Petition to review portions of an order of the Occupational Safety and Health Review Commission upholding citations of violations by General Electric Co. of standards promulgated pursuant to the Occupational Safety and Health Act of 1970, concerning eye protection equipment and platform guardrails.
Lumbard and Timbers, Circuit Judges, and Newman, District Judge.*fn*
General Electric Co. (GE) petitions pursuant to 29 U.S.C. § 660 to set aside an order of the Occupational Health and Safety Review Commission (OSHRC) insofar as the order upholds two of seventeen violations alleged in a citation issued by the Occupational Safety and Health Administration (OSHA). The first is a repeated serious violation of 29 C.F.R. § 1910.133(a)(1) concerning protective eye equipment, and the second is a willful serious violation of 29 C.F.R. § 1910.23(c)(1) concerning railings for raised platforms. The Administrative Law Judge (ALJ) upheld eight of the original violations including the eye equipment violation, but vacated the platform railing violation. CCH (1973-74 vol.) O.S.H.D. P16,946 (1973). The Commission by a divided vote affirmed the eye equipment violation and reinstated the citation for the platform railing violation. CCH (1974-75 vol.) O.S.H.D. P19,567 (1975).
The citation was issued to GE following an inspection by OSHA compliance officers of two of GE's buildings at Schenectady, New York. The officers observed two employees not wearing any protective eye equipment while operating a jack hammer to break up a concrete floor. They also observed a powered work platform without guardrails; the platform was at floor level but was capable of being raised to a height of more than ten feet.
1. The eye equipment violation raises a potentially troublesome issue as to the extent of an employer's duty to require his employees to use safety equipment, though we are satisfied that decision can be reached without resolving the ultimate difficulties of that issue. The pertinent portion of the applicable standard reads as follows:
(a) General (1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. 29 C.F.R. § 1910.133(a)(1).
The violation was alleged in the citation as follows:
Failure to provide suitable eye protection for two employees, Bay K-13 (Building 273), using jack hammer to break up concrete.
There is no evidence that GE failed "to provide" safety glasses to the two employees, and no finding of such failure was made by the ALJ or the Commission.*fn1 The undisputed evidence established that eye protection such as safety glasses (including corrective lenses) is furnished by the company free of charge to all employees who work in certain areas that include Building 273. Throughout the building are posted signs stating: "Mandatory That You Wear Eye Protection In the Building At All Times." One of the two employees testified that at the beginning of his employment he was issued safety glasses and advised of the company's rule respecting their use in posted areas.
Though the citation's allegation of a "failure to provide" is obviously not supported by any evidence, much less substantial evidence, the Commission nonetheless upheld the violation because of the company's failure to take sufficient steps to have the employees use the safety glasses that were provided. This approach raises three issues: whether the pertinent standard imposes upon employers an obligation to require employee use of eye protection equipment, whether GE was adequately charged with breach of such an obligation, and whether there is substantial evidence in the record to support a conclusion that such an obligation was breached.
The Commission found an employer obligation implied by § 1910.133(a)(1), which, according to the Commission's opinion, "clearly directs employers to require that employees use such protection, because under its express terms no person is knowingly to be subjected to a hazardous eye condition." In reaching this conclusion, the Commission acknowledged that it was overruling its prior decision in Cam Industries, Inc., CCH O.S.H.D. (1973-74 vol.) P17,373 (1974), which had affirmed the following conclusion of the AJL: "[Section 1910.133(a)(1)] places no obligation either expressly or by implication on the employer to assure an employee's use of equipment which has been provided for his sole protection." CCH O.S.H.D. P15,113 (1972).
We find this an inappropriate case to resolve the sharp dispute between the parties as to the existence and, more particularly, the nature of an employer's obligation to require employee use of protective equipment. If the employer were a guarantor of the employee's use, a serious question would arise as to whether such an interpretation would exceed the legislative requirements. See Brennan v. OSHRC and Hendrix, d/b/a Alsea Lumber Co., 511 F.2d 1139, 1144-45 (9th Cir. 1975). We do note, however, that if employers are to be held to an obligation requiring something more than instructing employees to use protective equipment but something less than guaranteeing use, the promulgation of a standard fleshing out the employer's obligation would provide useful guidance to employers, the Commission, and reviewing courts.
Nor need we decide the equally troublesome problem of whether GE had adequate notice that it would be called to defend the adequacy of its efforts to assure employee use. Both the Secretary's citation and the formal complaint charged "failure to provide" with no reference whatever to an alleged failure to take adequate steps to assure employee use. This shift of the theory of the violation bends the principle of liberal construction of agency pleadings, see National Realty and Construction Co., Inc. v. ...