J. SKELLY WRIGHT, Circuit Judge:
We review here an order
I. THE PROCEEDINGS AND THE EVIDENCE
The 1970 Act provides for the fining and, in aggravated cases, the imprisonment,
An employer's duties under the Act flow from two sources. First, by 29 U. S.C. § 654(a)(2), he must conform to the detailed health and safety standards promulgated by the Secretary of Labor under 29 U.S.C. § 655.
29 U.S.C. § 654(a)(1). Breach of the general duty opens an employer to fines of up to $1,000 per violation, some fine in this range being mandatory if the violation is "serious," 29 U.S.C. § 666(b) and (c). Employer duties are enforced through citations and proposed penalties issued by the Secretary of Labor, contested matters being adjudicated by the Commission, an independent body of safety experts.
On September 24, 1971 the Secretary cited National Realty for serious breach of its general duty
After National Realty filed timely notice of contest, the Secretary entered a formal complaint charging that National Realty had
At an administrative hearing, held before an examiner appointed by the Commission, William Simms, the Labor Department inspector who cited National Realty, testified in person, and counsel read into the record a summary of stipulated
On September 16, 1971, at a motel construction site operated by National Realty in Arlington, Virginia, O. C. Smith, a foreman with the company, rode the running board of a front-end loader driven by one of his subordinates, Clyde Williams. The loader suffered a stalled engine while going down an earthen ramp into an excavation and began to swerve off the ramp. Smith jumped from the loader, but was killed when it toppled off the ramp and fell on him. John Irwin, Smith's supervisor, testified that he had not seen the accident, that Smith's safety record had been very good, that the company had a "policy" against equipment riding, and that he—Irwin—had stopped the "4 or 5" employees he had seen taking rides in the past two years. The loader's driver testified that he did not order Smith off the vehicle because Smith was his foreman; he further testified that loader riding was extremely rare at National Realty. Another company employee testified that it was contrary to company policy to ride on heavy equipment. A company supervisor said he had reprimanded violators of this policy and would fire second offenders should the occasion arise. Simms, the inspector, testifed from personal experience that the Army Corps of Engineers has a policy against equipment riding. He stated he was unaware of other instances of equipment riding at National Realty and that the company had "abated" its violation.
The hearing examiner dismissed the citation, finding that National Realty had not "permitted" O. C. Smith to ride the loader, as charged in the citation and complaint. The examiner reasoned that a company did not "permit" an activity which its safety policies prohibited unless the policies were "not enforced or effective." Such constructive permission could be found only if the hazardous activity were a "practice" among employees, rather than—as here—a rare occurrence.
II. THE ISSUES
Published regulations of the Commission impose on the Secretary the burden of proving a violation of the general duty clause.
A. The Relative Unimportance of the Charge
The citation and complaint stated that National Realty breached its general duty by permitting Smith to
B. The Statutory Duty to Prevent Hazardous Conduct by Employees
Thus, despite the awkwardness of his charges and pleadings, the Secretary could properly have produced evidence at the hearing on the question whether National Realty's safety policy failed, in design or implementation, to meet the standards of the general duty clause. Under the clause, the Secretary must prove (1) that the employer failed to render its workplace "free" of a hazard which was (2) "recognized" and (3) "causing or likely to cause death or serious physical harm." The hazard here was the dangerous activity of riding heavy equipment. The record clearly contains substantial evidence to support the Commission's finding that this hazard was "recognized"
Construing the term in the present context presents a dilemma. On the one hand, the adjective is unqualified and absolute: A workplace cannot be just "reasonably free" of a hazard, or merely as free as the average workplace in the industry.
Though resistant to precise definition, the criterion of preventability draws content from the informed judgment of safety experts. Hazardous conduct is not preventable if it is so idiosyncratic and implausible in motive or means that conscientious experts, familiar with the industry, would not take it into account in prescribing a safety program. Nor is misconduct preventable if its elimination would require methods of hiring, training, monitoring, or sanctioning workers which are either so untested or so expensive that safety experts would substantially concur in thinking the methods infeasible.
C. Deficiencies in This Record
The hearing record shows several incidents of equipment riding, including the Smith episode where a foreman broke a safety policy he was charged with enforcing.
The Commission sought to cure these deficiencies sua sponte by speculating about what National Realty could have done to upgrade its safety program.
Because the Secretary did not shoulder his burden of proof, the record lacks substantial evidence of a violation, and the Commission's decision and order are, therefore,
Decision and Order, supra note 1, opinion of Commissioner Burch, at 1. (Emphasis added.)
Used intransitively, the verb means
Webster's Third New International Dictionary 1683 (Unabridged 1961).
1 K. Davis, Administrative Law Treatise § 8.04 at 523 (1958). See also Tashof v. FTC, 141 U.S.App.D.C. 274, 437 F.2d 707 (1970).
116 Cong.Rec. (Part 28) 38377 (1970). The standard would be the common knowledge of safety experts who are familiar with the circumstances of the industry or activity in question. The evidence below showed that both National Realty and the Army Corps of Engineers took equipment riding seriously enough to prohibit it as a matter of policy. Absent contrary indications, this is at least substantial evidence that equipment riding is a "recognized hazard."
H.R.Rep.No.91-1291, supra note 7, at 21; S.Rep.No.91-1282, supra note 27, at 9, U. S.Code Cong. & Admin.News, 1970, p. 5186. (Emphasis added.) Overtones of the reasonableness standard are to be found only in the Act's definition of a serious violation, see note 41 infra. That employers must take more than merely "reasonable" precautions for the safety of employees follows from the great control which employers exert over the conduct and working conditions of employees. See H.R.Rep.No.91-1291, id., and S.Rep.No.91-1282, id.
H.R.Rep.No.91-1291, supra note 7, at 21. These persuasive indications aside, the very word duty implies an obligation capable of achievement. See Restatement (Second) of Torts § 4 (1965).
S.Rep.No.91-1282, supra note 27, at 10-11, U.S.Code Cong. & Admin.News, 1970, p. 5187. The employer's duty is, however, qualified by the simple requirement that it be achievable and not be a mere vehicle for strict liability.
29 U.S.C. § 666(j). When the hazard involved is a form of hazardous conduct by employees, an employer's safety program is in "serious" violation of the general duty clause only if (1) the misconduct involves a substantial risk of harm and is substantially probable under the employer's regime of safety precautions, or (2) the employer, with the exercise of reasonable diligence, could have known that its safety program failed the standards of the clause by failing to preclude the occurrence of preventable misconduct. If either condition applies, it is hardly unfair for the Commission to assume that the defendant-employer had at least constructive notice that the law required more than was being done. Only if a violation is serious is a penalty necessarily imposed. Compare 29 U.S.C. § 666(b) with 29 U.S.C. § 666(c). While the Commission has the clear authority to impose a penalty even if the violation is not serious, a zero penalty, coupled with an abatement order, would obviously be the proper response where the Commission determined that the defendant-employer had no notice, i. e., no duty to know, that its safety regime was defective.
Given our disposition of this case, there is no occasion to decide if National Realty's violation, properly proved, would be "serious."