New York State Electric & Gas Corp.

Plain-English summary

New York State Electric & Gas Corporation sent a two-person crew to install residential gas service in Binghamton, New York. An OSHA compliance officer saw one crew member operating a jackhammer without eye protection and later determined that he also lacked protective footwear, although both forms of equipment were available in the company truck. The underlying ALJ affirmed two serious citation items and assessed a total $1,500 penalty, and the Commission initially affirmed before the Second Circuit set that decision aside and remanded the case. On remand, the Commission found NYSEG's safety program adequate because foremen made regular site visits, supervisors performed unannounced audits, the company disciplined safety violations, and neither crew member had previously been known to violate a safety rule. The Commission concluded that nothing had put NYSEG on notice that more intensive monitoring was needed and that the Act did not require continuous supervision. It vacated both citation items, eliminating the $1,500 penalty; Commissioner Weisberg dissented.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.132(a) (personal protective equipment), § 1926.28(a) (construction personal protective equipment), § 1926.102(a)(1) (eye and face protection), and 29 U.S.C. § 654(a)(1) (general duty clause)
• Outcome: Vacated. The Commission vacated both serious PPE citation items and the $1,500 penalty.
• Key point: A single employee infraction does not establish constructive employer knowledge when the employer has an otherwise adequate safety program and no reason to know that more intensive monitoring is needed.

Full text (OSHRC public release)

__________________________________________
                                          :
SECRETARY OF LABOR,                       :
                                          :
     Complainant,                         :
                                          :
      v.                                  :                OSHRC Docket No. 91-2897
                                          :
NEW YORK STATE ELECTRIC & GAS CORP., :
                                          :
     Respondent.                          :
                                          :



                                         DECISION

Before: ROGE RS, Chairman; VISSCH ER and WE ISBERG, Com missioners.
BY THE COMMISSION:
       This matter is before the Comm ission pursuant to a reman d order from the C ourt of
Appea ls for the S econd Circuit. New Y ork Sta te Elec. & Gas Corp. v. Secretary of Labor, 88
F.3d 98 (2d Cir. 1996). In its first decision in this case, the Commission affirmed the decision
of Administrative Law Judge Richard W. Gordon holding tha t Respon dent, New York S tate
Electric & Gas Corporation (“NYSEG”) violated the Occupational Safety and Health Act of
1970, 29 U.S.C. §§ 651 -678 (“the Act”) as allege d in the Secretary’s citation because one of
its employees w as not we aring eye prote ction and sa fety-toe footw ear although he was
exposed to hazard s requiri ng suc h prote ctive eq uipme nt. New York State Elec. & Gas Corp.,
17 BNA OSH C 1129, 1993-95 CCH OSH D ¶ 30,745 (No. 91-2897, 1995). For reasons
which we discuss mo re fully below, th e Second Circuit set aside the Commission’s decision
and remanded for further consideration. Upon such reconsideration, we now vacate the




                                                                         2000 OSHRC N o. 35
                                                 2

citation items.1
       At the time in question, NYSEG’s 2-man crew, consisting of Jim Webb, a gas fitter
“first class,” and Ray Price, an equipment operator and driver, were installing new gas
service at a residence in Binghamton, New Y ork. The Secretary’s comp liance officer,
William Marzeski, who was passing by the worksite, observed Price operating a jackhammer
without wearing eye protection. W hen he ca me onto the site, the inspector also determined
that Price was not w earing protective footw ear. Webb then told P rice to get the necessary
protective equipment from the company truck, where the equipment was kept. There is no
dispute that NYSEG failed to comply with the Secretary’s protective equipment standards
at 29 C.F.R. §§ 1910.132(a), 1926.28(a), and 1926.102(a)(1). 2 The que stion befor e us is
whether the Secretary proved that NYSEG had know ledge of the violative conditions.3
       The relevant facts may be briefly stated. Webb and Price were assigned to this job by


1
 Chairman Rogers notes that this is one of the oldest cases pending before the Commission.
To take an unnecessarily expansive view of our mandate, as our colleague advocates in his
separate opinion, would do little to serve the ends of ju stice and m ay well furthe r prolong th is
9-year-old case.

The disposition of the court’s remand order is adequately resolved on a narrow issue related
to the adequacy of the NYSEG safety program, specifically the monitoring of employees.
Anything else would be dicta.
2
 Sections 1910.132(a) and 1926.28(a), respectively, require that appropriate protective
equipment be used “wherever it is necessary by reason of hazards” and “where there is an
exposure to hazardous conditions.” Section 1926.102(a)(1) requires the use of eye and face
protecti on wh ere “op erations presen t potenti al eye or f ace inju ry.”
3
 A violation of section 5(a)(2) of the Act, which requires that the employer comply with
occupational safety and health standards, exists when the employer fails to comply with an
applicable standard, employees are expo sed to the ha zard the stan dard wa s intended to
prevent, and the emplo yer knew or reaso nably co uld hav e know n of the violatio n. Ragnar
Benson, Inc., 18 BNA OSHC 1937, 1939, 1999 CCH OSHD ¶ 31,932, p. 47,371 (No.
97-1676, 1999) A s the judge b elow no ted, with the e xception o f the issue o f know ledge,
NYSEG did not dispute the existence of the violative conditions.
                                               3

their foreman, John Hrywnak. NYSEG required that its foremen visit each job site for which
they wer e respon sible at lea st on ce ea ch day. Hrywnak testified that he would inspect each
site for work progress and safety violations twice a day, once in the morning and once in the
afternoon, and would spend between 30 and 45 minu tes on each visit. 4 Jack Jones, NY SEG’s
supervisor for the Binghamton area, also conducted unannounced safety “audits” of each
crew under his jurisdiction. Similar audits were also conducted several times each year by
NYSEG’s workmen’s compensation carrier. Hrywnak, Price, and Webb had all previously
been employed by Columbia Gas, a gas distribution company which NYSEG acquired on
April 5, 1991, approxim ately four months before the incident here occurred. Like NYSEG,
Columb ia Gas had safety rules which required eye and foot protection to be worn by
employees engaged in the kind of work Price was performing. Hrywnak, who had supervised
Price and We bb at Colu mbia Gas, testified that neither Webb nor Price had ever been known
to have acted in violation of any safety rule during their employment with Columbia Gas. On
May 1, 1991, on one of his random inspections , Jones obs erved W ebb at another works ite
where the work crew was installing residential gas service. In his opinion, Webb did an
“excellent” job. There is no evidence that either Price or Webb had ever previously been
known to have comm itted any infraction of NYSE G’s safety rules.
          In his decision affirming the citation, Judge Gordon concluded that NYSEG could not
be charged with actual knowledge of the violations. There was no evidence that, prior to the
arrival of compliance officer Marzeski, Webb was aware that Price was not wearing the
necessary protective equipment. However, the judge found that if Web b had bee n reasona bly
diligent he could h ave obse rved Price’ s miscond uct becau se he wa s in close pro ximity to
Price at the site. The judge further found that because Webb was responsible for ensuring that
the job was p erformed in a safe man ner and fo r commu nicating w ith NYS EG’s m anagem ent,
Webb was a supervisory employee whose knowledge should be imputed to NYSEG. Having


4
    Judge Gordon found that twice-daily visits were conducted.
                                               4

concluded that the Secretary thereby established a prima facie case of knowledge, the judge
then held that the burden of proof shifted to NYSEG to demonstrate that it had ta ken all
reasonab le measures to prevent the violations by showing that it: (1) had an ad equate saf ety
program consisting of safety rules directed to the hazard in question, (2) had communicated
those rules to employees, (3) had taken measures to discover any noncompliance with the
safety rules, and (4) had effectively enforced the rules when infractions occurred. The judge
observed that “reasonable and continual supervision” is the primary means of detecting
violations of safety rules. He concluded that the worksite visits by NYSEG’s supervisors and
its insurance company “were spotty and could not be expected to discover non-complying
behavior except in the minute portion of the workday where employees were observed by the
salaried personnel.” New York State Electric & Gas Corp., No. 91-2897, slip op. at 10-11
(ALJ, July 7, 1993).
       The Commission affirmed the judge’s decision and agreed with the judge’s findings
regarding the adequacy of NYSE G’s supervision. The Commission noted that where a
supervisory employee is in close proximity to a readily apparent safety violation, the
supervisor may be charged with constructive knowledge of that v iolation . Hamilton Fixture,
16 BNA OSHC 1073, 1993-95 CCH OSHD ¶ 30,034, p. 41,184 (No. 8 8-172 0, 1993 ), aff’d
without published opinion, 28 F.3d 1213 (6th Cir. 1994). Such knowledge is imputable to the
employer and is sufficient to make a prima facie sh owing of em ployer kn owled ge. Pride O il
Well Serv., 15 BNA OSH C 1809, 1814, 1991-93 CCH OSHD ¶ 29,807, pp. 40,583-84
(No. 87-692, 1992). Unlike the jud ge, however, the Commission declined to decide whether
or not Webb in fact was a supervisory employee whose constructive knowledge could be
impute d to NY SEG .
       The Commission concluded that if Webb was simply Price’s co-worker, as NYSEG
contended, then NYSEG’s safety program was inadequate. NYSEG’s monitoring of
worksites, which the Commission characterized as “brief, daily visits” by Webb’s foreman,
was inadequate to detect infraction s of the saf ety rules at issue he re. On the o ther hand, if
                                               5

Webb were considered a supervisor as the Secretary argued, then the Commission concluded
that NYSEG did not rebut the Secretary’s prima facie showing of employer knowledge
because NYSEG had failed to show that Webb himself was adequately supervised. Although
the judge found in his decision that there were “questions” as to the adeq uacy of NYS EG’s
communication of its safety rules, the Commission expressly held that all elements of an
acceptable safety program were present with the exception of monito ring to detect
infractions:
       Here, we have little diff iculty in finding th at NYS EG m et its burden of proving
       three of the fou r elements of its rebuttal case. However, we agree with Judge
       Gordon that NYS EG f ailed to p rove th e fourth elemen t, i.e., that it had taken
       adequate measures to monitor compliance with the work rules in question.
17 BNA OSH C at 1133, 1993-95 CCH OSHD at p. 42,711.5
       The appellate court set aside the Commission’s decision. The court agreed with the
Comm ission’s finding that if Webb were a supervisor, he had constructive knowledge of
Price’s misconduct which was properly imputable to NYSEG. According to the court, Webb
was in a position from which he could have observed Price’s lack of protectiv e equipm ent,
and Webb knew that the type of work Price was doing—operation of a jackhammer—re­
quired protective equipmen t. However, the court rejected the Commission’s conclusion that


5
 In suggesting an inconsistency between our current decision and the Commission’s prior
decision, our dissenting colleague quotes out of context the Commission’s reference to an
argument in NYSEG’s brief. Our dissenting colleague ignores the sentence which
immediately follows this reference, in which the Commission emphasized that it was
“affirming the judge’s finding that NYSEG did not take adequate steps to monitor
compliance with its wo rk rules.” 17 BNA OSH C at 1133 -34, 1993 -95 CC H OS HD at p p.
42,710-11. The rem aining discu ssion addre sses enfor cement o f safety rules in the context of
monitoring to detect infractions of those rules. Moreover, the portion of the decision which
includes this discussion comme nces with the follow ing subhe ading: “The finding that
compliance monitoring was inadequate.” (Empha sis in original). Although the Commission’s
decision, in which o ur dissenting colleague participated, is no t absolutely exp licit, it is
susceptible of only o ne reas onable interpre tation, i.e., that the Commission expressly found
no def iciencie s in NY SEG ’s safety p rogram other th an the a dequa cy of mo nitoring .
                                               6

NYSE G’s safety program was inadequate because it conducted insufficient monitoring. The
court held that be cause the C ommissio n predicate d a finding of a violation on a single
infraction of NYSEG’s safety rules, the Commission in effect imposed on NYSEG the
obligation to provide continuous supervision of the worksite throughout the entirety of the
wor kday, a requirement which the court ex pressly fo und un reason able. See Ragnar Benson,
Inc., 18 BNA OSH C 1937, 1940, 1999 CCH OSHD ¶ 31,932, p. 47,373 (No. 97-1676, 1999)
(employer not required to prov ide constant surveillance by superv isors).
       Furthermore, because the Commission adopted the judge’s finding that NYSEG had
failed to establish that it had implemented an adequ ate means of detecting violations of its
safety rules, the court concluded that the Commission had impermissibly placed on the
employer the burden of proof of kn owledge of the violative conditions. The co urt
acknowledged that the majority of the circuit courts of appeal recognize that the employer
has the burden to plead and prove as an affirmative defense that a violation was the result of
unpreventable em ployee misconduct. Ho wever, the court acknowledged that the Secretary
has the obligation to first establish knowledge as part of her prima facie case. 88 F.3d at 108
(citing, e,g,, Brock v. L.E. Myers Co., 818 F.2d 1270, 1277 (6th Ci r.), cert. denied, 484 U.S.
989 (1987 )). See Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067, 2000 CCH OSHD
¶ 32,053 , p. 48,00 3 (No . 96-17 19, 2000) (Secretary bears burden of proof on actual or
constructive know ledge).
       The court concluded that in placing the burden of proof on the employer the
Commission had disregarded its own precedent which holds that the Secretary must make
a prima facie show ing of know ledge. While the cou rt suggested that the Comm ission “cou ld
. . . accept the Secretary’s position as a permissible one,” the court did not remand this matter
with instructions th at the Com mission ad dress gene rally the relative evidentiary burdens of
the Secretar y and the e mployer w ith re spec t to em ploye r knowledge and employee
miscond uct. The court’s decision d oes nothing more than admonish the Commission that if
the Commission seeks to place the burden of proof of knowledge on the employer or
                                                  7

otherwise change its precedent, it must “articulate its reasons for making the change.” 88
F.3d at 107-08:
          Without deciding whether a given rule would be permissible under the OSH
          Act, we simply hold that—absent a clear and reasoned explanation for
          changing its prior rule—the burden of proof regarding the issue of knowledge
          may not be shifted to the employer even when knowledge charged to an
          emp loyer is pre dica ted o n its a llege d ina dequate safe ty policy.
Id. at 108.6 The court stated that the Commission was free to adopt its own principles for
deciding these issues so long as the Commission formulated a “workable” rule and applied
that rule “in a consistent fashion.” Id. Thus, con trary to the sugge stion in the diss enting
opinion, the court did not direct that w e devise a ru le “to address the evidentiary burdens of
the Secretary and the employer with respect to the interplay between employer knowledge
and the affirmative defense of unpreventable employee misconduct,” nor is there any
language in the court’s opinion to indicate that it viewed the formulation of such a rule as
essential to the disposition of this case.
          The court identified three factual issues which in its view warranted further
consideration by the Commission: whether NYSEG’s safety program was adequate,7 whether


6
 Subsequent to its decision in this case, the Second Circuit stated that it agreed with those
other circuits which have held that the employer has the burden to prove an affirmative
defense of unpreventable employee misconduct after the Secretary establishes a prima fa cie
case. D.A. Collins Constr. Co. v. Secretary of Labor, 117 F.3d 691, 69 5 (2d Cir. 1997). In
Collins, however, the employer waived the issue of knowledge before the court and therefor
the court had no occa sion to decid e what sh owing th e Secretary m ust make in order to
establish her prima facie case.
7
    The court explained this basis for its remand order as follows:
          Whether, given the evidence adduced at the hearing , the Com mission w ould
          have been entitled to find that NYSEG’s monitoring for purposes of ensuring
          its workers’ safety was insufficient, is a matter we need not decide . On app eal,
          both parties advanced reasons for reaching opposite conclusions regarding the
          adequacy of NY SEG’s safety program . . . . We therefo re must rem and this
                                                                                     (contin ued...)
                                                8

Webb was a supervisor, and whether Price’s misconduct was preventable. Upon reconsidera­
tion as directed b y the court, we conclude that we do not need to decide whether Webb was
a supervisor because his status does not affect our disposition of this case.8 In light of the
court’s admonition that we cannot impose a requirement for continuous, full-time
monitoring, we find on the record here that NYSEG met the requirements for an ade quate
safety prog ram base d on its lev el of mon itorin g. Accor ding ly, and since we are not departing
from our existing preceden t, we conc lude that it is also not necessary to address the
formulation of a rule regarding the burden of proof on knowledge.
          Subsequent to the Com mission’s p revious de cision in this ca se, the Com mission in
Kerns Bros. found a company’s safety program adequate where either the company’s co-
owner or its safety director inspected between 75 percent and 95 pe rcent of the comp any’s
work sites each day to monitor employee compliance with safety rules. The facts in Kerns
Bros. are analogous to those here in that the employees who were not wearing the required
personal protective equipment at the work site in question had never previously been known



7
    (...continued)
           issue to the Commission for its reconsideration.
88 F.3d at 109.
8
 Commissioner Visscher n otes that, in concluding that W ebb was a sup ervisor, the dissenting
opinion relies principally on the contents of NYSEG’s exhibit H102. That document was
among hundreds of “Specific Appraisal Reports” offered into evidence by NYSEG for the
purpose of showing that the company enforces its safety rules. The Secretary has not cited
the exhibit at any stage of these proceedings as evidence that Webb was a supervisor, and
NYSEG therefore h as never h ad reason to respond or explain the exhibit with regard to the
issue for which our colleague cites it. Our colleague erroneously compares his reliance on
an exhibit which was not submitted or examined for the purpose for which he uses it with my
dissenting opinion in Offshore Shipbuilding, Inc., 18 BNA OSHC 2169, 2177-78, 2000 CCH
OSHD ¶ 32,217, pp. 48,450-51 (No. 97-257, 2000), where I found that there was no evidence
on which to conclude that the space involved was enclosed. The exhibit here is evidence, but
it is susceptible to various in terpretations a nd therefo re should b e given little weight under
the circumstances.
                                                 9

to have viola ted any safety rule. On these facts, the Commission held that there was “no basis
. . . to believe that Kerns should have recognized that more intensive supervision was
necessary to prevent hard hat violations.” 18 BNA OSHC at 2070, 2000 CCH OSHD at
p. 48,006.9 Similarly, we conclude that there are no circumstances which can reasonably be
said to have put NYSEG on notice of a need for further or more intensive monitoring of Price
or Webb . See Ragnar Benson,18 BNA OSHC at 1940, 1999 CCH OSH D at p. 47,373 (citing
Texas A.C.A., Inc., 17 BNA OSHC 1048, 1050 , 1993-95 CCH OSHD ¶ 30,652, p. 42,527
(No. 91-3467 , 1995) (em ployer’s duty is to take reasonably diligent measures to detect
hazardous conditions through inspection of worksites; it is not obligated to detect or become
aware of every instan ce of existe nce of a h azard)); Southw estern Bell Telephone Co., No. 98-
1748 (Sept. 27, 2000) (worksite visits conducted occasionally and at no specific frequency
by supervisors held inadequate where no evidence produced that the inspections pertained
to the sp ecific w ork pra ctices at is sue).
        In addition to the regularity and duration of NYSEG’s worksite inspections, the record
contains documents reflecting numerous reprimands and more severe disciplinary action
taken against NYSEG employees for infractions of safety rules. Although the overwhelming
majority of these instances in the record involve workers in NYSEG’s electrical as opposed
to its gas operations, there is nevertheless evidence of a number of occasions in which
employees were disciplined f or infraction s of safety rules, including failure to wear personal




9
 Because both the worksite and the employer’s business office were located w ithin the
jurisdiction of the Third Circuit, the Commission in Kerns applied the Third C ircuit’s
preceden t, which holds that the Secretary retains the ultimate burden of proof on knowledge
even where a superv isor is aw are of th e violativ e cond uct or p articipate s in it. Pennsylv ania
Pwr. & Light Co. v. OSHRC, 737 F.2d 350 (3d Cir. 1984). Because we find on the facts that
NYSE G’s level of monitoring was adequate, and NYSEG satisfied the requirements for an
effective safety program under Commission precedent, the fact that Kerns arose in the Third
Circuit is immaterial to our disposition here.
                                             10

protective equipme nt, while working in gas activities. This evidence supports the conclusion
that NYSEG’s degree of monitoring of its worksites was, as a general m atter, adequa te to
detect unsafe work practices.10 We therefore vacate the citation items.




                                                         /s/
                                                         Thomasina V . Rogers
                                                         Chairman




                                                         /s/
                                                         Gary L. Visscher
                                                         Commissioner




Dated: October 16, 2000




10
  In the Comm ission’s earlier decision in this case, the Commission acknowledged that most
of NYSEG’s customers—approximately 75 percent—are consumers of electricity rather than
gas. Nevertheless the Commission found the relatively small number of instances of
disciplinary action with respe ct to employees in natural gas operations as opposed to those
doing electrical work to be “grossly disproportionate.” 17 BNA OSHC at 1134, 1993-95
CCH OSHD at p. 42,711. The appellate court did not directly address this finding but noted
that NYSEG “presented voluminous evidence of its safety practices” and declared that the
Commission “did not serio usly analyze the reas onable ness of this prog ram.” 88 F.3d at 109.
WEIS BERG , Comm issioner con curring in p art and disse nting in part:
       On July 3, 1996, more than four years ago, the U.S. Court of Appeals for the Second
Circuit set aside the Commission’s decision and remanded this case to the Commission: (1)
to determine whether Webb was a supervisor; (2) to formulate a workable rule, based on the
Comm ission’s experience and expertise in the occupational safety field, to address the
evidence the Secretary must show in order to establish he r prima fac ie case, particu larly
employer knowledge, and the extent to which inadequacies in the employer’s safety program
may be an element of such a showing, and to reso lve the evidentiary burdens of the Secretary
and the emplo yer with regard to the interplay between employer knowledge and the
affirmative defense of unpreventable employee misconduct, with the ultimate burden of
showing employer knowledge remaining with the Secretary; (3) to reconsider the adequacy
of NYS EG’s saf ety program w ithout applying a per se rule that a safety policy is inade quate
unless employees are being co nstantly monitored for safety violations; and (4) to provide
some clarity “in a field of the law tha t may already be d escribed as a patchwork of
confu sion.” New York State Elec. & Gas Corp. v. Secretary of Labor, 88 F.3d 98 (2nd C ir.
1996). In my view , the majority opin ion substan tially ignores the nature and substance of the
Court’s remand and sidesteps the oppor tunity to resolve and provide cla rity and guidan ce to
a confusing area of the law.1
       I agree with my colleagues, for the reasons stated in the majority opinion, that based
on the record NYSEG’s level of monitoring was sufficient to meet the requirements for an
adequate safety program. How ever, unlike my colleagues I believe that it is necessary for the
Commission to determine whether Webb was a supervisor for purpo ses of imp utation of h is
knowle dge. The Circuit Court’s decision suggested that whether or not Webb was a


1
 Chairman Rogers appears to suggest that the age of this case -- one of the oldest pending
before the Commission -- somehow provides justification for not fully dealing with the
Court’s mandate. It is the breadth and import of the Court’s mandate, however, that is the
very reason this case has been before the Commission for so long. To then cite the age of
the case as a m eans for circ umventin g the Cou rt’s manda te would be unfortunate. The “ends
of justice,” referred to by my colleague, do not justify the means in this case.
                                                2

supervisor was significant. The court affirmed the Commission’s finding that Webb, if he
was a supervisor, had constructive knowledge of Price’s violative conduct because he was
working nearby and the violations w ere easy to see. The court also suggested that “If Webb
was a supervisor, then his knowledge must be imputed and NYSEG therefore had
knowledge.”
       Although the question of whether Webb’s position was “supervisory” is a close one,
I would affirm the administrative law judge’s finding that Webb w as a supervisor (“W ebb’s
on-site responsibility for safety measu res and rep orting is suff icient nexu s for him to be
deemed ‘supervisory’ for purposes of imputing constructive knowledge to NYSEG through
him”). An employee who has been delegated authority over other employees, even if
temp orar ily, is considered to be a supervisor for the purposes of imputing knowledge to an
employer. Tamp a Shipy ards, In c. 15 BNA OSHC 1533, 1537, 1991-93 CCH OSHD ¶
29,617, p. 40,100-101 (N o. 86-360, 1992) (co nsolidated). The compliance officer testified
that both Price and Webb himself referred to Webb as the “crew leader” and that during the
OSHA inspection Webb functioned as a supervisor and instructed Price to get the necessa ry
protective equipment from the company truck which Price immediately did. Webb also had
some safety and reporting responsibilities at the wo rksite. Most notably, Exhibit R-H 102,
a “Specific Appraisal Report,” relates to a verbal reprimand given to a first class gas fitter
(the same position held by Webb ) based on a field crew ’s violation of an OSHA standard and
company work rule. The gas fitter objected to the reprimand on the ground that he didn’t feel
as though he was in charge of the crew. The company responded that he was responsible for
the crew as the senior gas fitter at the job site and warned him that a future incident of failure
to follow o r enforce p roper com pany work procedu res would result in more severe
disciplinary action.2


2
Notwithstanding that Commissioner Visscher has chosen not to deal with the question of
whether or not W ebb is a supervisor, he objects to my relying in part on the contents of
                                                                            (contin ued...)
                                                 3

       Assuming, as I would find, that Webb is a supervisor for purposes of imputation of
his knowledge, then the case does not end w ith the finding that NY SEG’s level of employee
monitoring was sufficient to meet the requirements for an adequate safety program. The
issue remains whether there were other deficiencies in NYSEG’s safety program and whether
the company took all nec essary precau tions to prev ent the violatio ns, including adequate
instruction and supervision of its sup ervisor. As the C ommissio n noted in its first decision
in this case:
       Indeed, consistent with its view that Webb was not a supervisor, NYSEG has
       asserted in its review brief that Webb was unaware at the time of the alleged
       violations that he had any responsibility for enforcing NYSEG ’s work rules.
       It therefore could not have adequately instructed and trained Webb in how to
       carry out his responsibilities.

New York S tate Ele c. & Ga s Corp ., 17 BNA OSHA 1129, 1134, 1993-95 CCH OSHD ¶
30,745, p. 42,711 (No. 91 -2897, 1995). 3 Acco rdingly, contrary to the assertion of my

2
 (...continued)
Exhibit R-H 102. This exhibit was introduced into ev idence by NYS EG, although f or a
different purpose, and was properly admitted as evidence in the record by the judge.
Commissioner Visscher argues that since the Secretary did not cite this exhibit as evidence
that Webb was a supervisor, NYSEG never had reason to respo nd. Compare Offshore
Shipbuilding, Inc., 18 BNA OSH C 2169, 2177-2178, 2000 CCH OSHD ¶ 32,137, p. 48,450
(No. 97-257, 2000) where Com mission er Viss cher, rel ying on e videnc e in the re cord, i.e.,
citing and drawing inferences from the compliance officer’s testimony, advanced a position
in his dissent, that the ballast tank did not become an enclosed space until after the employee
had completed the process of “enclosing himself in,” which was neither raised nor argued
by the company and therefore the Secretary never had reason to address.
3
 My colleagues contend that this quote is taken out of context in that it appears in the portion
of the Commission’s decision pertaining to the adequacy of NYSEG’s efforts to monitor
compliance with its safety rules. It should be noted initially that this is the only portion of the
decision where the Commission discusses the elemen ts necessary to rebut a prima fac ie case
of employer knowledge. M oreover, N YSEG ’s assertion in its re view brief here that “u ntil
[Webb] was designated a supervisor by the Com pliance O fficer, neithe r Mr. W ebb (and his
paycheck) nor NY SEG w as aware that he had any responsib ility [for enforcing N YSEG ’s
                                                                                     (contin ued...)
                                                 4

colleague, disposition of this issue would not be dictum and would not unneces sarily prolong
this “9-ye ar old ca se.”
       I would decide this question and, as requested by the Circuit Court in its remand o rder,
would also attempt to formulate a workable rule to address the evidentiary burdens of the



3
 (...continued)
work rule s],” though intended to address the issue of W ebb’s sup ervisory status, is eq ually
applicable to the questio n wheth er, if Web b was a su pervisor, the c ompany ad equately
trained him.

My colleagues also maintain that the Commission in its earlier decision expressly held that
all elements of an acceptable safety program were present with the exception of monitoring
to detect infrac tions. That as sertion is base d entirely on bu t a single misle ading sen tence in
the opinion which reads: “Here, we have little difficulty in finding that NY SEG m et its
burden of proving three of the four elements o f its rebuttal cas e.” There is n o discussion in
the opinion as to what specific evidence, if any, the Commission relied on and a reviewing
court would be hard pressed under such circumstances to find substantial evidence to suppo rt
this purported finding tha t the comp any adequa tely commu nicated its work rule s to its
employees (including supervisors). Moreover, the Commission also explicitly stated that,
assuming Webb was a supervisor, NYSEG had “not shown that it took all necessary
precautions to prevent the violations, including adequate instruction and supervision of its
superv isors.” (Emphasis add ed, citation omitted.) Id. Instruction and supervision are two
separate elements of an employer’s rebuttal burden, and the Comm ission expressly found that
NYS EG es tablishe d neithe r.

Nor can one refer to the judge’s decision and sim ply express ag reement w ith him on th is
issue. The judge expressed concern about the adequacy of NYSEG’s communications and
pointed to evidence that NY SEG’s safety progra m was ineffective in communicating the
relevant work rules to Webb but he did not resolve this issu e. Instead, the ju dge base d his
rejection of NYSEG’s rebuttal on the compan y’s failure to take reasonab le steps to discover
violations of the work rules. While my colleagues acknowledge in footnote 5 that the
Commission’s decision is not absolutely explicit, they contend that it is susceptib le of only
one reasonable interpretation. Unlike my colleagues, having participated in the earlier
decision, I can state unequivocally that their interpretation is not the correct one and that the
Commission never inten ded to resolve this is sue. See Northwest Conduit Corp., 18 BNA
OSHC 2072, 2073, 2000 CCH OSHD ¶ 32,027, p. 47,853 (No. 97-851, 2000) (in decision
on appeal following remand, participating commissioners clarified intent of prior decision).
                                              5

Secretary and the em ployer with respect to the interplay between employer knowledge and
the affirm ative defen se of unp reventable employee m isconduc t.




Date: October 16, 2000                                   /s/
                                                         Stuart E. Weisberg
                                                         Commissioner
                                 UNITED STATES OF AMERICA
       OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                   JOHN W. McCOR MACK POST OFFICE AND COURTH OUSE
                                       Room 420
                          BOSTON, MASSACH USETTS 02109-4501
                                    (617) 223-9746



______________________________
                              :
SECRETARY OF LABOR,           :
                              :
     Complainant,             :
                              :
      v.                      : OSHRC Docket No. 91-2897
                              :
NEW YORK STATE ELECTRIC :
& GAS CORP.,                  :
                              :
     Respondent.              :
______________________________:


Appearances:

    William G. Staton, Esq.           James S. Gleason, Esq.
             Office of the Solicitor     Hinman, Howard & Kattell
             U.S. Department of Labor    Binghamton, New York
                     For Complainant            For Respondent

Before: Administrative Law Judge Richard W. Gordon

                                  DECISION AND ORDER

       This proceeding arises under § 10(c) of the Occupational Safety and Health Act of
1970, 20 U.S.C., et seq., ("Act"), to review a citation issued by the Secretary pursuant to § 9(a)
of the Act and a proposed assessment of penalty thereon issued pursuant to §10(c) of the Act.

                                       BACKGROUND

       On September 12, 1991, the Occupational Safety and Health Administration
("OSHA"), issued to Respondent, New York State Electric & Gas Corporation ("NYSEG")
a serious citation containing one item with a proposed penalty of $1,500. By filing a timely
notice of contest, NYSEG brought this proceeding before the Occupational Safety and Health
Review Commission ("Commission").

       Pursuant to Rule 35(f) of the then existing Rules of Procedure of the Commission, the
Secretary amended the citation to vacate the alleged violation of 29 C.F.R. § 1926.28(a) and
to substitute therefor one (1) alleged violation of 29 C.F.R. § 1910.132(a) as item la and one
(1) alleged violation of Section 5(a)(1) of the Act as item lb. This amendment was made to
reference the statutory section and standard applicable to the alleged violations. Prior to the
hearing, NYSEG moved for partial summary judgment on that portion of the Secretary's
complaint alleging a violation of Section S(a)(1) of the Act, the general duty clause ("GDC").

       A hearing was held in Binghamton, New York on July 14, 1992. The parties have
submitted their briefs and this matter is now ready for decision.

                                       DISCUSSION

       While driving on Front Street in Binghamton, New York on July 30, 1991, William
Marzeski, a compliance officer ("CO") with the Occupational Safety and Health Administra­
tion ("OSHA"), observed a pneumatic jackhammer operator cutting asphalt pavement on the
road shoulder without wearing protective eyewear. CO Marzeski stopped his car and
approached the individual who identified himself as Ray Price, a NYSEG employee. Marzeski
identified himself to Price as an OSHA inspector and asked to see Price's supervisor.
Immediately thereafter, the crew leader, Mr. Jim Webb, who was on-site, joined the two men.
       CO Marzeski then explained to Webb that Price was in violation of OSHA regulations
in not wearing safety glasses while jackhammering, a suggestion that caused Webb to instruct
Price to obtain a pair of safety goggles from the nearby company truck. At about this time, CO
Marzeski also learned that Price was not wearing steel-toed safety boots. Webb then told Price
to retrieve safety "covers" (overshoes) from the truck. Both articles of personal protective
equipment ("PPE") were available to the workers from the company vehicle and were
recovered and worn by Price as he resumed his job. Based upon his observations at the work
site, CO Marzeski recommended the issuance of a citation.

                                              2
           NYSEG, employer of both Price and Webb, is a public utility company supplying
natural gas and electric service to a million across New York State. Work crews usually
consist of 2-3 employees for gas line maintenance and operations, including one first-class
gas fitter (Webb), who normally acts as the foreman, though he is a member of the collective
bargaining unit. Salaried crew supervisors handle a number of separate crews and usually
visit each job site twice per day, although they do not remain on site unless problems arise.
The crew supervisor assigns work and assures that employees comply with company policies.
The supervisor of Webb's crew was John Hrywnak, who dispatched the crew to the Front
Street site in order to tie in a new gas main. NYSEG does not oppose the Secretary's
version of the factual conditions prevalent at the time of the alleged occurrence of the
citation.


                DISPOSITION OF PARTIAL SUMMARY JUDGMENT MOTION


        NYSEG timely filed a motion for partial summary judgment accompanied by affidavit
and memorandum of law. NYSEG asserts that item lb of the citation is invalid since a general
duty clause violation wil1 not lie where a duly-promulgated OSHA standard is applicable.
         Summary judgment, though generally disfavored by the Commission1, is considered
appropriate when there is no genuine issue of material fact. The Commission follows the
Federal Rules of Civil Procedure in allowing summary judgment when "the pleadings together
with the affidavits if any, show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law."2 There is no issue of fact in
controversy here, so my inquiry is directed to whether the applicable law requires dismissal
under the facts admitted.
         In order to establish a violation of the general duty clause, the Secretary must prove, by
a preponderance of the evidence, that the "cited employer failed to free the workplace of a
hazard that was recognized by the cited employer or its industry, that was causing or

1
    Rothstein, Occupational Safety and Health Law, § 384 (2d. Ed , 1983).

2
    Fed. R. Civ. P. 56(c).


                                                        3
likely to cause death or serious physical harm, and that could have been materially reduced by
a feasible and useful means of abatement." Pelron Corporation, 12 BNA OSHC 1833, 1835
(R.C. 1986).
         Citation under the general duty clause is only proper if no specific standard applies to
the hazardous situation. See Ted Wilkerson, Inc., 1981 CCH OSHD 1125,551, p. 31,855
(1981). NYSEG cites § 1910.5(c)(1) to the effect:
             If a particular standard is specifically applicable to a condition,
             practice, means, method, operation, or process, it shall prevail
             over any general standard which might otherwise be applicable
             to the same condition, practice, means, method, operation, or
             process.

         Respondent notes three cases to further its contention, using Brisk Waterproofing
Company, Inc., 1 BNA OSHC 1263, 1973-1974 CCH OSHD fl6,345 (No. 1046, 1973), as the
benchmark. However, the applicability of § 1910.5(c)(1) alone is cause for concern. That
section, by its own terms, applies to a situation where two standards are in issue (e.g.: where
a general industry standard "overlaps" with a maritime standard), and not where a standard
confronts a general duty clause violation. Indeed, Brisk itself comments upon the distinction
("While this regulation applies only within the standards themselves") but then goes on to
compare the two types of violations and, by analogy, equate the GDC with general industry
standards (in effect, the GDC becoming the "most general" of standards). In Brisk, the
Secretary allowed that a specific standard was applicable to the condition or practice that
constituted the violation, and an argument favoring application of the GDC was shortcircuited
by amending the complaint to conform to a Section 5(a)(2) violation of a specific standard.
In the present situation, the Secretary contests the effective application of any standard to the
hazard at issue.
         While the term "specifically applicable" is not defined in the regulations, one may look
to § 1910.5(f) for further elucidation regarding the prerequisites for preemption. This section
reads:
                An employer who is in compliance with any standard in this
                part shall be deemed to be in compliance with the requirement
                of § 5(a)(1) of the Act, but only to the extent of the condition,


                                                4
       practice, means, method, operation or process covered by the
                 standard.

The words "conditions, practice..." have generally been construed by the courts to be equated
with the term "hazardous condition", rather than the more narrow interpretation apparently
envisioned by respondent of relating to a particular type of work process or activity.3 By the
stated terms of Section 5(f), compliance with Section 5(a)(2) will not avoid a GDC violation
if that standard is circumscribed in its protection of the health or safety of the employee. Thus,
a standard must be specifically applicable to the hazard in question to the extent that hazard
is covered under the standard. It is at the point of circumscription where the GDC becomes
operative       in    a    situation       where       a       hazard    is   ineffectively         covered       by
a particular standard, and, over and above its obligation to comply with particular standards,
the employer "must furnish employment...free from recognized hazards that are likely to
cause death or serious physical harm." By very definition, a serious violation requires
"significant risk of harm", meaning that there exists a hazardous condition in the workplace."
         The condition at issue here is the use of a pneumatic hammer to tear up asphalt. It
seems entirely obvious that an accident could occur while using such a powerful and unwieldy
piece of equipment. Flying debris could cause serious harm to an operator's eyes if they were
improperly or inadequately protected from such a happenstance. My inquiry must now focus
on the adequacy of the standard cited by the respondent as being applicable to the hazardous
condition.
         The use of a jackhammer is covered under a general construction standard at §
1926.102(a) which states:
                  Employees shall be provided with eye and face protection
                  equipment when machines or operations present potential eye
                  or face injury from physical, chemical, or radiation agents.

The Secretary did not issue the citation under the that section because it contends that mere
provision of PPE would not adequately abate the hazard to the eyes of flying debris.
Respondent, however, would urge me to implicate the general industry standard at §


3
 For a thorough discussion of this point, see Donova n v. Daniel M arr, 763 F.2d 477 , 481 n.6 (lst Cir, 198 5). Also,
L.R. Wilso n & Sons, In e. v. Donov an, 685 F.2d 664 , 672 (D.C . Cir. 1982).




                                                           5
1910.133(a), whose wording is, for our purposes, consistent with the construction standard but
with the added condition that use of PPE be required. Basically, NYSEG proposes that a
tactical error on the Secretary's part in failing to cite under the general industry standard is
fatal to the Secretary's case.
           Respondent misconstrues the statutory scheme, along with its purpose. The scheme is
much more flexible in practice that respondent would acknowledge. Both the Commission and
the courts have generally construed standards broadly, in keeping with the Act's purpose of
assuring worker safety and health.4 In this instance, that avowed purpose would be poorly
served by highlighting one of many inconsistencies prevalent in the regulations while ignoring
the overall goal of workplace safety. Although citation under the general industry
standard would have had the effect of more adequately addressing the hazard than citation
under the construction standard, it would fail to resolve the impending procedural impasse
which would occur when a respondent sequentially raises the point of the existence of a
paramount construction standard, a standard more "specific" in applicability. The sole end
result would be to handcuff the Secretary in his attempted enforcement of the Act and
Regulations, a result certainly not visualized by the Act's original Congressional proponents.
To allow flexibility in scenarios analogous to this situation, the GDC was formulated to
augment, rather than supplant standards5 where a specific standard would, but does not, apply
due to its impotence in fully-abating the hazard in question. The general standard at §
§1910.133(a) should not displace the normally-applicable construction standard at §
1926.102(a). However, as the Secretary fully realized, application of that more specific
standard would fail to alleviate the hazard at the work site, but application of the argumenta­
tive GDC would alleviate the hazard. His alternative was to apply the GDC, which he did, and
I concur with its application here.
           Recent caselaw6 has looked to the adequacy of standards in abating particular hazards.
The construction standard in question only requires an employer to provide or

4
    See Rothstein , supra §§ 124- 5 for an expa nded discussio n on this point.

5
    Rothstein, supra § 141, citing S. Rep. No. 91-1282, 91st Cong., 2d. Sess. at 9,10 (1970).

6
    International Union, U.A W v. Genera l Dynam ics Land Syste ms, 815 F.2d 1570 (D.C. Cir. 1987); cert. denied.



                                                            6
furnish PPE, and clearly, only use of PPE would effectively alleviate the hazard of flying
debris from jackhammering operations. One such case, from the D.C. Circuit, has held that
"if an employer knows that a particular safety standard is inadequate to protect his workers
against a particular safety hazard it is intended to address, he has a duty under § 5(a)(1) to
take whatever measures that may be required by the Act, over and above those mandated
by the safety standard, to safeguard his workers. Scienter is the key."7 I feel this
interpretation of Section 5(a)(1) is more in tune with the accepted purpose of the Act as
being preventative in nature. In the instant case, NYSEG previously adopted a work place
rule requiring the use of safety glasses while its workers are operating jackhammers. Usage
of such equipment would afford employees the necessary eye protection against flying debris,
while the mere presence of PPE at the site would not. So long as the employer has specific
knowledge of the existence of such a hazard, then, for purposes of Section 5(a)(1), the
hazard is "recognized", and the general duty clause may be invoked in order to adequately
abate the hazard. The motion for summary judgment is denied.

                             DISPOSITION OF VIOLATION la

         NYSEG was cited for a serious violation of § 1910.132(a) for failure of an employee
to wear protective footwear while engaging in a hazardous activity. A violation is considered
serious if the violative practice or condition gives rise to a substantial probability of death or
serious bodily harm, unless the employer did not, and could not with the exercise of
reasonable diligence, know of the presence of the violation. Item la is a violation of a general
industry standard requiring the use of personal protective equipment for the feet when an
employee is exposed to a hazardous condition (for example, physical contact with flying
debris from, or actual contact with, an operating jackhammer). Here, the use of the hand-held
jackhammer within inches if an employee's unprotected lower extremities clearly creates a
hazardous condition. If the hammer were to slip from the operator's hands for whatever cause,
serious injury is certainly a strong possibility. The feet of the operator are probably the most
likely area of the body to be exposed in such a scenario. The alleged violation of § 1910.132(a)
was properly characterized as serious.

7
 Id., p. 1577.



                                                7
         Respondent was cited under Section 5(a)(2) of the Act, referring to violation of a
standard. To establish a prima facie case under that section, the Secretary must prove, by a
preponderance of the evidence, that:

         1. The cited standard applies,
         2. The employer failed to comply with that standard,
         3. The employee access to the violative condition,
         4. The employer knew, or could have known of the violative condition
            with the exercise of reasonable diligence.

I must consider all the evidence in determining whether the Secretary has met his burden.
Respondent acquiesces in the Commission's jurisdiction, and is a company engaged in
business affecting commerce. NYSEG also fails to contest the first three elements of the
Secretary's case. It does, however, dispute the knowledge (fourth) element. If knowledge
is found, NYSEG alternately claims that it cannot be held responsible for the unpreventable
misconduct of its employee, Mr. Price, in his circumvention of the OSHA regulation.
NYSEG asks that the citation be vacated in its entirety under either scenario. At issue is
the employer knowledge requisite.
      At a minimum, a violation must be reasonably foreseeable for it to be deemed a serious
violation. Employer knowledge may be actual or constructive. Where constructive knowledge
is averred, the Secretary must prove that the employer did not show reasonable diligence in
avoiding the hazardous condition. Either actual or constructive knowledge may be imputed
through the employer's supervisory personnel. The focus of the inquiry is not the employee's
supervisory status, but rather, whether the employer's implementation of its safety program
has been effective.8 The employee need only be shown to bear some responsibility for on-site
employee safety. See Mercer Well Service, Inc., 5 BNA OSHC 1893, 1977-78 CCH OSHD
11 ¶22,210 (no. 76-2337, 1977). Foreseeability may be shown by any instance of employer
awareness of the potentially hazardous condition.


8
 For a broader discussion of this point see Floyd S. Pike, Electrical Contractor, Inc. v. OSHRC, 576 F.2d 72,77
(5th Cir. 1978) . Also, Brock v. L .E. Mye rs, 818 F.2d 1270 (6th Cir. 1987).


                                                      8
Respondent's Accident Prevention Manual demands the wearing of proper safety equipment,
including "safety covers" during the use of pneumatic jackhammers. This evidence satisfies
the foreseeability test of employer awareness.
       To prove actual knowledge, the Secretary must show that the employer had adequate
warning of the violative condition (subjective knowledge of the hazard's existence). Here, the
Secretary must show that the lead man Webb, whose safety responsibilities are imputed to
NYSEG, was aware of the violation at the time of its occurrence. There is no available
evidence to support the proposition that Webb was ever aware that Price had failed to don
protective footwear before the arrival of CO Marzeski. Since Webb had no prior warning of
Price's violation, the employer cannot be held to the actual knowledge standard.
       Proof of constructive knowledge, however, is more readily apparent from the record.
Webb admits being in close proximity to price at the time the violation occurred. (Tr. 55, 65).
This proximity, in addition to the feasibility of detection of the hazardous condition by the
lead man, strongly infers that the lead man should have been aware of the violation with the
exercise of reasonable diligence. Admittedly, he was not. (Tr. 24). There was no evidence of
extraordinary or unusual conditions being prevalent at the site which might mitigate the
"diligence" standard. There was no reason given why Webb was not alert to the equipment
operator's misconduct. Thus, Webb's lack of diligence in safety supervision is attributable to
NYSEG, and the Secretary has presented his prima facie case for a §1910.132(a) violation.
Mr. Webb's on-site reasonability for safety measures and reporting is sufficient nexus for him
to be deemed "supervisory" for purposes of imputing constructive knowledge to NYSEG
through him.
       It should be noted that a possible exception to employer's imputed knowledge occurs
when a supervisor's actions are in willful violation of an employer directive, and the employer
shows that the supervisor himself had adequate supervision as to safety matters. In this case,
the supervisor's inaction is at issue, and while the inaction was violative of a company policy,
it did not constitute a violation of the Act, as the employee's behavior did. Respondent cites
the Third Circuit case of Pennsylvania Power and Light v. OSHRC, 737 F.2d 350, 358 (3d Cir.
1984), for the proposition that the burden of proving foreseeability (here, the word is used
conterminously for employer knowledge) requires a greater showing


                                               9
than mere supervisory misconduct or participation before the burden of ultimate risk of non-
persuasion is shifted to the employer. While I am not bound to follow such precedent, (and
only a minority of courts who have reached the question have agreed with the Third Circuit's
pronouncements.9) the Pennsylvania rule operates under a disparate factual framework, as it
pertains to supervisory misconduct directly resulting in an OSHA violation, rather than the
simple scenario of lax supervision (a violation of a company policy, but not OSHA rules) by
supervisory personnel that I find in the instant case. Supervisory inadequacy alone is sufficient
to discharge the Secretary's burden of proof in showing employer knowledge where
employee misconduct results in a violation of the Act.
            After the Secretary has shown his prima facie case, NYSEG may submit evidence that
the employee conduct resulting in non-compliance with the Act was unpreventable, and that
therefore, the citation should be vacated. The burden of proof is placed on the employer to
prove the affirmative defense of unpreventable employee misconduct. The employer must
prove:
                  1.       The existence of established work rules designed
                           to prevent the hazard from occurring, and a departure from those rules.
                  2.       Adequatecommunication of work rules between employer and employees.
                  3.       Steps taken by employer to discover non-compliance.
                  4.       Effective enforcement in instances where non-compliance is found.

In other words, the employer must have taken all feasible steps to prevent the occurrence of
the hazard. As with the "due diligence" standard for constructive knowledge, adequate safety
supervision constitutes the underlying foundation for steps 2 and 3. Certainly, to discover
instances of non-compliance, reasonable and continual supervision is the foremost remedy.
Lead man Webb's lax oversight has already been demonstrated, and this nonfeasance inhibits
the employer's effective discovery of acts of non-compliance. While NYSEG has shown that
certain methods of discovering violations were in place, including

9
    The 4th, 5th an d 10th Circuits c oncur. See Id., p. 358 n.9.




                                                           10
twice-daily checks by a salaried supervisor, checks by the safety manager, and also by the
insurer (Tr. 124-128), those instances were spotty and could not be expected to discover non-
complying behavior except in the minute portion of the workday where employees were
observed by the salaried personnel. While the Act does not impose on employers a duty of
constant safety supervision, supervision must still be "adequate", and that concept is dependent
on a variety of factors, including amount of job-training received by supervisors, employee
competence and experience, safety records, practicality of supervision, and degree of
dangerous and hazardous work. Here, the two employees involved were shown to have been
working for NYSEG for less than four months at the time of the violations, and though they
had previously been employed in similar job spots by their prior employer, no record of the
prior firm's safety functions are before me. There is evidence, however, that NYSEG's safety
program was ineffective in communicating the relevant work rules to employees.
       During the four-month period that Webb and Price had been employed by NYSEG, the
company had issued its Employee Safety Manual to the new employees, and held two
employee safety meetings related to the training of new employees. (Tr. 129-140). Several
sections of the Manual are devoted to eye and foot protection and their necessity when
operating heavy pneumatic equipment. Respondent does not dispute that the wearing of such
PPE could have prevented the hazard in question. However, Mr. Webb did not attend both
sessions (Tr. 167-176), and there was little mention of proper foot safety precautions during
those meetings. (Tr. 152, 157). Moreover, the simultaneous occurrence of another PPE-type
violation (lack of protective eyewear) is indicative of a deficient safety communications
program. Webb admitted that he did not issue PPE to Price before the latter crewmember
started the hazardous job. (Tr. 44). Although all safety manuals were distributed to the new
employees, including Webb and Price, at the March 27 meeting, apparently there was no oral
directive given to command the employees to read the manual (they were told they could be
tested on the material). (Tr. 103, 154-155). While there are questions as to the adequacy of
communication, there is little doubt that steps taken to discover non-compliance were
ineffective. The placement of the main burden of safety supervision on the salaried
supervisor's visits disposes me to agree with the Secretary that

                                              11
lack of a designated, on-site safety supervisor was the crux of the problem. Either Webb was
responsible for safety at the site (which NYSEG denies), and was derelict in his duties, or the
salaried personnel were responsible and the infrequency of their visits contributed to lax
enforcement of safety rules. The added fact that the violation occurred during normal
operations, rather than under exceptional conditions, is further evidence that negligence was
the norm at NYSEG. Accordingly, I reject NYSEG's affirmative defense of unpreventable
employee misconduct on the basis that inadequate means were utilized to discover
non-compliance, and as "the [non-complying] behavior was not truly idiosyncratic,
implausible, or unforeseeable."10 Serious Citation No.1, item no. la is affirmed.
                                  DISPOSITION OF VIOLATION lb
           The Secretary also cited NYSEG for violating Section 5(a)(1) of the Act (the General
Duty Clause). To prove such a violation, the Secretary must show that:

          1.  The cited employer failed to free the
              workplace of a recognized hazard.
           2. That the hazard was causing or likely
              to cause death or serious physical
              harm.
           3. That the hazard could have been materially
              reduced by a feasible and useful means of abatement.

The specific violation dealt with the failure to use protective eye equipment to safeguard the
employee from a hazard of being struck by flying particles while operating a pneumatic
jackhammer. NYSEG's lead man, Mr. Webb, who did not testify, was quoted in the
testimony of CO Marzeski as concurring with Marzeski's assessment of the hazard and
possible consequences of it. The NYSEG Safety Manual specifically calls for the usage of
safety goggles while jackhammering. That the hazard could cause serious physical harm to
an employee or operator is uncontested. I have already dealt with the question of
applicability of the general duty clause to the hazard in question. I have also noted that the
employer's knowledge is imputed through the presence of Mr. Webb at the jobsite (the
foreseeability requirement pertains to Section 5(a)(1) violations, as well as to those of


10
     Horne Plumbing and Heating Co. v. OSHRC , 528 F.2d 564, 571 (5th Cir. 1976).


                                                     12

Section 5(a)(2)). Enforcing the use of safety goggles or other personal protective equipment
in this instance would have feasibly abated the hazard. For much the same reasons detailed
above, supervisory laxity prevented this abatement. Under the general duty clause, the
Secretary bears the burden of proving that the employer failed to render the workplace free of
the recognized hazard, and the employer may rebut this contention by submitting evidence that
it took all necessary precautions to prevent the occurrence of the violations. The crucial
question that must be answered in each case is whether the employer could have taken steps
to prevent the hazard.
       For the same reasons denoted in the previous section, namely the inability of
respondent NYSEG to enforce its work rule regarding the wearing of protective eyewear
through inadequate supervision of its employees, I find that the employer failed to render his
workplace free from a recognized hazard. Inclusion of the work rule relating to the wearing
of PPE while jackhammering in the company manual is sufficient to give NYSEG notice of
the hazard. I similarly reject NYSEG's affirmative defense of unpreventable employee
misconduct. The Secretary has shown that inadequate steps were taken by NYSEG to discover
the non-complying behavior. Accordingly, Serious Citation No.1, item no. lb is affirmed.
       Section 17(j) of the Act requires the Commission 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
appropriatepenalty. Upon consideration of these factors, I have determined that a total penalty
of $1,500 is appropriate.
                FINDINGS OF FACT AND CONCLUSIONS OF LAW
       Findings of fact and conclusions of law relevant and necessary to a determination of
the contested issues have been made above. Fed. R. Civ. P. 52(a). All proposed findings of
fact and conclusions of law inconsistent with this decision are hereby denied.




                                              13
                                       ORDER

     1. Serious Citation No. 1, item nos. la and lb are AFFIRMED and a penalty of
$1,500 is ASSESSED.


                                                   /s/

                                                 RICHARD W. GORDON
                                                 Judge, OSHRC

Dated: July 7, 1993
       Boston, Massachusetts




                                          14