The Boeing Company, Wichita Division

Plain-English summary

Boeing tested a self-designed hydraulic forming machine intended to operate at 100,000 pounds per square inch. At 80,000 psi, the machine failed and propelled a component weighing more than 1,000 pounds over 300 feet, killing two employees. Boeing argued that an unforeseeable defective part caused the accident. The Commission held that the relevant foreseeable hazard was violent pressure-vessel failure during testing, regardless of the precise failure mechanism. Engineering references and expert testimony established recognition of the hazard, and isolation or barricading were feasible protective measures. The Commission affirmed the general duty clause violation and the $700 penalty.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: The general duty clause citation and $700 penalty were affirmed.
• Key point: Foreseeability under the general duty clause concerns the recognized general hazard, not the exact chain of events that produced a particular accident.

Full text (OSHRC public release)

Docket No. 12879

THE BOEING COMPANY, WICHITA DIVISION

OSHRC Docket No. 12879

Occupational Safety and Health Review Commission

October 21, 1977

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Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Reg. Sol., USDOL

William H. Dye, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Commissioner

The issue in this case is whether Respondent (Boeing) violated the general duty clause of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). n1 Boeing was cited for failing to barricade or isolate a high presure hydraulic forming machine in order to protect employees in the event of a machine failure.
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Judge Alan M. Weinman affirmed the citation and assessed a penalty of $700.
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We affirm his decision. n2

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n1 The general duty clause is contained in section 5(a)(1) of the Act, which provides:

Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

n2 In addition to arguing the merits, Boeing has raised a number of constitutional objections to the Act.
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Judge Weinman properly held that the Commission has no authority to consider the constitutionality of the Act.
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Buckeye Industries, Inc., 75 OSAHRC 21/B3, 3 OSHC 1837, 1975-76 OSHD para. 20,239 (1975).

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The hydraulic forming machine had been designed and fabricated by Boeing.
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It was designed to operate at a pressure of 100,000 pounds per square inch (psi), a considerably higher pressure than could be attained by similar machines Boeing had built in the past.

Functional performance tests were being performed on the machine under the supervision of Mr. Everett Jones, the employee who had designed the machine. The machine was designed for either automatic or manual operation.
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Upon encountering difficulties during automatic operation, Mr. Jones decided to increase the pressure manually. When the pressure reached 80,000 psi, an explosion occurred.
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A portion of the machine weighing over 1000 pounds blew out of the front of the machine. It flew down a passageway leading to an employee cafeteria, killing two employees, before coming to rest over 300 feet from the machine.

Mr. Jones testified that he did not know why the explosion occurred.
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He opined, however, that the machine had failed be cause of a defective part.
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This theory was supported by Mr. Gayle Wadsworth, the president of the metals and
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standards group in Boeing's engineering department.
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Mr. Wadsworth explained that an examination of the ruptured metal revealed that it was much weaker than the certified strength.
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He stated that it was very brittle and thought that this had caused it to fail.

A different theory was advanced by Mr. John Sevart, a mechanical engineer who testified as an expert witness for the Secretary.
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Mr. Sevart thought that when Mr. Jones attempted to increase the pressure manually, a transient surge of pressure occurred, and the accident resulted because the machine was not designed to damp such surges.

Mr. Sevart also testified that 10,000 psi was considered to be a high pressure for such a machine, and that 100,000 would therefore be considered an extremely high pressure. He stated that, because of the high amount of energy stored in such a machine, a failure such as in fact occurred was sufficiently foreseeable that precautions against such an event should be taken.
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In his opinion, a minimum precaution that should be taken against such a failure would be to isolate the machine or test it at a time when personnel are not in the area.

Mr. Sevart also testified that his opinion was supported [*4]
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by standard reference works.
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The Sixth Edition of the Accident Prevention Manual for Industrial Operations, published by the National Safety Council, states that pressure vessels such as that being tested by Boeing should be barricaded or isolated to protect personnel in the event of a violent reaction.
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The ASME (American Society of Mechanical Engineers) Pressure Vessel Code also specifies that precautions should be taken when testing such machines. Mr. Sevart was also asked whether, in his opinion, the facts surrounding the accident showed the existence of a recognized hazard. n3 He answered in the affirmative.
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Upon being asked by the Judge to elaborate on this answer, he explained that the hazard would be recognized by safety engineers or mechanical engineers.

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n3 An objection to this question was overruled by the Judge.
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Boeing takes exception to this ruling.
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Although noting that Rule 704 of the Federal Rules of Evidence permits a witness to be asked a question which embraces an ultimate issue in the case, Boeing claims that the advisory committee notes explaining the rule demonstrate that the question was improperly framed.

We reject the argument.
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We need not be concerned with whether the question was ideally framed, for there is no jury to possibly be misled in our proceedings.
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As Boeing notes, the question is proper within the literal language of Rule 704, and it therefore cannot be said that the Judge erred in overruling its objection.

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Boeing contends that the cause of the machine failure was a defective part.
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It argues that if the part had not been defective, the accident would not have occurred, and there would have been no pressure hazard. Moreover, Boeing contends that it could not have foreseen the hazard because the company that supplied the defective part certified that it met the necessary strength specifications.

Judge Weinman rejected this argument.
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He concluded that the cause of the accident was not material in this case.
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Quoting from Brennan v. OSHRC (Vy Lactos Laboratories, Inc.), 494 F.2d 460 (8th Cir. 1974), he observed, "the basic weakness of the . . . rationale is that it addresses itself to the foreseeability of the incident as it actually occurred rather than the foreseeability of the general hazard . . ." 494 F.2d at 462. The Judge noted that, in this case, the hazard alleged by the Secretary resulted from Boeing's failure to barricade or isolate the machine while testing it.
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He accepted Sevart's uncontroverted testimony that such a hazard was recognized by persons trained in safety or mechanical engineering.
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As the Judge said; "(t)hat pressure vessels are known to fail during testing with resultant injury to unprotected personnel is not an arcane or disputed theorem, but appears in the record as common engineering lore." See: Getty Oil Company, 75 OSAHRC 39/A13, 2 OSHC 1687, 1974-75 OSHD para. 19,437, (No. 2671, 1975), aff'd., 530 F.2d 1143 (5th Cir. 1976). Noting that Boeing regularly employed persons with such training, he concluded that Boeing was chargeable with knowledge of matters on which such experts universally agree.
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He therefore concluded that Boeing should have recognized the hazard of testing the machine without taking any precautions to protect its employees, and that Boeing therefore violated section 5(a)(1) of the Act.

On review, Boeing contends that the Judge erred in holding that the cause of the accident is not relevant to whether a hazard existed.
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It continues to argue that a hazard would not have existed but for the defective part of which it had no knowledge.
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Boeing also contends that Sevart's testimony, on which the Judge relied, was too vague to be probative, that the Secretary failed to prove industry recognition of a hazard, and that the Secretary failed [*7]
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to prove feasible means existed to prevent the hazard.

We reject these arguments, and conclude that Judge Wienman properly affirmed the citation for the reasons he assigned.
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In particular, we note that the Judge correctly held that whether a violation occurred did not depend on the cause of the particular accident which occurred in this case.
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Brennan v. OSHRC (Vy Lactos Laboratories, Inc.), supra; See also Brennan v. Butler Lime and Cement Co., 520 F.2d 1011 (7th Cir. 1975). Furthermore, contrary to Boeing's contention, Sevart's testimony was detailed and the record contains an adequate basis for his conclusion that a recognized hazard occurred.
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The standard reference works to which Sevart referred supports his conclusion that the hazard was generally recognized.
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We also note that the Secretary alleged and proved that barricading or isolating the machine were feasible means to protect against the hazard. Finally, we conclude that the penalty assessed by the Judge is appropriate.

Accordingly, the Judge's decision is affirmed.
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