Raytheon Constructors, Inc., and its successors

Plain-English summary

Raytheon was building a chemical-weapons disposal incinerator at the Umatilla Army Chemical Depot in Oregon. After an unknown chemical exposure sickened workers, OSHA cited the company for inadequate access to medical advice, but the judge found that qualified emergency medical technicians were continuously available and that the cited subsection did not govern transportation to a hospital. An eye-protection item was vacated because Raytheon proved unpreventable employee misconduct through its training, inspections, and progressive discipline. An electrical item was vacated because duct tape covered unused panel openings and accidental contact with live parts would have required deliberately removing the tape and reaching inside. A fall-protection item was vacated because no supervisor observed the brief failure to tie off, OSHA did not establish employer knowledge, and Raytheon again proved effective training and enforcement. The parties settled the remaining items, resulting in one combined $845 penalty and several other-than-serious items affirmed without penalty or withdrawn.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.50(a), § 1926.102(a)(1), § 1926.303(c)(2), § 1926.300(b)(7), § 1926.304(f), § 1926.403(i)(2)(i), § 1926.501(b)(1), § 1910.37(q)(6), § 1910.134(h)(2)(i), § 1926.150(c)(1)(viii), § 1926.250(c), § 1926.403(h), § 1926.403(i)(1)(ii), § 1926.404(f)(7)(iv)(C), and § 1926.405(g)(1)(iii)
• Outcome: Four litigated serious items were vacated; the settled items produced a combined $845 penalty, several affirmances without penalty, and multiple withdrawals.
• Key point: OSHA must cite the subsection that addresses the alleged conduct and prove employer knowledge, while a documented program of training, inspections, and discipline can establish unpreventable employee misconduct.

Full text (OSHRC public release)

                                                           United States of America
                    OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                               1244 North Speer Boulevard, Room 250
                                                     Denver, Colorado 80204-3582

Phone: (303) 844-3409 Fax: (303) 844-3759

SECRETARY OF LABOR,
Complainant,

                          v.                               OSHRC DOCKET NO. 00-0128

RAYTHEON CONSTRUCTORS, INC., and its
successors,

                      Respondent.

APPEARANCES:

      For the Complainant:
               William W. Kates, Esq., Office of the Solicitor, U.S. Department of Labor, Seattle, Washington

      For the Respondent:
               David E. Jones, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, PC, Atlanta, Georgia

Before: Administrative Law Judge: Stanley M. Schwartz

                                         DECISION AND ORDER

      This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.

Section 651 et seq.; hereafter called the “Act”).
Respondent, Raytheon Constructors, Inc. (Raytheon), at all times relevant to this action
maintained a place of business at the Umatilla Army Chemical Depot I-84, Hermiston, Oregon, where it
was engaged in the construction of an incinerator for disposal of chemical weapons and agents, the
Munitions Disposal Building (MDB). Respondent admits it is an employer engaged in a business
affecting commerce and is subject to the requirements of the Act.
On November 15-19, 1999 the Occupational Safety and Health Administration (OSHA)
conducted an inspection of Raytheon’s I-84 work site. As a result of that inspection, Raytheon was
issued citations alleging violations of the Act together with proposed penalties. By filing a timely notice
of contest Raytheon brought this proceeding before the Occupational Safety and Health Review
Commission (Commission).
On May 2-3, 2000, a hearing was held in Portland Oregon. At the hearing the parties stipulated
to the settlement of all but four items, i.e., Serious citation 1, items 1, 2, 5 and 6 (Tr. 9-11). The
parties’ stipulations are reflected in the Order below. The parties have submitted briefs on the items
remaining at issue and this matter is ready for disposition.
Alleged Violation of §1926.50(a)
Serious citation 1, item 1 alleges:
29 CFR 1926.50(a): The availability of medical personnel was not insured for advice and consultation
on matters of occupational health:

    a) On or about September 15, 1999 provisions were not made for the prompt transportation to
    nearby medical facilities of approximately 34 employees who were exposed to an unknown
    chemical. The assistance of a physician from the Umatilla Chemical Depot was refused, and the
    exposed employees had to wait approximately 2 hours before they were transported to a
    hospital.

Facts
It is undisputed that around 11:00 a.m. on September 15, 1999, during construction of the
Hermiston MDB, a number of Raytheon employees were exposed to an unknown toxic chemical (Tr.
21, 35, 63, 225). Tony Kimball, a pipe fitter (Tr. 18-20), was overcome, and had to be assisted from
the building by a fellow employee, steam fitter Brian Zasso (Tr. 21-22, 36). Kimball testified that he
experienced pain in his lungs and stomach, had trouble breathing, became dizzy and disoriented, and
vomited bile (Tr. 22-23). Zasso testified to experiencing similar symptoms (Tr. 35, 37-38, 41). After
evacuating the building Kimball and Zasso testified that they and other affected employees remained
outside the building until supervisory personnel instructed them to move to the lunch trailer so that
everyone could be accounted for (Tr. 23-24, 37). Zasso testified that the pipe fitter foreman called for
first aid, but that they were not seen by any medical personnel at that time (Tr. 39-40). Both Kimball
and Zasso testified that after approximately 15 minutes more, they and other affected employees were
transported by truck to Raytheon’s first aid station (Tr. 26, 40). Both employees testified that they
asked for medical assistance and were seen by the Emergency Medical Technicians on duty at the
trailer; however, neither received any first aid; both were told only that they needed some fresh air (Tr.
26-28, 42-43). At around 1:00 p.m. Kimball and Zasso and approximately 12 other employees were
also transported to Good Shepard Hospital in Hermiston via a Raytheon van (Tr. 29-30, 43-44).
Kimball testified that one employee who was suffering severe respiratory distress was taken to the
hospital by ambulance (Tr. 30).
Bruce Raymond, Raytheon’s safety manager (Tr. 132-33), testified that he drafted Raytheon’s
medical implementation plan (Tr. 195; Exh. R-7). The plan provides for a physician advisor, Dr.
Beverly Harn, who was to establish procedures and protocols for the paramedic staff at Raytheon’s

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work site, and who reviewed the paramedic’s records on a monthly basis (Tr. 196-97, 232-33, 377).
Raymond testified that Dr. Harn was available for consultation with the paramedics at all times (Tr.
198). Raymond testified that his staff at the Hermiston MDB included approximately 15 part-time
paramedics; two paramedics were always on duty during each work shift (Tr. 135-36, 198-99). On
September 15, Glen Phillips and Dale Ternes were on duty at the MDB medical infirmary (Tr. 211).
Phillips and Ternes are qualified emergency medical technicians (EMTs), and were competent to
provide basic first aid as well as advanced cardiac life support; both were trained to deal with hazardous
materials emergencies (Tr. 135, Tr. 371-75, 379, 420-23).
Richard Jacobsen, Raytheon’s manager of safety, testified that the provisions Raytheon has
made to ensure access to medical advice and consultation are consistent with those made by other
construction companies of similar size (Tr. 583, 587-88).
On September 15, after learning of the chemical release, the paramedics on duty attempted to
assess the nature of the release, and determined that an upper respiratory contaminant of some kind was
involved, though they ruled out any release of chemical munitions1 (Tr. 211-214, 387-91, 425-26).
Ternes learned there were affected employees reporting to the infirmary, and returned to the clinic (Tr.
427-28). Ternes and a third EMT from Raytheon’s training department, Heather Madison, began
taking vital signs, and administering oxygen (Tr. 429-30). Phillips remained on the site of the incident
to account for all exposed employees, then returned to the infirmary where it appeared that everything
was under control (Tr. 215, 394, 416). Phillips assisted by triaging affected employees outside the
infirmary (Tr. 395-98). Phillips stated that he saw no evidence of any life threatening emergencies
outside; he believed those employees needed only fresh air (Tr. 398- 400). Ternes had already had one
employee who was experiencing severe respiratory distress taken to the hospital (Tr. 215, 416, 431),
and was actively treating employees who were experiencing nausea and numbness inside the infirmary
(Tr. 431, 442). Eventually the decision was made to transport all the affected employees to the hospital
(Tr. 434).
Both Phillips and Ternes testified that they never considered calling Dr. Harn, believing it would
have been a waste of time (Tr. 402-03, 435-36). Had it been necessary, Phillips stated, he would have

         1
         Glen Phillips testified that all chemical munitions were stored at the depot in K block, not in the

building where the employees were working, and were exposed. Phillips testified that a release could only have
been caused by a “significant impact” to K block and would have affected employees both in and outside of the
MDB under construction. Finally, Phillips stated that the EMTs were familiar with the symptoms of exposure to
both mustard gas and the nerve agent stored at Umatilla. The exposed employees exhibited none of those
symptoms (Tr. 391-92).

                                                      3

called the physician advisor at the hospital emergency room, where the patient would be sent (Tr. 405,
409-10). Neither Phillips nor Ternes felt that any employees they saw exhibited symptoms that were
beyond their ability to address (Tr. 406, 436).
Discussion
The cited standard provides:
The employer shall insure the availability of medical personnel for advice and consultation on
matters of occupational health.

     In order to prove a violation of section 5(a)(2) of the Act, the Secretary, among other things,

must show by a preponderance of the evidence that (1) the cited standard applies, and (2) there was a
failure to comply with the cited standard. See, e.g., Walker Towing Corp., 14 BNA OSHC 2072, 2074,
1991-93 CCH OSHD ¶29239, p. 39,157 (No. 87-1359, 1991). The Secretary has failed to meet her
burden on either of these elements of her prima facie case.
Applicability. The cited standard is clearly inapplicable to portions of the allegations found in
citation 1, item 1. The item alleges that “provisions were not made for the prompt transportation to
nearby medical facilities of approximately 34 employees who were exposed to an unknown chemical.. . .
and the exposed employees had to wait approximately 2 hours before they were transported to a
hospital.” Inadequate medical transport is addressed under §1926.50(e), which requires that “[p]roper equipment for prompt
transportation of the injured person to a physician or hospital, or a communication for contacting necessary ambulance service,
shall be provided.” The cited subsection (a) is preempted by the more specifically applicable subsection (e). No motion to amend
the citation was made prior to or after the hearing. Those portions of the citation alleging inadequate transportation, therefore, are
vacated.
Compliance. The record establishes that the EMTs involved in this case were qualified to
render advice on occupational safety and health. Complainant does not argue that the paramedics were
not “medical personnel,” and this judge finds that they were “medical personnel” as contemplated by the
standard. The evidence establishes that Raytheon had a medical implementation plan that provided for
the presence of two EMTs at the work site infirmary at all times, and that EMTs were, in fact, available,
not only for advice and consultation on matters of occupational health, but for the provision of prompt
medical attention, where necessary. The facts, as set forth in the record, establish that Raytheon was in
compliance with the cited standard.
Complainant’s theory in this case is that Raytheon’s infirmary was understaffed to handle a
“potentially catastrophic” event of the nature of the September 15, 1999 incident, and that Raytheon
violated the cited standard by turning down an offer of assistance from Dr. Jose Ortiz, the doctor on

                                                              4

staff at the Army’s Depot Clinic, on September 15, 1999 (See Complainant’s Memorandum of Points
and Authorities, p. 8).
The standard involved does not contain specific performance guidelines. A violation of the
standard, therefore, can only be found where the Secretary establishes, by a preponderance of the
evidence, that a “reasonable employer” would have done more to ensure the availability of medical
advice. See; CMC Electric, Inc. v. OSHA, (No. 99-3801, Aug.19, 2000) [slip opinion], Armour Food
Co., 14 BNA OSHC 1817, 1987-90 CCH OSHD ¶29,088 (No. 86-247, 1990). This judge finds that
the Secretary failed to prove that Raytheon’s preparations were unreasonable.
When Raytheon formulated its medical implementation plan, it consulted with the U.S. Army,
and was told that the limited staffing of the Army’s medical corp. prevented the Army from providing
medical services for Raytheon (Tr. 219). On that basis, Raytheon made other provisions for ensuring
that medical advice would be available to its employees. Raytheon’s safety manager testified, without
contradiction, that its preparations were comparable to those made by other similarly situated employers
in the construction industry. Raytheon was involved only in construction, was not involved in the actual
disposal of chemical weapons and agents, and had no reason to anticipate a catastrophic event.
Complainant failed to introduce any evidence tending to show that a reasonable employer in Raytheon’s
position would have retained more than two full time EMTs on the work site for purposes of safety and
health consultation. Rather, Complainant relies entirely on the statement of a Raytheon representative,
Project Manager Jay Bluestein, who stated at a November 1, 1999 public hearing that Raytheon “should
have taken help from the doctor,” (Tr. 68; Exh. C-1, p. 82). Though Bluestein’s statement establishes
that, in hindsight, Raytheon realized that it should not have refused any help that was offered after the
incident occurred, it does not establish a violation of the cited standard. As written, the standard simply
does not address the issue of post facto offers of medical assistance.
Finally, there is no evidence that Raytheon’s EMT staff , or its response to the chemical release
was inadequate. It is clear from the testimony that a number of Raytheon’s employees were sickened by
a chemical exposure, and were, given the ultimate purpose of the facility they were building, justifiably
frightened. Apparently some employees did not trust the ministrations of paramedics, and preferred to
be seen by a physician. While the employees concerns are understandable, nothing in the cited standard
requires the employer to guarantee that level of care on the work site. Finally, there is no evidence in
the record indicating that a physician on the scene would, or could have done anything more than the
EMTs.
The Secretary failed to carry her burden of proof on this item, and it is vacated.

                                                 5

Alleged Violation of §1926.102(a)(1)
Serious citation 1, item 2 alleges:
29 CFR 1926.102(a)(1): Eye and face protective equipment was not used when machines or operations
presented potential eye or face injury:

    a) The welder's helper in the ECV area at the 122 elevation at the Umatilla Army Chemical
    Depot was not wearing eye protection to protect him from the welding rays.

Facts
OSHA Compliance Officer (CO) Charles Penrod testified that he conducted the November 16,
1999 inspection of Raytheon’s MDB facility (Tr. 81). CO Penrod testified that as they entered an area
known as the ECV area, he observed an arc welder’s helper, later identified as Chuck Sheldon by
Raytheon, who was wearing prescription glasses (Tr. 106, 298). Penrod stated that the glasses did not
provide appropriate eye protection, because they did not have side shields (Tr. 86-87, 106). Penrod
testified that the helper stood less than three feet away from the welding operation, and was exposed to
the hazard of flash burns to his eyes (Tr. 89, 91). Penrod testified that he spoke to the welding foreman,
identified at the hearing as Alex Jackson, and to Mike Listello, a Raytheon safety officer, about the
helper’s failure to wear eye protection (Tr. 90). According to Penrod, the foreman stated that he
believed it was all right for the helper to forego eye protection so long as he looked away during
welding (Tr. 90).
Bruce Raymond testified that Raytheon has a work rule requiring that welders’ helpers use eye
protection (Tr. 144-45; Exh. R-1, p.19-8, §3.2.1.2, p. 19-11, §3.2.3). Raymond testified that all new
hires are made aware of the relevant rule during their orientation (Tr. 150). Each employee receives an
employee handbook, which states, inter alia, that “when you arc/welding (sic) near other workers, they
must be protected from the arc rays by noncombustible screens or must wear adequate eye protection.”
(Tr. 150; Exh. R-2, p. 19). New employees are instructed to read the handbook and to sign
documentation indicating they have reviewed it (Tr. 150). In addition, Raymond testified that
Raytheon’s Job Hazard Analysis (JHA), requires welders to obtain a hot work permit from their
foreman prior to welding (Tr. 176; See also, testimony of Don Gammell, Tr. 285). According to
Raymond, the permit is to be issued only if the employees have the personal protective equipment
necessary to safely perform the job (Tr. 176-77).
Raymond testified that, in addition to their initial training, Raytheon employees attend weekly
toolbox safety meetings, during which these issues would be addressed (Tr. 165).

                                                6

Raytheon introduced Chuck Sheldon’s sign off sheet, indicating that he received his copy of
Raytheon’s safety hand book, and went through new hire orientation on February 11, 1998 (Tr. 300;
Exh. R-18, R-19). Sheldon’s name is found on an October 5, 1999 attendance roster, indicating that he
received training in Raytheon’s hot work policy (Tr. 291-96; Exh. R.16). Sheldon’s foreman went over
the hot work permit rules again at a tool box safety meeting held on October 27, 1999 (Tr. 297-98;
Exh. R-17).
Raymond testified that safety personnel do safety compliance inspections several times a day,
and document their observations weekly (Tr. 167-68; ). Mike Listello testified that he tried to be out on
the job site as much as possible during the day, every day (Tr. 526).
Don Gammell, a civil superintendent, testified that Raytheon had a progressive disciplinary
system that included verbal warnings, written warnings, and dismissal, when appropriate (Tr. 283).
Gammell stated that when performing daily safety inspections, or “walk downs,” he would correct any
deficiency, and, depending on the severity of the infraction, might report the incident to the employee’s
immediate supervisor (Tr. 283, 301). A verbal or written warning may result (Tr. 283). Gammell
testified that he has terminated employees for safety rule violations (Tr. 323).
Raytheon introduced three warning letters issued between March 16, and June 9, 1999
reprimanding employees for failure to wear eye protection (Tr. 302; Exh. R-20). Gammell testified that
Sheldon was disciplined for his failure to wear eye wear On November 16, 1999 (Tr. 319).
Gammell testified that he had not heard that Sheldon’s foreman, Alex Jackson, told CO Penrod
that he believed it was all right for Sheldon to merely avert his eyes during welding (Tr. 319). Gammell
testified that had he learned of this, Jackson would have been questioned and counseled. A written
reprimand may have been issued had Jackson admitted to making such a statement (Tr. 320). Gammell
testified that Jackson had received training on the hot work safety rules (Tr. 321-22; Exh. R-16).
Discussion
Raytheon does not dispute the occurrence of the cited violation. Rather it maintains that the
violation was the result of unpreventable employee misconduct. The Secretary admits that Raytheon
had work rules designed to prevent the hazardous condition, but questions how effective Raytheon’s
safety and disciplinary program actually were, given the alleged supervisory involvement in the cited
violation.
In order to establish an unpreventable employee misconduct defense, the employer must
establish that it had: established work rules designed to prevent the violation; adequately communicated
those work rules to its employees (including supervisors); taken reasonable steps to discover violations

                                                 7

of those work rules; and effectively enforced those work rules when they were violated. New York State
Electric & Gas Corporation, 17 BNA OSHC 1129, 1995 CCH OSHD ¶30,745 (91-2897, 1995).
The evidence shows, and Complainant acknowledges, that Raytheon had a comprehensive safety
plan that included a work rule requiring that employees working near arc welding operations wear eye
protection (Complainant’s Memorandum of Points and Authorities, p. 9). The record further shows
that the exposed employee, Chuck Sheldon, participated in three separate safety programs during which
Raytheon’s hot work, i.e., welding rules were discussed, and should have been aware that eye
protection was required for welder’s helpers.
Complainant argues, however, that “it remains unclear” how effective Raytheon was in its
efforts to discover and correct violations of its safety rules. Raytheon’s safety manager, Bruce
Raymond, testified that safety compliance inspections were performed several times a day. Don
Gammell testified, without contradiction, that Raytheon had a progressive disciplinary system to address
violations of the work rules; Raytheon produced warning letters issued to employees violating the eye
protection requirement. The Commission has held that an employer may demonstrate its “effective
enforcement” of its safety rules by showing that it had in place a progressive disciplinary plan with
increasingly harsh measures taken for infractions of the work rule. Precast Services, Inc. 17 BNA
OSHC 1454, 1995 CCH OSHD ¶30,910 (93-2971, 1995). That a safety violation occurred in spite of
Raytheon’s efforts does not establish that its safety program was ineffectively enforced.
Raytheon has established that Chuck Sheldon’s violation of Raytheon’s safety rules was the
result of unpreventable employee misconduct.
This judge’s finding is not affected by Alex Jackson’s alleged statement to CO Penrod, to the
effect that no eye protection was necessary in this case. It is well settled that misconduct by a
supervisor constitutes evidence that an employer’s safety program is lax, Consolidated Freightways
Corp., 15 BNA OSHC 1317, 1991-93 CCH OSHD ¶29,500 (No. 86-531, 1991). However, it is not
clear from this record whether Jackson was actually involved in the misconduct, i.e., whether he was
aware of the violation before Penrod brought it to his attention. This judge does not believe that
Jackson’s post facto attempts to excuse Sheldon’s conduct rise to the level of misconduct. Moreover,
the employer can rebut any inference of misconduct by establishing that Jackson was provided with
adequate training in, and was subject to discipline for violation of relevant work rules. Don Gammell
testified, and produced documentation showing that Jackson had received training in Raytheon’s hot
work rules. Gammell testified, again without contradiction, that Jackson would have been reprimanded
had Raytheon learned of his alleged misstatement.

                                                 8

Because Raytheon has established the affirmative defense of employee misconduct, the citation
is vacated.
Alleged Violation of §1926.403(i)(2)(i)
Serious citation 1, item 5 alleges:
29 CFR 1926.403(i)(2)(i): Live parts of electric equipment operating at 50 volts or more were not
guarded against accidental contact by cabinets or other forms of enclosures, or by any of the following
means: (A) by location in a room, vault, or similar enclosure that is accessible only to qualified persons;
(B) by partitions or screens so arranged that only qualified persons will have access to the space within
reach of the live parts; (C) by location on a balcony, gallery, or platform so elevated and arranged as to
exclude unqualified persons; (D) by elevation of 8 feet or more above the floor or other working surface
and so installed as to exclude unqualified persons:

    a) Circuit breakers were missing from the electrical panels in the vehicle maintenance shop and
    the boilermakers conex at the Umatilla Army Chemical Depot. Unused openings were covered
    with duct tape.

Facts
CO Penrod testified that during his inspection of Raytheon’s vehicle maintenance shop, he
observed a 240 volt electrical panel on which unused openings were covered with duct tape (Tr. 92, 94,
98, 100; Exh. C-2). Someone had written “Do not insert finger” on the duct tape (Tr. 98; Exh. C-2).
Penrod testified that he also observed a 120 volt electrical panel that was taped in the same manner in
the boilermaker’s conex, which is a freight container used for temporary equipment storage and as a
break room (Tr. 93-94, 100). CO Penrod stated that his electrical tester indicated that there was live
electricity somewhere behind the tape (Tr. 109). Penrod did not believe duct tape was conductive,
however (Tr. 109). Penrod did not check behind the tape, but agreed that someone would have to
remove the tape, and insert a finger, or conductive object into the hole behind the tape to contact any
live part (Tr. 110).
Bruce Bray, Raytheon’s electrical construction superintendent, testified that, normally, where
there is an unused space for a circuit breaker on the type of panel pictured in Complainant’s Exhibit C-
2, the space is covered with a plastic space-cover to prevent inadvertent contact with the circuitry
behind the panel cover (Tr. 351). Bray testified that the highly adhesive duct tape which was placed on
the circuit cabinets in the maintenance shop and the conex would serve the same purpose as the plastic
cover, in that it would take a purposeful act to reach the energized parts one and 1-½ to 2 inches behind
the tape (Tr. 353-55, 357).

                                                9

Discussion
The cited standard provides:
Except as required or permitted elsewhere in this subpart, live parts of electric equipment
operating at 50 volts or more were not guarded against accidental contact by cabinets or other
forms of enclosures. . .

      The facts are not disputed. In two locations, live electrical equipment was guarded by an

appropriate cabinet. Unused cutouts in the cabinets were covered with duct tape in lieu of plastic space
covers.
Complainant maintains that duct taping the cutouts was inadequate to prevent employees from
accidentally contacting live electrical parts. CO Penrod testified that employees working in the vehicle
maintenance shop and/or the conex could accidentally contact live parts behind the duct tape while
using the other circuit breakers on the panels (Tr. 99-101, 108). This judge does not agree.
As required by the standard, the cited electrical equipment was located within a cabinet, behind a
panel, which guarded it against accidental contact. Openings in the panel were covered. In order to
access any live electrical parts, an employee would have to remove the duct tape and deliberately place
his finger or a conductive object into the cutout. The plain language of the cited standard cannot be
interpreted to require employers to take precautions against an employee’s deliberate, and inexplicable,
attempt to contact live electrical parts. See, e.g., Ormet Corporation, 9 BNA OSHC 1829, 1981 CCH
OSHD ¶25,322 (No. 76-4398, 1981)[Commission declines to read 29 CFR 1910.309(a) as requiring
employer to forestall deliberate employee misbehavior].
Citation 1, item 5 is vacated.
Alleged Violation of §1926.501(b)(1)
Serious citation 1, item 6 alleges:
29 CFR 1926.501 (b)(1): Each employee on a walking/working surface with an unprotected side or
edge which is 6 feet or more above a lower level shall be protected from falling by the use of guardrail
systems, safety net systems, or personal fall arrest systems:

      a) There was one employee standing on the pipe support on the east side of the MDB area at the
      Umatilla Army Chemical Depot and was not protected from falling to the ground approximately
      12-15 feet below.

Facts
CO Penrod testified that as he walked out into the yard, he observed pipefitters working on a
pipe rack 12 to 15 feet overhead (Tr. 84, 102-03). One of the pipefitters, later identified as Mike Dolan

                                                 10

(Tr. 264), was walking on the rack, wearing a harness and lanyard, but was not tied off (Tr. 85, 103,
106). Penrod stated that Dolan tied off when Mike Listello said something to him (Tr. 104). Penrod
did not know how long the employee had been unhooked (Tr. 104).
Listello told Penrod that Raytheon had a 100% tie off policy, and that the employee had been
trained, and knew what the rules were (Tr. 105). At the hearing Mike Listello testified that there was
no foreman in the area where Dolan was working (Tr. 530). In addition, Listello stated that there was
another employee in the area when he and Penrod entered, and that the second man was properly tied
off (Tr. 531). Bruce Raymond testified that the 100% tie off rule is included in Raytheon’s safety
manual (Tr. 146; Exh. R-1, p. 25-8, §7 et seq.), and in the employee handbook (Tr. 155; Exh. R-2, p.
23). New hires attend a training session during which they are instructed in the proper use of safety
harnesses (Tr. 155).
Bill Nerpel, a mechanical superintendent, testified that Raytheon’s 100% fall protection policy is
discussed frequently during weekly safety meetings, and produced agendas for the weeks of November
18, and December 9, 1997, and March 24, April 21, June 2, August 11, September 9, October 6,
November 3, and December 8, 1998, indicating that fall protection had been discussed at those meetings
(Tr. 247, 249-51; Exh. R-9). Fall protection was addressed in 1999 on February 9, February 16, March
4, June 15, August 10, and October 25 (Tr. 252-54; Exh. R-9).
Dolan received his initial training on May 24, 1999 (Tr. 266, Exh. R-12). Nerpel testified that
he believed Dolan’s name would be found on the attendance sheets for the weekly safety meeting (Tr.
266-67).
Nerpel testified that he took part in the daily safety walkdowns described by Raymond and
Gammell (Tr. 255-56, 258; Exh. R-10). Nerpel testified that where violations of the fall protection
rules were observed, warnings were issued (Tr. 261-63). Raytheon introduced 14 warnings issued
between February 1998 and October 13, 1999 (Exh. R-11). Mike Dolan was issued a warning letter as
a result of the November 16, 1999 inspection (Tr. 265-267; Exh. R-12)
Discussion
In order to prove its prima facie case, the Secretary must show, by a preponderance of the
evidence, that the cited employer either knew or, with the exercise of reasonable diligence, could have
known of the cited condition. See, e.g., Walker Towing Corp., 14 BNA OSHC 2072, 2074, 1991-93
CCH OSHD ¶29239, p. 39,157 (No. 87-1359, 1991). Where no supervisory personnel observed the
violation, the Secretary must show that the employer failed to adequately train and supervise its

                                               11

employees to ensure safe work practices. See; Mosser Construction Co., 15 BNA OSHC 1408, 1991-
93 CCH OSHD ¶29,546 (No. 89-1027, 1991).
No supervisory personnel were in the area where the cited violation was observed. CO Penrod
did not know how long Mike Dolan was unsupervised, or how long, or briefly, Dolan was unhooked.
The Secretary failed to show that Raytheon knew, or could have known of the cited conduct, and,
therefore, did not demonstrate employer knowledge of the cited condition.
Moreover, Raytheon established that it did everything it could to prevent Dolan’s misconduct.
Raytheon established that it had a 100% tie off policy, which was constantly reinforced during weekly
safety meetings. Raytheon’s witnesses testified, without contradiction, that Dolan had been trained in
Raytheon’s 100% tie off policy. Raytheon witnesses testified that frequent safety inspections were
conducted, and produced documentation establishing that employees were reprimanded for violations of
the tie off rule. A second employee in the area was properly tied off. Mike Dolan was reprimanded for
the November 16, 1999 violation.
The evidence establishes that Raytheon conducted adequate safety inspections to discover
violations of the policy, and had a progressive disciplinary system to enforce it.
Because the Secretary failed to establish employer knowledge, and because Raytheon
established the affirmative defense of employee misconduct, the violation is vacated.

                                                    ORDER

1. Citation 1, item 1, alleging violation of §1926.50(a) is VACATED.
2. Citation 1, item 2, alleging violation of §1926.102(a)(1) is VACATED.

3. Citation 1, item 3, and Citation 2, item 1, alleging violations of §§1926.303(c)(2) and .300(b)(7) are AFFIRMED as a
   single “other than serious” violation, and a combined penalty of $845.00 will be ASSESSED.

4. Citation 1, item 4, alleging violation of §1926.304(f) is WITHDRAWN.

5. Citation 1, item 5, alleging violation of §1926.403(i)(2)(i) is VACATED.
6. Citation 1, item 6, alleging violation of §1926.501(b)(1) is VACATED.
7. Other than serious citation 3, item 1, alleging violation of §1910.37(q)(6) is WITHDRAWN.

8. Other than serious citation 3, item 2, alleging violation of §1910.134(h)(2)(i) is AFFIRMED without penalty.

9. Other than serious citation 3, item 3, alleging violation of §1926.150(c)(1)(viii) is WITHDRAWN.

10. Other than serious citation 3, item 4, alleging violation of §1926.250(c) is AFFIRMED without penalty.

11. Other than serious citation 3, item 5, alleging violation of §1926.403(h) is AFFIRMED without penalty.

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    12. Other than serious citation 3, item 6, alleging violation of §1926.403(i)(1)(ii) is AFFIRMED without penalty.

12. Other than serious citation 3, item 7, alleging violation of §1926.404(f)(7)(iv)(C) is WITHDRAWN.

13. Other than serious citation 3, item 8, alleging violation of §1926.405(g)(1)(iii) is WITHDRAWN.

14. Other than serious citation 3, item 9, alleging violation of §1910.134(h)(2)(i) is AFFIRMED without penalty.

                                                            Stanley M. Schwartz
                                                            Judge, OSHRC
    

Dated: September 8, 2000

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