Dravo Engineers and Constructors

Plain-English summary

Dravo barricaded the swing-radius area around a crawler crane and instructed employees about the counterweight hazard. During a follow-up inspection, OSHA observed three employees cross the barricaded area and cited Dravo under the construction hazard-instruction standard. The judge found that Dravo had given adequate instructions but affirmed because the company had not effectively enforced them. The Commission reversed, holding that 29 C.F.R. § 1926.21(b)(2) required instruction but did not impose a separate enforcement duty. Because Dravo had provided toolbox training, warnings, barricades, and signs, it complied with the cited provision. Commissioner Cleary dissented, arguing that instructions were inadequate when supervisors allowed employees to keep entering the dangerous area.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.21(b)(2) and 29 C.F.R. § 1926.550(a)(9)
• Outcome: Serious hazard-instruction citation vacated.
• Key point: The Commission majority declined to read an enforcement requirement into a standard whose text required employers to instruct employees about workplace hazards.

Full text (OSHRC public release)

Docket No. 81-0748

SECRETARY OF LABOR,

Complainant,

v.

DRAVO ENGINEERS AND CONSTRUCTORS,

Respondent.

OSHRC Docket No. 81-0748

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. � 661(i), section 12(j) of the Occupational Safety and Health Act of
1970, 29 U.S.C. �� 651-678 ("the Act").  The Commission is an
adjudicatory agency, independent of the Department of Labor and the Occupational Safety
and Health Administration.  It was established to resolve disputes arising out of
enforcement actions brought by the Secretary of Labor under the Act and has no regulatory
functions.  See section 10(c) of the Act, 29 U.S.C. � 659(c).

In this case, Administrative Law Judge Edwin G. Salyers affirmed a citation
alleging that Dravo Engineers and Constructors violated 29 C.F.R. � 1926.21 (b) (2),
[[1]] which requires that an employer instruct its employees in the recognition and
avoidance of unsafe conditions.  Although the judge found that Dravo gave its
employees adequate instructions, he concluded that the company violated the standard
because it did not enforce the instructions.  We reverse the judge's decision and
vacate the citation.

Dravo oversaw a construction site in Racine, Ohio.  At the site, there
was a wooden trestle with a large crawler crane situated in the middle of the trestle.

In 1980, Dravo was cited for violating 29 C.F.R. � 1926.550(a)(9)[[2]]
because it had failed to barricade the area of trestle where the crane was located.  
To bring itself into compliance with the barricade standard, Dravo built recessed walkways
alongside the trestle and barricaded the sides of the trestle with nylon rope.  
Dravo also posted signs cautioning employees to "watch counterweight."   In
addition, the employees were instructed at tool box meetings about the hazard of the
swinging counterweight.

In February, 1981, an OSHA compliance officer conducted a follow-up
inspection of the Dravo construction site.  At the hearing, the compliance officer
testified that Dravo was in compliance with section 1926.550(a)(9) at the time of the
follow-up inspection. The officer observed three Dravo employees in the span of fifteen to
twenty minutes enter the barricaded area to cross the trestle. As a result, the Secretary
cited Dravo for a serious violation of 29 C.F.R. � 1926.21(b)(2) and proposed a penalty
of $490.

Judge Salyers found that Dravo had violated the instruction standard.  
Judge Salyers found that implicit in the cited standard was a duty for Dravo to enforce
the safety instructions it gave to its employees.  Concerning the hazard of the
swinging counterweight, the judge stated, I find as a fact that Respondent made an honest
effort to warn employees of the hazard and instruct them in ways to avoid it.   What
I cannot find in the record of this case is an honest effort by Respondent and its
supervisory employees to carry out enforcement of the announced policy.

Dravo contends that the judge erred in finding a violation based on its
failure to enforce the instructions it gave employees.  The company argues that the
standard requires only that instructions be given and that it complied with that
requirement.  We agree.  The clear language of the standard requires only that
an employer instruct its employees.

In Sawnee Electric Membership Corp .,77 OSAHRC 24/C10, 5 BNA OSHC 1059,
1977-78 CCH OSHD � 21,560 (No. 10277, 1977), the Commission found that the employer's
monthly safety meetings and on the job training were sufficient to comply with section
1926.21(b)(2).  The Commission held that the standard only required that the employer
instruct its employees of hazards. See also Marshall v. M.W. Watson, Inc .,
652 F.2d 977 (10th Cir. 1981); H.C. Nutting Co., v. OSHRC , 8 BNA OSHC 1241, 1980
CCH OSHD � 24,548 (6th Cir. 1980).

The undisputed facts of this case establish that Dravo complied with the
standard.  Judge Salyers found and both parties agree that Dravo instructed its
employees about the dangers of the swinging counterweight.  Dravo supervisors
conducted regular tool box meetings in which workplace hazards, including the hazard of
the counterweight, were discussed.  Dravo instructed its employees not to go on the
trestle without a legitimate work-related purpose.  The trestle was properly
barricaded and signs warned employees to "watch counterweight."

The Secretary argues that the Commission has held that employers must effectively enforce
their work rules to avoid being found in violation of standards, and that the Commission
should therefore uphold the judge's decision in this case and find a violation based on
the lack of enforcement of Dravo's instructions.  The Secretary relies in support on
cases concerning the unpreventable employee misconduct defense.  These cases are
inapposite since they deal with a defense raised by employers in arguing that they should
not be held responsible for failing to prevent their employees' misconduct.  This
case, on the other hand, involves the burden of the Secretary to prove a violation of a
particular standard which imposes the duty to instruct employees.  This duty was not
breached. The Secretary would read into the standard the additional duty to enforce the
instructions.  We decline to rewrite the standard to impose a duty not otherwise
required.  See Bethlehem Steel Corp. v. OSHRC , 573 F.2d 157, 161 (3d
Cir. 1978) (Commission should not strain the plain and natural meaning of words in a
standard).

The Secretary also argues that Dravo supervisors should have continued to
warn their employees about the danger of the counterweight whenever they saw employees up
on the trestle.  The record reflects that the trestle was a work area requiring
employees to enter the barricaded space on occasion, and it is not clear that Dravo
supervisors ever saw employees on the trestle who did not have legitimate reason to be
there.  In any event, the course of action which the Secretary suggests would have
necessitated that Dravo post a guard to identify and warn away unauthorized workers.
  The standard does not require this.

Since the standard only requires that the employer instruct its employees of
workplace hazards and the facts establish that Dravo did so, Dravo complied with 29 C.F.R.
� 1926.21(b)(2). [[3]]

Judge Salyers' decision is reversed and the citation is vacated.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED:  JUN 12 1984

CLEARY, Commissioner, dissenting:

The Judge decided this case in a manner consistent with the design of both
the Act and the cited standard and his decision should be affirmed.

The cited standard, 29 C.F.R. � 1926.21(b)(2) states that:

The employer shall instruct each employee in the recognition and avoidance of
unsafe conditions and the regulations applicable to his work environment to control or
eliminate any hazards or other exposure to illness or injury.

The evidence establishes that Respondent instructed its employees about the
dangers of the swinging counterweight.  Nevertheless, the record also establishes
that Dravo took no measures to enforce those instructions.  During the inspection,
the compliance officer observed three different employees in the crane area of the trestle
in the span of ten to fifteen minutes.  Moreover, the union safety representative
testified that walking on the trestle was common, and that it was done several times a
day.  He further testified that Dravo employees even took lunch breaks on the
trestle.  The Judge's decision concluded that employees routinely used the crane
trestle as a walkway without warnings or reprimands from Dravo supervisors (Findings of
Fact No. 6).

The majority decision vacates the citation on the grounds that the cited
standard requires only that the employer instruct employees of workplace hazards, with no
concomitant requirement that the employer undertake reasonable efforts to ensure that
those instructions are obeyed.  I concede that the language of section 1926.21(b)(2)
reads as the majority recites, that employers must instruct each employee in the
recognition and avoidance of unsafe conditions.  The majority then would apply the
standard according to its literal term, i.e. , perhaps one instruction will suffice.
  At this point the employer is then free to disregard an unsafe condition even if
his supervisors observe employees in a zone of danger.  The employer's duty is
complete; the potential for actual injury is irrelevant once the employer has recited
certain catchwords to employees.  However, one would have to ask if an employee had
been adequately instructed if he is observed entering a dangerous area after he had been
"instructed" previously to avoid that area.  He obviously does not
"recognize" the unsafe condition, or has not avoided it as contemplated by the
standard.  Or, should he not be "instructed" again if he is observed in
proximity to a hazard?  I do not think a standard need be or should be interpreted
woodenly and mechanically in disregard of the intent of the standard which is,
essentially, to cause employees to avoid unsafe conditions.  It is a familiar rule
that "A thing may be within the letter of the statute and yet not within its spirit,
nor within the intention of its makers."  Un. Steelworkers, Etc., v. Weber ,
443 U.S. 192, 99 S. Ct. 2721 (1979); United Housing Foundation, Inc . v. Forman ,
421 U.S. 837, 95 S. Ct. 2051 (1975).

In a case directly in point, the Eighth Circuit concluded that �
1926.21(b)(2) requires supervisory personnel, when they observe activity that is hazardous
or violative of a regulation, to instruct workers accordingly.  National
Industrial Constructors, Inc., v . OSAHRC , 583 F.2d 1048 (8th Cir. 1978).  
In that case, Respondent was cited under 29 C.F.R. � 1926.21(b)(2) for permitting
employees to climb diagonal beams to gain access to their work area.  The court
agreed with the Administrative Law Judge's factual findings that employees were instructed
during an orientation program, as well as at weekly safety meetings, not to climb diagonal
beams.  Nevertheless, a foreman was aware of the activity, but did not instruct the
employees to cease.  The court held that,

Reasonably applied, the standard requires supervisory personnel to advise
employees, especially new employees, of the hazards associated with actual dangerous
conduct in which they are presently engaging.

583 F.2d at 1056.

The objective of 29 C.F.R. � 1926.21(b)(2) is to ensure that employees are instructed in
the detection and avoidance of hazards that may be encountered in their work.  To
interpret the standard as not requiring employers to take steps to enforce those
instructions improperly shifts responsibility for occupational safety and health from the
employer to the employee.  See Brennan v. OSAHRC and Gerosa, Inc .,
491 F.2d 1342 (2d Cir. 1974).

I would also find that the other exceptions taken by Respondent are without
merit.

First, Respondent argues that the citation should be vacated because the
compliance officer talked to Dravo employees in private, in violation of its rights under
section 8(e) of the Act to accompany the compliance officer.  Private interviews are,
however, specifically authorized under section 8(a)(2) of the Act and do not conflict with
the employer's statutory right to accompany the inspector.  Wollaston Alloys,
Inc., v. Donovan , 695 F.2d, 1, 8-9 (1st Cir. 1982).

Second, Respondent argues that the citation should be vacated because 29
C.F.R. � 1926.550(a)(9) is a more specifically applicable standard and it was in
compliance with that standard.  The Commission has held that the failure to instruct
employees in the detection and avoidance of hazards, as required by � 1926.21(b), is a
violation separate and distinct from the violation created by a failure to abate the
underlying hazard, and may be separately cited.  H. H. Hall Construction Co .,
81 OSAHRC 91/D12, 10 BNA 1042, 1049, 1981 CCH OSHD � 25,711 (No. 76-4765, 1981).

The Administrative Law Judge decision in this matter is unavailable in this
format.  To obtain a copy of this document, please request one from our Public
Information Office by e-mail ( [email protected]
), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] 29 C.F.R. � 1926.21(b)(2) provides as follows:

The employer shall instruct each employee in the recognition and avoidance of
unsafe conditions and the regulations applicable to his work environment to control or
eliminate any hazards or other exposure to illness or injury.

[[2]] 29 C.F.R. � 1926.550(a)(9) provides:

Accessible areas within the swing radius of the rear of the rotating
superstructure of the crane, either permanently or temporarily mounted, shall be
barricaded in such a manner as to prevent an employee from being struck or crushed by the
crane.

[[3]] Because the Commission finds that Dravo complied with 29 C.F.R. �
1926.21(b)(2), it is unnecessary to address whether 29 C.F.R. � 1926.550(a) (9) is the
more specifically applicable standard or whether the citation should be vacated because
the compliance officer spoke to Dravo employees without management representatives
present.