SECRETARY OF LABOR,
Complainant,

v.

GULF STATES UTILITIES COMPANY,
Respondent.

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL- CIO,
LOCAL UNION 2286,

Authorized Employee Representative.

OSHRC Docket No. 82- 0867


DECISION

Before: BUCKLEY, Chairman; RADER and WALL, Commissioners. BY THE COMMISSION.

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(1), 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 under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. § 659(c).

Gulf States Utilities Company ("Gulf States") is a public utility that supplies electricity in parts of southeastern Texas and southwestern Louisiana. On July 8, 1982, a Gulf States line crew was changing certain insulators for a Power line at a site near Vinton, Louisiana. On one pole supporting the power line some of the line-to-pole insulators had been damaged by vandalism. The Gulf States crew was replacing the damaged porcelain insulators with new epoxy ones, which are less susceptible to damage than porcelain. There were two other sets of insulators on the same pole, but the crew was not replacing these insulators because they were not damaged.

The crew consisted of five employees, including a foreman, a second-class lineman, and a third-class lineman. When the crew arrived at the worksite, they received a clearance order indicating that the power lines had been deenergized. The foreman then discussed with the crew the procedure by which they would ground the lines at the worksite. Even though the lines had been deenergized, it was necessary to ground them on both sides of the pole so that any voltage induced in a deenergized line by a parallel energized line would flow to ground at the worksite and not present a hazard to the employees working at the pole. The crew used grounding chains, first attached to a neutral or grounded line (or the ground) and thereafter attached to a conductor--the deenergized power lines. The crew used insulated tools to attach the grounding chains to the conductor.

After the damaged insulators had been replaced with new insulators, the crew proceeded to remove the grounding chains. They were to be removed in the reverse order of installation--the last conductor grounded would be the first ungrounded, and so forth. The crew was to use insulated tools to detach a grounding chain from a conductor. All of these procedures were discussed by the crew just prior to the start of work on the lines.

In previously grounding one conductor to another already-grounded one the crew had spliced two grounding chains together to form one long enough to make the connection. During the process of removing the grounding chains, the conductor end of this spliced chain was properly detached from the conductor with an insulated tool. As a result of an error, however, another grounding chain was removed out of order. Because of this error, the spliced chain was no longer attached to a grounded line and one of the linemen, who was holding the spliced chain in his lap while trying to unsplice it, was electrocuted by a flow of current induced in the no-longer-grounded line.

After the accident, the Secretary conducted an inspection and issued a citation to Gulf States. The citation alleged that, on or about July 8, 1982, Gulf States violated 29 C.F.R. § 1926.954(e)(2) by failing to remove grounding cables in the reverse order of installation and by failing to use an insulated tool while uncoupling the two spliced grounding chains.[[1]] Section 1926.954(e)(2) appears in 29 C.F.R. Part 1926, Subpart V, which governs the "construction" of electric transmission and distribution lines and equipment. [[2]]

Gulf States argued to the judge and now argues to the Commission that the cited standard is inapplicable because the work its employees were performing on electric power lines was not "construction" but, rather, was maintenance work. Gulf States points out that the legislative history of Subpart V and Commission precedent indicate that maintenance work is not subject to Subpart V. Judge Sparks concluded that the standard was applicable because Gulf States' employees were engaged in "improvement" rather than maintenance of existing electric transmission and distribution lines and equipment. Review was directed on this issue.[[3]] We reverse Judge Sparks' decision and vacate the citation. We find that the work performed on the power lines was maintenance work and therefore not subject to Subpart V of Part 1926.

Section 1926.950(a)(1) states that Subpart V applies to construction and indicates that construction includes improvement. The preamble to the standard makes clear, however, that the drafters of Subpart V did not intend construction to cover maintenance work, see 37 Fed. Reg. 24882 (1972),[[4]] and the Commission has long upheld this position in its decisions. See Mississippi Power & Light Co., 79 OSAHRC 109/D12, 7 BNA OSHC 2036, 2038, 1980 CCH OSHD ¶ 24,146, p. 29,330 (No. 76-2044, 1979); Consumer Power Co., 77 OSAHRC 73/E8, 5 BNA OSHC 1423, 1425, 1977-78 CCH OSHD ¶ 21,786, p. 26,190 (No. 11107, 1977); Pacific Gas & Electric Co., 75 OSAHRC 40/B9, 2 BNA OSHC 1692, 1693, 1974-75 CCH OSHD ¶ 19,431, pp. 23,191-92 (No. 2821, 1975), aff'd mem., 554 F.2d 1070 (9th Cir. 1977).

The Secretary does not dispute that the standard is inapplicable to maintenance work; he takes issue only with Gulf States' characterization of the work as "maintenance" rather than "improvement." The question, then, is whether the work performed by Gulf States was improvement or maintenance.

In arguing that the work on the day of the alleged violation was "improvement," the Secretary first maintains that replacing damaged insulators is "improvement" per se. The Secretary asserts that because a damaged insulator [[4]] does not perform its function of insulating a conductor from its support structure, the work of installing a replacement insulator of even the same sort would "improve" the structure. Alternatively, the Secretary argues that the replacement of porcelain insulators with epoxy insulators upgraded the electric lines and thus was itself an "improvement."[[5]]

We disagree. The Secretary's first argument--that the replacement of damaged insulators with insulators of any type "improves" the lines--is so broad as to make every imaginable sort of maintenance an "improvement." To adopt it would give no effect to the Secretary's own rulemaking decision to exclude maintenance from Subpart V, a decision that the Secretary's review brief neither mentions nor acknowledges. Replacing damaged insulators is analogous to replacing spark plugs or light bulbs as they are damaged or wear out--tasks

that are plainly maintenance. The replacement of the damaged insulators here did not change the capacity or function of the power lines. Instead, the lines were simply maintained in the same condition they were before the insulators were damaged. This precisely fits the ordinary meaning of "maintenance" as "[t]he work of keeping something in proper condition." American Heritage Dictionary 787 (1976).

The Secretary's alternative argument--that the replacement of porcelain insulators with epoxy insulators is itself an "improvement"--also mischaracterize the nature of the work being done here. The tasks involved in installing replacement epoxy insulators were identical to those for installing replacement porcelain insulators. The insulation level remained the same with the installation of epoxy insulators. The epoxy insulators did not alter or improve the transmission line's current-carrying capacity, power-transfer capabilities, voltage rating or any other function.

That the epoxy insulators are more damage-resistant does not take the work of Gulf States' employees out of the category of maintenance. The porcelain insulators were not replaced because they were more susceptible to damage, but because they were actually damaged. They were not replaced as part of a systematic plan for upgrading the porcelain insulators. In fact on the pole in question the linemen replaced only the one insulator which had been damaged, making no change in two undamaged porcelain insulators on the same pole. Clearly the main purpose of the work was maintenance or upkeep, not improvement. To hold that the simple replacement of the damaged insulators in this case was improvement would have the practical effect of nullifying any exclusion in the standard for maintenance work.[[6]]

In conclusion, since the work performed in this case involved maintenance, and not construction, of electric transmission and distribution lines, section 1926.954(e)(2) does not apply. The citation is vacated.


FOR THE COMMISSION

RAY H. DARLING, JR.


DATED: November 20, 1985