Mosser Construction Company

Plain-English summary

A Mosser crane operator regularly entered a confined crane compartment containing moving gears, fuel gauges, tools, oils, and other stored materials. After completing lubrication work and restarting the gears, a rag and then his hand became entangled, severing his hand. The Commission held that the compartment door was not an effective complete-enclosure guard because employees routinely opened it and entered while the gears were moving. Mosser's work rule required stopping the gears only for oiling and greasing, not for checking fuel or retrieving stored supplies, so it did not eliminate the recurring exposure. The Commission rejected employee-misconduct and infeasibility defenses because the conduct was foreseeable and unrebutted evidence showed that band guards or other specified guards could have been installed. It affirmed the serious gear-guarding item and increased its penalty to $300 to reflect the more frequent exposure shown at the hearing, while separately assessing $210 for an uncontested item.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.550(a)(8); 29 C.F.R. § 1926.407(b); 29 C.F.R. § 1926.21(b)(2).
• Outcome: Serious crane gear-guarding item affirmed with a $300 penalty; uncontested item assessed $210; training item vacated.
• Key point: A compartment door is not an effective machine guard when ordinary work requires employees to open it and enter while hazardous gears are moving.

Full text (OSHRC public release)

Docket No. 89-1027

SECRETARY OF LABOR,

Complainant.

v.

MOSSER CONSTRUCTION COMPANY,

Respondent.

INTERNATIONAL UNION OF

OPERATING ENGINEERS

LOCAL UNION 18,

Authorized Employee

Representative.

OSHRC Docket No. 89-1027

DECISION

Before: FOULKE, Chairman: WISEMAN and MONTOYA,
Commissioners.

BY THE COMMISSION:

At issue before us is a single citation item
(citation no. 1, item 1b) alleging a serious violation of the Occupational Safety and
Health Act of 1970, 29 U.S.C. � 651-678. Commission Administrative Law Judge Paul L.
Brady affirmed this citation item as amended, finding that an employee of Mosser
Construction Co. ("Mosser") was exposed to the hazard of moving gears on a truck
crane while performing duties such as checking the fuel level and obtaining stored
materials, and that Mosser violated the cited standard, 29 C.F.R. � 1926.550(a)(8), by
falling to guard those gears. The judge also held that Mosser's affirmative defenses of
unpreventable employee misconduct and "impossibility of performance" were
"without merit." For the reasons stated below, we conclude that the judge
correctly decided the issues in this case, and we therefore affirm his decision and order
to the extent it affirms the contested citation item. However, we modify the judge's
penalty assessments.

BACKGROUND

The contested Citation item arises from an incident
that occurred on January 16, 1989, while employees of Mosser, including crane operator
Eric Hofstatter, were engaged in construction work at a Glidden Paint plant in Huron,
Ohio. On this project, Hofstatter was the operator of a 65-ton Link-Belt truck crane that
was being used in the construction of a "paint building." At this stage of the
construction, the crane was being used to set up steel reinforcing bars
("rehar") so that a concrete floor could be poured. When he arrived at the
worksite on the morning of January 16. however, Hofstatter learned that he had about an
hour of free time before any lifts were scheduled. He therefore decided to do some
maintenance work on the crane.

Although maintenance work was primarily the
responsibility of another employee, referred to as "the oiler," crane operator
Hofstatter, who had worked as both an oiler and an operator for 11 1/2 years, decided to
do the work himself because he was "the only one there." The record reveals that
this was not an unusual occurrence, that Hofstatter was fully qualified to do maintenance
work on the crane, and that he still performed the work of an oiler on numerous occasions,
particularly when his father, also a Mosser employee, operated the Link-Belt crane.

The maintenance operation that Eric Hofstatter
performed on the morning of January 16 was tile oiling and greasing of mechanical power
transmission apparatus that apparently controlled the movement of the crane's boom and
hoist. This apparatus was contained within a compartment referred to as "the
doghouse," that was located on the crane's rotating superstructure. Although the
space inside this compartment was quite confined, it was large enough that an employee
could enter into it through a hatch-like door that also served as the slanted roof of the
compartment. Inside the compartment, along with the mechanical power transmission
apparatus, were fuel tanks and gauges. In addition, the doghouse served as a storage area
for materials, equipment and tools that were used by the oiler and the operator in their
crane maintenance work.

At the hearing, crane operator Hofstatter testified as to the events that resulted in the
severing of his hand. Unfortunately, this testimony is ambiguous and incomplete, and even
internally inconsistent in one important respect, which is discussed below. Nevertheless,
based on our reading of the testimony and related evidence, we conclude that the injury
occurred in the following manner. After deciding to oil and grease the mechanical power
transmission apparatus. Hotstatter followed his usual practice, which was to first
disengage the master clutch before beginning this maintenance operation. By disengaging
the master clutch, while standing or seated in the crane's cab, he stopped the movement of
the gears that were inside the doghouse. He then went over to the doghouse and went
inside, where he "greased the fittings that were open to him" and "put some
lube on the crane gears." After he had "finished the greasing oiling," he
returned to the crane cab and re-engaged the clutch so that the gears began to move again.
He then returned to the doghouse to check the fuel levels and to pick up tools and
materials "as part of the greasing operation." While he was handling a rag that
he either had used or was then using to clean up oil and grease, first the rag, and then
his hand, became entangled in the moving gears. As a result. Hofstatter's hand was
severed.

Following an investigation of this incident and an
inspection of the workplace, the Occupational Safety and Health Administration
("OSHA") of the United States Department of Labor issued a citation alleging
serious violations of the Act. Item 1b of the citation alleged that Mosser violated 29
C.F.R. � 1926.550 (a)(8) by failing to guard the moving gears that caused the amputation.
The cited standard provides, as follows:

� 1926.550 Cranes and derricks.

(a) General requirements.

(8) Belts, gears, shafts, pulleys, sprockets,
spindles, drums, fly wheels, chains, or other reciprocating, rotating, or other moving
parts or equipment shall be guarded if such parts are exposed to contact by employees, or
otherwise create a hazard. Guarding shall meet the requirements of the American National
Standards Institute B 15.1-1958 Rev., Safety Code for Mechanical Power Transmission
Apparatus.

The incorporated ANSI Safety Code provisions require
employers to guard moving gears by installing at least one of four permissible physical
guarding devices -- a complete enclosure, a standard guard, a band guard, or a disk guard
and by meeting the specification requirernents that the Code establishes for whichever
guard is selected. (See Rule 230--Gears).

In both her citation and her complaint, the Secretary
alleged that employee exposure to these unguarded gears occurred during maintenance
operations and specifically while greasing the mechanical power transmission apparatus. At
the hearing in this case, however, the undisputed testimony of crane operator Hofstatter
clearly established that he was not exposed to moving gears during oiling and greasing
operations. Instead, his regular practice was to disengage the master clutch thereby
stopping the movement of the gears, before beginning his oiling and greasing work.

On the other hand, Hofstatter also gave unrebutted
testimony that he was regularly and recurringly exposed to the moving gears on other
occasions specifically, while checking the fuel gauges or obtaining stored materials. As
indicated above, the doghouse served multiple purposes since the mechanical power
transmission apparatus, the fuel tanks and fuel gauges, and stored materials were all
located inside the compartment. In particular, Hofstatter identified certain objects in
photographic exhibit C-4 as containers of torque converter oil, which is used in the
crane's hydraulic system and which was stored in very close proximity to the unguarded
gears that are at issue. He further testified that the doghouse was also used for the
storage of buckets, brackets, wedges, cable clamps, and "all kinds of stuff that
pertain to the rig."

The key testimony of Hofstatter concerning the extent
of his exposure and the reasons for that exposure is the following:

Q. Now, during he course of your employment with
Mosser Construction, did you have occasion to go inside this ["doghouse"] door
while the gears were running?

A. Yes, I was in and Out of it all the time.

Q. For what purposes were you in there?

A. That's where we store our oils and greases, in that compartment, plus you have fuel
tanks located in this compartment too.

So, you're in and out of it--or I was--a lot of
times, just to get stuff, rags, grease, oils.

Q. Had you checked the fuel level on this crane
before [the date of the incident] while the gears were running?

A. Yes.

Q. Do you know on how many occasions besides the time of the accident you were exposed to
the moving gears?

A. I can't count them, but I was in and out of the compartment numerous times.

Q. Why wouldn't the gears be shut down when you had to go into that compartment?

A. I don't know. They usually were when I was alone, but like I say, if Dad was running
the crane or something and I was oiling, if I needed something, like some oil and some
grease, I would go in there while the crane was being operated and grab some stuff ...

Based on this testimony, which was introduced without
objection at the hearing, the Secretary in her post-hearing brief included a motion under
Fed. R. Civ. P. 15(b) [[1]] to amend her pleadings to conform to the evidence: "[T]o
the extent that the Complaint limited exposure to maintenance work on the crane,
Complainant moves to amend the pleadings to include exposure at other times such as when
checking the fuel level and obtaining stored materials while the gears were moving."
It was this amended charge that was affirmed by Judge Brady, and it is this amended charge
that is now before us on review. [[2]]

DISCUSSION

1. Did the Secretary prove a violation of the cited
   standard?

"To establish a violation of a standard, the
Secretary must show by a preponderance of the evidence that: (1) the cited standard
applies, (2) its terms were not met, (3) employees had access to the violative condition,
and (4) the employer knew or could have known of it with the exercise of reasonable
diligence." Seibel Modem Mfg. & Welding Corp., 15 BNA OSHC 1218, 1221, 1991 CCH
OSHD � 29,442, p. 39,678 (No. 88-821, 1991). Here, there is no dispute over the
allegation that the cited standard applies to the cited conditions. The standard clearly
applies because Mosser was engaged in construction work and it was using a 65-ton truck
crane in its work. At issue is whether the Secretary proved the remaining three elements
of her prima facie case.

A. Noncompliance with the standard's terms.

The cited standard, which we have quoted in full
above, requires guarding of a crane's gears "if such parts are exposed to contact by
employees, or otherwise create a hazard." Mosser argues in effect that this test has
not been met here because "[i]n this case, the operator, by his own admission, had no
reason to place his hands in the area of gear movement to perform maintenance on the
crane." Citing two decisions arising under other machine guarding standards, it
contends that the Commission's case law compels the conclusion that the Secretary failed
to prove the degree of exposure to a hazard that would require the installation of
guarding. [[3]]

We disagree. The cases cited by Mosser are not applicable in this context. They arose in
situations involving alleged exposure to point of operation hazards. Under the express
terms of 29 C.F.R. � 1910.212(a)(3)(ii), the primary standard governing such hazards,
point of operation guarding is required only on those "machines whose operation
exposes an employee to injury." Thus, it is the specific language of this standard
that is the source of the Secretary's evidentiary burden of proving that a cited machine
is operated in such a manner that the operator has to place his or her hands in the
vicinity of the machine's point of operation. In contrast, the language of the standard
that has been cited in this case contains no such limitation, either expressly or
implicitly. The Secretary is required to prove only that the moving gears "are
exposed to contact by employees."

Furthermore, there are important differences in the
safety considerations that are involved in these two different situations. With moving
gears and other moving parts of mechanical power transmission apparatus, such as in this
case, there is a very real possibility of an employee inadvertently coming into contact
with the moving part while his or her attention is directed elsewhere, e.g., by backing
into the moving gears or by catching an article of clothing on them. In contrast, the
primary hazards created by a point of operation are the possibility that the machine could
be inadvertently activated while the operator's hands are in the point of operation and
the possibility that an employee who must work near the point of operation will
accidentally enter into the zone of danger and be injured. We therefore conclude that
neither the case law, safety considerations, nor the underlying intent of 1926.550(a)(8)
support a limitation of the standard's guarding requirements to situations where employees
have to place their hands "in the area of gear movement to perform maintenance on the
crane," as Mosser suggests.

In this case, the incident that led to these
proceedings conclusively establishes that the gears in question were "exposed to
contact by employees." The testimony and photographic exhibits provide further
support for this conclusion and also show that Hofstatter's exposure on the day he was
injured was neither isolated nor unforeseeable. On the contrary. the close proximity of
stored materials used in the maintenance of the crane to the gears in question
demonstrates that the exposure of employees to contact with those gears was a regular and
recurring situation. We therefore conclude that the Secretary met her burden of proving
that guarding of the gears was required under the express terms of the standard.

We further conclude that the Secretary met her burden
of proving that the gears were not in fact guarded. Mosser challenges the judge's finding
to this effect by arguing strenuously that it did provide one of the means of guarding
expressly permitted under the standard, that is, a "complete enclosure." Citing
unrebutted testimony from several witnesses, Mosser correctly points out that the housing
and the door of the doghouse acted as a fully effective guard--specifically, a complete
enclosure of the cited gears--so long as the door was closed and employees remained
outside of the compartment. In Mosser's view, Hofstatter was injured because he
circumvented the guarding that it had provided; in the absence of this unpreventable and
unforeseeable employee misconduct, it reasons, the crane operator would have been fully
protected from the hazard created by the moving gears.

For the reasons that follow, we reject this argument
and hold that Mosser did not comply with the requirements of the cited standard. We assume
for the sake of argument that the housing and the door of a crane compartment can under
certain circumstances constitute a complete enclosure guard for the mechanical power
transmission apparatus inside the compartment. Nevertheless, we must conclude that those
circumstances did not exist at Mosser's workplace. The method of "guarding"
provided by Mosser could easily be circumvented merely by opening the door of the doghouse
while the gears were still moving. It was therefore incumbent upon Mosser to adopt and
strictly enforce a work rule that prohibited entry into the doghouse for any reason unless
the main clutch was first disengaged. This would have eliminated the hazard to employees
who entered into the compartment. Indeed, Mosser's arguments on review show that it fully
recognizes the necessity of supplementing the protection provided by the physical
enclosure. Thus, it has repeatedly asserted in its arguments to us that, prior to the
incident that led to these proceedings, it had already adopted and enforced such a work
rule and that, by combining this work rule with the physical protection provided by the
"complete enclosure," it had satisfied its duty under the cited standard.

We conclude however, that the record provides no
support for Mosser's claims that it adopted and implemented a work rule that was adequate
to eliminate the hazard to its employees. Instead, the record fully supports the finding
of Judge Brady that Mosser's work rule required employees to disengage the master clutch
only before engaging in oiling and greasing operations.

Insofar as written work rules are concerned, it is
beyond dispute that Mosser did not have the broad rule governing into the doghouse that it
claims it had. The only clearly applicable rule it is able to cite is Rule 26 under the
section of its safety pamphlet that is captioned "cranes, hoists, elevators and
conveyors." That rule states that "[t]he oiler should never grease or oil while
the crane is operating." Crane operator Hofstatter characterized this rule as nothing
more than "common sense," noting that it was necessary to stop the movement of
the gears in order to perform the oiling and greasing operations properly. His testimony
clearly reveals that he did not view the rule as having any broader safety purpose, and he
certainly did not construe it, as Mosser apparently did, as a rule requiring employees to
disengage the main clutch when they entered the doghouse for other purposes, such as.
checking the fuel levels or obtaining stored materials.

Mosser also cites a second written work rule, Rule 6
of the section captioned "motor vehicles and mechanized equipment." It is not
clear. however, that this work rule even applies to cranes since the rules governing crane
operations are found in a separate section of the pamphlet. In any event, the rule
provides only that equipment operators are required to check fuel levels "before
starting [their] equipment each day." The rule does not prohibit these operators from
checking fuel levels at other times during the day. Nor does it require them to disengage
the motor before entering a compartment to check the fuel levels, as Mosser would have us
believe.

Finally, Mosser relies on oral instructions and
training that it provided to its employees. However, crane operator Hofstatter was the
only witness to testify on this subject and his testimony taken as a whole indicates that
Mosser's oral instructions were no different than its written work rule. We therefore
conclude that there is no evidence in this record to support a finding that Hofstatter was
trained to disengage the master clutch before entering the doghouse, except in the limited
instance when he entered for the purpose of oiling and greasing the mechanical power
transmission apparatus.

Here, it is undisputed, as Mosser contends, that the
housing and the door of the doghouse acted as a complete enclosure in relation to the
moving gears in question if and when the door was closed and employees remained outside of
the compartment. On the other hand, it is also undisputed that crane operator Hofstatter
repeatedly circumvented this guarding method by opening the door and going into the
compartment while the gears were moving; the witness testimony to this effect was not
rebutted. At those times there was nothing to prevent Hofstatter from coming into contact
with the gears, as he did on the day of the accident. We therefore affirm the judge's
finding "[t]hat although a door was used to enter the gear compartment, the gears
themselves were not guarded." While the door in question could have been used as an
effective means of guarding, it lost its effectiveness as a guard when it became the means
of access to a frequently entered storage area.

In her review brief, the Secretary asserts that
"Mosser's argument that compartment door was itself an adequate guard is
meritless" because the undisputed evidence establishes that "ordinary work
processes required Mosser's employees to enter that compartment" while the gears were
moving and "Mosser, had neither a workrule nor a physical guard protecting its crane
operators and oilers from the hazard of turning gears at any time other than greasing when
they opened the doghouse compartment in the course of their duties." We conclude that
the record fully supports this argument. The judge was therefore correct in holding that
Mosser failed to comply with the terms of the cited standard and in rejecting Mosser's
argument that it met the standard's terms by providing complete enclosure guarding.

B. Access to the violative conditions.

From our previous discussion, it is clear that the
Secretary met this element of her burden of proof. At least one of Mosser's employees,
crane operator Hofstatter, was "in and out of [the doghouse] all the time" while
the gears were moving. He testified that he could not count the number of times he was
exposed to the moving gears. Given the confined nature of the compartment and the storage
of materials used in the maintenance of the crane in close proximity to the moving gears,
we have little difficulty in crediting this testimony and concluding that Hofstatter had
access to the zone of danger created by the unguarded moving gears on those occasions.
  The record is silent as to whether any other employees were exposed to the
violative conditions, and we are unable to draw any inference one way or the other on that
question.  Nevertheless, the unrebutted evidence of Hofstatter's repeated exposures
to sustain the Secretary's burden of proof.

C. Knowledge of the violative conditions.

There is no evidence that any of Mosser's supervisory
employees had actual knowledge that Hofstatter was entering into the doghouse to check
fuel levels and obtain stored materials without first disengaging the master clutch.
  We therefore cannot conclude that Mosser had actual knowledge of the violative
conditions.  Accordingly, the issue becomes whether Mosser had construction knowledge
that is, could it have known with the exercise of reasonable diligence of Hofstatter's
exposure to the hazard created by the unguarded moving gears.  We conclude that it
had such constructive knowledge and that the Secretary therefore established this final
element of her prima facie case.

In determining whether an employer has constructive
knowledge of a violation, it is appropriate to examine whether the employer has exercised
responsible diligence requires adequate supervision of employees and the formulation and
implementation of adequate training programs and work rules, all for the purpose of
ensuring that the employees perform their work safely. See Gary Concrete Prod., Inc., 15
BNA OSHC 1051, 1054-55, 1991 CCH OSHD �29.344, pp. 39,451-52 (No. 86-1087,1991); Towne
Constr. Co., 12, BNA OSHC 2185, 2190-91, 1986-87 CCH OSHD �27,760, pp. 36,312-13 (No.
83-1262, 1986) , aff'd, 847 F. 2d 1187 (6th Cir. 1988).

Here, Hofstatter's unrebutted testimony establishes
that he was in and out of the doghouse while the gears were moving "all the
time" to get stored materials used in his crane maintenance work and to check the
fuel levels.  Yet the work rule Mosser formulated to protect its employees required
them to disengage the master clutch only before greasing and oiling operations and not
before entering the compartment for other purposes.  In the absence of a work rule
prohibiting such entries, Hofstatter's entry into doghouse while the gears were moving in
order to get stored materials and to check on fuel levels was foreseeable and predictable.

As for supervision of Hofstatter, the record is
essentially silent. Mosser's safety officer did testify, as a general matter that his
duties included making sure that employees complied with all of Mosser's safety rules.
However, Mosser provided no testimony or other evidence of any specific actions taken to
ensure that the crane operators and oiler's performed their work in a safe manner. On this
record, therefore, we conclude that Mosser, with the exercise of reasonable diligence,
could have known that Hofstatter repeatedly entered into the doghouse without first
disengaging the master clutch, thereby exposing himself to the moving gears. Based on this
reasoning, we further conclude that the Secretary has met her burden of proving the
knowledge element of the alleged violation.

Focusing on the events that led up to Hofstatter's
injury, Mosser argues that the citation must be vacated because the Secretary failed to
prove that it "knew or reasonably should have known that its employee would perform
maintenance on the crane in question in an unsafe manner." Mosser reasons that
Hofstatter's conduct in entering the crane compartment without first disengaging the
master clutch was unforeseeable in view of the comprehensive training he had received and
his awareness of the proper procedures to be followed in performing crane maintenance.

We disagree. We note initially that it is not at all
clear on this record that Hofstatter in fact performed crane maintenance in a manner
contrary to his training and instructions. (This matter will be discussed more fully below
in connection with Mosser's unpreventable employee misconduct defense.) More importantly,
however, we conclude that Mosser's entire focus on the issue of exposure during
maintenance operations is misplaced, given the Secretary's amendment of the charge. Thus,
even if we were to accept Mosser's claim that Hofstatter's contact with the moving gears
on January 16 was caused by his failure to perform his duties properly, we would still be
left with the evidence of Hofstatter's repeated exposures to the moving gears on other
occasions when he was not engaging in maintenance work at all but was merely checking the
fuel levels or obtaining stored materials. As we have noted above, Mosser has failed to
prove its claim that these other exposures were contrary to its work rules or the training
it provided to Hofstatter. We therefore reject Mosser's argument on the knowledge issue.

Having concluded that the Secretary proved all of the
elements of her prima facie case, we turn now to the issue of whether Mosser established
either of its affirmative defenses.

II. Did Mosser establish an affirmative defense?

A. Unpreventable employee misconduct.

In order to establish an unpreventable employee
misconduct defense the employer must establish that the violative conduct on the part of
an employee was a departure from a uniformly and effectively communicated and enforced
work rule. Archer Western Contractors Ltd., 15 BNA OSHC 1013, 1017, 1991 CCH OSHD �
29,317, p. 39,378 (No. 87-1067, 1991), petition for review filed, No. 91-1311 (D.C. Cir.
July 1, 1991). In his decision, Judge Brady rejected Mosser's unpreventable employee
misconduct defense on the ground that crane operator Hofstatter did not in fact violate
Mosser's work rule on the day he was injured. In so holding, the judge entered two key
finding: (1) that Mosser's work rule required that the gears he disengaged only while
greasing and oiling the crane and (2) that Hofstatter had completed this process before he
re-engaged the master clutch. Mosser however, disagrees with both of these findings, and
it continues to argue before us that Hofstatter's exposure to the moving gears was due to
his own misconduct in entering the doghouse without first disengaging the master clutch.

With regard to the first of the judge's two key
findings, we have little' difficulty in affirming the Judge. For the reasons we have
stated previously, we reject Mosser's claim that it had a work rule strictly prohibiting
employee entry into the doghouse whenever the gears were moving. The judge correctly found
that Mosser only required its employees to disengage the master clutch when they were
entering the compartment to perform a greasing and oiling operation.

Mosser's challenge to the judge's second key finding
raises a more difficult issue. The only evidence as to Hofstatter's actions on the day of
his injury is Hofstatter's own testimony, and that testimony unfortunately is internally
inconsistent. At one point, the witness that he had finished the greasing mid oiling
operation before he re-engaged the master clutch, thereby complying with Mosser's work
rule. At another point, however, he testified that he re-entered the doghouse, after
re-engaging the clutch, to pick up his tools, his grease gun, and his rags "as part
of the greasing operation." In other words, Hofstatter's testimony provides support
both for the judge's finding that Hofstatter complied with the work rule and for Mosser's
argument that Hofstatter violated the work rule. [[4]]

We conclude that it is not necessary to resolve this
factual, dispute in order to rule on Mosser's unpreventable employee misconduct defense.
As we have emphasized in this decision, the Secretary's amendment of the charge has
shifted the focus away from maintenance operations generally and away from the events
leading up to Hofstatter's injuries in particular. Assuming we were to agree with Mosser
that Hofstatter's exposure on the day of his injury was "unpreventable," we
would still be left with the fact of Hofstatter's exposure to the moving gears on numerous
other occasions that were not even related to oiling and greasing operations, such as the
exposure that occurred while Hofstatter was checking the fuel level or obtaining stored
materials. On this record, there is no reason to believe that these other incidents of
employee exposure were either unforeseeable or unpreventable.

Because Mosser did not have a work rule that was
clear enough or broad enough to eliminate employee exposure to the moving gears, and
because strict compliance with the literal terms of Mosser's limited work rule would not
have fully protected Hofstatter the judge ruled correctly in rejecting Mosser's
unpreventable employee misconduct defense. See Gary Concrete, 15 BNA OSHC at 1055 56, 1991
CCH OSHD at pp. 39,452-53 ( unpreventable employee misconduct defense rejected where
employer failed to prove that it had established " work rules designed to prevent the
cited violation"; Gar's instructions "too general" to inform the employee
of "how to prevent the violation of the standard which resulted in his death");
Archer-Western, 15 BNA OSHC at 1017 1991 CCH OSHD at p. 39,377 ("An unpreventable
misconduct defense will not be established where the employer's instructions were
insufficient to eliminate the hazard even if the employee had complied with those
instructions"); Brown & Root, Inc., 8 BNA OSHC 2140, 2144, 1980 CCH OSHD �
24,853 p. 30,656 (No. 76-1296, 1980) (Commission rejects unpreventable employee misconduct
defense with observation that "the work rule as perceived by Respondent's employees
is quite distinct from the rule Brown & Root suggests is enforced").

B. Infeasibility of Compliance.

On review, Mosser argues that Judge Brady "erred
in falling to find that compliance with 29 C.F.R. � 1926.550(a)(8) was impossible."
Citing case law that has since been superseded, it argues that it met its burden of
proving that "compliance with the standard would preclude the performance of required
work or make the work functionally impossible." It claims that it met this burden by
showing that "an operator cannot perform the greasing operation without first opening
the door on the crane." In Mosser's view, it therefore follows that "an employee
could not perform the required greasing operations and at the same time comply with the
standard requiring the guard to be in place."

Before ruling on this defense, it is necessary for us
first to restate it in fundamentally different terms. For the reasons we have previously
given, Mosser's reliance on the housing and door of the doghouse as the sole means of
compliance with the cited standard is misplaced. Therefore, it misses the point in arguing
that compliance with the standard was impossible because it had to open the door to
perform crane maintenance. Giver crane operator Hofstatter's practice of going "in
and out of [the doghouse] all the time" while the crane was operating, and in the
absence of effective work rules and other measures to ensure that the gears were not
moving whenever it was necessary for Hofstatter to enter the compartment, Mosser's defense
must be restated in terms of whether the gears themselves could have been guarded by
installing at least one of the four devices specified in the cited standard.

In addition, we must further modify the issue to be
resolved because, as noted, the case law cited by Mosser has been
superseded--specifically, under the precedent that now controls, the "impossibility
defense" has been replaced by the "infeasibility defense." Under our
current case law, the issue is whether Mosser met its burden of proving that (1) literal
compliance with the terms of the cited standard was infeasible under the existing
circumstances and (2) an alternative protective measure was used or there was no feasible
alternative measure. Seibel, 15 BNA OSHC at 1226, 1228, 1991 CCH OSHD at pp. 39,682 &
39,685.

On the record before us, we have no difficulty in
concluding that Mosser failed to sustain its burden. Indeed, the only party to introduce
evidence at the hearing on the feasibility of guarding the gears and the availability of
alternative protective measures was the Secretary. As noted by the judge, who implicitly
credited their testimony, both the OSHA compliance officer and the business representative
for the local union representing Mosser's employees testified that band guards could have
been used to protect employees from the moving gears and that they had personally observed
this form of guarding on similar gears on other cranes. Mosser made no effort to discredit
or rebut this testimony. It also made no effort to show that any of the other three types
of guarding that are expressly permitted under the terms of the cited standard as
alternatives to band guards could not have been used to block access to the cited crane
gears. Mosser's impossibility of performance defense is therefore clearly without merit.

III. Is the assessed penalty appropriate?

In discussing an appropriate penalty for item 1b, the
item that is at issue before us on review, the judge erroneously concluded that "the
proposed penalty in the amount of $210 is deemed appropriate." In her complaint, the
Secretary proposed a penalty of $210 for a different alleged serious violation, which was
stated in item 2 of the citation. She proposed a penalty of $175 for item 1b. The judge
then compounded this error in his order, by assessing a single penalty of $210 to cover
both item 1b and item 2, even though there is to apparent relationship between these two
items that would warrant grouping them for penalty assessment purposes.

We therefore modify the judge's order to assess
separate penalties for items 1b and 2. At the beginning of the hearing, Mosser withdrew
its notice of contest to item 2 and its proposed penalty of $210. Accordingly, we assess
at penalty of $210 for item 2.

We Assess a separate penalty of $300 for item 1b.
Under the express terms of section 17(j) of the Act. 29 U.S.C. � 666(j), we have the
"authority to assess all civil penalties provided in this section, giving due
consideration to the appropriateness of the penalty with respect to the size of the
business of the employer being charged, the gravity of the violation, the good faith of
the employer, and the history of previous violations". The penalty we assess gives
Mosser substantial credit for three of the four stated penalty criteria--size, good faith,
and past history. Because the record contains little relevant information concerning these
factors, we have given Mosser the benefit of the doubt on each of these three factors in
determining in appropriate penalty. The one factor we can assess on the basis of this
record is the gravity of the violation. In our view, that factor warrants a penalty higher
than the $175 proposed by the Secretary. In this regard, we note that the Secretary's
proposal was apparently based on OSHA's erroneous belief that exposure to the moving gears
occurred only during maintenance operations. Since employee exposure in fact occurred more
frequently than OSHA originally believed, we increase the penalty to reflect the increased
gravity of the violation that has been established on this record. We also note, as the
Judge correctly held, that the violation is properly classified as a serious violation
because the likely result of contact with the moving gears was death or serious physical
harm. Unfortunately, Hofstatter's injury is proof of this fact.

ORDER

Accordingly, for the reasons given in this opinion,
we affirm citation no. 1, item 1b, as amended, (alleging a serious violation of 29 C.F.R.
� 1926.550(a)(8). We assess a penalty of $300 for this item and a penalty of $210 for
item 2.

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montoya

Commissioner

Dated: December 10, 1991

SECRETARY OF LABOR,

Complainant.

v.

MOSSER CONSTRUCTION COMPANY,

Respondent.

INTERNATIONAL UNION OF

OPERATING ENGINEERS

LOCAL UNION 18,

Authorized Employee

Representative.

OSHRC Docket No. 89-1027

APPEARANCES:

Sandra B. Kramer, Esquire, Office of the Solicitor,
U.S. Department of Labor, Cleveland, Ohio, on behalf of complainant.

Douglas M. Bricker, Esquire, Arter & Hadden, Columbus, Ohio, on behalf of respondent.

Mr. Ronald Richmond, Business Representative, Local 18, International Union of Operating
Engineers, Cleveland, Ohio, on behalf of authorized employee representative.

DECISION AND ORDER

BRADY, Judge: This proceeding is brought pursuant to
section 10 of the occupational Safety and Health Act of 1970 ("Act") to contest
a citation issued by the Secretary of Labor ("Secretary") pursuant to section
9(a) of the Act.

Prior to commencement of the hearing, the parties
agreed to the disposition of items 1a and 2 of the citation, leaving in issue item 1b
which alleges violation of 29 C.F.R. 1926.550(a)(8).

The standard at 29 C.F.R. � 1926.550(a)(8) provides:

Belts, gears, shafts, pulleys, sprockets, spindles,
drums, fly wheels, chains, or other reciprocating, rotating, or other moving parts or
equipment shall be guarded if such parts are exposed to contact by employees, or otherwise
create a hazard. Guarding shall meet the requirements of the American National Standards
Institute B 15.1-1958 Rev., Safety Code for Mechanical Power Transmission Apparatus.

The citation alleges the standard was violated by
Mosser Construction Company ("Mosser"), because the crane operator "was
permitted to perform maintenance on the crane while the machinery was rotating."
[[1]]

The basic facts which gave rise to issuance of the
citation are not in dispute. On January 16, 1989, Mr. Eric Hofstatter, a crane operator,
performed maintenance on respondent's Linkbelt 65-ton crane. Hofstatter disengaged the
crane's gears before he began to grease them. Upon completion, he engaged the clutch and
the gears began to move again. When he returned to the gear compartment to check the fuel
level, a rag became tangled in the moving gears which lead to the serious injury of his
hand.

The Commission has held that, in order to establish a
violation as in this case, it is necessary for the Secretary to show by a preponderance of
the evidence that (1) the cited standard applies; (2) there was a failure to comply with
the standard; (3) employees had access to the violative condition; and (4) the cited
employer either knew or could have known of the condition with exercise of reasonable
diligence. Astra Pharmaceutical Products. Inc., 82 OSAHRC 55/E9, 9 BNA OSHC 2126, 1981 CCH
OSHD � 25,578 (No. 78-6247, 1982) Daniel International Corp., 81 OSAHRC 71/D6, 9 BNA OSHC
2027, 1977-78 CCH OSHD � 21,679 (No. 76-181, 1977).

In determining the factor of applicability, the
specific language of the standard itself must first be noted. Essentially, it provides
that gears such as those in question shall be guarded "if such parts are exposed to
contact by employees or otherwise create a hazard." There is no dispute that the
standard applies to the facts of this case. However, the question of compliance is the
central issue.

Clearly, the. gears themselves were not guarded, but
respondent maintains that the gear compartment door serves as a guard since no employees
are exposed to the hazards of moving gears when the door is closed. In support of its
contention, Mosser shows that prior to the inspection, a testing laboratory performed
"a complete OSHA inspection" on the crane without any reference to inadequate
guarding (Ex. R-5). It was also shown that the manufacturer had not provided specific
guarding for the gears. Since Mosser maintains that the compartment door was the guard,
employees were not exposed to violative conditions; it could not have known of any such
conditions.

The secretary, in accordance with the foregoing
criteria, established the violation as alleged. This included employee exposure to the
moving gears at times other than performance of maintenance work. The facts are clear that
although a door was used to enter the gear compartment, the gears themselves were not
guarded. The record also shows that materials were stored in the compartment which
required Mr. Hofstatter to go "in and out of it all the time" while the gears
were moving. It was during one of these times when the accident occurred as he picked up a
rag which got caught in the moving gears.

Mr. Ronald Richmond, a crane operator for 25 years
and business representative for local operating engineers, testified he has seen these
gears guarded on other cranes. He stated the guards consist of metal bands that wrap
around the guars and are similar to the guards used to protect the operator from moving
gears in the crane's cab.

Mr. Pat Bland, the compliance officer who conducted
the inspection, testified that newer crane models include the band-type guarding.  HE
started such grauding would cost about $500.00.

Underlying respondent's argument is the fact that a
safety rule was in effect that prohibited greasing and oiling the crane while it is
operating (Ex. R-1).  There is no question Mr. Hofstatter was bound by, and
understood the rule.  Mosser, therefore reasons that it could not have known
Hofstatter would lubricate the gears in an unsafe manner.

The evidence in this case, however, shows that
Hofstatter had completed the process of oiling and greasing the crane, in compliance with
the safety rule, when the accident occurred.  He, in fact, was handling a rag which
was part of the material and equipment stored in the compartment.  The record
convincingly shows that the standard was violated and affirmative defenses of
unpreventable employee misconduct on impossibility of performance are without merit.

the violation having been established, it must now be
determined whether it is of serious nature, as alleged.  For a violation to be
determined serious under section 17(k) of the Act, there must be a substantial probability
that death or serious physical harm could result therefrom.  The resulting injuries
sustained by Mr. Hofstatter are obviously serious within the meaning of the Act.

The Next Question for determination concerns the
amount of penalty to be assessed for violation.  Under section 17(j) of the Act, the
Commission in required to find and give  "due consideration" to the size of
the employer's business, the gravity of the violation, the good faith of the employer, and
the history of previous violations in determining the assessment of an appropriate
penalty. The gravity of the  offense is the principal factor to be considered.
Nacirema Operating Co., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD � 15,032 (No.
4, 1971). The Commission stated in Secretary v. National Realty & Construction Co., 72
OSAHRC 9/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD � 15,188 (No. 85, 1971), that the elements
to be considered in determining the gravity are: (1) the number of employees exposed to
the risk of injury; (2) the duration of exposure; (3) the precautions taken against
injury, if any; and (4) the degree of probability of occurrence of injury.

Weighing all the foregoing factors in light of the
circumstances, including respondent's attempts at compliance, it is concluded that the
proposed penalty in the amount of $210.00 is deemed appropriate.

FINDINGS OF FACT

1. Mosser Construction Company, at all times
   hereinafter mentioned, was a contractor performing concrete and structural steel work at
   300 Sprowl Road, Huron, Ohio.

2. On January 30, 1989, authorized representatives of
   the Secretary conducted an inspection at the work site resulting in the issuance of a
   citation.

3. On January 18, 1989, a crane operator at the work site performed maintenance on a
   Linkbelt 65-ton crane. He disengaged the gears while he oiled and greased them.

4. The operator followed respondent's safety rules
   while he oiled and greased the gears.

5. Although door was used to enter the gear
   compartment, the gears themselves were not guarded. The manufacturer of the Crane had not
   provided specific guards for the gears.

6. Materials were stored in the compartment, and
   employees entered the compartment for purposes other than oiling and greasing the gears.
   Those employees were exposed to the hazard of moving gears.

7. On January 16, 1989, Eric Hofstatter, who had
   completed the tasks of oiling and greasing the crane's gears, was exposed to the hazard of
   moving gears while performing other duties in the gear compartment.

CONCLUSIONS OF LAW

1. Mosser Construction Company, at all times
   pertinent hereto, was an employer engaged in a business affecting commerce within the
   meaning of section 3(5) of the Occupational Safety and Health Act of 1970, and the
   Commission has jurisdiction of the parties and subject matter herein pursuant to section
   10(c) of the Act.

2. Respondent is, and at all times pertinent hereto,required to comply with the Act and
   the safety and health regulations promulgated pursuant thereto.

3. Respondent. violated 29 C.F.R. � 1926.550(a)(8)
   and � 1926.407(b) as alleged in the citation.

4. Respondent was not in violation of 29 C.F.R. �

ORDER

Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, it is ORDERED:

1. That part of the citation alleging violation of 29
   C.F.R. � 1926.550(a)(8) and 1926. 407(b) is affirmed and a penalty in the sum of $210.00
   is hereby assessed.

2. That part of the citation alleging violation of 29
   C.F.R. � 1926.21(b)(2) is hereby vacated.

Dated this 11th day of June, 1990.

PAUL L. BRADY

Judge

FOOTNOTES:

[[1]] Federal Rule 15(b) states in pertinent part:

(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are
tried by express or implied consent of the parties, they shall be treated in all respects
as if they had been raised by the pleadings. Such amendment of the pleadings as may be
necessary to cause them to conform to the evidence and to raise these issues may be made
upon motion of any party at any time, even after judgment ....

[[2]] At the outset of his decision, Judge Brady
expressly granted the Secretary's pending motion to amend under Fed. R. Civ. P. 15(b).
Mosser has not objected to the judge's action. Nor did it object to the introduction of
the underlying testimony that served as the basis of the Secretary's motion, and it made
no effort to rebut or to discredit that testimony. Under these circumstances, we decline
to review the propriety of the judge's order granting the amendment, although we clearly
have the authority to consider the matter under Commission Rule of Procedure 92 (a) 29
C.F.R. � 2200.92 (a).

[[3]] The specific cases that Mosser cites are
unreviewed judge's decisions which assertedly support the result it urges. Smurfit Diamond
Packaging Corp. 12 BNA OSHC 119,1984-85 CCH OSHD 27,115 (No. 83-1012, 1984) (consolidated
cases)(ALJ), Parr, Inc., 4 BNA OSHC 1449, 1975-76 CCH OSHD � 20,272 (No. 9352,
1976)(ALJ). However, while these unreviewed judge's decisions maybe considered for their
persuasive value, they "[d]o not constitute precedent binding upon [the
Commission]." Leone Constr. Co., 3 BNA OSHC 1979, 1981. 1975-76 CCH OSHD � 20,387,
p. 24,322 (No 4090, 1976).

[[4]] We consider it significant that Hofstatter
believed he was in compliance with Mosser's work rule at the time he was injured. As we
have observed previously, Hofstatter saw the work rule as a "common sense" rule
based on practical concerns -- specifically, the necessity of stopping movement of the
gears in order to perform the greasing and oiling operation properly. Thus, he read the
work rule very narrowly as requiring the clutch to be disengaged only while he was
actually performing the tasks of oiling and greasing.

Mosser argues persuasively that the cleanup activities should be considered an integral
part of the greasing and oiling operation. From a safety viewpoint, we certainly agree,
and we note that there is no explanation in the record for Hofstatter's actions in
re-engaging the master clutch before checking the fuel levels and picking up the tools and
materials used in the greasing and oiling operation. On the other hand, we also note that
there is no evidence that Mosser actually trained or instructed its employees to finish
their cleanup and the storage of tools and materials before re-engaging the master clutch.
If this was Mosser's intent in adopting its work rule, we must conclude that it was
ineffective in communicating that intent.

[[1]] Complainant's motion to amend the pleadings is
granted. The citation is, therefore, amended to include exposure at other times while the
gears are moving such as checking the fuel level and obtaining stored materials.