SECRETARY OF LABOR,
Complainant,

v.

GATES & FOX COMPANY, INC.,
Respondent.

OSHRC Docket No. 78-2831

DECISION

Before:  BUCKLEY, Chairman, and CLEARY, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor ("Secretary") under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. § 659(C).

Gates & Fox Company, Inc. ("Gates & Fox") was a subcontractor engaged in the construction of a portion of the Washington D.C. subway system.  The two citation items on review concern whether Gates & Fox's Drott Model 2500 truck crane was operated too close to power lines in violation of 29 C.F.R. § 1926.550(a)(15)(i) and whether Gates & Fox failed to comply with 29 C.F.R. § 1926.800(b)(3) by not providing self-rescuers in the tunnel area serviced by a shaft at Brandywine Street.  Administrative Law Judge Henry K. Osterman affirmed both of the citation items and found that the violations were willful under section 17(a) of the Act, 29 U.S.C. § 666(a).[[1]]

The two participating Commission members[[2]] have reached opposite conclusions as to whether Gates & Fox violated the Act with respect to the items on review.  However, they agree that if the violations occurred they were not willful.

The Secretary alleged that at the time of the inspection Gates & Fox's crane was operating within 10 feet of power lines in violation of section 1926.550(a)(15)(i).  That standard states:

§ 1926.550 Cranes and derricks.
(a) General Requirements.

* * *
(15) Except where electrical distribution and transmission lines have been deenergized and visibly grounded at point of work or where insulating barriers, not a part of or an attachment to the equipment or machinery, have been erected to prevent physical contact with the lines, equipment or machines shall be operated proximate to power lines only in accordance with the following:

(i) For lines rated 50 kV. or below, minimum clearance between the lines and any part of the crane or load shall be 10 feet;

During the inspection, compliance officer John Wiseman observed Gates & Fox's Drott Model 2500 truck crane operating close to power lines.  The power lines were about 30 feet above the ground, and the boom of the crane was two or three feet higher than the power lines.  The power lines carried 4,000 volts and were not insulated or visibly grounded.  Wiseman determined that the crane's boom and load line were within 10 feet of the power lines and that mats coming from, I laid my rule across and looked straight in the air, using a plane, to took at the lines."  He later added:  "I took my foot when I looked overhead and I make a mark right where the crane line was swinging and that's one of the ways I got my measurement."

The crane operator, Howard Lane, testified that he did not observe the measurement being made and that the crane was never within 10 feet of the power lines on the day of the inspection.  He also stated that he had no trouble keeping the crane more than 10 feet away from the power lines while picking up and unloading the mats.   Joseph Griffith, Gates & Fox's project manager, testified that he had told Lane to keep the crane 10 feet away from the power lines.  Lane had assured him that the crane was 10 feet away from the power lines, but Griffith was not convinced, so he had climbed onto the boom of the crane to check for himself.  He then was satisfied that the crane was more than 10 feet away from the power lines.  Griffith did not specify when he made this check.

In his decision, the administrative law judge affirmed this item of the citation as willful and assessed a $3,000 penalty.  The judge noted the conflicting testimony as to whether the crane came within 10 feet of the power lines and then concluded:  "I accept the CO's testimony that the measured the distance from the crane's cable to the power lines despite the testimony by the crane operator who stated that he did not observe the measurement being made.  The statement of these two witnesses are not inconsistent with my conclusion that the violation was 'willful' . . . ."

Commissioner Cleary would affirm the judge's finding of a violation.   Commissioner Cleary would accept the judge's credibility finding that the compliance officer measured the crane's distance from the power lines.  C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1297, 1977-78 CCH OSHD ¶ 22,481, p. 27,099 (No. 14249, 1978).  He further finds that the compliance officer's measurement is entitled to great weight.  Commissioner Cleary notes that the compliance officer made a mark where the crane line was swinging and from that made his measurement.  He concludes that such a procedure is reasonably calculated to give an accurate determination of the distance between the crane or load and lines, particularly where, as here, the mats were in violation of the cited standard by a distance of seven feet.

Commissioner Cleary would find that the violation of section 1926.550(a)(15)(i) with respect to the Drott Model 2500 truck crane was not willful.   To establish that a violation was willful, the Secretary must prove that the violation was committed with intentional disregard of or plain indifference to the Act's requirements. Cedar Construction Co. v. OSHRC, 587 F.2d 1303 (D.C. Cir. 1978); D.A. & L. Caruso, Inc., 84 OSAHRC ____, 11 BNA OSHC 2138, 1981 CCH OSHD ¶ 26,985 (No. 79-5676, 1984).  Where the record reveals that the employer who knew of the hazardous condition took some precautions to protect its employees, even though not entirely effective or complete, the employer's conduct lacks the element of intentional disregard or plain indifference characterizing willful conduct. Mobil Oil Corporation, 83 OSAHRC_____, 11 BNA OSHC 1700, 1983 CCH OSHD ¶ 26,699 (No. 4802, 1983).

Gates & Fox's supervisor, Griffith, was aware of the 10-foot clearance requirement and told the crane operator to maintain that distance from the power lines.  Griffith also climbed onto the boom of the crane to check the distance and was satisfied that the crane was more than 10 feet away.  Furthermore, the crane operator believed that he kept the crane more than 10 feet from the power lines.  No evidence was presented showing that it was necessary for the crane to come within 10 feet of the power lines to accomplish its assigned tasks.  Accordingly, the evidence does not establish that Gates & Fox intentionally disregarded or acted with plain indifference to employee safety.

In Chairman Buckley's view, the evidence is insufficient to establish that the crane was operated within 10 feet of power lines on the day of the inspection.   Because the crane boom and power lines were at least 32 and 30 feet, respectively, above the ground when the compliance officer made his measurements, Chairman Buckley finds there was a significant margin for error.  He further concludes that the measurements were not as accurate as possible, since the crane was performing work at the time, and therefore moving.  Chairman Buckley would give greater weight to the testimony of the crane operator that the crane never came within 10 feet of the lines than he would to the measurements of the compliance officer.  The crane operator had been operating cranes since 1941 and was aware of the 10-foot clearance rule.  The crane operator knew the location of the lines.  He stated that in his work he had learned to pay attention to power lines and been warned by foremen on all jobs to be careful of them.  The crane operator also testified that he would know if he was "getting close" to the lines.  Accordingly, Chairman Buckley concludes that the Secretary has not established a violation. [[3]]

The Secretary also alleged that Gates & Fox willfully violated section 1926.800(b)(3) by failing to provide self-rescuers in the tunnel area serviced by the Brandywine Street shaft.[[4]] Section 1926.800(b)(3) provides:

1926.800 Tunnel and shafts.

* * *
(b) Emergency provisions.

* * *
(3) Bureau of Mines approved self-rescuers shall be available near the advancing face to equip each face employee.  Such equipment shall be on the haulage equipment and in other areas where employees might be trapped by smoke or gas, and shall be maintained in good condition.

The judge affirmed the alleged violation as willful, holding that testimony by the compliance officer "supports a finding that Respondent's employees were at work blasting and drilling on an 'advancing face' . . . ."[[5]]  It is undisputed that Gates & Fox did not provide self-rescuers in the subway tunnel area serviced by the Brandywine Street shaft.  However, the compliance officer testified that there was no advancing face at the Brandywine worksite.  Moreover, the only evidence about blasting at a tunnel face related to the Ingomar Street worksite, a different location an undetermined distance from the Brandywine Street site.  On review, Gates & Fox argues that it did not commit a violation since there was no advancing face at the Brandywine Street worksite, and the standard only requires that self rescuers be available near the advancing face.  The Secretary agrees there was no advancing face at the Brandywine Street worksite, but contends that self-rescuers nevertheless were required because the second sentence of the standard imposes an independent requirement that self-rescuers shall be provided "in other areas where employees might be trapped by smoke or gas."

Commissioner Cleary would affirm the judge's finding of a violation.  He agrees with the Secretary that the second sentence of the standard is not intended to be restricted to the "advancing face" but applies to any areas in tunnels or shafts where there is "haulage equipment" or where "employees might be trapped by smoke or gas."  The standard's use of the word "other" in the phrase "and in other areas where employees might be trapped by smoke or gas . . ". indicates that the standard is intended to apply to areas beyond the advancing face, and that employees can be endangered in such areas.  The phrase "other areas where employees might be trapped by smoke or gas" would be superfluous unless interpreted to apply to areas that are not near the advancing face.  See, e.g., Kroehler Manufacturing Co.,78 OSAHRC 88/B9, 6 BNA OSHC 2045, 1978 CCH OSHD ¶ 23,110 (No. 76-2120, 1978) (interpretations that leave terms devoid of content are to be avoided if possible).

Commissioner Cleary also observes that the Commission has held that when a standard is subject to two plausible interpretations, the proper interpretation is the one that will better achieve the Act's objective of providing a safe and healthy workplace for employees.  Marshall v. Western Electric, Inc., 565 F.2d 240 (2d Cir. 1977).   Wright & Lopez, Inc., 81 OSAHRC 92/D10, 10 BNA OSHC 1108, 1981 CCH OSHD ¶ 25,728 (No. 76-256, 1981).  To accept Gates & Fox's narrow reading of section 1926.800(b)(3) one would have to conclude that the drafters of the standard were concerned only with the safety of employees at the face of the tunnel, and were indifferent to or did not provide for the safety of other employees.  Yet at the same time they recognized there were other employees who could be endangered.  In Commissioner Cleary's view the drafters of the standard could not have intended such a result, therefore, the second sentence of the standard should not be limited to the advancing face.

Finally, Commissioner Cleary would find that the cited area was a location where employees "might be trapped by smoke or gas." He notes that at the time of the inspection Gates and Fox was performing blasting at another location in the tunnel project.  A few days after the inspection, a cave-in occurred after a blast, and employees had to be evacuated.  Gates & Fox was also using drilling machinery at the Brandywine Street worksite.  Thus, Gates & Fox's work activities could have created instabilities in the rock formation resulting in a cave-in and requiring the use of self-rescuers.

Commissioner Cleary would find that the violation with respect to the lack of self-rescuers at the Brandywine Street worksite was not willful.  A violation is not willful if an employer's failure to comply is the result of a good faith misinterpretation of the terms of the cited standard.  General Electric Co., 77 OSAHRC 88/A2, 5 BNA OSHC 1448, 1977 CCH OSHD ¶ 21,853 (No. 11344, 1977).  Commissioner Cleary would find that Gates & Fox misinterpreted the standard in good faith and thus did not act with intentional disregard of or plain indifference to the Act's requirements when it did not provide self-rescuers at the Brandywine Street location.

Chairman Buckley would vacate the alleged violation because he concludes that section 1926.800(b)(3) requires that self-rescuers be made available only near the advancing face.  A standard should be construed to give effect to the natural and plain meaning of its words and should not be construed "to mean what an agency intended but did not adequately express."  Donovan v. A.A. Beiro
Construction Company, Inc., Nos. 83-2008 & 83-2053, slip. op. at 20 (D.C. Cir. Oct. 26, 1984), quoting Kent Nowlin Construction Co. v. OSHRC, 593 F.2d 368, 371 (10th Cir. 1979); see also Lisbon Contractors, Inc., 84 OSAHRC _______, 11 BNA OSHC 1971, 1974, 1984 CCH OSHD ¶ 26,924, p. 34,500 (No. 80-97, 1984)("A construction of a standard that bears no reasonable relationship to the standard's plain words cannot be expected to guide employers in their conduct.")

Chairman Buckley concludes that to construe the two sentences as imposing completely separate requirements would be a tortuous reading of the standard.  It is a well-established rule of statutory construction that a part or a section of a regulation should be construed with every other part or section so as to produce a harmonious whole.   2A Sutherland Statutory Construction § 46.05 (4th ed. 1973).  In the absence of language indicating that the second sentence of the standard is intended to stand by itself as an independent requirement, the two sentences of section 1926.800(b)(3) should be considered together.  See Schwarz-Jordan, Inc., 84 OSAHRC _____, 11 BNA OSHC 2145, 2147, 1984 CCH OSHD ¶ 26,989, pp. 34,713-14 (No. 81-2738, 1984) (effect must be given to language of standard within the context in which the language appears); Spot-Bilt, Inc., 84 OSAHRC _____, 11 BNA OSHC 1998, 2001, 1984 CCH OSHD ¶ 26,944, pp. 34,551-52 (No. 79-5328, 1984)(two sentences of emergency egress standard at 29 C.F.R. § 1910.36(b)(4) should not be read in isolation to impose independent requirements).  When the standard is considered as a whole, it is clear that the second sentence of the standard merely specifies the locations near the advancing face where the self-rescuers required by the first sentence are to be placed, and that such equipment "shall be maintained in good condition."  Therefore, Chairman Buckley concludes that in the absence of any advancing face, section 1926.800(b)(3) is not applicable.

Under section 12(f) of the Act, 29 U.S.C. § 661(e), official action can be taken with the affirmative vote of at least two members. To resolve their impasse on the merits of the two items at issue and to permit this case and the matters now stayed in the court of appeals to be resolved, the Commission members have agreed to affirm that portion of the judge's decision finding violations with respect to the two items on review, but to accord the judge's decision no precedential value.  See Life Sciences Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD ¶ 22,313 (No. 14910, 1977), aff'd sub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979).  In view of the Commission's decision to avoid an impasse by affirming the judge's findings of violations and his position that no violations occurred, Chairman Buckley joins with Commissioner Cleary in ruling that the judge erred in finding willful violations and in reducing the penalties assessed by the judge.  That portion of the judge's decision finding "willful" violations is therefore reversed, and a penalty of $500 is assessed for each item.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  NOV 30 1984

The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] This case was consolidated with Docket No. 78-2830 for trial before the judge.   Following the issuance of the judge's decision, Gates & Fox petitioned the Commission for review of items affirmed by the judge with respect to both docket numbers.   The Commission, however, did not grant review of No. 78-2830 and specifically limited review of No. 78-2831 to two alleged violations.  Gates & Fox then petitioned the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") for review of No. 78-2830 and of the items in No. 78-2831 for which the Commission did not grant review.  The D.C. Circuit subsequently stayed its proceedings pending completion of Commission review.

[[2]] As established by the Act, the Commission is composed of three members.   Section 12(a), 29 U.S.C. § 661(a).  Presently, the Commission has two members as a result of a vacancy.

[[3]] Assuming the accuracy of the compliance officer's measurements, the citation should nevertheless be vacated because there is no evidence that Gates & Fox had knowledge of the violative conditions.  Commission law precludes affirmance of a violation unless it is established by the Secretary that the employer knew or, with the exercise of reasonable diligence, could have known of the violation.  See, e.g., Sasser Electric & Manufacturing Co., 84 OSAHRC ___, 11 BNA OSHC 2133, 2135-36, 1984 CCH OSHD ¶ 26,982, pp. 34,684, 34,685 (No. 82-178, 1984).  See also Pennsylvania Power & Light Co., 737 F.2d 350, 357-58 (3rd Cir. 1984).  In this case neither the operator of the crane nor any Gates & Fox supervisor was aware of any breach of the 10-foot clearance limit.  In fact, Gates & Fox specifically measured to assure compliance and warned the operator not to come within 10 feet.   These facts establish that the employer did not know and could not have known of the alleged violation.

[[4]] A self-rescuer is a device through which an employee may breathe in the event of a cave-in or other emergency that causes a loss of oxygen.

[[5]] The compliance officer defined the "advancing face" as the "penetrating, unopened portion of the tunnel."  At the Brandywine Street worksite, the subway tunnels had been completely excavated and shafts gave access to the surface.