Dayton Hudson Corp.

Plain-English summary

Dayton Hudson employees performed roofing work on a flat roof in West Allis, Wisconsin, about 28 feet above the next level. The company admitted that employees did not use available harnesses and that its warning-line system was incomplete, too loose, too close to the roof edge, and missing around the material-handling area. The judge rejected the unpreventable supervisory misconduct defense because two foremen joined in the violations, one had repeatedly violated the same rules with management's knowledge, and the company relied on verbal warnings rather than effective progressive discipline. He affirmed the grouped serious fall-protection items but reduced their combined proposed penalty from $5,000 to $2,500 based on low gravity and good-faith credit. He also affirmed an other-than-serious hazard communication item for acetone kept in an unlabeled secondary container and reduced its penalty from $1,000 to $500. Total penalties were $3,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.1200(f)(5)(ii); 29 C.F.R. § 1926.501(b)(10); 29 C.F.R. § 1926.502(f)(1); 29 C.F.R. § 1926.502(f)(1)(i); 29 C.F.R. § 1926.502(f)(1)(iii)
• Outcome: Modified. All cited items were affirmed, but the combined penalties were reduced from $6,000 to $3,000.
• Key point: A safety rule is not effectively enforced when supervisors repeatedly violate it with management's knowledge and receive only verbal warnings.

Full text (OSHRC public release)

                                                               United States of America
                        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                                   1244 North Speed Boulevard, Room 250
                                                         Denver, Colorado 80204-3582



Phone: (303) 844-3409                                                                                     Fax: (303) 844-3759


 SECRETARY OF LABOR,


                         Complainant,


                              v.                               OSHRC DOCKET NO. 99-1763


 DAYTON HUDSON CORP.,


                          Respondent.



APPEARANCES:

         For the Complainant:
                  Andrea Phillips, Esq., Lisa R. Williams, Esq., Office of the Solicitor, U.S. Department of Labor,
                  Chicago, Illinois

         For the Respondent:

                   Diane Madison, Dayton Hudson Corp., Minneapolis, Minnesota

Before:
Administrative Law Judge: James H. Barkley

                                             DECISION AND ORDER

         This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.
Section 651 et seq.; hereafter called the $Act#).
         Respondent, Dayton Hudson Corp. (Dayton), at all times relevant to this action maintained a
place of business at 2600 108th Street, West Allis, Wisconsin, where it was engaged in roofing
activities. Respondent admits it is an employer engaged in a business affecting commerce and is
subject to the requirements of the Act.
         On August 19, 1999 the Occupational Safety and Health Administration (OSHA) conducted an
inspection of Dayton s West Allis work site (Tr. 23). As a result of that inspection, Dayton was issued
citations alleging violations of the Act together with proposed penalties. By filing a timely notice of
contest Dayton brought this proceeding before the Occupational Safety and Health Review
Commission (Commission).
       On February 8, 2000, a hearing was held in Milwaukee, Wisconsin. The parties have submitted
briefs on the issues and this matter is ready for disposition.


                           Alleged Violations of §§1926.501 and 502 et seq.
       Dayton does not dispute the existence of the cited fall protection violations, as listed below (Tr.
17). Both OSHA regulations and Dayton s safety policy require the use of a combination of personal
fall arrest systems and warning lines when working on low sloped or flat roofs (Tr. 31). Dayton admits
that safety harnesses and lanyards, though available, were not used at the site. Dayton acknowledges
that though personal fall protection was not in use, no monitor was used in conjunction with the
warning lines that had been erected, and that the warning lines were inadequate in that they were 1) too
loose, 2) did not completely enclose the work area, 3) were placed too close to the edge of the roof, and
4) did not mark the material handling area (Tr. 31, 47, 80, 83, 86, 90). The uncontradicted record
establishes that both Rustin Bird and Jose Angulo, acting as co-foremen at the site, were aware of the
cited violative conditions, but took no action to correct them, because they were in a hurry to complete
the job before a predicted rain storm (Tr. 28, 31, 69-70, 81, 91, 101).
       Dayton raises the affirmative defense of unpreventable supervisory misconduct.
The Citations
The alleged violations below have been grouped because they involve similar or related hazards that
may increase the potential for injury resulting from an accident.

       Serious citation 1, item 1a alleges:

29 CFR 1926.501(b)(10): Employees performing roofing activities on roofs with a slope of 4 to 12 or
less, with unprotected sides greater that 6 feet or more above lower levels shall be protected from
falling by guardrail systems, safety net system, personal fall arrest system, or a combination of warning
line system and guardrail system, warning line system and safety net system, or warning line system
and personal fall arrest system or warning line system and monitoring system.

(a)
       Employees conducting roofing activities on a flat roof greater than 25 feet above the next lower
       level were not protected from falling by the use of an adequate fall protection system.

       Serious citation 1, item lb alleges:

29 CFR 1926.502(f)(1): Warning lines were not erected around all sides of the roof work area.

(a)
       Employees conducting roofing activities on a flat roof greater than 25 feet above the next lower
       level were not protected from falling by the use of an adequate fall protection system.
        Serious citation 1, item 1c alleges:

29 CFR 1926.502(f)(1)(I): Where mechanical handling equipment was not being used, the warning line
was erected less than 6 feet from the roof edge.


(a)
        Employees conducting roofing activities on a flat roof greater than 25 feet above the next lower
        level were not protected from falling by the use of an adequate fall protection system.

        Serious citation 1, item 1d alleges:

29 CFR 1926.502(f)(1)(iii): Points of access, materials handling areas, storage areas, and hoisting areas
were not connected to the work area by an access path formed by two warning lines.

(a)
        Employees conducting roofing activities on a flat roof greater than 25 feet above the next lower
        level were not protected from falling by the use of an adequate fall protection system.

Supervisory Misconduct
Facts
        Compliance Officer (CO) Kenneth Nishiyama-Atha testified that during the OSHA inspection
Dayton employees told him they had been trained in fall protection (Tr. 36). Foreman Bird testified
that he conducted weekly safety meetings to reinforce that training (Tr. 83). CO Nishiyama-Atha
testified that the employees, including foreman Bird, were generally aware of OSHA fall protection
requirements (Tr. 43). Nishiyama-Atha, however, testified that they did not appear to be familiar with
specific OSHA requirements regarding, i.e. the placement of warning lines, the use of a monitor, and
tie off requirements (Tr. 38-40).
        Dayton submitted written $competent person# training materials for fall protection (Exh. R-1),
as well as blank copies of daily OSHA checklists, which are intended for the use of job foreman as
reminders to check all employees for compliance with fall protection requirements (Exh. R-2).
        Rustin Bird testified that he had worked approximately 36 roofing jobs during the three years he
worked for Dayton (Tr. 76-77). Bird stated that he had received weekly training from Dayton,
including training in fall protection (Tr. 77, 92). Bird testified that he had a good grasp of the fall
protection requirements, but admitted that he had not completed the competent person training packet
(Tr. 77, 84; Exh. R-1). Bird did know, however, that it was Dayton s policy to have employees wear
harnesses and lanyards when exposed to a fall hazard (Tr. 78). Bird testified that he knew that warning
lines were to be placed around the perimeter of the work area, 6 feet from the leading edge, and were to
be used in conjunction with a monitor where personal fall protection devices were not used (Tr. 78-79,
106-07). Bird knew that the material loading area was to be guarded by warning lines from the point of
roof access to the work area (Tr. 78).
       Bird, however, testified that he did not use Dayton s daily checklist on this job, and could not
remember filling out the weekly checklist as required (Tr. 131-32; Exh. R-2, R-3).


       Foreman Bird testified that he knew he was violating Dayton fall safety policies in allowing his
crew to work without harnesses and lanyards (Tr. 89). Bird stated that he allowed the crew to work
unprotected, based on the short term exposures he anticipated (Tr. 91). Bird knew that Dayton made
no exceptions for short term exposures (Tr. 91, 123). Bird testified, however, that during the time he
worked for Dayton he had often departed from Dayton s policy for short term exposures, perhaps 100
times (Tr. 95, 124-25). At least five times Bird s supervisors were aware of his violation of the fall
protection rules (Tr. 94, 97). Bird received verbal warnings from his supervisors, Randy Heil and
Mark Ribbe, and was instructed to tie off, but was never otherwise disciplined (Tr. 96, 120). The
violations were not noted in his file; he was never suspended (Tr. 96). Rather, Bird was made a
foreman; at the time of the inspection Bird had supervised two jobs (Tr. 100). Bird admitted that he
followed company policies on neither job (Tr. 100-01).
       Bird testified that during the OSHA inspection, he notified Mark Ribbe about the presence of
the OSHA CO, and of the CO s concerns about fall protection (Tr. 104). Bird stated that Ribbe did not
ask him to take any corrective action (Tr. 104).
       Finally, Bird stated that after Dayton s investigation of the alleged violations, he was told that
he would not be considered for promotion from assistant foreman to full foreman (Tr. 110). Bird
testified that he was never told there was any connection between the loss of his candidacy for foreman
and the OSHA inspection (Tr. 110).
Discussion
       In order to establish an unpreventable employee misconduct defense, the employer must
establish that it had: established work rules designed to prevent the violation; adequately
communicated those work rules to its employees (including supervisors); taken reasonable steps to
discover violations of those work rules; and effectively enforced those work rules when they were
violated. New York State Electric & Gas Corporation, 17 BNA OSHC 1129, 1995 CCH OSHD
 30,745 (91-2897, 1995).
       In this case, the evidence establishes that Dayton had a safety program that was designed to
ensure that personal fall protection was used, and perimeter warning lines installed, for the benefit of
all its employees who were exposed to fall hazards. The record further establishes that fall protection
training was provided to Dayton employees. Rustin Bird, the foreman responsible for the violative
conditions, testified that he was fully aware of Dayton s fall protection policies. Dayton, however,
failed to establish that its safety program was enforced.


       The Commission has found that unanimity of noncomplying conduct by all employees suggests
ineffective enforcement Gem Industrial, Inc. 17 BNA OSHC 1861, 1996 CCH OSHD 31,197 (No.
93-1122, 1996). In addition, it is well settled that misconduct by a supervisor constitutes strong
evidence that the employer s safety program is lax. Consolidated Freightways Corp., 15 BNA OSHC
1317, 1991-93 CCH OSHD 29,500 (No. 86-351, 1991). An employer may rebut the presumption
that its safety program was lax, however, by showing that it had a progressive disciplinary plan with
increasingly harsh measures taken for repeated infractions of work rules. The Commission has held
that a program consisting only of pre-inspection verbal warnings is insufficient. Precast Services, Inc.,
17 BNA OSHC 1454, 1995 CCH OSHD 30,910 (No. 93-2971, 1995).
       It is clear that in this case, Dayton did not have a progressive disciplinary plan. None of the
employees on the roof wore personal fall protection. Both Bird and Angulo participated in the
violative conduct. Bird s testimony establishes that he repeatedly violated both OSHA regulations and
Dayton work rules with impunity. His superiors were aware of his infractions, having personally
observed them on approximately five different occasions. Bird was repeatedly warned to comply with
the rules, but was never disciplined. Instead he was promoted to foreman. Given Bird s record of
safety infractions, Dayton should have anticipated that he would also take a lax approach to ensuring
that his work crews complied with the safety regulations.
       The record establishes that Dayton did not effectively enforce its safety program. Dayton has,
therefore, failed to make out the affirmative defense of unpreventable employee misconduct.
Penalty
       A combined penalty of $5,000.00 is proposed for these violations.
       Dayton is a large employer (Tr. 53). Nine employees, including the two foremen were exposed
to a 28 foot fall hazard for approximately two to three hours (Tr. 35, 46, 49, 84). A 28 foot fall would
likely result in serious bodily harm, up to and including death. Foreman Bird testified that only two or
three people actually worked at the edge of the roof right up next to a 1’x1’ parapet (Tr. 82, 118).
Moreover, CO Nishiyama-Atha testified that, because the roof was flat, an accident was not likely to
occur (Tr. 51-52). The violation was properly classified as serious, though this judge finds that the
gravity of the violation is low. This judge further finds that credit for good-faith was improperly
denied by CO Nishiyama-Atha, based solely on his perception that the gravity of the violation was high
(Tr. 53). Credit was properly denied for history because Dayton had received other $serious# OSHA
citations within the preceding three years (Tr. 54).
          Taking into account the relevant factors, this judge finds that a penalty of $2,500.00 is
appropriate and will be assessed.

          Alleged Violation of §1910.1200(f)(5)(ii)

          Other than serious citation 2, item 1 alleges:

29 CFR 1910.1200(f)(5)(ii): The employer did not ensure that each container of hazardous chemicals
in the workplace was labeled, tagged or marked with the appropriate hazard warnings:

(a)
          Metal container containing approximately one gallon of acetone was not labeled with the
          appropriate hazard warning label.

Facts
          CO Nishiyama-Atha testified that while he was at the work site, he observed Dayton employees
using acetone that was in an unlabeled secondary container (Tr. 34-35). Nishiyama-Atha testified that
foreman Bird told him the acetone was used by all the employees as needed to apply to the roof
membrane (Tr. 44, 116). During employee interviews, Nishiyama-Atha found that the employees
knew that the secondary container held acetone, but that they were not familiar with the health hazards
associated with acetone (Tr. 73), though CO Nishiyama-Atha admitted the crew were Spanish speaking
and that he relied on an interpreter to convey his questions.
          Nishiyama-Atha testified that contact with acetone may result in burns, dermatitis, and irritation
of the eyes (Tr. 45).
Discussion
          Dayton does not dispute the factual allegations contained in the citations, but argues that the
Complainant did not establish that the conditions created a hazard, in that there was no credible
evidence either that the crew was unaware of the hazards associated with acetone, or that they were
using the acetone in an unsafe manner. Dayton argues that it did not, therefore, violate the $intent# of
the cited standard.
          The cited standard provides:
          Except as provided in paragraphs (f)(6) and (f)(7) of this section, the employer shall ensure that
          each container of hazardous chemicals in the workplace is labeled, tagged or marked with the
          following information:


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         (i) Identity of the hazardous chemical(s) contained therein; and,
         (ii) Appropriate hazard warnings, or alternatively, words, pictures, symbols, or combination
         thereof, which provide at least general information regarding the hazards of the chemicals, and
         which, in conjunction with the other information immediately available to employees under the
         hazard communication program, will provide employees with the specific information
         regarding the physical and health hazards of the hazardous chemical.



It is well established that when a standard prescribes a specific means of enhancing employee safety, a
hazard is presumed to exist if the terms of the standard are violated. Clifford B. Hannay & Son, Inc., 6
BNA OSHC 1335, 1978 CCH OSHD 22,525 (No. 15983, 1978). Therefore, the Secretary is not
required to prove that noncompliance with these standards creates a hazard in order to establish a
violation. Austin Bridge Company, 7 BNA OSHC 1761, 1979 CCH OSHD 23,935 (No. 76-93,
1979).
         The violation is established and will be affirmed.
Penalty
         A penalty of $1,000.00 is proposed for this item. This judge finds that the gravity was
overstated by the CO. A penalty of $500.00 is appropriate.
                                                 ORDER

1. Serious citation 1, items 1a through 1d, alleging violation of 1926.501(b)(10), 502(f)(1),
502(f)(1)(I) and (502)(f)(1)(iii) are AFFIRMED, and a combined penalty of $2,500.00 is ASSESSED.

2. Other than serious citation 1, item 1, alleging violation of 1910.1200(f)(5)(ii) is AFFIRMED, and
a penalty of $500.00 is ASSESSED.




                                                      James H. Barkley
                                                      Judge, OSHRC

Dated: April 17, 2000




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