Whirlpool Corporation (Commission decision, May 22, 1981)

Plain-English summary

In an earlier decision the Commission found that Whirlpool violated the general duty clause because guard screens its employees had to work on were not strong enough to hold their weight, and that installing stronger screening was feasible. Whirlpool appealed, and the D.C. Circuit held that the feasibility finding was not supported by substantial evidence and sent the record back for further development on whether a feasible abatement method existed. That is the only question left open. In this order the Commission remands the case to the Chief Judge, who will reassign it to an administrative law judge because the judge who first heard it has retired. The new judge must let both sides put on more evidence and argument about a feasible means of abatement, make findings, and then dispose of the general duty clause citation consistent with those findings, the court's remand order, and the Commission's earlier decision. The order decides nothing about penalties. A footnote records the Commission's earlier holding that fixing a hazardous condition after a citation issues neither cancels nor excuses the employer's failure to comply with the Act.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: Remanded. The Commission returned the case for reassignment to an administrative law judge to take further evidence on feasible abatement and then dispose of the citation.
• Key point: A general duty clause case fails unless the Secretary proves a feasible way to eliminate or materially reduce the hazard, and a reviewing court can send the case back when that proof is not supported by substantial evidence.

Full text (OSHRC public release)

Docket No. 9224

WHIRLPOOL CORPORATION

OSHRC Docket No. 9224

Occupational Safety and Health Review Commission

May 22, 1981

[*1]

Before: CLEARY and COTTINE, Commissioners.

COUNSEL:

William S. Kloepfer, Associate Regional Solicitor, USDOL

Robert E. Mann, for the employer

OPINION:

DECISION

BY THE COMMISSION:

In a previous decision in this case, n1 we determined that Respondent, Whirlpool Corporation, violated section 5(a)(1) n2 of the Occupational Safety and Health Act of 1970, 29 U.S.C.

651-678, in that guard screens on which employees were required to work were not sufficiently strong to support the employees' weight.

We found, among other things, that the installation of stronger screening was feasible. n3

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n1 79 OSAHRC 32/A14, 7 BNA OSHC 1356, 1979 CCH OSHD P23,552 (1979).

n2 Section 5(a)(1), 29 U.S.C.

654(a)(1), provides:

Sec. 5.(a) Each employer --

(1) shall furnish to each of his employers employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious phusical harm to his employees.

n3 One element of the Secretary's proof in a

5(a)(1) case is a showing that a feasible means exists to eliminate or materially reduce the alleged hazard.

See National Realty and Constr. Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).

[*2]

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Whirlpool appealed our decision to the United States Court of Appeals for the District of Columbia Circuit.

The court concluded that our finding that a feasible means existed to abate the hazard was not supported by substantial evidence and remanded the record to us "for further development on the issue of a feasible abatement method." Whirlpool Corp. v. Marshall, 9 BNA OSHC 1362, 1365, 1981 CCH OSHD P25,224 at p. 31,168 (D.C. Cir, March 12, 1981). n4

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n4 The court had remanded the case to us on a prior occasion for further consideration in light of the representation of Whirlpool's counsel that the violative condition had been abated.

We held that abatement following the issuance of a citation neither negates nor emcuses an employer's failure to comply with the Act and reaffirmed our prior decision.

80 OSAHRC    , 8 BNA OSHC 2248, 1980 CCH OSHD P24,957 (1980).

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The court's decision requires that the parties be afforded the oppostunity [*3]

to reopen the record to present further evidence on the feasibility of a means of abatement at the time of the alleged violation.

Accordingly, the case is remanded to the Chief Judge for reassignment to an administrative law judge, n5 who shall permit the parties to present further evidence and argument on the existence of a feasible means of abatement.

The judge shall make findings on the issue and shall enter an order disposing of the section 5(a)(1) citation consistent with those findings, with the court's remand order, and with our earlier decision in the case, note 1 supra, to the extent that earlier Commission decision is consistent with the court's remand order.

SO ORDERED.

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n5 Administrative Law Judge David H. Harris, who initially heard and decided this case, has retired from the Commission.

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