## Facts

- Republic Creosoting Company operated a railroad tie marshalling yard in Jeffersonville, Indiana, where heavy ties were received by truck, seasoned, and resold.
- Some truckloads arrived with ties bundled into packages held by a single narrow steel band.
- Republic used an established unloading method: a forklift (“unloader”) was positioned to support a package before the band was cut; non-operator employees stayed away from the truck during unloading.
- On July 9, 1971, employee Raymond Davis (new and not fully trained) was present during unloading.
- The field superintendent explicitly instructed Davis not to be near the truck and that the unloader operator would perform the unloading.
- Contrary to the instructions and customary practice, Davis approached the truck and cut the steel band before the forklift supported the package.
- Ties fell from the truck and fatally injured Davis.
- After an OSHA inspection, the Secretary cited Republic for a serious violation of the OSH Act’s general-duty clause, alleging failure to provide a workplace free from a recognized hazard likely to cause death or serious physical harm.

## Issues

1. Whether substantial evidence supported OSHRC’s determination that Republic did not commit a serious violation of the OSH Act’s general-duty clause arising from Davis’s fatal accident.
2. Whether the accident was a foreseeable result of Republic’s work practices and safety program, or instead an unforeseeable departure caused by isolated employee misconduct.

## Decision

- The Seventh Circuit affirmed OSHRC’s order vacating the citation.
- The court held that, on the record as a whole, substantial evidence supported OSHRC’s conclusion that Republic had not violated the general-duty clause.
- The court accepted OSHRC’s finding that Republic maintained and communicated a specific unloading procedure designed to prevent the hazard and that Davis was expressly warned to stay away.
- The court concluded the fatal injury resulted from unforeseeable employee conduct that deviated from established procedures rather than from an unsafe system created or tolerated by the employer.

## Legal Principles

- Appellate review of OSHRC orders is limited to whether the order is supported by substantial evidence on the record considered as a whole.
- The general-duty clause does not impose strict liability for workplace injuries; the Secretary must prove a recognized hazard and an employer failure to take reasonable steps to prevent it.
- Where an employer has established and communicated safety procedures addressing the hazard, an isolated, unforeseeable departure by an employee may defeat a general-duty clause violation.
- OSHRC serves as the adjudicative factfinder in contested OSHA matters; its reasonable inferences and characterizations will be sustained when supported by substantial evidence.

## Conclusion

The court upheld OSHRC’s vacatur of a serious general-duty citation because Republic’s defined unloading procedure and explicit warnings made the fatal accident an unforeseeable result of employee misconduct rather than evidence of an employer-created or employer-tolerated recognized hazard.


Brennan v. Occupational Safety & Health Review Comm’n, 501 F.2d 1196 (7th Cir. 1974)