Ludwig-McIntosh Bulk Haulers, Inc. (ALJ decision, January 10, 1994)

Plain-English summary

Ludwig-McIntosh hauled industrial coke and maintained its vehicles in a Toledo shop where drilling, grinding, welding, and coke dust created eye hazards. A mechanic was struck in the eye by a drill bit while his safety glasses were pushed up on his forehead. The judge found conflicting and credibility-sensitive evidence about whether the mechanic had earlier requested replacement glasses and held that the Secretary did not prove Ludwig knowingly denied him protective equipment. He therefore rejected the willful classification. The serious violation was established because the mechanic was not wearing the glasses over his eyes, the shop foreman knew it, and enforcement of Ludwig's posted eye-protection rule was lax enough for the violation to occur in the foreman's presence. The citation was affirmed as serious with a $5,000 penalty instead of the proposed $21,000 willful penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.133(a)(1).
• Outcome: Modified. The eye-protection violation was reduced from willful to serious, and a $5,000 penalty was assessed.
• Key point: A written and communicated safety rule does not establish unpreventable misconduct when supervisors tolerate visible noncompliance.

Full text (OSHRC public release)

One Lafayette Centfe
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-2704
LUDWIG MCINTOSH BULK HAULERS
Respondent.

NOTICE
-- OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law judge’s Report in the above referenced case was docketed with the Commission on December 9, 1993. The decision of the Judge will become a final order of the Commission on January 10, 1994 unless a Commission member directs review of the decision on or before that date. ANY PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW. Any such petition should be received by the Executive Secretary on or before December 29, 1993 in order to permit sufficient time for its review. See Commission Rule 91, 29 C.F.R. 2200.91.

All further pleadings or communications regarding this case shall be addressed to:

Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial Litigation will kepresent the Department of Labor. Any party havmg questions about review rights may contact the Commission’s Executive Secretary or call (202) 606-5400.

FOR THE COMMISSION

Date: December 9, 1993 tf$fd ~,&!&?i?
Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 92-2704
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. LMick,Esq.
Counsel for Re 'onal Trial Liti ation
Office of the Sof l citor, U.S. DOf : ‘,.
‘bil,,
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

William S. Kloepfer
Assoc. Re ional Solicitor
Office of tfl e Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199

John J. Gazzoli,Jr., Esq.
Lewis, Rice & Fingersh
611 Olive Street
St. Louis, MO 63101

Paul L. Brady
Administrative Law Jud e
Occupational Safety an CKHealth
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119

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SECRETARY OF LABOR,
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Complainant,
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v. 0 l OSHRC Docket No.: 92-2704
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LUDWIG MCINTOSH BULK
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HAULERS, INC., 0
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Respondent.
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Appearances:

Christopher J. Carney, Esquire office of the solicitor u. s. Department of Labor
CkveIan& Ohio
For compfainant

Before: Administrative Law Judge Paul L Brady

Ludwig-McIntosh Bulk Haulen, Inc. (Luchvig), contests a citation issued by the Secretary on August 11, 1992, dleging a willfidviolation of 9 1910.133(a)(l). The cited standardprovi&sz Protective tyt and f&a equipment shaIl be required where there is a reasonable probability of injurythat can be prevented by s&h equipment In such casa, empdoyc~rs shall make conveniently wailable a type of pzutwtor suitable for the work to be performed, and empkyws shall use nxh protectors. No unprotected person shall knowingig be sul$cctcd to a hazardous environmental condition. Suitable eye protecturs shall be prddcd where machines or operations present the hazard of flying objc+ @are, liquids, injurious radiation, or a combination of these hazank The Secretary issued the citation fokwing an inspection amductd by Occupational safety and Health AdmMtration (06HA) compliance oEccr Fkqd Gattis an Jdy 17,lSZ Ludwig hauls industrial coke for foundries vr. 10). Its fkility in Tokb, Ohio, houses a garage, also known as the shop area, wberc Ludwig’svelxicicsarc maintaimd and repaired (Tr. 142). Maintenance and repair of the vehicles requires a certain amount of drilling, grinding and welding (Tr. 940). In addition, the coke haukd in the v&i&s generates a great deal of coke dust in the atmosphere (Tr. 11). Because of the drilling, grinding, and welding activitiesand the amount of cokt dust in the air, Ludwig has a poliq requiring employees to wear safety ghsses at all times while in the thop ara Ludwig posted a prominent notice remindingemploy&s of this policyin the shop area (Exh.R-11; Tr. 94). When employees are first hired, Ludwig’smanager, Kenneth Hicks, dimuses safety with them, and requires them to sign a statement acknuw&lgingthat they received a pair of safety glasses Qk. 143).
Kevin Bailey returned to work from a vacation on Tuesday,June 2,1992 (Exh.R-4;
Tr. 16,164). It is at this point that the testimony of the variouswitnesses begins to diverge. Seven witnesses testified. Floyd Gattis, the compliance officer, obviously arrived on the scene after the events at issue occurred,and so his testimonydoes not dinctly estabkh the events at issue. The other six witnessq all employees or former emplqxs of Iiudw& testified with varying degrees of credii~ty regarding Bail9 and his safety glasses The crediiility determination of the witnesses is complicatedby charges and counter-chqes of lying,revenge, gned, and self-iMeres& The two oppohg versions of what ouxmd kacling up to the accident were set out in ihe testimony of Kevin Bail9 and Ludwig’s manager,Kenneth Hi&. Baiky, as noted, is a mechanic who was still employed with Ludwig at the time of the hearing. m version of the events at issue is as folbws:
On Wednesday, June 3, 1992, (the seamd dq of Bailqs return folkming his vacation) Bailey went to the office of manavr Kenneth Hick. AISOpresent were Imkig% .-..
3 utility person, or “gopher,” James Milk, and two secretaries, Tii Siadak pnd Pat Sutton (Tr.16). BailytoldHicbthat~saftty~hadbeenmiuinp~~~~~~ he rimmed ftomvacation. Baileyrequesteda newpair. Hicbrcpiicd, “we don’thave ~llly. We are waiting for them to come in from BufEh We get them cheaper there” pr. 15-H). B&y left without obtaininga pair of safety glasses. Bailey amtinutd to work in the shop arca from that day, June 3, until the day of his accident, June 12, without weariq ratetg glasses (Tr. 1617).
Kenneth Hicks’s version of both the date and substantx of the axwersatiun with Bailey in his office differsdramaticallyfrom that of bile@. Hickstestified that Baileycame tohisofficconJune9,notJune3,andthatBaikyhadhissafietyglasscswithhimatthe time (Tr. M-147): “[Bailey] and Mr. Miller came in to q office a the 9th. Kevin said he needed glasses. He had a pair in his hand. They were oi@ He was rubbingthem off on his shirt tryingto get the oil off.* Hickssaid that he got up from his desk and went to the cabinet where he kept Ludwig’ssupply of safety glasses crf. 147). Seeing that he bad no safety glasses on hand, Hicks sent Miller over to the Toledo Coke plant next door to see if he could get a pair. Miller reported back that none were as&lable there. Baiky told Hicks that he would make do with his oily safety glasses until Hicks could $et a new pair to him the next day (Tr. 148). The next morning,on June 10,Hickssent Miilerover to Walter Goggle’sa warehouse supp& store, and had him pick up two bow
af safbty @asses, containing a total of twenty pairs (Tr. 149). Hicks did not give Baileya new pair of glasses (Tr. 150).
Ludwig contends that Bailey’s testimonyis suqxct muse Bailey has filed a claim
for workers’compensation,and that under the Ohio Workers’ Compensation procedures, the employee can collect su~tially higher benefits if the employee’sintiws caused by the employer% violation of a specificstandard. The Secretary argues tb8t Hi&s tcstimq is suspect because it is in his self-interestto deny his rcspons~Wityfor Baiky%fkihIrcto have safety glasses and incurring a $21,ooO.00penalty &om OSHA In this rqard, the secretary points out that it is curious that Hicks failed to mention his vcr&m of the ~rsatb with Bailey during the closing conference held by Gattis. Gattis infbrmed Hb that Ludwig Wo~dbecitedfor~toprovideBailywith~~glasserforaperiodd~dap --

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  Undoubtedly, a rcamnabk person in Hick’s position wmkl have disagmd with Gattjgs. understancfin%oftbeEactrandprovidedGattiswiththeePculpatorgiaformPtioaLnown~ Hicks. Hicluadmit8thathe~todorqclaiming~bcwsr”-”durillg~ the seriowws ofthcancga~kvcled conversationwith Gatti8 (Tr. 156157). COnSidering against L,udwig,it appears unlikelythat Hicks would not hawesimply toki Gattis his w&n of the events leadingup to Baik@ aazidcti Sincethe essentialpoint that Bail9 and Hicksagree on regarding their c0nvcrsation is that JamesMillerwas present,it mightbe thought that MiWs testimony could shed some light on what actudly occurred. Unf~tcly, Milkr proved himselfan unreliable witnesq because his testimony is inconsistent on so many points.
  ExhiiiitC-4 is the statement that Miller gave to Gattis during his inspections In it, Miller stated in pertinentpart:

Kevin Baileyhad ask [sic] Kenneth Hicks for a pair of safety glasses several days after he had returned from vacation. . . . Kenneth Hicks told Kevin Bailey that he didn’t have any safety glasses to give him, he said he was waitingfor New York to send him some. I, Pat Sutton,and Tii Sad& opcrc also present when Kevin Bail9 had ask [sic] Kenneth Hicks for a pair d safety glasses. Kevin Bail9 then returned the shop without receiving a pair of safety glasses.

KevinBaileywasnotgivenapairofsafetyglassesfromtbetimehe had request[sic]a pair fn>mKenneth Hicksto includethe day of the accident June 12,19%L I didn’t see him wearing any safety glasses at anytime whik workingin the shop.

At the hearing,Millersaid that he did not remember whether or not Bailey had any safety glasses with him the day he kft Hicks’s office Qh. 43) and that he did not remember whether Bail9 wore &ety glasses between that time and the day of his accicknt PO 44).
Miller also changed his story regarding the date he p&d up the m of safety
glm from Walter Gogle. Exhibit CS is a copy of an invoice k an order of bolts and the order for safety glasses. The order date is given as June 14 and the invoice date is June 15. The followingexcerptfrom Miller’s testimony is represeMative of its tenor m. 5253):

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 There~twop&iiilities Icoukihwewenttherethe8amedey,or Icouklhavewlentthereonadi@MuNday.
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What would that different day have been?
Iwouldhavetolookitupinmyrwords.
Ihaveto6ndouteractly
WhelL
Doyourccallmeetingwithmelastnight?
YcqIdo.

Do you recall what your answer was last night to that quest&n of %hen did you pick up the goggles?*
I thought I had gotten the glasseson the 15th.

Wasn’t your answer five times to that question “June 15 of W?
It could have been on the 15th,yes.
You didn’t say last night that it couldhave been on the 15th. You said that it definitely was on the lSth, didn’t you?

The questioningof Miller continued in this same vein (Tr. 5548).
After listening to Miller’s testimony and obsetig his demeanor on the stand, it is concluded that Milleris not a trustworthywitness. The equivocation and-inconsistencyin his testimony provide no basis of credibility.
Scott Fox was a mechanic for Ludwig at the time of Bailey’s accident. He was standingnext to Bail9 when Bail9 was struckin the eye. Farttestified that Bail9 was not wearingsafety #asses at the time of the accident, and that he did not ham safety @sses pushed up on his forehead vr. 83). Fox stated that although Ludwig had a safety poliq requiring employees to wear safety glasses at alI times in the shop area, the poEq was not enforced (Tr. 84): Tf you wore the- you wore them If you didn’t, you did& It wasn’t reallyenforced until after the aaMent?
Ludwig contends that Fox is biased against Ludwig because he kfi the companyon hostile terms, and is “bitter.” AfterFaxgavenoticetoLudwigthathewaskavi@ora better job, LuMg slapped Fox with a three-day suspension stemming from F&x%alleg insubordinationseveral months before he gave notice (Tr. 85-88). As the Secretary points

5 out, suspending an employee immediately after he gives notice that he is quitting bdiata hostility on the part of the employer more than it does on the part of the empm. Nevertheless, the circumstances surrounding FOX’S departure is another factor to consider in weighing the conflicting evidence in this case.
Tina Siadak is a secretary for Ludwig. Although she was named by Bailey and Miller as being present during Bailey’s conversation with Hicks, S&&k’s recollection uf tbc conversation is vague. She is not sure that it was Kevin Bailey, but she remembers that “an employee did come in sometime during that time frame and asked for a pair of safety @asses. 1 cannot say it was Kevin” (Tr. 165). Siadak ran into the shop area immediately after Bailey’s accident on June 12. She saw Bailey sitting on a stool holding a cloth to his eye. According to Siadak, “Mike [Pristash] was standing in front. of [Bailey]. Kevin was holding his eyes and his glasses were pushed up onto the top of his forehead” (Tr. 167).
The final, and most credible, witness to be discussed is Michael Pristash. Unlike Hicks, Miller, and Siadak, Pristash no longer works at Ludwig, so that there is less likelihood his testimony is colored by the need of self-preservation. Unlike Fox, Pristash lefi Ludwig on amicable terms, and appeared as an unbiased, disinterested witness. Furthermore, Pristash’s comportment and demeanor during his testimony encouraged the perception that he was a trustworthy, reliable witness. His testimony is given great weight.
Pristash was Ludwig’s garage foreman at the time of Bailey’s accident (Tr. 93).
Pristash gave this account of the hours immediately before the accident (Tr. 101402):

Kevin was under the front of the truck. Part of the job is to turn the engine slowly while the man reads his instruments on the rear. He was underneath the truck turning the crankshaft, and he says, “This stuff is falling on my face.” I don’t remember my exact words or exactly how I said it, but I probably said, “Why the hell don’t you have your safety glasses on?” He said, “Well, I don’t have any.” I said, “Well, get some.” He knows where they are at. They have always been available. Most generally, you would find them laying on tool boxes or stuff like that.
0 8 8 So, he got up and got a pair of safety glasses and came back to work.

Pristash observed Bailey between that time and the time of his accident (approximately two hours). During that time, Bailey was wearing the safety glasses (Tr. 102-

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103). Pristash was present when Bailey was struck in the eye with the drill bit went. At that time, Pristash observed that Bailey was wearing the safety glasses and that “(t]hey were up on his head” (Tr. 105).
The Secretary has charged Ludwig with a willful violation of 0 1910.133(a)(l).

Under long-standing Commission precedent, to establish a wdlfbl violation, it is not enough for the Secretary to show that an emplqer was aware of conduct or conditions constituting the alleged violation; such evidence is already necessary to establish any violation, serious or nonserious.
A willfulviolation is differentiated by heightened awareness of the illegality of the conduct or condition and by a state of mind of conscious disregard or plain indifference. WilliamsEntep., 13 BNA OSHC [1249,] 1256, 198683 CCH OSHD [V 27,893,] p. 36,589. There must be evidence that an empIoyer knew of an applicable standard or provision prohibiting the conduct or condition and consciously disregarded the standard. Also, a willful violation/charge is not justified if an employer has made a good faith effort to comply with the standard, even though the employer’s efforts are not entirely effective or complete. Id., 13 BNA OSHC at 1257, 198687 CCH OSHD at p. 36,589. See IZLSO, RD. Andeson Constr.Co., 12 BNA OSHC 1665,19&87 CCH OSHD 1 27,500, p. 35,641 (No. 8101469,1986)(numerous steps taken to comply with asbestos standard preclude willful finding).
Dee-Tam Corporation,slip op. at 61 (No. 88423, 1993).
The Secretary predicates his allegation of a willful violation on Ludwig’s failure to provide Bailey with safety glasses for a period of ten days after he requested them. But the record fails to establish that Bailey was deprived of his safety glasses. The Secretary did not prove by a preponderance of the evidence that Bailey requested a pair of s&ety glasses on June 3, and that Ludwig failed to provide him with the safety glasses. Although Ludwig did not prove that it did provide Bailey with the safety glasses, the Secretary has the burden of proof in establishing the violation.
The Secretary’s evidence for willfulness is based on the testimony of Bailey and Fox.
But their testimony, while consistent, was not so convincing as to overcome the testimony of Siadak and Pristash. Both witnesses stated that they saw Bailey immediately afkr the accident with his safety glasses pushed up on his forehead. The Secretary has not established that it was more likely than not that Bailey did not have safety glasses available at the time of his accident. The Secretary has failed to prove that Ludwig committed a willful violation of the cited standard.
In the alternative, the Secretary alleged that Ludwig committed a serious violation of
5 1920.133(a)(l). To establish a violation of a standard, the Secretary must show by a preponderance of the evidence that: (1) the cited standard applies, (2) its terms were not met, (3) employees had access to the violative condition, and (4) the employer knew or could have known of it with the exercise of reasonable diligence. Seibel Mdenr Manufactwihg& WeldingCop, 15 BNA OSHC 12141991 CCH OSHD 129,442, p. 39,678 (No. 88-821, 1991).
The Secretary has established a serious violation. Section 1910.133(a)(1) applies to Ludwig’s shop area. The fact that Bailey was struck in the eye demonstrates that he was not wearing the protective eye equipment at the time of the accident, establishing both that the terms of the standard were not met and that an employee had access to the violative condition. Pristash, as foreman of the shop area, had knowledge that Bailey was not wearing the safety glasses properly, and his knowledge is imputed to Ludwig.
Ludwig raises the defense of unpreventable employee misconduct. “In order to establish the affirmative defense of unpreventable employee misconduct, an employer must show that the action of its employee was a departure from a uniformly and effectively communicated and enforced work rule.” H. B. Zachty Company,7 BNA OSHC 2202,2206, 1980 CCH OSHD ll24,1% (No. 761393, 1980). Ludwig had an effectively communicated work rule requiring the wearing of safety glasses in the shop area. A sign proclaiming the policy was prominently displayed. Employees were provided with safety glasses and trained in their use upon being hired at Ludwig. Each of the employee witnesses testified to being aware of the policy.
Enforcement of the work rule is another matter, however. Fox testified that the requirement to wear safety glasses was not really enforced. Even discounting Fox’s testimony as that of a disgruntled employee, there was other evidence of lax enforcement. Bailey, testijing against his own interests, confirmed that he sometimes pushed his glasses up on his forehead (Tr. 192): “When I wasn’t working directly on something, I would put

8 them up, because after a while, they start getting scratchy, and it gets hard to see, and you start sweating, and they fog up. I will put them up.” The most dispositive evidence on this question came from Pristash. As foreman of the shop area, it was his responsibility to ensure that all of the shop employees wore their safety glasses (Tr. 94). But, Pristash conceded, “It wasn’t the highest priority in my agenda” (Tr. 108). Pristash agreed that Ludwig’senforcement policy changed after Bailey’s accident (Tr. 95): “I would say that probably we paid more attention to it and enforced it stronger, yes” (Tr. 95). Pristash was present with Bailey on the afternoon of the accident. He did not tell Bailey to put on safety glasses until Bailey complained about getting coke dust in his eyes. Later, Pristash was present when Bailey was apparently wearing the safety glasses pushed up on bis forehead. Even though drilling was being done, P&ash did not tell Bailey to wear the safety glasses over his eyes.
Despite the existence of an effectively communicated work rule requiring employees to wear safety glasses in the shop area, enforcement of the rule was lax enough for an obvious violation of the rule to occur in the presence of the shop foreman without drawing a warning or disciplinary action. Ludwig’s unpreventable employee misconduct defense must fail. Ludwig was in serious violation of 5 1910.133(a)( 1).

PENALTY DETERMINATION

The Commission is the final arbiter of penalties in all contested cases. Secrefzvy v.
OSAHRC and Intentate Gks CO.,487 F.2d 438 (8th Cir. 1973). Under section 17(j) of the Act, in determining the appropriate penalty the Commission is required to find and give “due consideration” to (1) the size of the employer’s business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the history of previous violations. The gravity of the violation is the principal factor to be considered.
Upon consideration of the relevant factor, it is determined that a penalty of $S,ooO.~ is appropriate.
 FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a).

Based upon the foregoing decision, it is ORDERED:
That the citation for the violation of 0 1910.133(a)(l) is affirmed as serious, and a penalty of $S,OOO.OO is assessed.

Paul L B&v
PAUL L BRADY
Judge

Date: November 24, 1993

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