Danis Shook Joint Venture, XXV
Basin-hazard training and PPE violations affirmed
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Plain-English summary
Danis Shook was building wastewater equalization basins where accumulated water was held above a 42-inch drain by a plywood plug. A pipefitter foreman entered the water without protective equipment, the plug dislodged, and the draining water pulled him into the pipe, where he drowned. The Commission held that brief conversations mentioning the hazard and equipment previously used by another worker did not provide sufficiently specific instruction on the engulfment hazard or how to avoid it. It also affirmed the protective-equipment violation because the foreman's knowledge was imputable to the employer and the company lacked a clear work rule requiring a harness and secured lifeline near the plug. The supervisory-misconduct defense failed because training, monitoring, and enforcement were inadequate. The Commission affirmed both training and PPE items and assessed a combined $6,300 penalty; the underlying general duty item remained vacated.
Decision snapshot
- Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. §§ 1926.21(b)(2) and 1926.95(a)
- Outcome: Training and personal protective equipment violations affirmed with a combined $6,300 penalty; general duty item remained vacated.
- Key point: Informal warnings and a general use-PPE-as-needed rule do not replace specific training and mandatory protective measures for a known engulfment hazard.
Full text (OSHRC public release)
:
SEC RET ARY OF L ABO R, :
:
Com plainan t, :
:
v. : OSHRC D ocket No. 98-1192
:
DAN IS SH OOK JOIN T VE NTU RE X XV, :
:
Respo ndent. :
________:
DECISION
Before: RO GERS , Chairman; and E ISENBR EY, Com missioner.
BY THE COMMISSION:
Following an accident in which a pipefitter foreman was drowned when draining
water pulled him into a drainpipe, the Occupational Safety and Health Administration
inspected Danis Shook Joint Venture XXV’s (“Danis Shook”) worksite. As a result of the
inspection, the Secretary of Labor cited Danis Shook for three violations of the Occupational
Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (“the Act”), and proposed penalties
totaling $12,600. Administrative Law Judge Ken S. Welsch vacated two items and affirmed
one serious violation (item 2b). At issue on review are whether the judge erred in vacating
item 2a of the c itation alleging a serious violation of 29 C.F.R. § 1926.21(b)(2); whether
Danis Shook had knowledge of the failure of its employees to use personal protective
equipment (PPE) in violation of 29 C.F.R. § 1926.95(a) as alleged in item 2b; and whether
the judge erred in rejecting D anis Shook’s unpreventable supervisory misconduct defense to
item 2b. For the reasons that follow, we affirm violations of both items 2a and 2b and assess
a penalty of $6,300.
I. Background
On April 22, 1998, Danis Sh ook, a joint v enture betw een Dan is Industries and Shook
National Corporation, was engaged in an expansion project at the Beavercreek Wastewater
Treatment Plant in Green County, Ohio. The project included the construction of two
identical concrete equalization basins (“Basin 1” and “Basin 2”), the purpose of which was
to provide additional sewage storage capacity at the plant. E ach basin w as approx imately
200 feet in diameter with a surrounding wall, which was approximately 20 feet high. The
basin floor sloped one half an inch for each foot of the horizontal run toward a center
drainpipe. The drainpipe was 42 inches in diameter a nd desce nded 6 fe et below th e basin
floor to an adjoining ninety-degree elbow pipe, which extended horizontally to a pump
station.
In late 1997, after the floors of the basins were constructed, carpenters fitted the
drainpipes with plywood plugs in order to provide protection again st falls. The plugs were
later caulked to prevent rainwater from seeping through to adjoining facilities during
construction. In early April 1998, after water from snow and rain had accumulated in both
basins, Danis Shook’s project superintendent, Michael Barrett (“Barrett”), ordered that holes
be drilled through the plywood plugs to drain the basins. Under the direction of Dave Ritter
(“Ritter”), Danis Shook’s labor foreman, the laborer who did the drilling used waders, a life
jacket, and a 100-foo t lifeline, whic h was tied to a handra il.1
The pipefitter crew began to work along the dry perimeters of both basins during the
first two we eks of A pril 1998. Th eir work inv olved clean ing wall ca stings, attachin g bolts
into the wall castings, and generally preparing the area for pipe installation. The water was
draining as expected in Basin 2, but not in Basin 1. On April 22, 1998, the w ater in Basin
1 was approximately 34 inches deep at the center drainpipe area when the pipefitter foreman,
James H. Wagner (“Wagner”), waded to the center and used a splintered board or metal
1
The ex act date on wh ich the la borer d rilled the holes is n ot clear in the reco rd.
2
object to scrape or thump on or near the plywood plug. Wagner used no PPE. Within a brief
period, the plug dislodged, and the rapid force of draining water pulled Wagner into the
drainpipe where he drowned.
II. Did the judge err in vacating Item 2a
alleging a serious violation of 29 C.F.R. § 1 926.21(b)(2)? 2
The Secretary allege d that Dan is Shook violated 29 C.F.R. § 1926.21(b)(2) by failing
to instruct employees who entered or worked in the equalization basins in the recognition and
avoidance of hazards associated with engulfment or being drawn into the piping by the flow
of water draining from the basins. In vacating the item, the judge found that while Wagner
may not have understood or appreciated the hazards associated with working on or near the
plywood plug, Dan is Shook n evertheless s atisfied its oblig ations under the standard by
pointing out an engulfm ent hazard and the PPE that other em ployees had w orn to avo id it.
The judge relied on three co nversations between Wagner and two other Danis Shook
employees. The first co nversation occurred in early April betw een Wa gner and Danis
Shook’s mechan ical enginee r, Richard T agliaferri (“T agliaferri”). W agner sug gested to
Tagliaferri that the pipefitters begin work ing in the equalization basins. Ta gliaferri’s
response was that “there’s still water in those tanks” and “if the plug [were] to be removed
right awa y, it could cause someone to be swept into the hole.” He also told Wagner that
when laborers had previously drilled holes through the plywood plugs, they wore harnesses
2
§ 1926.21 Safety training and education.
....
(b) Emplo yer respon sibility
....
(2) The employer shall instruct each employee in the recognition and avoidance of unsafe
conditions and the regulations applicable to his work environment to control or eliminate any
haza rds o r other ex posu re to illne ss of injury.
3
and tied off.
The second conve rsation o ccurred on M onday, A pril 20, 1998, when Wagner returned
to the worksite after a one week vacation. Tagliaferri stopped by Basin 2 to discuss piping
details with the pipefitters, and Wagner mentioned that because he did not have the necessary
materials to continue with his work in Basin 2, he was planning to move his crew to Basin
1, where materials for both basins were being stored. Tagliaferri responded that the basin
still had water in it. He also told Wagner, “You need to talk to Mike Barrett before you go
over there.”
The final conversation occurred on the mornin g of Ap ril 22, 1998, shortly before the
accident, when Wagner asked labor foreman Ritter where the waders and p addle bit were
“because he had to wade out to do some more holes.” Ritter told Wagner that the waders and
paddle bit were located in the tool trailer along with the rope, harness, and life jacket that his
crew member had used w hen drilling holes through the plywood plugs.
We find that these three conversations do not satisfy the requirements of 29 C.F.R.
§ 1926.21(b)(2). The standard requires that an employer instruct its employees in the
recognition and avoidance of the hazards that are specific to the work site about which a
reasonab ly prudent employer would have been aware. CMC Electric, Inc., 18 BNA OSHC
1737, 1738, 1999 CCH OSHD ¶ 31 ,817, p. 46,743 (No. 9 6-016 9, 1999 ), aff’d in relevant
part, 221 F.3d 861 (6th Cir. 2000). See also N & N Contractors, Inc., 18 BNA OSHC 2121,
2126, 2000 CCH OSH D ¶ 32,101, p. 48,243 (No. 96-06 06, 200 0), aff’d, No. 00-1 734 (4th
Cir. May 9, 2001, as am ended July 16, 2001); El Paso Crane & Rigging Co., 16 BNA OSHC
1419, 1424, 1993-95 CCH O SHC ¶ 30 ,231, p. 41, 620 (No . 90-1106, 1993) (“ El Paso”);
Pressure Concrete Constr. Co., 15 BNA OSHC 2011, 2015, 1991-93 CCH O SHD ¶ 29,902,
p. 40,810 (No. 90-2668, 1992) (“Pressure C oncrete”). Danis Shook knew of the hazard.
Joseph Reich, Danis Shook’s safety coordinator, testified that the com pany routinely
constructed open structures, like the equalization basins, in which plywood plugs were used
to cover pipes during construction, and that the accumulation of water in such structures was
4
not unusual. Here, Barrett knew that water had been accumulating in the equalization basins
for several months. He also knew in early April that pipefitters would be working in the
basins, and in preparation for such work, he directed Bobby Sloan (“Sloan”), an exterior pipe
installation labor foreman, to drill holes through the plugs.3
Despite its familiarity with the conditio ns in the equalization basins and its knowledge
that Wagner’s work in the basins was imm inent, Danis Shook made no eff ort to instruct its
employees in the specific hazards that work in those basins presented. Danis Shook had
some written safety materials a nd cond ucted regu lar tool box ta lks, providin g it with
opportunities to present information to its employees concerning the recurring hazards of
water-filled basins and plywood drain plugs in a “systema tic” fash ion. R & R Builders, 15
BNA OSHC 1383, 1390, 1991-93 CCH OSHD ¶ 29,531, p. 39,863 (No. 88-282, 1991)
(affirming violation of § 1926.21(b)(2) where “occasional correction” of employees found
insufficient to establish requisite “systematic training”). Danis Shook, however, did not
include this required training as part of its formal training program to address these hazards
and now argues that it satisfied its training obligation with respect to these hazards through
chance conversa tions that failed to convey critica l informatio n. While the standard does not
limit an employer in the method by which to impart the necessary instructions, it does require
that the substance of the instructions be “specific enough to advise employees of the hazards
associated with their work and the ways to avoid them.” El Paso, 16 BNA OSHC at 1425
n.7, 1426, 1993-95 CCH OSHC at p. 41,621 n. 7. See also O’Brien Concrete Pumping, Inc.,
18 BNA O SHC 2059, 2 061, 19 99 CC H OS HD ¶ 32,026 , p. 47,84 8 (No . 98-04 71, 2000);
Pressure Concre te, 15 BN A OS HC a t 2016, 1 991-9 3 CC H OS HD a t p. 40,81 1.
The record establishes that Wagner’s decision to prepare the basin by draining the
3
Although Barrett d irected S loan to d rill holes t hroug h the plyw ood plu gs, labor foreman
Ritter and his crew ultimately perform ed the drilling. However, de spite his directio n to
Sloan, Barrett did not determine how m uch wa ter was in the basins nor did he instruct Sloan
to wea r a lifelin e or har ness.
5
water was consistent with h is authority to direct his own work w ithout prior clearance. It
was, therefore, mere happenstance that Wagner had three brief conversations with other
Danis Shook supervisory personnel in which they mentioned some safety considerations
related to work in the basins. Moreover, while Tagliaferri and Ritter expressed some
awareness of the hazard during these impromptu conversations, we cannot find that their
discussions adequately conveyed to Wagner the danger that he might encounter when
working on or near a plywood drainplug in a basin w ith accumulated w ater. E.L. Davis
Contracting Co., 16 BNA OSH C 2046, 2048, 1993-95 CCH OSHD ¶ 30,580, p. 42,339 (No.
92-35, 1994) (violatio n of 29 C.F.R. § 1926.21(b)(2) affirmed where employer’s verbal
instructions were insufficiently specific, comp lete and comprehe nsive). Nor can we find that
they conveyed to him the vital necessity of using the appropriate personal protective
equipment before venturing anywhere near the plywoo d plug. See Pres sure Con crete, 15
BNA OSHC at 2017, 1991-93 CCH OSHC at p. 40,812 (“[t]he fact that the requisite
instructions would have to be detailed enough to take into account various contingencies
does not negate the req uirement for the instructions”).
Danis Shook wo uld have us find the in structions adequate based on Mitchell’s
testimony that two weeks before the accident Wagner had told him that safety equipment was
required when drilling holes through the plug or entering the water in the b asins. Howeve r,
the record shows that neither Wagner nor Mitchell understood the hazard. When asked at the
hearing whether he could have reminded Wagner on the day of the accident to wear
appropriate PPE before wading through the water to work on the plug, Mitchell stated: “I
could have, but I never thoug ht of it. It didn’t seem to be unsafe to do it.” Danis Shook ’s
failure to provide sufficiently specific instructions abo ut the nature and extent of the
engulfment hazards and the measures to take against them here, and to make at least some
effort to assure that employees understood the meager information it did provide, must
explain why two experienced foremen failed to recognize that Wagner’s conduct was
hazardous. See Pres sure Con crete, 15 BNA OSHC at 2017, 1991-93 CCH OSH D at p.
6
40,812 (“a reasonably prudent employer would attempt to give instructions that can be
understood and remembered by its employees, and would make at least some effort to assure
that the employees did, in fact, understand the instructions”). In this case, “actions speak
louder than . . . words.” Id.
We also find that the other training components upon which Danis Shook relies,
including its new hire orientation program and weekly tool b ox talks, do n ot amoun t to
compliance. Neither of these methods ever conv eyed with an y specificity instructions on the
recognition and avoidance of engulfment hazards while working in an equalization basin
with accum ulated w ater. See Pressure Concre te, 15 BNA OSHC at 2016, 1991-93 CCH
OSHD at p. 40,811 (instruction fo und inade quate where safety manuals and weekly meetings
failed to address h azards spe cific to the worksite). In Danis Shook’s new hire orientation
program, employees reviewed its “Spotlight on Safety” booklet, which included a general
rule requiring that “personal protective equipment must be used as ne eded,” an d another ru le
requiring that buoyant work vests be worn when employees were “working over or near
water where d epths create [d] a dang er of drow ning.” Ho wever, the se rules did not specify
the need for PPE in any particular circumstances, such as working on or in proximity to the
plywood plugs in the bas ins. See L & M Lignos Enterprises, 17 BNA OSH C 1066, 1067,
1993-95 CCH OSHD ¶ 30,675, pp. 42,569, 42,570 (No. 92-1746, 1995) (work rule requiring
PPE not enoug h to satisfy stand ard witho ut further ex plaining various worksite hazards
where PPE would be necessary). The weekly toolbox talks covered some fall protection
topics but never id entified the e ngulfme nt hazards a ssociated with working in the
equaliz ation ba sins.
We therefore find that Da nis Shook failed to pro vide adequate instruction, and that
the Secretary established a violation of 2 9 C.F.R. § 1926 .21(b)(2). 4
4
The other elements of the Secretary’s prima fac ie case of the violation were established and
are not at issue. See Astra Pharmaceutical Prods., 9 BNA OSHC 2126, 2129, 1981 CCH
OSHD ¶ 25,57 8, pp. 31 ,899-9 00 (N o. 78-6 247, 19 81), aff’d in pertinent part, 681 F.2d 69
7
III. ITEM 2b
A. Did the judge err in finding that Respondent had knowledge of its employee’s
failure to use protec tive equipmen t in violation of 29 C .F.R. § 1926.95(a )? 5
In item 2b of the citation, the Secretary alleged that Danis Shook violated 29 C.F.R.
§ 1926.95 (a) by failing to re quire its employees to wear appropriate protective equipment
“such as safety harnesses, lifelines and/or securing o r retrieval devices to protect against
engulfment hazards.” The judge affirmed the violation. At issue on review is whether the
judge erred in finding that Danis Shook had knowledge of the violation. Under Commission
preceden t, the Secretary makes out a prima fac ie case of knowledge by establishing that the
employer either knew or, with the e xercise of re asonable diligence, could have known of the
presence of the haza rdous c onditio n. Pride Oil Well Service, 15 BNA OSHC 1809, 1814,
1991-93 CCH O SHD ¶ 2 9,807, p. 40,584 (N o. 87-692, 1992) (“ Pride”). The knowledge
element is directed to the physical conditions that constitute a violation, and the Secretary
need not show that an employer understood or acknowledged that the physical conditions
were actually hazardous. Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079-1080, 1993-95
CCH OSHD ¶ 30,699 , p. 42,60 6 (No . 90-21 48, 199 5), aff’d without published opinion, 79
F.3d 1146 (5th Cir. 1996 ). Actual or constructive kno wledge of an employer’s foreman can
(1 st Cir. 1982) (Secretary must establish applicability of cited standa rd, noncom pliance w ith
the terms of the standard, employee exposure to the hazard, and employer knowledge of the
hazard).
5
§ 1926.95 C riteria for personal p rotective equipm ent.
(a) Application. Protective equipment, including personal protective equipment for eyes,
face, head, and extremities, pro tective clothing, respiratory devices, and protective shields
and barriers, shall be provided, used, and maintained in a sanitary and reliable condition
wherever it is necessary by reason of hazard s of proce sses or env ironment, chemical hazards,
radiological hazards, or mechanical irritants encountered in a manner capable of causing
injury or impairm ent in the function of any part of the body through absorption, inhalation
or physic al conta ct.
8
be impute d to the e mployer . A. P. O’Horo, 14 BNA OSHC 2004, 2007, 1991-93 CCH
OSHD ¶ 29,223, p. 39,128 (No. 85-369, 1991); Dun-Par Engineered Form Co., 12 BNA
OSHC 1962, 1965-1966, 1986-87 CCH OSHD ¶ 27,651, p. 36,033 (No. 82-92 8, 1986);
Daniel Construction Co., 10 BNA OSH C 1549, 1552, 1982 CCH OSHD ¶ 26,027, p. 32,672
(No. 16265 , 1982) . Here, W agner had actual kno wledge o f his own failure to wear PPE. As
a foreman working in a supervisory capacity, his actual knowledge may be imputed to Danis
Shoo k.
We also find that Danis Shook had constructive knowledge because the evidence
shows that it could have known of the violative co ndition had it exercised re asonable
diligence. See Pride, 15 BNA OSHC at 1814, 1991-93 CCH O SHD at p. 40,584.
Reason able diligence involves consideration of several factors, including the employer’s
obligation to have adequate work rules and training programs, to adequately supervise
employees, to anticipate hazards, and to take measures to prevent the occurrence of
violations. Id. As we indicated above in our discussion of item 2a, Danis Shook f ailed to
provide adequate training in how to recognize and avoid the hazards associated with working
on or in proximity to the plywood plugs in the basins. In addition, Danis Shook did not have
a work rule that required the use of PPE in the circumstances that confronted Wagn er. The
Commission has defined a work rule as “an employer directive that requires or proscribes
certain conduct and that is com munica ted to employees in su ch a manne r that its mandatory
nature is made e xplicit and its scope c learly un derstoo d.” J.K. Butler Builders, Inc., 5 BNA
OSHC 1075, 1076, 1977-78 CCH OSHD ¶ 21,585, p. 25,902 (No. 12354, 1977) (employer’s
warning to employees to avoid unsafe areas was “too general to be an effective work ru le”).
Although Danis Shook’s written safety materials contained a general rule requiring
employees to wear PPE “as needed,” it did not explicitly address the need for emplo yees to
wear PPE when working on or near the plywood plugs. Both Ritter and Reich testified that
Danis Shook h ad no rule re quiring em ployees to use a lifeline when w orking in water.
Tagliaferri testified that he gave no d irective to W agner to wear PPE or stay out of Basin 1.
9
Instead, he told Wagner to talk with Barrett about his plan to work in Basin 1. How ever,
Barrett stated that Wagner was “totally responsible” for installing piping and ensuring that
the work was done safely, and that there was no rule proh ibiting Wagner and the pipefitters
from e ntering the bas ins.
With respect to the adequacy of employee monitoring, a laissez-faire attitude
prevailed. Barrett, who was responsible for supervising Wagne r, testified that he routinely
relied on his craft foremen to evaluate the hazards that they encountered during the
performance of their work and determine the ways in which to avoid them. His exclusive
reliance on Wagner to recognize and avoid the hazards associated with working in the
equalization basins wa s imperm issible in view of Danis Sh ook’s failu re to adequ ately train
its employees and adopt specific work rules to ensure that work was performed safe ly. See
Pride, 15 BNA OSH C at 1815, 1991-93 CCH OSH D at p. 40,584 (“[a]n employer who has
failed to address a hazard by implementing and enforcing an effective work rule cannot shift
to its employees the responsibility for assuring safe w orking procedures” ).6
We therefore find that Danis Shook had constructive as well as actual knowledge of
the violation.
6
We also note that Danis Shook knew of W agner’s fa ilure to wea r required P PE wh ile
working on scaffolding in the equalization pump station just two or three weeks before his
death.
10
B. Did the judge err in rejecting Responden t’s affirma tive defen se of unp reventa ble
supervisory miscond uct to the v iolation of 2 9 C.F.R . § 1926.95 (a) as alleged in
item 2b?
Danis Shook contends that the PPE violation w as the result of unpreve ntable
supervisory miscond uct. A claim of unpreventable supervisory misconduct is an affirmative
defense for wh ich the e mployer carries th e burde n of pr oof. Hamilton Fixture, 16 BNA
OSHC 1073, 1077, 1993-95 CCH OSHD ¶ 30,034, p. 41,172-73 (No . 88-1720, 1993), aff’d
without published opinion, 28 F.3d 1213 (6th C ir. 1994). To establish the defense, the
employer is required to prove that “(1) it has established work rules designed to prevent the
violation; (2) it h as adequ ately commu nicated tho se rules to its employees; (3 ) it has taken
steps to discover violations; and (4) it has effectively enforced the rules when violations have
been discovered.” Gem Industr ial, Inc., 17 BNA OSH C 186 1, 1863 , 1995-97 CCH OSHD
¶ 31,197 , p. 43,68 8 (No . 93-11 22, 199 6), aff’d without published opinion 149 F.3d 118 3 (6th
Cir. 1998); accord Brock v. L. E. Myers Co., 818 F .2d 127 0, 1276 -77 (6th Cir. 198 7), cert.
denied, 484 U.S. 989 (1 987) (“L. E. Myers”).7
7
Respondent incorrectly sugg ests in its Petition f or Discretio nary Review that the Sixth
Circuit in L. E. Myers rejected Co mmission preceden t requiring an employer to show an
established and adeq uate ly communicated work rule in order to establish the affirmative
defense of unp reventa ble em ployee m iscond uct. In L. E. Myers, 818 F.2d at 1277, the Sixth
Circuit stated that “the Act itself pla ces upon the emplo yer the respon sibility of taking all
reasonab le steps to eradicate preventable hazards, ‘including imposing work rules,
communicating the rules to employees, and providing training, supervision a nd disciplinary
action designated to enforce the rules,’” and that “an employer may defend [a] citation on the
ground that, due to the existence o f a thoroug h and ade quate safe ty program w hich is
communicated and enforced as written, the conduct of its employees in violating that policy
was idiosyncratic and unforeseeab le.” In subsequent cases, the co urt has continu ed to upho ld
Commission precedent requiring that such a showing must include established and
adequate ly comm unicate d wor k rules. See National Engineering & Contracting Co. v.
OSHRC, 838 F.2d 815, 819 (6th Cir. 198 7); Precast Services, Inc., 17 BNA OSHC 1454,
1455, 1995- 97 CC H OS HD ¶ 30,910 , p. 43,03 5 (No . 93-29 71, 199 5), aff’d without published
opinio n, 106 F.3d 401 (6th Cir. 1997).
11
We find that the d efense fa ils here for larg ely the same reasons upon which we base
our finding of constructive knowledge of th e violation at iss ue; Danis Shook f ailed to
establish and adequately communicate a work rule that was designed to prevent the hazard.
We therefore conclude that Danis Shook failed to establish that the violation was the result
of unpre ventable su pervisory misc onduct.
Accordingly, item 2b of the citation is affirmed.
IV. PENALTY
The Secretary proposed a combined penalty of $6,300 for the violations cited in items
2a and 2b . The proposed penalty included a 10 percent credit for history. Danis Shook does
not dispute the p enalty amount proposed by the Secretary, and we find based on
consideration of the factors in sectio n 17(j) o f the A ct, 29 U .S.C. § 666(j), that $6,300 is an
appropriate penalty for items 2a and 2b.
V. ORDER
We affirm items 2a and 2b of the citation, and we assess a combined penalty of
$6,300 .
/s/
Thomasina V . Rogers
Chairman
/s/
Ross Eisenbrey
Commissioner
Dated: August 2, 2001
12
Secretary of Labor,
Complainant,
v. OSHRC Docket No. 98-1192
Danis Shook Joint Venture XXV,
Respondent.
APPEARANCES
Anthony M. Stevenson, Esq. Gary W. Auman, Esq.
Office of the Solicitor Dunlevey, Mahan & Furry
U. S. Department of Labor Dayton, O hio
Cleveland , Ohio For Respondent
For Complainant
Before: Administrative Law Judge Ken S. Welsch
DECISION AND ORDER
Danis Shook Joint Venture XXV (Danis Shook) in April, 1998, was expanding the water
treatment plant in Beavercreek, Ohio, when the pipefitters’ foreman was engulfed into a 42-inch
drainage pipe and drowned. After the Occupational Safety and Health Administration (OSHA)
investigated the fatality, Danis Shook received a serious citation on June 22, 1998. Danis Shook
timely contested the citation.
The citation, as amended,8 alleges serious violations of § 5(a)(1) (item 1) of the
Occupational Safety and Health Act (Act) for failing to provide a workplace free of recognized
hazards by exposing employees who entered the accumulated water in the equalization basin to a
potential engulfment hazard; 29 C.F.R. § 1926.21(b)(2) (item 2a) for failing to instruct
employees in the recognition and avoidance of the hazards associated with entering a basin which
contained accumulated water; and 29 C.F.R. § 1926.95(a) (item 2b) for failing to require
employees entering the water in the equalization basin to wear appropriate personal protective
equipment such as safety harnesses and lifelines. OSHA proposes a total penalty of $12,600.
8
Danis Shook’s statement that the court has n ot ruled on the amend ment is not co rrect. The amendment was granted
by the court by order dated February 19, 1999, and Danis Shook filed an amended answer dated February 25, 1999.
13
The hearing was held June 2 - 4, 1999, in Dayton, Ohio. Jurisdiction and coverage are
stipulated (Tr. 4). Danis Shook argues that the evidence does not support the alleged violations
and, if a violation is found, it was due to employee misconduct.
Each party filed post-hearing briefs and reply briefs. For the reasons stated, the alleged
violation of § 1926.95(a) (item 2b) is affirmed and the remaining violations are vacated.
The Accident
In April, 1996, Danis Industries and Shook, Incorporated, formed a joint venture to
perform the expansion work to the Beavercreek waste water treatment plant in Green County,
Ohio. The project started in May, 1996, and employed in excess of 50 union employees. Danis
generally handled the administrative work and Shook controlled the construction work. The
project was completed, except for some landscaping, in June, 1999 (Tr. 35-36, 39, 287, 334, 338,
360).
As part of the expansion work, Danis Shook was to construct two identical equalization
basins (EQ basin #1 and EQ basin #2). The EQ basins provide added capacity for the
accumulation of sewage from storm surges. The accumulated sewage is mixed and aerated in the
open basins before treatment by the plant (Exhs. C-1, R-2; Tr. 36, 335-337, 479, 496-498). The
basins are above ground and are round, uncovered concrete basins with a diameter of
approximately 203 feet and a concrete wall of approximately 20 feet. The floor of the basins
slope, one-half inch for every foot, toward the center, where there is a 42-inch drain pipe (Tr. 10,
12, 37-38, 127, 282-283, 301-302, 343, 529). At the opening to the drain, there is a vertical drop
of 6-feet to the pipe’s elbow. The drain pipe then runs underground horizontally to the pump
station (Tr. 316).
During construction of each basin floor, Danis Shook placed a ¾-inch plywood cover
(plug) over the 42-inch opening to each drain (Tr. 13-14, 226). Wooden boards, 2-inch by 4-
inches, were secured underneath the plywood plug (Tr. 302, 363-364, 525). The wooden plug
was installed to prevent a fall hazard while employees were constructing the basin’s floor (Tr. 14,
315, 341).
The construction of the two EQ basins was completed in the fall of 1997 (Tr. 341). The
14
plywood plugs remained over the drains and rain water started accumulating in the basins (Tr.
19, 344, 500-501). Danis Shook left the plugs in place and applied caulking to prevent the water
from draining to the pump station, which was still under construction (Tr. 120, 366-367, 385).
After the pump station was completed in April, 1998, additional work needed to be done
in the EQ basins, including placing brackets on the walls and across the concrete floor to support
the aeration pipes (Exh. R-3; Tr. 36, 240-241, 494). In order to install the brackets, the
accumulated water in the basins needed to be drained (Tr. 180-181, 307-308). The water was
approximately 12 to 30 inches deep (Tr. 119-120, 346-347, 503).
To drain the water from the basins, a laborer wearing waders, a life vest, harness and a
lifeline attached to a handrail entered the water and drilled three holes in each plywood plug
(Tr. 112, 207). The holes were drilled approximately two weeks prior to the accident (Tr. 119,
231). There is no evidence that any other employee had been in the EQ basins since their
construction (Tr. 227). After the holes were drilled, water began to drain, particularly from EQ
basin #2. However, by April 22, 1998, water remained in both EQ basins.
The pipefitters who were responsible for installing the process piping in the basins had
completed their work in the pump station and began working in EQ basin #2 (Tr. 240-241). The
pipefitters’ foreman was James H. Wagner, Sr., and the crew consisted of James E. Wagner (his
son) and Wayne Mitchell (Tr. 144, 178-179, 268). Brackets and pipes had to be installed across
the basin floor and on the wall (Tr. 494). However, before installing the brackets across the
floor, the accumulated water needed to be removed (Tr. 484). The water in EQ basin #2 was still
several inches deep (Tr. 172). Therefore, the pipefitters initially installed attachments and
cleaned wall castings on the basin’s interior wall. Unlike at the center of the basin, there was no
water on the concrete floor within 30 feet of the wall. The installation of the wall attachments
did not require going into the water (Tr. 270-271).
Although the work was not completed in EQ basin #2, on April 22, 1998, the pipefitters
moved their work into EQ basin #1, where all the material was stored (Tr. 150, 172, 181). It was
approximately 7:30 a.m.(Tr. 241-242). While Wayne Mitchell worked on cleaning the wall
castings and James Wagner (son) assembled the tools, Foreman Wagner, wearing waders, walked
into the accumulated water in EQ basin #1 (Tr. 241, 243-244). The water was in excess of 32
15
inches deep at the 42-inch drain (Tr. 145-146, 159-160). Foreman Wagner wanted to see why it
was not draining (Tr. 242). He was observed removing a sheet of plastic from the area of the
plywood plug (Tr. 244-245). After removing the plastic, Foreman Wagner was observed using a
spud9 bar or piece of rebar approximately 5 feet long to slide over the wooden plug (Tr. 173, 187-
188, 191, 245, 571). Mitchell also testified that Foreman Wagner was thumping the spud bar on
the plug “pretty hard” (Tr. 246, 248-249, 279-280). Suddenly, James Wagner (son), who was
standing on top of the ladder outside the basin’s wall, saw the plywood plug pop up in the water
and his father (Foreman Wagner) sucked down into the drain (Tr. 161, 188). Foreman Wagner
drowned (Tr. 23). The accident occurred at approximately 9:00 a.m. (Tr. 115).
At approximately 10:30 a.m., OSHA safety specialist (CO) Barbara Marcum initiated an
investigation into the accident (Tr. 45, 56). She observed EQ basin #1 from the wall and
interviewed employees, including supervisors of Danis Shook (Tr. 46, 72). As a result of the
investigation, the serious citation was issued to Danis Shook.
Discussion
There is no dispute that Danis Shook’s pipefitters’ foreman was engulfed in the drain
while removing a blockage from the plywood plug inside EQ basin #1. Wagner’s responsibilities
as foreman included directing the work of the pipefitters and their safety (Resp. Brief, p. 5; Tr.
175, 296, 299). Also, the parties agree that the dry floor in the basin near the wall was an area
where the pipefitters could work without exposure to an engulfment hazard (Tr. 83, 85, 87, 528-
529). Wayne Mitchell, who was working on the dry concrete floor area near the wall, was not an
exposed employee. There is also no dispute that a safety harness and secured lifeline should
have been worn by Foreman Wagner when he was working on the plywood plug (Tr. 54).
Danis Shook argues that it lacked knowledge of Wagner’s work, and if he failed to wear
personal protective equipment, it was due to unpreventable employee misconduct. Danis Shook
notes that Foreman Wagner was told three times prior to the accident that a laborer had worn a
harness and an attached lifeline when he drilled holes in the plug.
9
The spud bar weighed from approximately 15 pounds to 50 pounds (Tr. 249, 273, 365, 53 4).
16
Item 1 - Alleged Violation of § 5(a)(1)of the Act
The citation alleges that employees were exposed to a potential engulfment hazard while
in the accumulated water inside EQ basin #1. The abatement portion of the citation provides for
treating the EQ basins similar to confined spaces by requiring an assessment to identify the
confined spaces and to develop and implement safe entry procedures, including a requirement for
the use of appropriate protective equipment and/or rescue equipment to prevent the engulfment
of employees. Section 5(a)(1) of the Act, referred to as the general duty clause, provides
that each employer:
[s]hall furnish to each of his employees employment and a place of
employment which is free from recognized hazards that are causing
or are likely to cause death or serious physical harm to his
employees.
The Secretary does not contend that the EQ basins were confined spaces. In the
Secretary’s post-hearing brief and reply brief, the Secretary describes the violation of the general
duty clause as Foreman Wagner’s failure to wear a safety harness and lifeline and his exposure to
an engulfment hazard (Secretary’s Brief, pp. 22-24; Secretary’s Reply Brief, pp. 13-14).
If the Secretary cited § 5(a)(1) because there had been no hazard identification or
assessment of the job site done in the basin, as stated in the citation, the alleged violation is
vacated (Tr. 49). The Secretary offered no evidence supporting the allegation. Rick Tagliaferri,
mechanical engineer, stated that he discussed the plug and the potential engulfment hazard with
Michael Barrett, project superintendent, approximately six weeks prior to the accident (Tr. 493).
Danis Shook did have a site-specific safety plan for the project and a written confined program
(Exhs. C-4, C-5). The Secretary cites no deficiencies in the plan or program.
If the Secretary is alleging a § 5 (a)(1) violation because of an engulfment hazard which is
abated by personal protective equipment, such as a safety harness and a secured lifeline, the
Secretary has also cited 29 C.F.R. § 1926.95(a) (item 2a). The § 1926.95(a) allegation states that
employees entering the basins did not wear appropriate protective equipment, such as safety
harnesses, lifelines and/or securing or retrieval devices/systems, to protect against engulfment
17
hazards. Section 1926.95(a) requires the use of protective equipment, including personal
protective equipment.
Under the circumstances of this case, the § 1926.95(a) allegation preempts § 5(a)(1). A
citation under § 5(a)(1) of the Act is not appropriate where the particular hazard for which the
employer has been cited is covered by a specific standard. Ted Wilkerson, Inc., 9 BNA OSHC
2012, 2015 (No 13390, 1981). A general standard is preempted by a specific standard if both
address the same particular hazard. Williams Enterp of Georgia, Inc., 832 F2d 567, 570 (11th
Cir, 1987). If the same hazard is addressed, it must then be determined whether, as applied in the
case, the specific standard preempts the application of the general standard. McNally
Construction & Tunneling Co., 16 BNA OSHC 1879, 1880 (No 90-2337, 1994).
In this case, the Secretary cited both provisions for the same activity (working on the
plywood plug), the same engulfment hazard (captured by the accumulated water in a 42-inch
drain), and required the same abatement measures (safety harness and a secured lifeline). The
allegations under § 5(a)(1) are duplicated by the allegations of § 1926.95(a).
The alleged violation of § 5(a)(1) is vacated.
Safety Standards
The Secretary has the burden of proving a violation.
In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (a) the
applicability of the cited standard, (b) the employer’s
noncompliance with the standard’s terms, (c) employee access to
the violative conditions, and (d) the employer’s actual or
constructive knowledge of the violation (i.e., the employer either
knew or, with the exercise of reasonable diligence could have
known, of the violative conditions).
Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Danis Shook does not dispute the application of §§ 1926.21(b)(2) and 1926.95(a) to its
construction at the waste water treatment plant. There is no dispute that Wagner was exposed to
an engulfment hazard when he attempted to remove a blockage from the plywood plug without
appropriate protective equipment. With regard to the alleged violation of § 1926.95(a), Danis
18
Shook does not dispute that the failure to wear the harness and lifeline violated the terms of §
1926.95(a). The issue remaining as to alleged safety standard violations is whether terms of
§ 1926.21(b)(2) were violated and whether Danis Shook knew or should have known of the
violation of § 1926.95(a). As to § 1926.95(a), Danis Shook asserts an affirmative defense of
unpreventable employee misconduct.
19
Item 2a - Alleged Violation of § 1926.21(b)(2)
The citation, as amended, alleges that Danis Shook failed to instruct employees who
entered or worked in the EQ basins in the recognition and avoidance of the hazards associated
with engulfment by the flow of water draining through the pipe. Section 1926.21(b)(2) provides:
The employer shall instruct each employee in the recognition and
avoidance of unsafe conditions and the regulations applicable to
his work environment to control or eliminate any hazards or other
exposure to illness or injury.
Section 1926.21(b)(2) requires instruction to employees on (1) how to recognize and
avoid unsafe conditions reasonably expected to be encountered on the job, and (2) the regulations
applicable to those hazardous conditions. Superior Custom Cabinet Co., 18 BNA OSHC 1019,
1020 (No. 94-200, 1997). Such instructions must address matters specific to the worksite about
which a reasonably prudent employer would have instructed its employees. Pressure Concrete
Construction Co., 15 BNA OSHC 2011, 2016 (No. 90-2668, 1992).
The issue is whether Danis Shook failed to provide reasonable instruction regarding
working on or near the plywood plug. Crouse Combustion Systems, Inc., 13 BNA OSHC 1388,
1389 (No. 86-1244, 1987).
Foreman Wagner’s death is not evidence that the instruction was inadequate. Section
1926.21(b)(2) contains no additional requirement that an employer effectuate required
instructions. The failure to comply does not establish a violation of § 1926.21(b)(2). Dravo
Engineers and Constructors, 11 BNA OSHC 2010, 2012 (No. 81-748, 1984). However,
Foreman Wagner was a supervisor in charge of the safety of his employees. His failure to use
safety equipment while working at the plywood plug indicates his lack of understanding or
appreciation of the hazard. When a supervisory employee endangers himself, there is a strong
inference of his incapacity to identify hazardous conditions. Ed Taylor Construction Co., 15
BNA OSHC 1711, 1717, n. 8 (No. 88-2463, 1992).
In this case, the record establishes that Foreman Wagner received instruction sufficient to
satisfy the standard. Danis Shook maintained a written safety program, a site specific safety plan
and an employee safety guide, referred to as “Spotlight on Safety” (Exhs. C-3, C-4, C-5, R-4).
20
The written safety program identified the requirements of § 1926.21(b)(2) (Exh. C-3, p. 276; Tr.
62-63). The employees’ safety guide, which was given to new employees, required that
“personal protective equipment must be used as needed” (Exh. R-4, p. 281; Tr. 515-516). The
guide also provided that “buoyant work vests shall be worn when working over or near water
where depths create a danger of drowning, unless adequate fall protection is provided” (Exh. R-4,
p. 282).
Danis Shook had weekly safety tool box talks (Tr. 248, 372, 520). The training included
climbing scaffolds and ladders, roping tools, using safety equipment on scaffolding, and
hazardous material on the job (Tr. 253). Also, among the topics, the weekly meetings discussed
the use of safety harnesses and lanyards for fall protection (Tr. 361-362).
Although Danis Shook had an extensive safety program, there is no showing that the
weekly safety meetings or written safety programs specifically addressed the use of personal
protective equipment while working on a plywood plug under an accumulation of water (Tr. 253-
254). Barrett testified that the safety meetings did not discuss working in water (Tr. 362).
The record, however, does show that Foreman Wagner received verbal instruction in the
recognition and avoidance of the hazards associated with working on the plywood plug. Such
instruction satisfies the requirements of § 1926.21(b)(2). An instruction may be formal,
informal, verbal, or on the job. Better Bilt Products, Inc., 15 BNA OSHC 1167, 1171 (No. 89-
2028, 1991). Richard Tagliaferri, mechanical engineer, testified that approximately three weeks
prior to the accident, Wagner’s crew was finishing up in the aeration tanks. Foreman Wagner
asked about working in the EQ basins. Tagliaferri informed Wagner that water was still in the
basins and that the plug could not be removed because the water “could cause someone to be
swept into the hole.” He also told Wagner that a laborer, wearing a harness and tied off, “had
drilled some holes in the top of the plywood to try and drain the tank” (Tr. 479-480).
During a second conversation, two days prior to the accident, while the pipefitters were in
EQ basin #2, Tagliaferri testified that Foreman Wagner wanted to move the pipefitters to EQ
basin #1 because it was where the material was stored. Tagliaferri told Wagner that there was
still water in EQ basin #1 and that he had to talk to Michael Barrett, project superintendent. He
again stated that the laborer had worn a harness and was tied off when he drilled holes in the plug
21
(Tr. 98, 481-482, 484, 488-489). David Ritter, labor foreman, testified that Foreman Wagner
asked on the morning of April 22 where the paddle bit10 and waders were located (Tr. 208). In
addition to directing him to the storage trailer, Ritter told Wagner that his laborer had “used the
ropes and harnesses, life jacket and waders” as safety equipment when drilling the holes (Tr.
209). When Ritter looked into the storage trailer after the accident, the harnesses and ropes were
still in storage (Tr. 211).
“The issue as to this particular citation item . . . is whether the employer’s program of
safety instruction provided adequate guidance to the employees, not whether the accident could
have been averted.” Also, “to penalize this employer for this instruction when he has clearly
identified the hazards to the employees and pointed out the ways they can be avoided would not
only be unreasonable, but would also be discouraging and counterproductive to the cause of
employee safety and health.” El Paso Crane and Rigging Co., Inc., 16 BNA OSHC 1419, 1427
(No. 90-1106, 1993).
In Foreman Wagner’s conversations with Tagliaferri and Ritter, he was advised of the
appropriate personal protective equipment to use when working on the plug and the potential for
an engulfment hazard. Wagner was told on at least three occasions of the laborer’s use of a
harness and lifeline. He was also informed of the potential engulfment hazard if the plug failed
or was dislodged. This information was provided to Foreman Wagner in the form of an
instruction. Concrete Construction Co., 15 BNA OSHC at 1620 (the standard does not limit the
employer in the method by which it may impart the necessary training but somehow substance
must be imparted).
As a supervisor, Foreman Wagner was responsible for recognizing and avoiding hazards.
Pointing out a hazard, and what others wore to abate the hazard, satisfies the employer’s
responsibility of providing instruction in the recognition and avoidance of hazards. An
employer’s instructions are adequate if they are “specific enough to advise employees of the
hazards associated with their work and the ways to avoid them.” El Paso Crane & Rigging Co.,
16 BNA OSHC 1419, 1425, n. 6 & 7 (No. 90-1106, 1993). The tragic consequences in this case
10
The padd le bit had been used to d rill the holes.
22
demonstrate that Wagner may not have fully understood the hazard of working around the plug.
Wayne Mitchell, pipefitter, testified that Foreman Wagner told him that they were to use safety
equipment when drilling holes in the plug (Tr. 254). As discussed subsequently, Danis Shook’s
compliance with the instruction requirements of § 1926.21(b)(2) does not necessarily mean that
Danis Shook had a safety rule requiring personal protective equipment be used while working on
the plug.
The testimony of James Wagner (son) and Wayne Mitchell on the lack of training is not
given weight. Wagner (son) testified that he did not receive any safety-related instructions by
Danis Shook about an engulfment hazard, while working on a plywood plug or the use of a
harness and lanyard, except with ladders and scaffolding (Tr. 154-155, 174). Wayne Mitchell,
pipefitter and a former pipefitter’s foreman, could not identify any specific instructions he had
received about the use of personal protective equipment when entering the water in the EQ basin
(Tr. 253-254, 260, 266). He was unsure if the safety handbook had any rules requiring harnesses
and lifelines (Exh. C-3; Tr. 263, 274). Mitchell did not consider it dangerous for Wagner to go
into the water (Tr. 257). Neither Wagner nor Mitchell was shown to have worked or was
expected to have worked on the plywood plug. They were not shown to have been exposed to an
engulfment hazard. It was not demonstrated that Danis Shook was required to provide them
instruction and hazard avoidance training on working on or near the plug. The work involving
the plug and blockages was generally performed by laborers, not pipefitters. The Secretary did
not argue or show that the instruction to laborers was inadequate. Prior to the accident, the
laborer who drilled the holes in the plug wore a harness and lifeline.
A violation of § 1926.21(b)(2) is vacated.
Item 2b - Alleged Violation of § 1926.95(a)
The citation alleges that employees entering the basins did not wear appropriate
protective equipment, such as safety harnesses, lifelines and/or securing or retrieval
devices/systems to protect against engulfment hazards. Section 1926.95(a) provides:
Protective equipment including personal protective equipment for
eyes, face, head, and extremities, protective clothing, respiratory
devices, and protective shields and barriers, shall be provided,
23
used, and maintained in a sanitary and reliable condition wherever
it is necessary by reason of hazards of processes or environment,
chemical hazards, radiological hazards, or mechanical irritants
encountered in a manner capable of causing injury or impairment
in the function of any part of the body through absorption,
inhalation or physical contact.
Danis Shook does not dispute that the cited standard applied, the terms of the standard
were not complied with, and an employee was exposed to the conditions. Foreman Wagner was
not wearing the appropriate personal protective equipment when he entered the water to clear a
blockage from the plug. The parties agree that the appropriate personal protective equipment
was a safety harness and a secured lifeline.
Danis Shook argues that it could not have known Foreman Wagner would work on the
plywood plug without personal protective equipment (Tr. 210, 481-482, 488-489). Also, Danis
Shook asserts that his failure to wear personal protective equipment was due to unpreventable
employee misconduct.
Compliance with § 1926.95(a) requires that personal protective equipment be provided
only when the employer has actual knowledge of a hazard requiring the use of personal
protective equipment or a reasonable person familiar with the situation, including any facts
unique to the particular industry, would recognize a hazard warranting the use of such equipment.
Armour Food Co., 14 BNA OSHC 1817, 1820 (No 86-247, 1990) (case involves § 1910.132(a),
which is a similar provision as § 1926.95(a) applying to general industry).
The Secretary identified the hazard as engulfment. “Engulfment” is defined in the
confined space standards at 29 C.F.R. § 1910.146(b) as:
the surrounding and effective capture of a person by a liquid or finely divided
(flyable) solid substance that can be aspirated to cause death by filling or plugging
the respiratory system or that can exert enough force on the body to cause death by
strangulation, constriction, or crushing.
The Secretary’s definition of engulfment is adopted as part of Danis Shook’s confined
space program (Exh. C-4, p. 9). The definition is reasonable and applicable in this case.
Baumgartner, Simpson, Gumpertz & Heger, Inc., 15 BNA OSHC 1851, 1857-1858 (No. 89-
1300, 1992), aff’d on other grounds, 3 F.3d 1 (1st Cir. 1993). The record shows that there was a
24
potential engulfment hazard if the plywood plug under accumulation of water for five months
became dislodged or failed while an employee was working on or near the plug. CO Marcum
described that there was the potential “for it [plug] to break or fail and suck someone through the
pipe” (Tr. 50). The accident on April 22, 1998, demonstrates the nature of the hazard. Wagner
was caught in the force of water suddenly draining when the plug failed or was dislodged.
A “recognized hazard” is a condition or practice over which the employer can reasonably
be expected to exercise control because the potential danger is actually known to the particular
employer or generally known in the industry. Pepperidge Farm, Inc., 17 BNA OSHC 1993,
2003 (No. 89-265, 1997).
Danis Shook recognized that working on or possibly disturbing the plywood plug
constituted a hazard (Resp. Brief, p. 23). The plug was under an accumulation of water for five
months and was not inspected or tested by Danis Shook for strength and stability. The risk of
working on or near the plug under these circumstances was plainly obvious to Danis Shook
(Tr. 15-16, 384).
Rick Tagliaferri, project mechanical engineer, considered it a hazard for an employee to
go near the center of the basin. He would require the employee to wear personal protective
equipment and tie off, regardless if they would come in contact with the plug. Employees should
tie off irrespective of their reasons for entering the water (Tr. 489, 508-509). Tagliaferri
recognized that if something happened to the plug “it could cause someone to be swept into the
hole” (Tr. 480).
Additionally, Joseph Reich, safety coordinator, considered it a drowning hazard for an
employee to merely go into the water. He would require the employee to wear a buoyant vest
and be secured (Tr. 530-531). Michael Barrett, project superintendent, also considered it an
engulfment hazard if the plug failed or was dislodged (Tr. 22-23). Dave Ritter, labor foreman,
who required the laborer to wear a harness and lifeline while drilling the holes, considered it a
hazard because he did not know if the plywood plug had partially rotted during the five months
underwater. He was also concerned about the weight of the water above the plug (Tr. 215-216,
226-227, 232).
25
Therefore, a violation of § 1926.95(a) is established if it is shown that Danis Shook knew
of Wagner’s failure to wear appropriate personal protective equipment.
Knowledge of the Violation
In order to establish an employer’s knowledge of a violation, the Secretary must show
that the employer knew or, with the exercise of reasonable diligence, could have known of a
hazardous condition. Dun-Par Engineered Form Co., 12 BNA OSHC 1962, 1965-1966 (No. 82-
928, 1986). It need not be shown that the employer understood or acknowledged that the
physical conditions were actually hazardous. Phoenix Roofing Inc., 17 BNA OSHC 1076, 1079
(No. 90-2148, 1995).
However, when a supervisory employee has actual or constructive knowledge of the
violative conditions, knowledge is imputed to the employer. “Because corporate employers can
only obtain knowledge through their agents, the actions and knowledge of supervisory personnel
are generally imputed to their employers and the Secretary can make a prima facie showing of
knowledge by proving that a supervisory employee knew of or was responsible for the violation.”
Todd Shipyards Corp., 11 BNA OSHC 2177, 2179 (No. 77-1598, 1984). If a supervisory
employee is involved, the Secretary satisfies her burden of proving knowledge without showing
an inadequate safety program. Dover Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-862,
1993).
In this case, there is no dispute that James Wagner was a supervisor. He was the foreman
of the pipefitters’ crew. He supervised their work and was responsible for their safe work
practices (Exh. C-3, pp. 262, 277; Tr. 299, 307). Therefore, Wagner’s activity in clearing the
blockage at the plug without appropriate personal protective equipment is imputed to Danis
Shook, unless it establishes substantial grounds for not imputing that knowledge. Ormet Corp.,
14 BNA OSHC 2134, 2137 (No. 85-531, 1991).
Danis Shook argues that it was unforeseen for Wagner to enter the water and work on the
plywood plug in EQ basin #1 without personal protective equipment. April 22, 1998, was the
first day the pipefitters were in EQ basin #1. Danis Shook notes that the pipefitters were
originally working in EQ basin #2, which was being readied for work (Tr. 304-305, 312). Also,
26
Danis Shook asserts that Foreman Wagner was engaged in work outside his job description. He
was performing laborers’ work at the time of the accident (Tr. 171, 300, 484). On the day of the
accident, Michael Barrett, project superintendent, did not know that the pipefitters started
working in EQ basin #1 and, specifically, that Foreman Wagner had entered the water to clear a
blockage (Tr. 309, 374).
Despite Danis Shook’s arguments, the record shows that Foreman Wagner’s activity at
the plug was foreseen. Barrett testified that Wagner could work in EQ basin #1 without
authorization, if it was not determined a hazard by the foreman. It was within Wagner’s
discretion. Barrett testified that Foreman Wagner was not prohibited from entering the basin;
and no one required him to use personal protective equipment, such as harnesses or lanyards, or
to be tied off (Tr. 31-32, 313, 325, 328). Danis Shook had not posted signs at the basin
restricting access or warning employees of a potential hazard (Tr. 33). Foreman Wagner was not
required to report to Barrett regarding the work being performed (Tr. 326-327). Foreman
Wagner did not file progress reports (Tr. 357). Also, Barrett knew that water still remained in
both basins and the pipefitters needed to work in the basins (Tr. 348-350). Barrett had walked
the job site every day looking for unsafe conditions (Tr. 352, 370).
Wagner (son) testified that the trades did not necessarily perform only their specific jobs
(Tr. 171). Pipefitters were not prohibited from performing some laborer’s work. Although a
laborer in Ritter’s crew drilled the holes in the plug, Barrett had instructed Bobby Sloan, a pipe
foreman, to drill the holes (Tr. 228, 308, 328, 330). Wagner (son) also testified that Bobby Sloan
knew that the pipefitters were in EQ basin #1 on April 22 because he had opened the drain
valves (Tr. 153, 186-187, 191-192).
Rick Tagliaferri, mechanical engineer,11 knew there was a possibility Foreman Wagner
would go into the water (Tr. 492-493). Foreman Wagner had told him that he intended to work
in EQ basin #1 (Tr. 480, 482, 491). Wagner (son) agreed that Tagliaferri knew his father planned
11
Although he was not Fo reman W agner’s direc t supervisor, T agliaferri was high er in manag ement and could direct the
work activities of the pipefitters. Tagliaferri was responsible for purchasing piping, equipment, and coordination of
mechanical drawings (Tr. 289, 495). His respo nsibilities also inc luded saf ety. He cou ld order w orkers to m ake safety
correction s and cor rect dang ers.
27
to go into the other basin to see why the water was not draining (Tr. 153-154). Tagliaferri knew
the water in EQ basin #1 was not draining (Tr. 502). He also knew that the pipefitters needed to
work in the basins (Tr. 480, 499-500). Tagliaferri had told them to be careful in the basins
because if something happened to the plug someone could be swept into the drain (Tr. 154, 480).
He did not order nor require Foreman Wagner to use personal protective equipment when he was
informed that Wagner was intending to work in the basin (Tr. 490-491, 507).
On the morning of the accident, Foreman Wagner asked Dave Ritter, laborer foreman,
where the paddle bit was because he wanted to wade into the water to make more holes in the
plug. Ritter knew that Wagner planned to go into the water (Tr. 208-209).
Wayne Mitchell, pipefitter, was inside the basin and observed Foreman Wagner working
around the plug without personal protective equipment. He was told by Wagner that he wanted
to see what was preventing the water from draining (Tr. 242-243). Mitchell did not consider
what Foreman Wagner was doing as hazardous (Tr. 257). Wayne Mitchell had preceded Wagner
as foreman of the pipefitters (Tr. 239, 259).
The Secretary having made a prima facie case showing of employer’s knowledge through
Danis Shook’s supervisory employees, the burden shifts to Danis Shook to rebut the Secretary’s
case by establishing that it could not have prevented the violation.
Employee Misconduct Defense
Danis Shook denies the violation of § 1926.95(a) on the basis of unpreventable employee
misconduct. To prove unpreventable employee misconduct, Danis Shook must show that (1) it
has established work rules designed to prevent the violation, (2) it has adequately communicated
these rules to its employees, (3) it has taken steps to discover violations, and (4) it has effectively
enforced the rules when violations are discovered. Nooter Construction Co., 16 BNA OSHC
1572, 1578 (No. 91-0237, 1994). The action of the employee must represent a departure from a
work rule that the employer has uniformly and effectively communicated and enforced. Frank
Swidzinski Co., 9 BNA OSHC 1230, 1232 (No. 76-4627, 1981). As an affirmative defense,
Danis Shook has the burden of proof.
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Danis Shook argues that it had designed work rules which, if followed, could have
eliminated the hazard. In addition to its safety rule regarding personal protective equipment “as
needed,” Foreman Wagner was advised three times of the laborer’s use of personal protective
equipment when working on the plug. Rick Tagliaferri, mechanical manager, told Wagner twice
of the laborer’s use of a harness and lifeline while drilling holes in the plug (Tr. 479-482, 488-
489). On the day of the accident, Dave Ritter, labor foreman, also told Wagner that the laborer
had used a harness and a lifeline (Tr. 208-209).
The record, however, fails to support a supervisory employee misconduct defense. There
was no work rule which specifically prohibited employees from working on the plug or requiring
the use of a harness and lifeline. The “Spotlight on Safety” guide which is given to each
employee, including Wagner, provides that personal protective equipment must be worn “as
needed” (Exh. R-4; Tr. 516-517). This rule is vague and broadly written. It does not identify the
type of personal protective equipment, the circumstances triggering their use and who makes the
decision.
A work rule is defined as an employer directive that requires or proscribes certain conduct
and that is communicated to employees in such a manner that its mandatory nature is made
explicit and its scope clearly understood. J. K. Butler Builders, Inc., 5 BNA OSHC 1075, 1076
(No. 12354, 1977). Rules that give employees too much discretion in identifying unsafe
conditions have been found too general to be effective. Superior Custom Cabinet Co., Inc., 18
BNA OSHC 1019, 1021 (No. 94-200, 1997).
A safety rule that is discretionary is not mandatory. Danis Shook’s personal protective
rule is discretionary and was not made mandatory by Foreman Wagner’s discussions with Ritter
and Tagliaferri. The information Wagner received from Ritter and Tagliaferri, although accepted
as instructional, was not shown to constitute a safety rule requiring compliance. Foreman
Wagner was not directed to follow it. David Ritter, labor foreman, testified that it was his
decision to have the laborer wear the harness. It was not required by Danis Shook. Ritter had the
laborer wear the harness because of his concern that the plug might blow or give out, “you never
know.” When Ritter informed Wagner of the lifeline and harness, he was not directing or even
recommending their use. He testified that there was no requirement or policy that required the
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use of personal protective equipment when entering the basin (Tr. 209-210, 213-215, 218-219).
Also, Tagliaferri’s discussion with Wagner was not shown to be more than informational.
Tagliaferri did not express the laborer’s use of the lifeline and harness as a rule or directive. It
was instructional and not a safety rule.
Michael Barrett, project superintendent, acknowledged that it was left to the foreman’s
discretion as to whether his crew used personal protection. When he directed the holes to be
drilled, Barrett did not instruct or recommend that the laborer use a lifeline and harness (Tr. 32,
323, 328-329, 330-331, 347). He considered that it was within the foreman’s discretion based on
his own observation and experience.
Danis Shook’s safety program relies on supervisors to identify the hazards and take
corrective action. However, when relying on a supervisor’s discretion, it must be shown that the
supervisor had the necessary safety training and experience to make the safety-related decisions.
Danis Shook offered no evidence as to Foreman Wagner’s safety training and experience.
“When the alleged misconduct is that of a supervisory employee, the employer must also
establish that it took all feasible steps to prevent the accident, including adequate instruction and
supervision of its employee.” If a supervisory employee is involved, “the proof of unpreventable
employee misconduct is more rigorous and the defense is more difficult to establish since it is the
supervisors’ duty to protect the safety of employees under his supervision. . . . A supervisor’s
involvement in the misconduct is strong evidence that the employer’s safety program was lax.”
Archer Western Contractors, Ltd., 15 BNA OSHC 1013, 1017 (No. 87-1067, 1991).
Danis Shook was on notice that Wagner was not complying with the personal protective
equipment rule. Within 30 days before the accident, Wagner and his crew had received a verbal
warning for not wearing safety belts or harnesses while working on scaffolding in excess of 10
feet above the ground (Tr. 175, 182, 520-521, 554-555).
Also, working on plugs in water was apparently not a unique situation. Danis Shook had
commonly used plywood plugs for similar purposes in the past without incident (Tr. 369, 525-
526). There were also other locations on the project where employees had worked in water, such
as a ditch or creek to tie-in piping (Tr. 362-363). If it is a routine activity, it is reasonable to
30
expect an employer to have established procedures for removing accumulated water, and if an
employee is exposed, a more specific requirement for personal protective equipment.
As another element of the employee misconduct defense, Danis Shook must show that the
safety rule is enforced. To prove that its disciplinary system is more than a paper program, an
employer must show evidence of having actually administered the discipline outlined in its
policy and procedures. Evidence of verbal reprimands alone suggests an ineffective disciplinary
system. Pace Construction Corp., 14 BNA OSHC 2216, 2218 (No. 86-758, 1991).
Danis Shook’s safety program provides for progressive discipline, which consists of
verbal and written warnings, suspensions and ultimately termination (Exh. C-3, p. 267). Barrett
testified that he has never progressed to even a written reprimand. Other than the verbal
warnings to Foreman Wagner and his crew, there is no showing that there was any other
discipline (Tr. 371, 520-521, 523).
Serious Classification
Under § 17(k) of the Act, a serious violation exists if there is a substantial probability that
death or serious physical harm could result from the violative condition and the employer did not
and could not, with the exercise of reasonable diligence, know of the presence of the violation.
In determining whether a violation is serious, the issue is not whether an accident is likely to
occur; it is rather, whether the result would likely be death or serious harm if an accident should
occur.
As discussed, knowledge of the violative condition is imputed to Danis Shook. Also, as
evident by the accident, the failure to wear personal protective equipment was likely to result in
death. The violation of § 1926.95(a) is serious.
Penalty Consideration
The Commission is the final arbiter of penalties in all contested cases. Under § 17(j) of
the Act, in determining an appropriate penalty, the Commission is required to consider the size of
the employer’s business, history of previous violations, the employer’s good faith, and the gravity
of the violation. Gravity is the principal factor to be considered.
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As a joint venture, Danis Shook is a large employer with more than 5,000 employees.
There were 50 employees working at the water treatment plant. There was no history of previous
OSHA violations. There is no showing that Danis Shook was uncooperative during the
inspection (Tr. 16-17).
A penalty of $3,000 is reasonable for serious violation of § 1926.95(a). There was one
employee exposed to an engulfment hazard without personal protective equipment. He died.
The employee was a supervisor. He was exposed for less than two hours. Danis Shook failed to
ensure that employees did not enter the accumulated water held by a plywood plug, and if an
employee needed to enter, that he was strictly controlled and personal protective equipment was
required.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing decision, it is ORDERED that serious Citation No. 1:
1. Item 1, alleging violation of § 5(a)(1), is vacated.
2. Item 2a, alleging violation of § 1926.21(b)(2), is vacated.
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3. Item 2b, alleging violation of § 1926.95(a), is affirmed and a penalty in the
amount of $3,000 is assessed.
/s/
KEN S. WELSCH
Judge
Date: November 12, 1999
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