Brennan v. Occupational Safety & Health Review Commission
501 F.2d 1196, 2 BNA OSHC 1109 (1974)
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Rule of Law:
An employer violates the Occupational Safety and Health Act's (OSHA) general duty clause only for preventable hazards that are 'recognized' within the industry or for dangers that the employer knew or, with reasonable diligence, could have known would result in serious harm, and foreseeability of the employee's specific dangerous action is key when clear instructions have been given.
Facts:
- Republic Creosoting Company (Republic), a division of Reilly Tar and Chemical Corporation, operated railroad tie marshalling yards, including one in Jeffersonville, Indiana, where they seasoned newly cut or 'green' ties.
- Truckloads of ties arrived at the Jeffersonville yard, secured by chains, with some ties bound into packages by single steel bands.
- Republic's standard unloading procedure required the unloader (forklift) to support a package of banded ties before the truck driver, standing on an adjacent package, would cut the band.
- Raymond Davis, a new Republic employee on his fourth day, was hired to sort and stack ties after the unloading process was completed, and had never witnessed or been described the unloading operation.
- Field superintendent Wallace Worley explicitly told Davis during hiring "not to get around no trucks; the unloader done all the unloading."
- On July 9, 1971, while a truckload of banded ties was present, chains were removed, but the unloader was not yet in position, Davis, without being ordered or informing anyone, went to the truck and cut a steel band on a package with an ax while standing on the ground.
- As a direct result of Davis cutting the band, five ties fell on him, fatally injuring him.
Procedural Posture:
- On July 30, 1971, a compliance officer for the Secretary of Labor conducted an inspection of Republic Creosoting Company's Jeffersonville yard.
- Based on the inspection, the Secretary of Labor issued two citations to Republic: a 'Citation for Serious Violation' concerning the Davis accident (failure to instruct and supervise) and a 'Citation' regarding the lack of warning signs and barricades around tie piles.
- Republic filed a notice of contest to the citations.
- A hearing was held before an administrative law judge (ALJ), who affirmed both citations and modified the second citation from nonserious to serious, imposing a total penalty of $1300.
- Republic petitioned for discretionary review by the Occupational Safety and Health Review Commission (OSHRC).
- The OSHRC, with one Commissioner dissenting, reversed the ALJ's decision and vacated both citations.
- The Secretary of Labor appealed the OSHRC's decision to the United States Court of Appeals for the Seventh Circuit, with the Secretary of Labor as the appellant and Republic Creosoting Company as the appellee.
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Issue:
1. Does an employer violate OSHA's general duty clause by failing to provide specific training to an untrained employee regarding the hazards of a dangerous operation when the employee was explicitly instructed to stay away from the operation and subsequently engaged in an unforeseeable, unauthorized dangerous act? 2. Does an employer violate OSHA's general duty clause by failing to barricade or post warning signs around windrowed piles of railroad ties when the Secretary of Labor has not proven that such piles constitute a 'recognized hazard' in the relevant industry?
Opinions:
Majority - Pell, Circuit Judge
1. No, an employer does not violate OSHA's general duty clause for failing to provide specific training when an employee was explicitly instructed to stay away from a dangerous operation and unforeseeably engaged in a dangerous act that caused injury. 2. No, an employer does not violate OSHA's general duty clause by failing to barricade or post warning signs around windrowed piles of railroad ties when the Secretary of Labor failed to prove that such a condition was a 'recognized hazard' in the industry. The court affirmed the Occupational Safety and Health Review Commission's (OSHRC) decision, emphasizing that for a serious violation under the general duty clause, the danger must be one the employer knew or, with reasonable diligence, could have known. The necessity and extent of training depend on factors such as employee experience, participation, and the complexity/danger of the operation. While direct participants may require instruction, training is unnecessary for an employee wholly disassociated from an operation and not foreseeably exposed to danger. Davis was given a general but explicit instruction to "stay away from the trucks," which the court deemed sufficient given his limited role. The court found that a reasonably diligent employer would not have foreseen Davis's "precipitous unanticipated act of Davis in chopping the band with an ax." Congress intended to eliminate only preventable hazards. The court also held that the Secretary failed to prove that the windrowed piles of ties constituted a "recognized hazard" in the relevant industry. A 'recognized hazard' is objectively determined by the standard of knowledge in the industry. Evidence showed that employees could tell if stacks were stable, could work safely with them if they knew what they were doing, and Republic had no serious accidents from these piles in seven years. The court upheld the OSHRC's finding, deferring to its technical expertise and the substantial evidence on record.
Analysis:
This case significantly clarifies the scope of an employer's duty under OSHA's general duty clause, particularly concerning foreseeability and employee misconduct. It establishes that employers are not strictly liable for all employee injuries, especially those resulting from unforeseeable and unauthorized actions that directly contradict explicit safety instructions. The decision also reinforces the Secretary of Labor's burden to prove that a specific condition constitutes a 'recognized hazard' within the relevant industry, underscoring the importance of industry standards and objective evidence rather than mere speculation. This precedent guides future cases by emphasizing that a hazard must be preventable and reasonably foreseeable, impacting how employers design safety protocols and how OSHA enforces its general duty clause.
