Hackney, Inc. (Commission decision, June 9, 1994)

Plain-English summary

Hackney manufactured carbon steel flanges at a Mississippi plant where maintenance employees regularly worked on an overhead crane and trolley about 33 feet above the ground. Some work areas lacked guardrails, and employees did not use safety belts even though the company had belts available and agreed that additional fall protection was needed. The Commission reaffirmed that the general personal-protective-equipment standard can require safety belts when a reasonably prudent employer would use them for a fall hazard. It also found constructive knowledge because Hackney used only a vague work rule and did not adequately check, communicate, or enforce safety-belt use. The serious violation and $3,250 penalty were affirmed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.132(a).
• Outcome: Affirmed. The serious personal-protective-equipment violation and $3,250 penalty were upheld.
• Key point: The general PPE standard can require safety belts for fall hazards, and an employer must actively communicate, monitor, and enforce their use.

Full text (OSHRC public release)

UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419

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SECRETARY OF LABOR, ..
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Complainant,
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v. l
. OSHRC DOCKET NO. 91-2490
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HACKNEY, INC.,
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Respondent.
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DECZSZON

BEFORE: WEISBERG, Chairman; FOULKE and MONTOYA, Commissioners.
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BY THE COMMISSION:
At issue in this case is whether the Secretary’s personal protective equipment
standard at 29 C.F.R. 5 1910.132(a) requires the use of safety belts. A Commission . Administrative Law Judge found a serious violation of the standard based on Hackney’s failure to assure that employees used safety belts while working on an overhead crane and trolley. Hackney requests that the Commission reconsider its precedent, which holds that safety belt systems may be required under the standard to protect against fall hazards. Bethlehem Steel Cop., 10 BNA OSHC 1470, 1982 CCH OSHD ll 25,982 (No. 79-310, 1982). Hackney also argues that there was no showing that it could have known of the fall hazards in this case with the exercise of reasonable diligence. For the reasons explained below, we reaffirm Bethlehem and uphold the judge’s decision, including his penalty assessment of
$3,250.
The overhead bridge crane and trolley in question were located at Hackney’s
manufacturing plant in Ackerman, Mississippi, where it produces carbon steel flanges. The crane and trolley were mounted on rails located approximately 33 feet above ground level. 2

It is undisputed that Hackney employees worked without safety belts while performing regular repairs and maintenance on the crane and trolley. Although the bridge catwalk had standard railings which protected the employees during some of their work, other areas where they sometimes worked were unguarded. Hackney stipulated that additional fall protection was needed by the maintenance employees while working on some areas of the crane and trolley.
ANALYSIS
10 Whether the judge erred in finding that the cited standard is applicable.
The question presented is whether section 1910.132(a) applies to fall hazards and may require the use of safety belts. That standard provides:
Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided; used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or a impairment in the function of any part of the body through absorption, inhalation or physical contact.
In Bethlehem, the Commission held that although safety belts are not mentioned the standard, they are a form of protective equipment that may be required under
that standard. It held that a fall hazard is a hazard of “processes or environment” just as much as an absorption or inhalation hazard; that it is “capable of causing injury or impairment” through “physical contact”; and that it can be prevented by the use of safety belts. 10 BNA OSHC at 1472, 1982 CCH OSHD at pp. 32,59293.’ Because section

‘As Hackney notes, the Commission vacated the citation in Bethlehem on the ground that the employer did not have fair notice of the standard’s applicability. The Commission noted that, among other factors, it had not previously addressed the issue and the majority of unreviewed Commission judge’s decisions had held the standard inapplicable to fall hazards and safety belt systems. However, Bethlehem provided the necessary notice that the standard covers those hazards and systems. E.g., Corbesco, Inc. v. Dole, 926 F.2d 422, 427 (5th Cir. 1991) (C ommission interpretations of an OSHA regulation may supply fair notice of what a broadly worded OSHA regulation specifically requires) (cited in Mkzmi Iizdus.,Inc., 15 BNA OSHC 1258, 1267, 1991-93 CCH OSHD ll29,465, pa 39,744 (No. 88-671, Ml), vac’d in part on other grounds, 983 F.2d 1067 (6th Cir. 1992) (unpublished). Thus, the standard may be applied in cases such as this, which arose after the Bethlehem decision. 3

1910.132(a) is broadly worded, however, the Commission requires a showing that a “reasonably prudent employer” would use the protective equipment urged by the Secretary in the circumstances. E.g., 7Wty huh., Inc., 15 l3NA OSHC 1481, 1484, 1991-93 CCH OSHD ll 29,582, p. 40,035 (No. 88-2691, 1992) (standard applied to fall hazards and safety belts--no claim that standard was inapplicable).
Relying on former Chairman Rowland’s separate opinion in Bethlehem, Hackney
argues that the standard has a “commonsense, plain meaning in light of the context,” which precludes applying it to safety belts and fall hazards. 10 BNA OSHC at 1473-74. It contends that a safety belt system is different from the devices specifically mentioned in section 1910.132(a) and its subpart (Subpart I) because the devices mentioned protect employees by restricting or blocking external agents, objects or substances from coming into contact with the employee. Id.’ It also contends that fall hazards cannot be construed as hazards of “processes or environment.”
Hackney has not persuaded us that our holding in BethZehem was incorrect. The a.
examples of personal protective equipment mentioned in section 1910.132(a) are merely iktrations, not an exhaustive list. Standards and regulations under the Act are to be broadly and reasonably construed to effectuate the Act’s express purpose, which is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” E.g., WItirlpoolCoyp. v. Marshall, 445 U.S. 1, 11-13 (1980) (quoting 29 U.S.C. 0 651(b)). The purpose of section 1910.132(a) is to promote the safety and health of employees through the use of necessary protective equipment, including personal protective equipment not specifically mentioned. Although

‘Hackney also relies on the Secretary’s proposal to amend Subpart I to include specific criteria for fall protection systems. 55 Fed. Reg. 13,360 (1990). Hackney argues that the Secretary’s proposal “tacitly recognized that 132(a) was not originally intended to cover fall protection.” However, Hackney has not pointed to, and we have not found, anything in that document to support its argument. The Secretary recently amended Subpart I in certain other respects. FinaZRule: Personal ProtectiveEquipment for General Industry,59 Fed. Reg. 16,334, 16,360 (April 6, 1994). However, section 1910.132(a) was not affected by that rulemaking. E.g., id at 16,336; Notice of Proposed Rulemaking, 54 Fed. Reg. 33,832, 33,834 (1989) (“[tlhe current requirements [for section 1910.132(a) and various other provisions of Subpart I] are not proposed for revision in this proposal and will remain unchanged by this rulemaking”). 4 the standard is ambiguous as to whether fall hazards are covered, we see nothing in it or its subpart that suggests that those are not hazards of “processes or environment” under the standard. The term “environment” need not be read to cover only hazards such as climatic or air-borne hazards. “Environment” is synonymous with “surroundings,” and has been defined as “the surrounding conditions, influences, or forces that influence or modi@[.]” Webster’s T&i NW Int’l Dictionary 760 (1986 ed.). The work environment often includes elevated areas from which an employee could fall and be injured by “physical contact.“3
Hachaey further relies on the maxim eqmsti unius, which it defines as meaning that
“express mention in a statute of one thing excludes others not expressed? However, before resorting to such maxims of interpretation to put its own interpretation on the Secretary’s regulation, the Commission must address the Secretary’s interpretation. Thus, in situations where the regulatory language is found to be ambiguous, the Secretary’s interpretation of his standards should be given effect, so long as that interpretation is reasonable. Martin
-. x OSHRC (CF & I Steel Cop.), 499 U.S. 144, 150 (1991). .
Given our analysis in BethZehem, we find that the Secretary’s interpretation is
reasonable and consistent with the language and the purposes of the.-standard.’ We

31n Commissioner Foulke’s view, the standard lacks desired clarity and seems purposefully oriented toward chemical and other hazards that might contact the employee in the course of working. He believes that, although it is strained to apply the standard to fall hazards in certain situations, the standard, however, does not have a plain meaning that clearly precludes it being reasonably applied to the fall hazards in this particular case.

4Haclm-ey further relies on the Commission’s decision in Connactms Welding of ?K NW York Inc., 15 BNA OSHC 1249,1991-93 CCH OSHD 1 29,454 (No. 88-1847,1991), vac’d, No. 91- 4179 (2d Cir. May 19, 1992) (unpublished); No. 92-4181 (2d Cir. June 24, 1993) [16 BNA OSHC 1257, 1993 CCH OSHD lI 30,099] (unpublished).
However, that Commission decision was ordered vacated by the Second Circuit and is not Commission precedent. It is inapposite in any event, because it involved a different kind of interpretational question.

5Hackney suggests that under the terms of a directive, CPL 2-1.13 (April 16, 1979), the Secretary concluded that section 1910.132(a) does not require the use of safety belts. However, a footnote in Commissioner Cleary’s opinion in BethZehem correctly interprets that directive to state that safety belt violations no longer were to be cited under the standard “because of adverse decisions by Commission judges vacating 0 1910.132(a) citations; [the Secretary] did not expressly or impliedly acknowledge the correctness of those decisions.” (continued...)
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reaffirm the Commission’s precedent in Bethlehem that the cited standard may be applied to fall hazards and may require the use of safety belts? 20 Whether the judge erred in finding that Hackney violated the cited standard.
In order to prove a violation of a standard, the Secretary must show that: (1) the standard applies to the facts; (2) the employer failed to comply with its terms; (3) employees had access to the hazards; and (4) the employer could have known of the existence of the hazards in the exercise of reasonable diligence. E.g., Gary Concrete prods., Inc., 15 BNA

OSHC 1051, 1052, Ml-93 CCH OSHD II 29,344, p. 39,449 (No. 8GlO87, 1991). As mentioned above, in order to establish noncompliance with a broadly-worded provision such as section 1910.132(a), the Secretary must show that a reasonably prudent employer would use the protective equipment urged by the Secretary in the circumstances.
We have found above that the cited standard applies to the facts because it encompasses fall hazards and safety belt systems. As to noncompliance, there is no dispute that Hackney’s maintenance employees failed to use fall protection when working on areas -. of the crane and trolley where it was necessary. Moreover, we find that a reasonably prudent employer would have required the use of safety belt systems to protect _- against the

5(...continued)
10 BNA OSHC at 1473 n.3,1982 CCH OSHD at p. 32,593 n.3. The Secretary’s interpreta- tion of the standard has been consistent, so far as the record indicates.

Hackney further notes that the OSHA compliance officer (‘CO”) who conducted the inspection originally recommended that the fall hazards be cited under section 1910.23(c)(l) rather than section 1910.132(a). The former section requires guardrails on open-sided floors and platforms 4 feet or more above adjacent floor or ground level. Hackney did not pursue the CO’s reasons for that initial recommendation, however. Whether or not guardrails could have been installed on the trolley platform, there is no indication that they could have been used on all the crane and trolley areas where employees were exposed to the hazards. Thus, there is no indication here that section 1910.23(c)( 1) would apply to the exclusion of section 1910.132(a).

6We also note that the Fifth Circuit, within which the worksite here is located, has stated in dicta that both sections 1910.132(a) and its construction industry analogue, 1926.28(a), “require the use of personal protective equipment, such as safety belts, when necessary to protect against hazards such as falling.” Timer Communications Corp. v. OSHRC, 612 F.2d 941, 944 (5th Cir. 1980). 6 fall hazards in this case. Haclcney itself recognized that safety belt systems were the appropriate fall protection. It had safety belts stored at the site and, as discussed further below, it contemplated that employees would use them when exposed to falls from the crane or trolley.
In light of the above, Hackney &led
to comply with the terms of the standard
because the appropriate personal protective equipment was not used where necessary by reason of fall hazards, which are hazards of physical contact. (The question of whether Hackney’s noncompliance may be excused because of its efforts to get employees to use safety belts is discussed below regarding the knowledge issue.) As to employee access to the hazards, it is undisputed that the maintenance employees were actually exposed to them during portions of their regular work on the crane and trolley.
The remaining element to resolve is knowledge. In finding that Hackney had the requisite knowledge of the violative conditions, the judge relied on the testimony of two Hackney’s maintenance -- employees, Thomas Carraway and David McGee.’ Carraway testified that he had worked on the crane and trolley regularly and frequently without fall protection, while exposed to falls of 30 feet or more. McGee testified th.at he had never

‘Hackney argues that McGee was not a credible witness. The judge stated, however:

[I‘jobserved nothing in McGee’s demeanor while testifying which would reflect upon his credibility. McGee’s testimony, except as it related to the existence of safety belts, paralleled that of Carraway on the crucial issues in the case and is giyen full weight in this regard.

We affirm the judge’s credibility finding, as it identified the testimony involved, gave specific and adequate reasons for crediting it, and is supported by the record as a whole. E.g., Hackney, Inc., 15 BNA OSHC 1520,1522,1991-93 CCH OSHD 129,618, pp. 40,10607 (No. 88-391, 1992). While Hackney notes testimony that after McGee left the witness stand, he was asked to report to the plant and declined, there is no evidence that McGee was unauthorized to decline to report at that time, or any other evidence tending to show that he was dishonest.

Nor was the judge’s credibility finding internally inconsistent, as Hackney claims. The judge did not expressly or impliedly discredit McGee’s testimony on “the existence of safety belts.” He did not address it. McGee’s testimony was not parallel to Carraway’s on that issue, but was not inconsistent with it. Carraway testified that safety belts had been pointed out to him when he was hired. McGee testified that he had “never seen one at the plant anywhere.” 7

worn a safety belt while working on the crane and that he had never seen anyone else wear one. He further testified that he had never been told to wear a safety belt for that work, and that almost every member of management had seen him doing such work without a safety belt.
Carraway also testified regarding specific incidents within six months before the
inspection when supervisors were put on notice of a lack of fall protection for employees working on the crane and trolley. For example, he testified that his foreman, Ralph Bailey, stood at ground level observing him and other maintenance employees while they worked without fall protection, exposed to the hazards, on a night in approximately April or May, 1991. They were replacing the cable on the trolley. Carraway could not say Bailey actually saw enough that night to know that the employees lacked the necessary fall protection. Nevertheless, he testified, “I feel like he should have known we didn’t have safety belts on.”
Hackney argues that knowledge was not shown because there was no testimony that any Hackney supervisor actually saw that an employee was not wearing a tied-off safety belt . when working OII;CIportion of the crane or trolley where there was no fallprotection. We agree, however, with the judge’s reasoning when he disposed of Hackney’s rebuttal _- testimony as follows:
[Rlespondent attempts to establish through the testimony of James Crick, its plant engineer, and Gerald Nelson, its plant manager, that the maintenance employees never worked on unprotected areas of the crane without fall protection or, if they did, this circumstance went undetected by respondent’s supervisory personnel. Respondent’s counsel, in his direct examination of these witnesses, did not develop just how either Crick or Nelson would have the opportunity to observe the activities of the maintenance employees during the performance of their duties. . . . Curiously, respondent called no foremen as witnesses in the case even though these individuals were the first line supervisors of the maintenance employees, had the best opportunity to observe their activities and were specifically identified by Carraway and McGee as having seen them perform work on the crane without belts. At best, the testimony of Crick and Nelson establishes only that they had no personal knowledge of the violative condition and does not preclude the existence of such knowledge by respondent’s foremen which knowledge is imputable to the corporate respondent. A. P. O’Iloro CO., 14 BNA OSHC 2004, 1991[-931 CCH OSHD 9 29,223 (No. 85-369, 1991). In short, the testimony of respondent’s witnesses is wholly insufficient to overcome the more specific testimony of Carraway and McGee.
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Further, contrary to Hackney’s argument, the Secretary need not show that a
supervisor actually saw an employee exposed to the hazards while not using a safety belt. The Commission only requires proof that the employer could have discovered the violative conditions with the exercise of reasonable diligence. E.g., Con&dated Freightways Cop., 15 BNA OSHC 1317, 1320-21, 1991-93 CCH OSHD ll29,500, p. 39,809 (No. 86-351, 1991). That test has been met here. Indeed, the record contains no evidence that Hackney supervisors ever checked to determine whether the employees wore safety belts while exposed to the conceded fall hazards. The credited testimony of Carraway and McGee that they never wore fall protection for that work shows that the conditions called for such an irlqui$
Finally, Jones & Laughlin Steel Corp., 10 BNA OSHC 1778, 1982 CCH OSHD
ll 26,128 (No. 76-2636, 1982) (alleged violation of section 5(a)(l) of the Act); and Capital Elec. Line Builders of Kansas, Inc. v. Marshall, 678 F.2d 128 (10th Cir. 1982), relied on by Hackney, are inapposite. In Jones & Laughlin the Commission stated that where abatement of a recognized hazard requires employee compliance with workrules, an employer is not in violation “if it has established workrules designed to prevent the violation, has adequately communicated workrules to its employees, has taken steps to discover violations of the rules, and has effectively enforced the rule in the event of i&actions.” 10 BNA OSHC at 1782, 1982 CCH OSHD at p. 32,887. Hackney argues that it established a worlmle requiring the use of safety belts when necessary due to fall hazards. However, Hackney’s workrule, found in its Employee Safety Manual, merely stated, “use personal protective equipment and observe safeguards as required.” As the judge correctly found:
The [safety manual] reviewed in its entirety makes no mention of safety belts or the need to use belts as a means of providing fall protection when working at elevations. Such a general, non-specific rule utterly fails to qualify as a “rule designed to prevent the violation.”

‘Hackney notes the testimony of its plant engineer, James Crick, that he had observed maintenance employees wearing safety belts before at Hackney (he had worked there at least 26 years). However, he testified that he could recall two occasions when -he observed an employee not wearing a safety belt when exposed to a fall hazard, and that he told those employees to put them on. Crick’s testimony shows that Hackney was on notice that employees might not wear safety belts when required. 9

Furthermore, Hackney does not even argue that the rule was adequately communicated
to the employees, that it took steps to discover violations of the rules, or that it effectively enforced the mleo9 The judge correctly found that Hackney had taken none of the steps mentioned in Jones & Laughlin to see that maintenance employees followed the necessary safety belt procedures.‘0
In Capitd Electric, the Tenth Circuit held that if an employer has effective workrules
that are effectively communicated and enforced, it would be unreasonable to require a supervisor to always watch experienced, knowledgeable employees to make sure that they always take the appropriate safety precautions. This situation is quite different from the one in Capital Electric, however. Here, there was no effective workrule, or communication or enforcement of the rule. Nor is there evidence that Hackney made an affirmative effort at any time to check on the maintenance employees’ compliance with safety belt requirements while working on the crane and trolley, even though the work was done regularly at its own plant. “[E]mployers are required to provide to all their employees, experienced and
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inexperienced alike, the protection that occupational safety and health standards are designed to accord to them.” Loomis Cabinet Co., 15 BNA OSHC 1635,1640,1991-93 CCH OSHD lI 29,689, p. 40,258 (No. 88-2012, 1992) (quoting C. K&&UZPZ,Inc., 6 BNA OSHC 1295,1299,1977-78 CCH OSHD ll22,481, p. 27,101 (No. 14249,1978)), afld, No. 92-70540 (9th Cir. March 23, 1994).

‘As Hackney notes, it had safety belts on the jobsite, and had pointed them out to Carraway when he was hired (about two years before the inspection). On the other hand, contrary to Hackney’s assertions, the evidence does not show that McGee had been told about their availability, or that Hackney made sure that either employee knew when and how to use safety belts. I
@There was testimony that it was sometimes difficult to determine from the ground whether safety belts were being used. However, there was no indication that alternative ways of checking on compliance would have been futile, such as climbing the ladder occasionally, and/or asking the employees if they used the safety belts. Certainly, the lack of specificity in Hackney’s workrule made it all the more important that the company check regularly to make sure that employees were complying with it. 10

For the reasons stated above, we find that the Secretary affirmatively proved that
Hackney could have known of the violative conditions with the exercise of reasonable diligence. Thus, the Secretary has proved all the elements of a violation. 3a Classification and Penalty
As did the judge, we find a substantial probability that a 33-foot fall would result in
serious injury. See 29 U.S.C. 5 666(k). The judge assessed the Secretary’s proposed penalty of $3,250, and Hackney does not specifically dispute the penalty amount. We find the judge’s assessment was appropriate. The gravity of the violative conditions was high, not only because of the likely injuries, but also because the work was performed regularly. Hackney showed good faith. For example, it installed a cable tie-off system for safety belts to abate the hazards. Thus, the Secretary’s proposed 25 percent penalty reduction for good faith is appropriate. Hackney was given a further 10 percent reduction based on its history of violations, although no reduction was given for size (it had an estimated 200 or more employees). The
-. penalty factors set forth in 29 U.S.C. 8 666(j) were properly considered -. here.
Thus, we affirm the judge’s finding of a serious violation of 29 C.F.R. 8 1910.132(a) and his penalty assessment of $3,250.

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Stuart E. Weisberg
Chairman

Edwin G. Foulke, Jr.
Commissioner

Velma Montoya
Commissioner

Dated: June 9, 1994