4th Cir. 1979) the court found that employer

liability under the OSHA regulations is

not "unqualified".

The decision reached by the Court of

Appeals for the Sixth Circuit in the present

case effectively establishes a standard of

strict liability for determining violation

of regulations promulgated under the Act.

Since the Sixth Circuit's decision is

obviously in conflict with the decision of

13

a number of other federal courts, certiorari

should be granted to resolve this conflict.

Respectfully submitted,

R. Larry Schneider

COUNSEL OF RECORD

764 London Avenue

Marysville, Ohio 43040

ATTORNEY FOR PETITIONER

A-1

APPENDIX Page

Opinion and Order dated July 17,

1980, USCA/6th Circuit, Martin

Painting and Coating Co. vs Ray

Marshall, Secretary of Labor and

the Occupational Safety and Health

Review Commission, affirming the

Occupational Safety and Health

Review Commission decision eeesevee A-2

Decision, Secretary of Labor vs

Martin Painting and Coating

Company, citation by the

Occupational Safety and Health

Review Commission, 5 BNA OSHC

1946 (1977), dated October 7,

1977, affirming the citation and

reversing administrative law

Judge Robert N. Burchmore .......2+- A-10

Decision, Secretary of Labor vs

Martin Painting and Coating

Company, decision and order

vacating citation by Judge

Robert N. Burchmore, May 17, 1976 .. A-21

FILED

July 17, 1980

John P. Hehman, Clerk

No. 77-3561

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MARTIN PAINTING AND

COATING COMPANY,

Petitioner

Ve

RAY MARSHALL,

secretary of Labor

and the Occupational

safety and Health

Review Commission,

Respondents

~~ Se Se

Before: KEITH and MERRITT, Circuit Judges;

PHILLIPS, Senior Circuit Judge

This proceeding for review challenges

an order of the Occupational Safety and

Health Review Commission. The Commission

affirmed the Secretary of Labor's finding

that Martin Painting and Coating Company

had committed a serious violation of the

electrical power safety regulations,

A=)

29 C.F.R. Section 1926.400(c)(1), issued

pursuant to the Occupational Safety and

Health Act of 1970, 29 U.S.C. Section 651

et Pn Martin Painting, which sought

review under 29 U.S.C. Section 660(a),

argues that there was no substantial

evidence to support the Commission finding.

We affirm.

1 Section 5(a)(2) of the Act requires

that every employer affecting inter-

state commerce “shall comply with

occupational safety and health

standards promulgated under the Act."

29 U.S.C. 654(a)(2). 29 CFR 1926.

400(c)(1), the cited safety standard,

provides in pertinent part:

(1) No employer shall permit an

employee to work in such proximity

to any part of an electric power

circuit that he may contact the same

in the course of his work unless the

employee is protected against electric

shock by deenergizing the circuit and

grounding it or by guarding it by

effective insulation or other meanse...

Section 17(k) of the Act, 29 U.S.C.

666(j), defines a serious violation

as one creating a "Substantial prob-

ability that death or serious physical

harm could result...unless the employer

did not, and could not with the exer-

cise of reasonable diligence, know of

the presence of the violation."

A-4

Martin Painting was the employer of

Glenn Stonerock, who accidentally was

electrocuted on October 23, 1975. With

a co-employee, Stonerock was painting a

tower and water tank at the Jeffrey Mining

Machinery Company's plant in Columbus,

Ohio. Stonerock had suspended himself

from the water tank in a movable boat-

swain's chair. As he worked on the north-

eastern leg of the tower, he came into

contact with high voltage electrical lines

that attached to the leg approximately

forty feet above the ground. A Jeffrey

employee found Stonerock's body lying

across the wires, one to two feet from

the empty boatswain's chair.

After an OSHA compliance investigator

visited the site of the fatality, the

Secretary of Labor cited Martin Painting

for a violation of the OSHA electrical

power safety standard. The Secretary pro-

posed to fine Martin Painting $550, which

A-5

amount reflected the gravity of the viola-

tion discounted by Martin Painting's small

size, cooperation with the investigation,

and otherwise good safety record. See

29 U.S.C. Section 666(i) (criteria for

assessment of fines by the Commission).

Martin Painting contested the citation

and penalty. An administrative law judge

of the Commission, finding that Martin

Painting had a reasonable training program,

vacated the Secretary's actions. The

Secretary sought review by the Commission,

which affirmed the citation but reduced the

penalty to $400 in further recognition of

Martin Painting's good faith cooperation.

At issue before the Commission were the

precautions taken by Martin Painting prior

to the electrocution. Martin Painting,

which denied knowledge of the violation,

contended that it had exercised reasonable

diligence with respect to the electrical

hazard. The company noted that its field

A-6

supervisor for the Jeffrey project had

warned Stonerock of the potential danger

posed by the electrified wires. The field

supervisor also had indicated that the

company might provide a cherry-picker in

lieu of the boatswain's chair for painting

near the electrical lines. In addition,

the field supervisor had arranged to have

power to the lines shut off at a later

date, on which Stonerock more safely could

paint the northeastern leg, and had

instructed Stonerock's co-worker to ask

Jeffrey before painting whether the lines

had been enervated. Martin Painting further

observed that it had sponsored annual

safety peetiage for the employees, and

generally had advised its workers to stay

at least ten feet away from active electrical

lines.

The Commission found that Martin

Painting nonetheless had failed to use

reasonable diligence to ensure Stonerock's

A-?

safety, and had knowledge of the violation.

According to the Commission, Martin Paint-

ing had failed to give Stonerock any

specific instructions regarding the lines.

The company did not tell Stonerock, who

was killed on a Thursday, about the plans

to shut down the lines on the following

Saturday. Nor did the company suggest

that Stonerock should not work on the

northeastern leg until then. The company

likewise did not tell Stonerock, as it had

told his fellow employee, to consult with

Jeffrey regarding the deactivation of the

lines. No cherry-picker was provided;

nothing further ever was said about the

cherry-picker. "“Stonerock," the Commission

concluded, “could well have believed that

he had to paint close to the (electrical)

lines in order to perform his job." The

Commission thus reversed the decision of

the administrative law judge and affirmed

the citation issued by the Secretary.

A-8

Martin Painting has asked this Court

to vacate the Commission's order. Under

29 U.S.C. Section 660(a), the findings of

the Commission are conclusive "if supported

by substantial evidence." This Court has

interpreted the term "substantial evidence"

to mean, in the context of OSHA violations,

"such relevant evidence as a reasonable

mind might accept as adequate to support

@ conclusion." Dunlop v. Rockwell

Internat']l, 540 F.2d 1283, 1287 (6th Cir.

1976), quoting Jones v. Priebe, 489 F.2d

709, 710 (6th Cir. 1973). The evidence

"must be enough to warrant denial of a

motion for a directed verdict in a civil

case tried to a jury." Id.

The evidence on which the Commission

based its determination satisfies the sub-

stantiality test. Reasonable minds could

differ over the implications of the

evidence. Yet the evidence was not

inadequate to support the finding that

A-9

Martin Painting should have anticipated

the violation. Cf. Brennan v. Butler Lime

and Cement Company, 520 F.2d 1011, 1017-19

(7th Cir. 1975) (negligence of employee

does not relieve employer of responsibility

for serious violation, where violation was

foreseeable due to inadequacy of safety

precautions).

Accordingly, the order of the Commis-

sion is affirmed.

ENTERED BY ORDER OF THE COURT

_/sf/ John P. Hehman

erk

A-10

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND

HEALTH REVIEW COMMISSION

SECRETARY OF LABOR )

)

Complainant, ) OSHRC

) DOCKET NO.

Ve 15923

MARTIN PAINTING AND )

COATING COMPANY )

)

Respondent )

DECISION

Before: CLEARY, Chairman; and

BARNAKO, Commissioner.

BY THE COMMISSION, A decision of

Review Commission Judge Robert N. Burchmore,

dated May 17, 1976, is before this Commission

for review pursuant to 29 U.S.C. Section

661(i). That decision vacated a citation

for a serious violation of the safety

standard codified at 29 C.F.R. Section 1926.

ae

A-11

Tey al on the basis that the evidence

failed to establish that the respondent

possessed the requisite knowledge of the

alleged violation. On review, the complain-

ant takes exception to this finding. For

the reasons set forth below, the Judge's

decision is reversed and the citation is

affirmed.

The respondent is a painting contractor

which contracted with the Jeffrey Mining

and Machinery Company to paint a water

tower and tank on Jeffrey's premises. High

voltage power lines terminated 40 feet above

ground near the northeast leg of the tower.

1/ That standard provides, in pertinent

part as follows:

No employer shall permit an employee

to work in such proximity to any part

of an electric power circuit that he

may contact the same in the course of

his work unless the employee is

protected against electric shock by

deenergizing the circuit and grounding

it or by guarding it by effective insu-

lation or other means.

A-12

One of respondent's employees was

electrocuted when he contacted these lines.

There were no witnesses to the accident,

Since the deceased, Glenn Stonerock, was

not within view of Bill cae the only

other painter on the job. No supervisor

was at the site. Stonerock had apparently

been working from a boatswain chair at the

northeast leg. He was lying on the lines

when he was found by a Jeffrey employee,

but the evidence indicates that the boat-

Swain chair was 1 to 2 feet from the high

voltage lines at that time.

Jeffrey's maintenance superintendent,

Daniel Hansen, had discussed the electrical

hazard with respondent's president vefore

work was commenced and indicated that it

2/ This employee is referred to as Bill

Pickrell in the Judge's decision,

but the transcript indicates that his

last name is Pickel.

A-13

would be necessary to turn off the power

before any work was done in the vicinity

of the northeast leg. He was not contacted,

however, about deenergizing the lines before

the fatal accident occurred.

The respondent's field supervisor,

James Martin, testified that he had pointed

out the lines to Stonerock and had told

him they were "just like a red stick of

dynamite in (his) pocket." Stonerock was

also told that his supervisor was considering

use of a “cherry-picker" to paint in the

area near the power lines. Stonerock

was not told to stay any specific distance

away from the lines. Martin indicated,

however, that he did not think Stonerock

would be painting in the area, since plans

were to wait until Saturday (2 days after

3/ This discussion was held on Tuesday;

the accident occurred on Thursday,

2 days later. The supervisor had not

been back to the site since Tuesday.

A-14

the accident) when the power could be

turned off. Stonerock and Pickel had not

been informed about waiting until Saturday

and were not told to stay out of the area

of the power lines. Although Pickel was

told to check with Jeffrey's about whether

the power was off, Martin did not instruct

Stonerock or request Pickel to do so.

The respondent conducts periodic

safety meetings at least once per year,

and its employees had been told to stay

at least 10 feet away from lines. If

power lines could not be deenergized before

working near them, they were to be

insulated with a rubber blanket, Although

the employees were shown a safety notice

which indicated that they should stay 12

feet away from power lines, this occurred

after the instant accident. Respondent

may also have posted a sticker with the

Same admonition, but it was not established

when it was posted or whether it was

A-15

probable that employees would see it.

Judge Burchmore found that employee

training and instruction was reasonable

and adequate to promote safety and that

Stonerock had acted contrary to instruc-

tions in the absence of his supervisor.

The citation was vacated because the Judge

found that the respondent "is not reason-

ably chargeable with knowledge of the

4/

violation which the employee committed."

4/ In reaching this conclusion, Judge

Burchmore relied on the prior

Commission decision in Ira Holliday

Logging Co., Inc., 73 OSAHRC 16/A2,

1 BNA OSHC 1200, 1971-73 CCH OSHD

para. 15,688 (No. 237, 1973), appeal

dismissed, No. 73-2170, 9th Cir.,

November 29, 1973. In that case, an

employee was killed when he pre-

maturely removed the binders on a

load of logs before the logs were

Supported by an unloading machine.

Holliday is distinguishable from

the case before us because the

Holliday employee had been specifically

told to refrain from unfastening the

binders prematurely and the Holliday

Supervisor had previously surveyed the

unloading operation and had observed

no safety infractions.

A-16

The complainant contends that the

respondent did no more than warn its

employees of the hazard and gave no instruc-

tions as to safe working distances or on

how to avoid the hazard. The complainant

stresses that plans to deenergize and

paint on the following Saturday were not

communicated to the employees affected by

the hazard. The complainant also argues

that an employer is obligated to specifi-

cally instruct its employees about safe

working procedures when the employer has

actual knowledge of the existence of a

hazard to which employees will be exposed

in the course of their work. He further

submits that this requirement is particularly

imperative where constant supervision is

absent.

A divided Commission has held that

the burden is upon the complainant to

establish that an employer knew, or with

the exercise of reasonable diligence should

A-17

have known, of the existence of conditions

or practices upon which an alleged viola-

tion is based. In other words, either

actual or constructive knowledge is an

element of any violation of the Act. /

pee, €-g-, Scheel Construction, Inc., 76

OSAHRC 138/B6, 4 BNA OSHC 1825, 1976-77

CCH OSHD para. 21,263 (No. 8687, 1976),

appeal dismissed, No. 77-1022, 8th Cir.,

February 10, 1977. An employer's failure

to give adequate safety instructions to

its employees reflects a failure to exer-

cise reasonable diligence. Enfield's

Tree Service, Inc., 77 OSAHRC 32/B2,

5 BNA OSHC 1142, 1977-78 CCH OSHD para.

21,607 (No. 9118, 1977). As the Commission

has previously stated, "specific safety

instructions and workrules concerning

hazards peculiar to the job being performed

2/ The Occupational Safety and Health

Act of 1970, 29 U.S.C. Section 651

et seq., 84 Stat. 1590.

A-18

are the essential foundations of an

adequate safety program." Iowa Southern

Utilities Co., 77 OSAHRC 32/C10, 5 BNA

OSHC 1138, 1977-78 CCH OSHD para. 21,612

(No. 9295, 1977). These instructions must

be communicated effectively to employees

and uniformly enforced. Enfield's Tree

Service, Inc., supra.

In Enfield's Tree Service, the

Commission agreed with the Judge below

that employees working close to energized

lines required more specific and appropriate

safety instructions than those received at

general safety meetings. Similarly, in

this case, Stonerock was not adequately

instructed. He was not told not to work

near the northeast leg, was not told that

the work would be done on Saturday, and

was not specifically instructed as to

minimum safe clearance. Although he was

informed two days before the accident that

a "“cherry-picker" might be used, none was

A-19

provided and nothing further was said.

Although Pickel was told to check with

Jeffrey's about deenergizing the lines,

Stonerock was not. Indeed Stonerock could

well have believed that he had to paint

close to the lines in order to perform

his job. Under these circumstances, the

respondent failed to exercise reasonable

diligence. The respondent therefore

possessed the requisite constructive know-

ledge of the violation.

A violation is serious "if there is

an substantial probability that death or

Serious physical harm could result from"

a violative condition or practice. 29 U.S.C.

Section 666(j). The Commission finds the

violation to be serious in this case

because of the danger of electrocution.

The complainant proposed a penalty of

$550. After considering the entire record

in conjunction with the Statutory criteria

in 29 U.S.C. Section 661(i), the Commission

A-20

finds that a $400 penalty is appropriate.

Although the gravity of the violation was

high, the respondent illustrated a high

degree of good faith by its cooperation

with the complainant's inspector during

the investigation. Furthermore, respondent

is a relatively small company and had no

Significant history of past violations.

Accordingly, the citation fora

serious violation of 29 C.F.R. Section

1926.400(c)(1) is affirmed and a penalty

of $400 is assessed for the violation.

FOR THE COMMISSION

/s/ William S. McLaughlin

Executive Secretary

DATED: Oct. 7, 1977

A-21

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND

HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant No. 15923

VS.

MARTIN PAINTING AND

COATING COMPANY

Respondent

)

)

)

)

)

)

)

)

)

DECISION AND ORDER

Bruce C. Heslop for the Secretary

of Labor.

R. Larry Schneider for the

respondent.

BURCHMORE, Judge:

By citation issued November 12, 1975,

complainant charges that on October 23, 1975,

the respondent committed a serious violation

of section 5(a)(2) of the Occupational

A-22

Safety ari Health Act of 1970, 29 U.S.C. 651

et seq (the Act), in that respondent failed

to comply with the Safety and Health Kegu-

lations for Construction as contained in 29

C.F.R. 1926.400(c)(1). Timely notice of

contest was filed and the proceeding was

assigned to the undersigned judge for hear-

ing and adjudication. Hearing was held at

Columbus, Ohio, on March 4, 1976. The

parties have submitted briefs to the judge.

Respondent is a painting contractor

whose employees regularly work with paint

and materials that move in interstate

commerce. I conclude that it is an employer

engaged in a business affecting commerce

within the meaning of the Act.

In October, 1975, respondent was en-

gaged by the Jeffrey Mining Machinery

Company to paint a high water tower and

tank on their premises in Columbus, Ohio.

Prior to beginning work, respondent's

president discussed the job with the

A-23

customer's superintendent of maintenance,

who pointed out a high voltage line leading

to a point on the tower about 40 feet above

ground. Respondent planned to arrange the

work so that the line could be de-energized

on a Saturday, to reduce inconvenience to

the industry.

The work was supervised by a field

supervisor of the respondent, one Martin,

who called the attention of respondent's

employees, Pickrell and Stonerock, to the

high tension line and cautioned them against

getting near it. He told them, "That line

is like a stick of dynamite in your pocket."

He did not discuss with the employees any

arrangement for de-energizing the line or

tell them when to do so.

Respondent has an active safety pro-

gram and conducts meetings which the

employees attend. At these meetings, there

is discussion of hazards to be encountered

in painting jobs and one of these hazards

A-24

is high tension lines. The policy of the

company is that no employee shall come

within twelve feet of such a line, and the

employees are so instructed.

On the day of the alleged violation,

Pickrell and Stonerock were working on the

project and Stonerock was up on the tower

in a boatswain's chair. Martin was not at

the jobsite, being engaged elsewhere. Early

in the evening, at a moment when Stonerock

was not within sight of Pickrell, Stonerock

came into contact with the high tension line

and received fatal injuries.

An investigation ensued, and after an

inspection of the premises, complainant

issued the instant citation, charging the

employer with violation of section 400(c)(1),

which provides:

(c) Protection of employees.

(1) No employer shall permit an

employee to work in such proximity

to any part of an electric power

circuit that he may contact the same

in the course of his work unless the

employee is protected against electric

A-25

Shock by deenergizing the circuit

and grounding it or by guarding it

by effective insulation or other

means. In work areas where the exact

location of underground electric power

lines is unknown, workmen using jack-

hammers, bars, or other hand tools

which may contact a line shall be

provided with insulated protective

gloves.

It is evident from the facts recited

that there was a breach of the regulation,

but it cannot properly be charged to the

employer unless the employer knew of the

violation, or could with the exercise of

reasonable diligence have known of it.

Peter J. Brennan vs. Alsea Lumber Company,

511 F.2d 1139 (9th Cir. 1975). In this

case, the respondent obviously knew nothing

of the violation, so the question is whether

the employer was under a duty to exercise

Such one to one supervision as would have

been ‘necessary to gain such knowledge.

In my opinion, the training and instruc-

tion of the employees was reasonable and

adequate to promote safe working conditions

in all situations except one of unforseeable

A-26

employee negligence and disregard of instruc-

tions. The facts here are essentially

equivalent to those before the Commission

in Secretary v. Ira Holliday Logging Co.,

Inc., 2 OSAHRC 1415 (No. 237), where an

employee was killed when, contrary to

instructions, he removed the chain binders

on a load of logs before the logs were

securely held by the unloading machine. In

that case, the Commission dismissed the

citation.

In this case, as in Holliday, the

deceased acted contrary to instructions in

the absence of his supervisor. I therefore

conclude that respondent is not reasonably

chargeable with knowledge of the violation

which the employee committed.

A fatal accident is a terrible thing,

and it is a primary purpose of the Act to

prevent such occurrences. However, that

purpose would not be furthered by penalizing

an employer, after the fact, for an

A-27

occurrence over which it had no control and

which was not reasonably foreseeable to it,

In this case, the citation should be vacated.

It is ORDERED that the citation and

proposed penalty be and the same are hereby

vacated and that this proceeding be and the

Same is hereby discontinued.

/s/ Robert N. Burchmore

Judge OSAHRC

May 17, 1976