Dover Elevator Company, Inc.

Plain-English summary

Dover Elevator employees were installing an elevator in Ridgeland, Mississippi, when a ground-fault circuit interrupter tripped because of a defective receptacle and extension cord. The supervising mechanic temporarily left an extension cord connected to an operable but unprotected receptacle while he searched for an electrician and replacement parts. The Commission held that the circuit remained available to the crew and therefore did not comply with the GFCI requirement even though no tool was actually used during that period. The supervisor's knowledge was attributable to Dover, but the company rebutted that showing by proving it required GFCIs, communicated the rule through manuals and meetings, supplied the devices, and disciplined the supervisor. The evidence did not show that additional monitoring was needed or would have discovered more violations. The Commission vacated the serious GFCI item and its $500 penalty; the unreviewed ALJ dispositions left an electrical-box item affirmed as de minimis with no penalty and a temporary-wiring item vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.404(b)(1)(i), 1926.405(b)(1), and 1926.405(a)(2)(ii)(B)
• Outcome: The serious GFCI item and $500 penalty were vacated; a panel-box item remained de minimis and the temporary-wiring item remained vacated.
• Key point: A supervisor's knowledge can be rebutted when the employer proves an adequately communicated and enforced work rule and the record shows no need for greater monitoring.

Full text (OSHRC public release)

    OCCUPATIONAL             SAF~~~~~E~~~;IC;;E”IEW                    COMMISSION
                                   One Lafayette Centre
                             1120 20th Street, N.W. - 9th Floor
                                Washington, DC 200363419


                                                                                          FAX:
                                                                                          COM (202) 6o64050
                                                                                          Frs (202) 6oG5050


                                                     ..

SECRETARY OF LABOR, ..
.
Complainant, .
.

            v.                                        ..   OSHRC Docket No. 91-862

DOVER ELEVATOR COMPANY, INC.,

                      Respondent.


                                           DECISZON

BEFORE: FOULKE, Chairman; and MONTOYA, Commissioner.

BY THE COMMISSION:

    At issue in this case is item 1 of the Secretary’s citation no. 1 alleging that Dover

Elevator Company (“Dover”) committed a serious violation of the Occupational Safety and
Health Act of 1970, 29 U.S.C. 88 651-678 (“the Act”) by failing to comply with the standard
at 29 C.F.R. 8 1926.404(b)(l)(i), which requires electrical receptacles on construction
worksites to be equipped with a ground-fault circuit interrupter (“GFCI”) under certain
conditions.’ The Secretary charged that Dover did not meet the terms of the standard be-

‘The standard provides in pertinent part as follows:

    ~1926.404     Wiring design and protection.

    &; kanch circuits-(l) Ground-fault protection-(i) General. The employer shall use either
    ground fault circuit interrupters as specified in paragraph (b)(l)(ii) of this section or an
    assured equipment grounding conductor program as specified in paragraph (b)( l)(iii) of this
    section to protect employees on construction sites. . . .
    (ii) Ground-fault circuit intmpters. All 120.volt, single-phase 1% and 20.ampere receptacle
    outlets on construction sites, which are not part of the permanent wiring of the building or
    structure and which are in use by employees, shall have approved ground-fault circuit
    interrupters for personnel protection.

2

cause power tools which its employees intended to use were connected to a receptacle that
was not protected with a GFCI, and no assured equipment grounding program was in effect.
Administrative Law Judge Edwin G. Salyers affirmed this item and assessed a penalty of
$5oO.2 Dover contends that the judge erred because the circuit was not in use at the time
and therefore no GFCI was required under the terms of the standard. Dover also argues
that it did not and could not with the exercise of reasonable diligence have known of the
alleged violative condition. Although we find that Dover failed to comply with the terms of
the standard, we also find that it had implemented, communicated, and enforced a work rule
which meets the requirements of the standard. We therefore conclude that Dover took.
reasonable measures to prevent the occurrence of the violation, and we vacate the citation
item.

                                              FACTS
    At the time of the inspection Dover was installing an elevator in an office building

under construction in Ridgeland, Mississippi. An electrical panel box supplied power to two
duplex receptacles located directly below the box. One of these receptacles was equipped
with a GFCI; the other receptacle did not have a GFCI. It is undisputed that the purpose
of a GFCI is to protect an employee from serious or possibly fatal electric shock which could
be caused by a damaged cord or defective electrical equipment.
Dover had started work at the site during the week before the Secretary’s inspection,
which took place on Monday, March 4, 1991. On that day Dover’s work crew arrived at the
site to put guide rails in place in the elevator shaft. The crew consisted of two mechanics and
two helpers. One of the mechanics, Elvis A. Sledge, instructed one of the helpers to connect
an extension cord so that they could use their drill. Sledge was aware that a GFCI was
installed at the panel box and that he was supposed to use this GFCI. However, after the
cord was connected to the GFCI, the drill would not operate; the GFCI tripped and cut off

2Dover also was cited for a serious violation of 29 C.F.R. 6 1926.405(b)(l), which requires that unused
openings in electrical circuitry boxes be sealed, and for a nonserious violation of section 1926AOS(a)(2)(ii)(B),
which requires that electrical conductors not be exposed to damage and be fastened at specified intervals. The
judge affirmed the panel box allegation as a de minimis violation and vacated the alleged nonserious charge.
The judge’s disposition of these items is not on review.
 3 c .
the circuit. Sledge then left the elevator shaft and went up to the second floor where the
panel box was located. He was unable to reset the GFCI SO that it would supply power. He
then connected the extension cord to the other receptacle in order to determine whether
that receptacle was functioning. Finding that there was power in this receptacle, he removed
the GFCI and discovered that the receptacle into which the GFCI was inserted was itself
broken. Because he did not have a spare receptacle, he left the work area to find an electri-
cian. It took about 15 to 20 minutes to locate the electrical foreman and then look through
the electrical foreman’s supplies for a receptacle. During this time, Sledge left the extension
cord connected to the operable receptacle, that is, the receptacle lacking a GFCI. When he
returned to the work area, Sledge replaced the defective receptacle himself and then asked
the electrician to check it. The electrician found that the replacement receptacle was
working properly, but the GFCI still continued to trip. Sledge then removed the cover to the
panel box itself, and the electrician checked the wiring and grounding within the box. Finding
no problem there, the electrician then examined the extension cord and informed Sledge
that the cord was “bad.” Sledge went back down to the first floor to get a replacement plug
for the extension cord from his tool box.
In the meantime, Compliance Officer Cortney Willis Bohannon had arrived to
conduct a general inspection of all of the contractors at the site. When Sledge came down
to the first floor to go to his tool box, he asked Bohannon to test the extension cord.
Bohannon confirmed that the hot and ground leads were reversed at the plug of the
extension cord. Sledge then replaced the plug in Bohannon’s presence and asked Bohannon
to recheck the cord. Bohannon then stated that the cord had been satisfactorily repaired,
at which point Sledge asked Bohannon to check the GFCI. When Bohannon informed
Sledge that the GFCI was defective, Sledge discarded the GFCI and sent his helper to
obtain a replacement, which he again asked Bohannon to test. Bohannon stated that the
replacement checked out “fine.” This replacement GFCI was of a different design, one that
could be installed on the end of a power cord. Sledge connected the extension cord to this
GFCI and resumed work. When asked whether the extension cord found to be defective had
been used during the previous week, Sledge replied that he could not be sure because there
were five or six cords in Dover’s tool or equipment box.
 4 .

      At the hearing, Sledge described Dover’s safety program. Dover requires its em-

ployees to use GFCI’s and so instructs them at safety meetings, which are usually held
monthly, and through its safety handbook and other safety material distributed to employees.
Sledge testified that Dover had issued four versions of its safety manual during the twenty
years he had been employed by the company. All of these editions of the safety manual
stated that GFCI’s were to be used. Sledge also testified that he understood that any
electrical equipment, even a drop light, is supposed to be plugged into a GFCI. The record
further shows that Dover had issued a GFCI to Sledge. There were also two other GFCI’s
available at the worksite; Sledge found one in his truck, and he took another one out of the
tool box assigned to a mechanic who no longer worked for Dover. Nevertheless, despite
Dover’s instruction and training program on GFCI’s, there is some evidence that Dover was
aware of earlier violations of its GFCI rule. At the most recent safety meeting at this jobsite
held on February 25, 1991, approximately one week before the inspection on March 4,
Robert Mason, Dover’s construction and service superintendent, discussed the “ten most
recurring safety violations,” failure to use GFCI’s being the first infraction on the list.
After the incident, on April 3, Mason issued a written reprimand to Sledge which was
placed in his personnel file and which stated as follows:
On Tuesday, March 19, 1991, we received an OSHA citation (attached)

      A subsequent meeting with OSHA revealed that the GFI [sic,] was not being
      used at the time OSHA made their inspection.

      This is a serious violation of Dover Elevator Company’s safety policy; further
      violations will require additional action up to and including termination.

      Please give serious consideration to this matter and take time to review the
      safety handbook provided to and accepted by you.

This reprimand was accompanied by a “critical incident appraisal” which reads as follows:
INCIDENT:

             Not following Dover’s safety hand book[.] Two citations for violations           of
             OSHA.

5

    EMPLOYEE’S          ACTION:

            He was furnished a GFCI but pictures indicate it was not in use during the
            OSHA inspection.

    EXPECTED         PERFORMANCE:

            He is expected to comply with Dover’s safety policy as described in Dover
            safety hand book as previously instructed.

    SUPERVISOR’S          APPRAISAL:

             1st offense for this violation a letter of reprimand.

    COMMENTS:

             Further violations of Dover’s safety hand book will result in further action up
             to and including termination.

This was the first time Sledge had ever been disciplined for failing to use a GFCI.
JUDGE’S DECISION AND PARTIES’ ARGUMENTS
The judge found that Dover had failed to comply with the terms of section
1926.404(b)(l)(i). The judge reasoned that notwithstanding Sledge’s testimony of the efforts
he had made to correct the defective GFCI, there remained an unprotected circuit available
for employee use even if it was not in actual use. However, although Dover had raised the
issue of knowledge of the violative condition before the judge, he did not address the issue.3

%he parties did not file posthearing briefs with the judge. Judge Myers issued an oral decision at the close
of the hearing that he thereafter adopted in his written decision. Neither party objected or requested an
opportunity to file a brief. Commission Rule 74(a), 29 C.F.R. 0 2200.74(a) states that “[a]ny party shall be
entitled, upon request made before the close of hearing, to file a brief, proposed findings of fact and
conclusions of law, or both, with the Judge.” Thus, the rule permits but does not require the parties to file
posthearing brie& See section 8(b) of the Administrative Procedure Act (“APA”), 5 U.S.C. 0 557(c), which
provides that parties “are entitled to a reasonable opportunity to submit. . . proposed findings and conclusions
[and] supporting reasons for the . . . proposed findings or conclusions” before the judge issues his decision.
Since neither party sought to file a brief here, the judge’s action conforms with the APA and the Commission’s
rule. We further note that, contrary to the representation in the Secretary’s brief before us, there is no
contention by either party that the judge committed a procedural error.

Dover, on the other hand, had previously filed a p&earing statement of unresolved issues and authorities in
compliance with the judge’s pretrial order. In that submission Dover indicated that noncompliance with the
terms of the standard and knowledge of the violative conditions were both disputed issues. Therefore, while
(continued..)
 6

    In Dover’s view, no violation existed because the circuit was not in actual use and

because, contrary to the judge’s decision, it was not available for use since it was defective
and was being tested to determine what the problem was. Dover points out that the judge
did not find that Sledge was not a credible witness and that Bohannon corroborated Sledge’s
testimony that power tools were not being operated at the time because Sledge was having
difficulty obtaining power. Dover interprets the judge’s decision that the circuit was at least
available for use as a finding “concerning what could happen on the construction site.”
Dover contends that that finding is erroneous not merely because the defect in the GFCI
prevented the GFCI itself from being used but also because the defect was such as to
preclude any current at all from going through the cord. Dover points out that Sledge did
not have the crew resume work but instead elected to find the cause of the loss of power
in the receptacle to which the GFCI was affied. Dover argues that since the circuit was
under Sledge’s control, the judge erred in concluding that it was available for use.
Dover also contends that the Secretary failed to meet his burden of proof because
the Secretary failed to demonstrate that Dover knew or reasonably could have known of the
existence of the violative conditions. In Dover’s view, it took sufficient measures to ensure
that its employees used GFCI’s: it had a work rule requiring their use; it communicated this
rule to employees, including Sledge; it provided GFCI’s for employees to use; and the
employees followed these rules, since Sledge’s helper plugged the extension cord into the
GFCI when they attempted to begin their work. Dover further points out that it enforced
its work rule through the reprimand it issued to Sledge. Because it had safety rules and a
safety program from which employees understood that they were not to use any receptacle
that was not protected by a GFCI, Dover contends that the Secretary did not meet his
burden to show that it knew, or could have known with the exercise of reasonable diligence,

3(...continued)
the judge did not err in announcing a decision at the close of the hearing without brie&, he did err insofar
as his decision fails to address a disputed factual issue material to the disposition of the case. The Commission,
however, is empowered to review the evidence independently and make its own factual findings. Accu-Namics,
Inc. v. OSHRC, 515 F.2d 828, 834, 1302 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976); Hamilton Fixture,
16 BNA OSHC 1073,1089,1993 CCH OSHD lI 30,034, p. 41,184 (No. 8%1720,1993),petitionforreview~e~,
No. 93-3615 (6th Cir. June 7, 1993). Accordingly, we will decide the knowledge issue without remanding to
the judge.
that employees might use an unprotected receptacle and thus be exposed to the hazard
covered by the standard.
The Secretary contends that the unprotected circuit was available for use by the three
other members of the crew while Sledge was absent from the work area looking for a
replacement receptacle. The Secretary points out that before leaving the work area, Sledge
had connected the extension cord to the operable, but unprotected, receptacle and that
Sledge had not instructed the other members of the crew not to use the extension cord. On
the contrary, in the Secretary’s view, Dover relies on the “fortuitous” circumstance that the
employees in fact did not use their power equipment in his absence. The Secretary cites case
law holding that where defective equipment creates a hazard, proof of a violation does not
require evidence that the defective equipment actually was put into use; rather, the Secretary
need only show that employees had access to the equipment and could have used it.
As to the issue of employer knowledge, the Secretary argues that he met his burden
of proof because Sledge was aware that the unprotected receptacle was operable and, when
he connected the extension cord to the operable receptacle, he was aware that that cord was
available for use. As a supervisory employee at the site, his knowledge is imputable to
Dover. The Secretary also argues that at a safety meeting held only one week previously,
Dover recognized that failure to use GFCI’s was the most common safety infraction
committed by its employees. Nevertheless, it took no steps other than to issue safety
handbooks and discuss the use of GFCI’s at safety meetings. In the Secretary’s view, Dover’s
safety program was deficient because it failed to show that it had a mechanism for moni-
toring employee conduct and detecting violations of safety rules and because its actions to
enforce its safety rules are not motivated by concern for the elimination of safety hazards.
Rather, the Secretary contends, Sledge was reprimanded simply because Dover happened
to get “caught” by OSHA at a time when Sledge was in charge. That is, the Secretary
appears to suggest that Dover was simply retaliating against Sledge.
The Secretary also advances two additional contentions. He contends that under the
Act, knowledge by the employer is a prerequisite only for a serious violation. Therefore, the
Secretary asserts, the Commission should affirm the citation item as a nonserious violation
even if the Commission concludes that Dover lacked knowledge of the violative condition.
 8

Furthermore, the Secretary argues, knowledge is not an element of his prima facie case;
rather, the burden is on Dover to demonstrate as an affirmative defense that the violation
resulted from misconduct by its employees.
DISCUSSION AND ANALYSIS
Noncompliance
As the Secretary correctly points out, the Commission has held that a violation is
established where defective equipment is available for use. The cases the Secretary cites,
however, are concerned with the issue of employee exposure to the hazard that a standard
is intended to protect against where there is no evidence that employees have actually used
the equipment or machinery in question. Although these cases are analogous, they do not
directly address the question presented here: whether an employer can be found in
noncompliance with a standard requiring that certain equipment be installed at a worksite
where the employer is in the process of attempting to correct the violative condition at the
time the violation is alleged to have occurred.
For example, Pennsylvania Steel Foundry & Machine Co., 12 BNA OSHC 2017,
1986-87 CCH OSHD 1 27,671 (No. 78-638, 1986), afd, 831 F.2d 1211 (3d Cir. 1987),
involved a standard which set forth design specifications for a machine guard. The issue
before the Commission was whether the Secretary had established exposure to the hazard.
The Commission applied the well-established “access” test under which exposure is found
if it is “reasonably predictable” that employees during the course of their normal work duties
might come within the “zone of danger” resulting from the violation. Id. at 2030-31, 1986-87
CCH OSHD at p. 36,074 (citing GiZZes
& Catting Inc., 3 BNA OSHC 2002, 197576 CCH
OSHD W20,448 (No. 504,1976)). SeeAmour Food Co., 14 BNA OSHC 1817,1824,1987-90
CCH OSHD 1 29,088, p. 38,886 (No. 86-247, 1990). Accordingly, the Commission concluded
that access to the hazard--and hence employee exposure--existed so long as the unguarded
equipment was “available for use,” that is, so long as it “was located where employees could
gain access to it and use it in the course of their normal duties.” 12 BNA OSHC at 2030-31,
1986-87 CCH OSHD at p. 36,074 (emphasis added). The Commission reached the same
 9

conclusion with respect to a defective ladder in Brown-McKee, Inc., 8 BNA OSHC 1247,
1249, 1980 CCH OSHD ll 24,409, p. 29,736 (No. 76-982, 1980). Neither of these cases
involved circumstances similar to those presented in this case.4
Nevertheless, the general rule that exposure is established by proof that employees
could have access to the hazard suggests that Dover cannot be said to be in compliance with
section 1926.404(b)(l)(i) simply because it was in the process of correcting the violative
condition. In the first place, contrary to Dover’s argument, the standard cannot be
interpreted literally to mean that no violation exists because the Secretary failed to show that
employees actually used the unprotected circuit. Such an interpretation would be contrary
to the Act’s remedial purpose because it would allow the employer to avoid having to insti-
tute preventive measures to protect its employees from the hazard. See Havens Steel Co.,
6 BNA OSHC 1564, 1566, 1978 CCH OSHD ll 22,689, p. 27,386 (No. 13463, 1978), @V
withoutpublished opinion, 607 F.2d 493 (D.C. Cir. 1979) (proof of availability for use is
sufficient to establish a violation of a standard prohibiting “the use of’ defective ladders).
Secondly, the fact that Sledge was engaged in a repair effort does not establish that the
unprotected circuit was rendered unusable by employees. As the Commission stated in Gilles
& totting,
“If defective equipment is available for use by the employee and a stan-
dard is violated, then a citation should issue. Under such circumstances, the
employee is exposed to a potential hazard even if he is not using the
equipment at the time of the inspection. The equipment is accessible to him
and could be used.

           “Where [an] employer asserts his intention not to use .      defective
                                                                               l   l




    equipment until repaired and his contention is manifested in overt acts which
    have denied accessibility to the equipment by the employees, then the
    employer should not be held in violation of the particular safety standard
    which might apply to that equipment. If the equipment has been effectively
    removed from accessibility by the employees, the employer has taken positive
    means to assure safe and healthful working conditions for his employees.”

?he third caSe the Secretary cites, Well Solutions, Inc., 15 BNA OSHC 1718,1723,1992 CCH OSHD llZ9,743,
p 40,422 (No. 894559, 1992), is inapposite. The issue before the Commission in that case was whether the
Secretary had proven that a hammer having a substantially cracked handle failed to comply with a standard
requiring that tools be in “safe condition.” The Commission concluded that the fact that the hammer was
available for use was a factor in determining that it was unsafe.
 10

3 BNA OSHC at 2004, 1975-76 CCH OSHD at p. 24,425 (quoting Allied Electric Co., 72
OSAI-IRC S/F6 (NO. 433, 1972) (ALJ) (deletions in original)). As the Secretary points out,
Sledge did not take direct measures to prevent Dover’s employees from using the receptacle,
such as deenergizing it, during the 150 or 20.minute period when he had left the immediate
work area to find a replacement receptacle. Nothing would have precluded Dover’s
employees from operating their power equipment either with the extension cord Sledge had
connected to the unprotected receptacle or by using any of the other extension cords
available at the site. We therefore conclude that the unprotected receptacle was available
for use by Dover’s employees and that Dover failed to comply with the terms of the
standard.
Knowledge
At the outset, we will not address the Secretary’s contentions that knowledge is a
necessary element only of a serious violation and that the employer rather than the Secretary
should have the burden of proof on this issue. The Secretary failed to raise either of these
arguments before the judge but rather has presented them for the first time in his review
brief. While the Commission has authority to consider any issue raised by a party once a
case is directed for review, the Commission also has discretion to limit the scope of its
review. Bay State ReJ Co., 15 BNA OSHC 1471,1476,1992 CCH OS-ID ll 29,579, p. 40,025
(No. 884731, 1992). Commission Rule 92(c), 29 C.F.R. 0 2200.92(c), provides as follows:
(c) Issues not raised before Judge. The Commission will ordinarily not review
issues that the Judge did not have the opportunity to pass upon. In exercising
discretion to review issues that the Judge did not have the opportunity to pass
upon, the Commission may consider such factors as whether there was good
cause for not raising the issue before the Judge, the degree to which the issue
is factual, the degree to which proceedings will be disrupted or delayed by
raising the issue on review, whether the ability of an adverse party to press a
claim or defense would be impaired, and whether considering the new issue
would avoid injustice or ensure that judgment will be rendered in accordance
with the law and facts.
The Secretary has neither made nor sought to make any showing of good cause for not
raising these arguments below, nor has the Secretary advised us of any grounds on which we
can conclude that consideration of his arguments is warranted under the remaining criteria
of Rule 92(c). Indeed, the issues which the Secretary now asks us to consider relate to
 11

questions of law which are welI-settled.5 In these circumstances we decline to exercise our
discretion to review matters that were not raised before the judge. American Qanamid Co.,

15 BNA OSHC 1497, 1505 n.16, 1992 CCH OSHD lI 29,598, p. 40,069 n.16 (No. 86-681,
1992),petitionfor reviewfiled, No. 93.3321(6th Cir. Apr. 7,1992); Peavey Grain Co., 15 BNA
OSHC 1354, 1358 n.7, 1991 CCH OSHD lI 29,533, p. 39,872 n.7 (NO. 89-3046, 1991); See
J.L. Manta Plant Servs. Co., 10 BNA OSHC 2162,1982 CCH OSHD fl 26,303 (No. 78-4923,
1982) (amendment sought by the Secretary for the first time on review is untimely because
the Secretary could have moved to amend before the judge). Compare Archer-Western
Contrac., Ltd., 15 BNA OSHC 1013, 1015 n.4, 1991 CCH OSHD ll 29,317, p. 39,376 n.4
(No. 87-1067, MU), afd withoutpubZishedopinion, 978 F.2d 744 (D.C. Cir. 1992) (matter
raised in party’s posthearing brief is properly before the Commission for review).
Although the Secretary has the burden to establish employer knowledge of the
violative conditions, when a supervisory employee has actual or constructive knowledge of
the violative conditions, that knowledge is imputed to the employer, and the Secretary satis-
fies his burden of proof without having to demonstrate any inadequacy or defect in the
employer’s safety program. Baytown Const~ Co., 15 BNA OSHC 1705, 1710, 1992 CCH
OSHD V 29,741, p. 40,414 (No. 88-2912S, 1992), afd withoutpublished opinion, 983 F.2d
282 (5th Cir. 1993); A.P. O’Horo Co., 14 BNA OSHC 2004, 2007, 1991 CCH OSHD
ll 29,223, p. 39,129 (No. 85-369, 1991). Here, the Secretary contends, and Dover does not

‘In our recent decision in CF & T Available Concrete Atmping Inc., 15 BNA OSHC 2195, 1993 CCH OSHD
fl 29,945 (NO. 90-329, 1993), we followed the existing precedent that as part of his prima facie case the
Secretary must demonstrate that the employer knew or reasonably could have known of the existence of the
violative conditions. As CF & T indicates, the case law holding that knowledge is essential to a violation under
the Act and placing the burden of proof on the Secretary is well-established and long-standing. 1. at 219697
& n.4,1993 CCH OSHD at p. 40,936 & n.4. See Scheel Constr., Inc., 4 BNA OSHC 1824,1976-77 CCH OSHD
lI 21,263 (No. 8687, 1976). In addition, the Court of Appeals for the Fifth Circuit, in which this case arises,
has consistently held that knowledge is a necessary element of a serious as well as nonserious violation and
that the burden of proof is on the Secretary. Home Plumbing & Heating Co. v. OSHRC, 528 F.2d 564,570-71
(5th Cir. 1976);accord H.B. Zachry Co. v. OSHRC, 638 E2d 812,819 n.17 (5th Cir. 1981);Floyd S. pike Electri-
cal Contrac. v. OSHRC, 576 F.2d 72,76 (5th Cir. 1978). Therefore, if we were to consider the Secretary’s argu-
ments even though they were not raised in a timely fashion, the weight of this established caSe law is a
substantial factor that militates against our now adopting a wholly different approach to the matter of
employer knowledge. See Smith Steel Casting Co. v. Donovan, 725 F.2d 1032,1035 (5th Cir. 1984) (Commission
bound to follow the law of the Fifth Circuit in cases arising within that circuit); Reich w. OSHRC (Erie Coke
Corp.), 16 BNA OSHC 1241,1244 (3d Cir. 1993) (adherence to existing circuit court precedent in the absence
of.a change in the Act or contrary holding by the Supreme Court).
 12

dispute, that Sledge was a supervisory employee for purposes of applying this rule. An
employee who has been delegated authority over other employees, even if temporarily, is
considered to be a supervisor for the purposes of imputing knowledge to an employer,
Tampa Shipyartis,Inc., 15 BNA OSHC 1533, 1537, 1992 CCH OSHD !I 29,617, p. 40,100
(No. 86360,1992) ( consolidated). It is the substance of the delegation of authority that is
controlling, not the formal title of the employee having this authority; an employee who is
empowered to direct that corrective measures be taken is a supervisory employee. Mercer
WeZZServ., Inc., 5 BNA OSHC 1893, 1977-78 CCH OSHD W22,210 (No. 76-2337, 1977);
Iowa S. Utik. Co., 5 BNA OSHC 1138, 1977-78 CCH OSHD fl 21,612 (No. 9295, 1977).
Accordingly, Sledge’s knowledge of the conditions at the site is imputable to Dover.
Since the Secretary made a prima facie showing of knowledge through Dover’s
supervisory employee, the burden shifts to Dover to rebut the Secretary’s case by showing
that it took reasonable measures to prevent the occurrence of the violation. Baytown, 15
BNA OSHC at 1710, 1992 CCH OSHD at p. 40,414; Dover Elevator Co., 15 BNA OSHC
1378, 1382, 1991 CCH OSHD ll 29,524, p. 39,849 (No. 88-2642, 1991). Specifically, Dover
must demonstrate that it had prescribed work rules that satisfy the requirements of the cited
standard and that it had adequately communicated and effectively enforced such rules. In
particular, the employer must demonstrate that it took action to discover violations of work
rules by implementing measures to monitor its employees’ adherence to safety rules. Id.;
Regina Constr, Co., 15 BNA OSHC 1044, 1051, 1991 CCH OSHD ll 29,354, p. 39,470 (No.
87-1309, 1991).
Here, the evidence shows that Dover had a rule requiring the use of GFCI’s and that
it communicated this rule to its employees both at safety meetings and through all versions
of its safety manual. Sledge and the members of his crew were aware of the rule since they
attempted to use the existing GFCI. While there is some indication that Dover was on notice
that non-use of GFCI’s was a common safety infraction, the reference to other violations is \
a very brief and passing mention in Sledge’s testimony which fails to show the extent or
frequency of such infractions or that they involved Sledge or any member of his crew. The
Act does not mandate that an employer necessarily eliminate all instances of employee
 13 . .

noncompliance with its workrules. Where the evidence fails to show that the employer
should have perceived a need for additional monitoring or that such an effort would have
led to the discovery of instances of employee misconduct, increased supervisory efforts to
monitor employee compliance are not required. National Realty& Conrtr. Co. v. OSHRC,
489 F.2d 1257, 1266 (D.C. Cir. 1973); Jones & Laughlin Steel Cop, 10 BNA OSHC 1778,
1783, 1982 CCH OSHD lI 26,128, p. 32,888 (No. 762636, 1982). Indeed, the record here
shows that Dover was cognizant of employee violations of its workrule and that it enforced
those rules through disciplinary action.6 Accordingly, we conclude that the safety program
is not deficient merely because Dover failed to show specifically that it had a mechanism for
monitoring employees for conformity with its safety rules. In evaluating the adequacy of a
safety program, the substance of the program is determinative rather than its formal aspects.
Pennsylvania Pbv. & Light Co. v. OSHRC, 737 F.2d 350, 358 (3d Cir. 1984); Jones &
Laughlin, 10 BNA OSHC at 1782,1982 CCH OSHD at p. 32,887. C$ Texland DrillingCop.,
9 BNA OSHC 1023,198O CCH OSHD li 24,954 (No. 76-5307,198O) (employer not required
to institute a work rule explicitly tracking the precise language of the standard where
employees knew of and acted in accordance with safe work practices).

?he Secretary contends that Dover’s enforcement of its safety rules was inadequate because Sledge was not
reprimanded for violating Dover’s safety rule but rather for causing an OSHA citation to be issued. The
Secretary relies on the following statement in Sledge’s testimony: “Well, the reason I was issued the reprimand
was because Dover got the citation and I was the man in charge.”

In its recent decision in Jersey Steel Erectors, 16 BNA OSHC 1162, 1164-65, 1993 CCH OSHD lI 30,041, pp.
41,216.17 (No. 90-1307, 1993), the Commission criticized an employer for not expressly informing employees
that they were being terminated for failing to comply with a safety rule. That case, however, is factually
distinguishable because the entirety of the evidence demonstrated that noncompliance with work rules was not
the reason why the employer was terminating employees. In this case, the precise meaning of Sledge’s
testimony is unclear, and his statement can be interpreted as an explanation of why he and not any other
employee was issued a reprimand. The written reprimand and accompanying“appraisal” repeatedly emphasized
that Sledge violated Dover’s safety policy and warned that further violations of Dover’s rules would result in
termination. We therefore cannot conclude that Sledge believed that he would not have received a reprimand
if there had not been an OSHA inspection.
 For the reasons stated above, we conclude that Dover failed to comply with the terms
of 29 C.F.R. 8 1926.404(b)(l)(i) but that it did not and could not with reasonable diligence
have known of the violative condition. We therefore vacate item 1 of citation no. 1.

                                               Velma Montoya
                                               Commissioner

Dated: July 16, 1993
/YC-Gd UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

                                                                            FAX:
                                                                            COM (202) 606-5050
                                                                            RS ‘(202) 6064050




                                        .

SECRETARY OF LABOR, ..

            Complainant,                ..
                                        .
   v.                                   ..      Docket No. 91-862
                                        .

DOVER ELEVATOR COMPANY,
INC.,

            Respondent.
                                        .




                           NOTICE OF COMMISSION DECISION

The attached decision by the Occupational Safety and Health Review Commission was issued on
Julv 16, 1993. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES TO
OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 USC. 0 660.

                                                FOR THE COMMISSION

July 16, 1993
Date Ray H. Darling. Jr.
Executive Secretary
Docket No. 91-862

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

George Palmer, Esq.
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Suite 201
2015 2nd Avenue North
Birmingham, AL 35203

W. Scott Railton, Esq.
Reed Smith Shaw & McClay
1200 - 18th Street, N.W.
Washington, D.C. 20036

Edwin G. Salyers
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309-3 119
 UNITED STATES OF AMERICA
OCCUPATION, -11 SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET N.W.
4TH FLOOR
WASHINGTON DC 20006-1246

                                                                             FAX
                                                                             COM (202) 634-4008
                                                                             RS 634-4008

SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 91-0862
DOVER ELEVATOR CO., INC.
Respondent.

                   NOTICE OF DOCKETING
            OF ADMINISTRATIVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on April 16, 1992. The decision of the Judge
will become a final order of the Commission on May 18, 1992 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on or before
May 6, 1962 in order to permit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Revrew Commission
1825 K St. N.W., Room 401
Washington, D.C. 20006-1246
Petitioning parties shall also mail a copy to:

                   Daniel J. Mick, Esq.
                   Counsel for Regional Trial Liti ation
                   Office of the Solicitor, U.S. DOgL
                   Room S4004
                   200 Constitution Avenue, N.W.
                   Washington, D.C. 20210

If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 634-7950.
FOR THE COMMISSION

Date: April 16, 1992 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 91-0862

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO8,
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

George Palmer, Esq.
Assoc. Re ional Solicitor
Office of ta e Solicitor, U.S. DOL
Suite 201
2015 - 2nd Avenue, North
Birmingham, AL 35203

W. Scott Railton, Esq.
Reed, Smith, Shaw & McClay
1200 - 18th Street, N.W.
Washington, DC 20036

Edwin G. Salyers
Administrative Law Jud e
Occupational Safety an cf Health
Review Commissron
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119

00018304725 :04
 UNITED ST4TES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET. N.E., SWE 240
ATLANTA, GEORGIA 30309-3119

PHONE FAX
COM (404) 347-4197 COM (404) 347-0113
f% 257-4086 FE 257-O: 13

                                                                  .

SECRETARY OF LABOR, ..
..
Complainant, ..
..
v. l

                                                                  .           OSHRC Docket No. 91-862
                                                                  ..

DOVER ELEVATOR COMPANY, ..
..
Respondent. ..
..

APPEARANCES:

         Cynthia Welch-Brown, Esquire                                         W. Scott Railton, Esquire
            Office of the Solicitor                                              Reed, Smith, Shaw & McClay
            U. S. Department of Labor                                            Washington, D. C.
            Birmingham, Alabama                                                        For Respondent
                   For Complainant

Before: Administrative Law Judge Edwin G. Salyers

                                        DECISION AND ORDER


         In early March          1991, respondent’s       employees            were installing   an elevator    at a

multi-employer worksite in Ridgeland, Mississippi. Compliance Officer Cortney W.
Bohannon conducted an inspection of this worksite under the provisions of the Occupational
Safety and Health Act (29 U.S.C. 8 651, et seq.) and, thereafter, on March 14, 1991, the
Secretary of Labor issued the following citations:
 Serious Citation No. 1

   1
   29 CFR 1926404(b)(l)(i):      Employer did not use either ground-fault circuit
   interrupters as specified in paragraph (b)(l)(ii) of this section, or -an_-.assured
   equipment grounding conductor program as specified in paragraph (b)( l)(iii)
   of this section to protect employees on construction sites:

            (a) Employees were exposed to the hazard of electric shock
            from tools connected to circuit panels without ground fault
            circuit interrupters or an assured equipment grounding program.

   2
   29 CFR 1926.405(b)( 1): Unused openings in cabinets, boxes, and fittings were
   not effectively closed:

            (a) Unused opening in circuit panel box was not effectively
            closed exposing employees to electric shock.

                                “Other” Citation No. 2

   1
   29 CFR 1926.405(a)(2)(ii)(B):    Runs of open conductors used as temporary
   wiring branch circuits were located where the conductors would be subject to
   physical damage, or the conductors were fastened at intervals exceeding 10
   feet:

            (a) West side of construction site - Temporary wiring laying on
            ground was exposed to both vehicular and pedestrian traffic.

   On March 27, 1991, respondent      filed its notice of contest with respect to all charges

and the case was heard on December 18, 1991, in Jackson, Mississippi.
At the conclusion of the hearing, this court issued a bench decision disposing of all
issues (Tr. 155-157). Item 1 of serious Citation No. 1 was affirmed, and a penalty of $500
was assessed. Item 2 of serious Citation No. 1 was affirmed as de minimis with no penalty
assessed. “Other” Citation No. 2 was vacated based upon the Secretary’s failure to establish
that respondent’s employees were exposed to this alleged hazard.
After reviewing the transcript of this proceeding, the court concludes the evidence of
record supports the findings reached at the hearing.
 ORDER

    It is therefore   ORDERED:
    1. Serious Citation No. 1, item 1, is affirmed and a penalty of $500 is assessed.
    2. Serious Citation No. 1, item 2, is reclassified as de minimis and affirmed with no

penalty assessed.
3. “Other” Citation No. 1 is vacated.

                                       EDWIN G. SALYERS                  !
                                                                        u
                                       Judge

Date: April 9, 1992

                                            3