Docket No. 1186

CAPE AND VINEYARD DIVISION, NEW BEDFORD GAS AND EDISON LIGHT COMPANY

OSHRC Docket No. 1186

Occupational Safety and Health Review Commission

May 21, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On December 11, 1972, Judge Abraham Gold issued a decision in this case holding that respondent had violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act), by failing to comply with a safety and health standard duly promulgated by the Secretary of Labor. He found the violation to be serious within the contemplation of section 17(k) of the Act, and assessed a penalty in the amount of $600. Thereafter, pursuant to section 12(j) of the Act, that decision was ordered to be reviewed by the Commission.

Having examined the record in its entirety, the Commission finds no prejudicial error in the Judge's decision and order.

Accordingly, it is ORDERED that the Judge's decision and order are hereby affirmed in all respects.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: I dissent. I believe the Judge's decision should have been reversed. Since the facts do not appear in the majority decision, I will set them out briefly.

Respondent corporation, a utility company, was found in violation of the [*2] Act because of its failure to comply with the following regulation (29 C.F.R. § 1910.132(a)):

Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necesary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner typical of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

The basis for said noncompliance with the aforesaid was stated in the citation as follows:

Employer failed to provide a protective shield and barrier and provide for the use of said shield and barrier in necessary circumstances by reason of environment encountered in a manner capable of causing injury or impairment in the function of any part of the body through physical contact.

Although impossible to discern from reading the above-quoted citation and regulation, the Judge's decision holds that respondent violated the Act because it [*3] did not protect with insulation a live wire and clamp.

The facts show that an employee of respondent was electrocuted while working on an electric utility pole. He was engaged in measuring, cutting off and bending back a portion of a de-energized electric wire in preparation for its ultimate connection to another wire. While so engaged, a part of the employee's body, which was not covered by protective equipment, came in contact with a live wire and a clamp connected thereto, which were not then covered by a rubber line hose or other insulation.

At the time of the accident, the deceased employee's hands and lower arms were protected by rubber gloves 14-1/2 inches long covered with leather protectors. His head was protected by a "hard hat."

Prior to the time he began this operation, all the electrical wires upon which the deceased was required to work had been de-energized and a nearby transformer had been grounded. Another live wire near where he was required to work was covered with a protective line hose and its "dead-end clamp" was covered with a hood. Three other nearby "secondary wires" were also covered with protective rubber line hose. Although not pertinent [*4] here, there were also a number of additional measures which had been taken to lessen the hazards connected with this type of work.

There was evidence that when the deceased was in the place on the pole where his work assignment required him to be, the live wire which caused the electrocution was two feet above him and five feet out from the pole, and that there was no reason why his work assignment should have taken him any nearer to that live wire.

With the foregoing facts in mind, a reading of the regulation sought to be enforced in this case raises a serious question as to whether, as written, it is unenforceably vague.

The language of section 1910.132(a) essential to the facts of this case mandates that respondent provide and require the use of "protective equipment, including personal protective equipment for . . . extremities . . . wherever it is necessary by reason of hazards of . . . environment . . . ." Exactly what constitutes "protective equipment" or "hazards of environment" is not explained anywhere in this occupational safety and health standard. Terminology of such general nature does not lend itself to any precise or comprehensible definition measured by common [*5] understanding and practices.

In the interest of justice, we should not apply a standard which necessitates research on the part of the employer in order to apprise himself of the meaning of ambiguous language. The substance of the regulation must afford reasonable notice of the conduct which it requires or proscribes. Secretary v. J.A. Walder, Inc., Secretary v. Anaconda Service Station, Inc., Neither this respondent, nor anyone else could look to the standard and ascertain what was required other than the fact that protection had to be provided. Respondent clearly complied with this mandate. Both the employee and the electrical equipment and wires near his workplace were covered by protective equipment. However, respondent could not know from reading this standard that the additional methods suggested by the complainant, with the benefit of hindsight, constituted the proper procedures to be followed in order to be in compliance.

The language and purposes of the Act require specificity in the wording of occupational safety and health standards sought to be enforced against an employer. [*6] Secretary v. The Mountain States Telephone & Telegraph Company, If what is to be achieved is safe and healthful working conditions, employers must be presented with discernible standards by which they can guide their own conduct, and the requirements of such standards must be apparent upon a reading thereof by an ordinary prudent employer. Indeed, by definition in section 3(8) of the Act, an occupational safety and health standard is one that:

. . . requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes reasonably necessary or appropriate to provide safe or healthful employment and places of employment.

Section 1910.132(a) does not meet this test. While requiring the use of protective equipment, it fails to make explicit what that equipment might be or the conditions which necessitate its use or the extent of the area where it is required. Even in cases where the occupational safety and health standard at issue is not so vague as to be unenforceable, fairness dictates that respondent be judged solely on the issue as to whether its interpretation of the requirements [*7] of the standard was reasonable under the applicable facts. Secretary v. Rentenbach Engineering Co., et al., The record clearly indicates that this respondent's interpretation of 29 C.F.R. 1910.132(a) was a good-faith compliance therewith.

Given the broadness and obscurity of the language employed in the regulation at issue, respondent, and all others covered by its requirements, could reasonably conclude that the only necessary safety-precautions required to be taken by it were those recognized as necessary by industry custom and practice as they understood the same. According to the evidence, respondent did this. To hold that this occupational safety and health standard was intended to create a greater duty than compliance with general industry practice would be to subject an employer to the unbridled discretion of complainant's various representatives in the determination of what constitutes compliance. It would place upon the respondent the onerous task of attempting to comply with the standard as interpreted in each case by a particular inspector of Labor Department official. Secretary v. California Stevedoring and Ballast [*8] Company, The Constitution and laws of this country do not permit such a state of affairs.

[The Judge's decision referred to herein follows]

GOLD, JUDGE, OSAHRC: This is an action arising under Section 10(c) of the Occupational Safety and Health Act of 1970, (84 Stat. 1590 et seq.; 29 USC 651 et seq. ) hereinafter called the Act, contesting a Citation for Serious Violation issued by the Secretary of Labor pursuant to Section 9(a) of the Act and a proposed assessment of penalty thereon issued pursuant to Section 10(a) of the Act.

The Citation dated July 10, 1972, alleges that CAPE & VINEYARD DIVISION OF THE NEW BEDFORD GAS AND EDISON LIGHT COMPANY, hereinafter referred to as the Respondent, at a workplace under its ownership, operation or control, namely, a worksite located at Pole 4/256, Route 28, South Orleans, Massachusetts, violated the Act by failure to comply with the occupational safety and health standard contained in 29 CFR 1910.132(a).

The Citation sets forth the following description of the alleged violation:

Employer failed to provide a protective shield and barrier and provide for the use of said shield and barrier [*9] in necessary circumstances by reason of environment encountered in a manner capable of causing injury or impairment in the function of any part of the body through physical contact.

The Citation required that the alleged violation be corrected immediately upon receipt of the Citation.

A Notification of Proposed Penalty was also issued to the Respondent on July 10, 1972, proposing the assessment of a penalty in the amount of $600.00.

On July 14, 1972, Respondent filed with the Secretary of Labor a notification of intent to contest the Citation for Serious Violation and the penalty proposed therefor. The Secretary's Complaint was duly filed with the Review Commission and Respondent's answer thereto was timely filed. On August 11, 1972, upon motion of Complainant, the Complaint was amended with respect to the name, address, and number of employees of Respondent and with respect to the name and principal location of a local union certified as collective bargaining representative of Respondent's employees. Respondent's name is stated properly in the Citation.

Hearing was held on September 12, 1972, at Boston, Massachusetts. Two authorized employee representatives appeared [*10] but did not participate in the proceedings.

The primary issue for determination is whether there was a violation of Section 5(a)(2) of the Occupational Safety and Health Act of 1970, specifically the violation of safety standard 29 CFR 1910.132(a), promulgated under Section 6(a) of the Act; and if so, whether such was a serious violation; i.e., whether, as a result of the violative condition, there was substantial probability that death or serious physical injury could have resulted and whether Respondent did not, and could not with the exercise of reasonable diligence, have known of the presence of the violation. In the event a serious violation occurred, further determinations must be made as to whether the proposed penalty ($600) and abatement date were appropriate and reasonable under the Act.

Section 5(a)(2) of the Act requires that each employer comply with occupational safety and health standards promulgated under the Act.

Section 17(k) specifies that "a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means [*11] methods, operations, or processes which have been adopted or are in use in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."

Section 17(b) provides that an employer who has received a citation for a serious violation under any standard shall be assessed a civil penalty of up to $1,000.

Under Section 17(j), the Commission shall have authority to assess all civil penalties after giving due consideration to the appropriateness of the penalty with respect to the size of the business, the gravity of the violation, the good faith of the employer, and the history, of previous violations.

STIPULATIONS

The following was stipulated by Complainant and Respondent (Exhs. J-1, J-2). Respondent is a division of the New Bedford Gas and Edison Light Company, a Massachusetts corporation. Respondent has an office at Yarmouth, Massachusetts, while the corporation has its main office at New Bedford Massachusetts. Respondent is engaged in business as an electric utility, employing approximately 390 employees, most of whom regularly receive, handle and work with goods which have moved in [*12] interstate commerce.

On June 6, 1972, Robert O. Thayer, Jr., employed by Respondent as a Lineman First Class, was killed by reason of electrocution while at work on Pole 4/256, located on Route 29, South Orleans, Massachusetts. A report of a Medical Examiner confirmed that there were many burns, some as large as a five cent piece, on the left upper arm of the deceased and a 2X3 centimeter burn on the right forearm.

At about 1:55 p.m. on June 6, 1972, a line crew, consisting of three Linemen First Class (including the deceased), one Lineman Second Class and a Groundman-Driver, all under the supervision of Alfred Wittman, Line Foreman, was completing the preliminary work of installing two step-down transformers at said pole; the deceased was then belted to the pole between the lower set of crossarms and the associated crossarm braces, and was standing on the field side of the pole; the upper and lower set of crossarms were ten (10) feet across; one electrical primary wire, energized, extended from the center of the lower crossarm and there were two outside primary wires, energized, extending from a point 6 inches from each end (referred to as the "street side" and "field [*13] side") of the lower crossarm, each of such three energized wires being secured to an energized dead-end clamp, attached to an insulator.

The distance between the center primary wire and each of the outside primary wires was 545 inches. The center primary wire was covered with a protective rubber line hose and its dead-end clamp was covered with a rubber hood. Secondary wires on the south side of the pole were covered with a rubber line hose, but the secondary wires on the north side were uncovered. The two outside primary wires (street side and field side) were not covered, and their dead-end clamps were not covered. The distance between the base (lowest point) of the transformer on the field side of the pole and the lower crossarms measured 7-1/2 inches the transformer tank was grounded; the closest distance between the base of the transformer and the energized dead-end clamp attached to the field side primary wire was 12 inches.

The transformer was mounted so that one side was 21-3/4 inches from the center of the pole and the other side extended to 13 inches from the end of the crossarm.

Voltage of the field side primary wire and dead-end clamp attached thereto was 2400 volts [*14] to ground.

Contact with said uncovered primary wire on the field side, or dead-end clamp attached thereto, coupled with simultaneous grounding could result in death or serious physical injury; it would appear that the field side primary wire or its dead-end clamp was the probable live contact.

At the time of the accident, Lineman Thayer was wearing a hard hat and rubber gloves covered with leather protectors.

DISCUSSION

The Secretary is required to establish that Respondent violated the safety standard at 29 CFR 1910.132(a) by failing to provide and require the use of protective equipment in an environment capable of causing injury or impairment of any part of the body through physical contact. Such protective equipment may include helmets (referred to in 29 CFR 1910.135), as well as rubber protective equipment for electrical workers (listed in 29 CFR 1910.137), including rubber insulating gloves, rubber matting for use around electric apparatus, rubber insulating blankets, rubber insulating hoods, rubber insulating line hose, and rubber insulating sleeves.

Section 1910.132(a) reads:

Protective equipment, including personal protective equipment for eyes, face, head, [*15] and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

Compliance Officers conducted inspections on June 6, 1972 (Tr. 107), June 23, 1972 (Tr. 107), and July 6, 1972 (Tr. 125).

Thayer was belted to the pole on the field side at a 45 degree angle to the pole (Tr. 47). His assignment was to measure visually a tap (wire) which was tied to an insulator (Tr. 44). The tap was coiled, and was to be straightened or unwrapped, held in one hand while making a measurement to the point at which it would be attached eventually, cut to the proper length with pliers held in the other hand (Tr. 44), and then bent back (Tr. 169). In order to do this, a lineman would have to reach over the crossarm and would bring the tap to a point about 6 inches from the unprotected energized [*16] wire or its deadend clamp (Tr. 55, 61). The individual would have to stretch "quite uncomfortably" (Tr. 100), swinging his body into almost a 90 degree angle to the pole (Tr. 58).

A record of his employment shows that Thayer was promoted to Lineman First Class on May 25, 1972 (Exh. R-1), only 12 days before his death. His foreman testified that the deceased had "worked at times as an acting First Class Lineman during the last 3 months of his period of Second Class Lineman." (Tr. 200). He also said that a Lineman Second Class is not allowed to go up a pole alone, but must have a First Class Lineman with him for "knowledge and protection." (Tr. 187-188).

Measuring the tap should have taken Thayer about 5 to 10 minutes (Tr. 81).

Just prior to the accident, Lineman First Class Fulcher was operating from a bucket, about 6 to 10 feet from Thayer, on the South or opposite side of the pole, on the field side (Tr. 66-67) and had started to saw branches on an adjacent tree (Tr. 83).

Second Class Lineman Estabrook testified that at the time of the accident he was on the ground and was looking in the grass for a knife which Thayer had dropped (Tr. 59). Fulcher claimed that Thayer was out [*17] of his view at that time (Tr. 83). The foreman was not watching Thayer, either (Tr. 180). Supposedly, Fulcher and the deceased were operating under the "buddy system" on the day in question (Tr. 77), with one sort of watching and helping the other. It is painfully plain that the "buddy system" was ineffective on that day. No one was watching Thayer perform a function that would take only 5 to 10 minutes. Fulcher was in the comparative safety of the bucket cutting branches on a nearby tree, while Thayer was on the pole, twisting and reaching near exposed energized wiring.

Alfred Dowden, an expert in safety relating to the electrical utility field, opined that Thayer was higher on the pole than was necessary for measuring a tap, and asserted that Thayer's feet must have been 3 feet below the crossarm, or even higher, for him to have received the burns listed in the report of the Medical Examiner (Tr. 216, 219-220). It is noteworthy that Fulcher said that Thayer was belted 3 feet below the crossarm (Tr. 68), with his feet about 3 feet below that (Tr. 94); Estabrook thought that Thayer's feet were stationed probably 5-1/2 or 6 feet below the crossarm (Tr. 55); and the [*18] foreman felt that Thayer's feet were 4 feet, maybe 4-1/2 feet, from the bottom of the crossarm (Tr. 182). Clearly, the foreman and the others were paying little attention to Thayer.

The decision as to whether the field side energized primary wire and its dead-end clamp should have been covered was left to Thayer. Fulcher put it squarely up to Thayer to decide (Tr. 79), and the foreman explained (Tr. 172) that generally the men decide what they want to use; that Thayer said nothing about any more rubber to be put on, and his own view was that it was safe. The foreman was not following his own safety rules which place upon the foreman the responsibility for the safety of the employees under his supervision, and require that he insist that safe work procedures and methods be followed (Exh. R-7B). Section 4B of the Safety Rules of Respondent (Exh. R-7A) directs that a sufficient amount of protective equipment be used to prevent accidental contact of any part of the body with energized conductors or parts.

Even if Thayer had been an experienced First Class Lineman the safe course would have been to cover the field side primary wire and clamp. There was the possibility [*19] of error in gauging distances from the awkward and changing position on the pole, there was the chance that the belt could slip down along the pole, the vagaries of nature (sudden wind or precipitation), and unpredictable experiences (sneeze, cough, hiccup, pulled muscle, dizziness, cinder in the eye, etc).

Mr. Dowden testified that it is the general practice in the industry to leave it up to the particular lineman to decide what protective equipment is needed, and how much he will use (Tr. 218-219). However, the Safety Rules of Respondent hold the foreman accountable, and require that he insist on safe procedures and methods. Further, the Act places final responsibility on the employer to comply with the requirements of the Act. n1 The foreman, acting as management, knew that the field side primary wire and its dead-end clamp were unprotected, and he should have taken the reasonable precaution of directing that they be covered by protective equipment. He knew that Thayer was not an experienced First Class Lineman, yet he was not even observing him when the electrocution occurred. The conduct of the foreman was the responsibility of, and is imputed to, Respondent. On these facts, [*20] there has been a violation of the standard contained in 29 CFR 1910.132(a).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 S. Rep. No. 91-1282, 91st Cong., 2d Sess. 11 (1970).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Next to be considered is whether the violation is serious in nature. Under Section 17(k) of the Act a violation is serious if there is a substantial probability that death or serious physical harm could result from the alleged condition or practice, unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. It is beyond cavil that death or serious physical harm could result from physical contact with an unprotected 2400 - volt energized wire or its unprotected energized dead-end clamp and a grounded transformer.

The foreman knew of the danger involved. The center primary wire and clamp were protected, but the field side wire and clamp were not. This is incomprehensible. Thayer was working between the center wire and the field side wire. An estimated inventory of line protective equipment on Line Truck #6280 [*21] and Bucket Truck #6204 on June 6, 1972, (Exh. R-13) shows adequate pieces of line hose, insulator hoods, dead-end protectors, blankets and cut-out covers. The employer, through its foreman, knew or with the exercise of reasonable diligence would have known of the presence of the violation. The facts establish a serious violation.

The proposed penalty of $600 is considered appropriate, taking into account the size of the business of the employer, the gravity of the violation, the good faith of the employer, and the history of previous violations.

The Citation required immediate abatement, which was appropriate and reasonable.

In his brief, Counsel for Respondent contends that Thayer could have been electrocuted only because of extraordinary stretching or an unaccountable lurch or some unpredictable and sudden change of position such as an upward thrust or contortion of the body; and that it can only be concluded that Thayer was negligent in moving suddenly and unnecessarily from his proper position on the pole. According to the testimony of the foreman and two other members of the crew, Thayer was receiving none of their attention at the time. We know that something [*22] went wrong. The simple act of covering the field side primary wire and clamp would have avoided the tragedy, and the foreman abdicated his power, and failed his duty, to require this.

Respondent's Counsel has cited cases holding that a violation of a standard is not established where an employee failed to follow safety procedures directed and enforced by the employer. That is not the situation here. It was the ultimate responsibility of the foreman to require sufficient protective equipment to prevent accidental contact of the body with energized conductors or parts. It was the foreman, representing management, who was not adhering to Respondent's own safety rules. There is no evidence that Thayer disregarded an order of the foreman that the field side wire and clamp be covered.

Counsel also contends that two rulings excluding testimony constituted prejudicial error. Lineman Fulcher was asked for his opinion as to whether there was sufficient rubber protective equipment within the requirements of Section 4(A) and (B) of Respondent's Safety Rules (Tr.90-93). Fulcher's testimony would not have been helpful in resolving the issues. The opinion of expert witness Dowden was excluded [*23] when he was asked whether the electrocution was "reasonably foreseeable by the other people in the area," the opinion to be based upon "the circumstances of this particular accident." (Tr. 221). Mr. Dowden was not present throughout the hearing and he was not given specific facts and data upon which to base his opinion. His opinion was not admissible in this instance.

FINDINGS OF FACT

1. On June 6, 1972, at about 1:55 p.m., Respondent failed to provide and require the use of protective equipment for an energized 2400-volt primary wire and its energized dead-end clamp located on the field side of Pole 4/256, on Route 28, South Orleans, Massachusetts.

2. Respondent failed to provide and require the use of such protective equipment in an environment capable of causing injury or impairment to any part of the body through physical contact.

3. Robert O. Thayer, Jr., who was promoted to Lineman First Class on May 25, 1972, was electrocuted at said time and place, while belted to the pole, upon coming in contact with the unprotected energized field side primary wire and/or its unprotected energized dead-end clamp and a grounded transformer located on the pole.

4. There [*24] was a substantial probability that death or serious physical harm could result from the failure of Respondent to provide and require the use of protective equipment for the energized primary field side wire and its energized dead-end clamp, and Respondent, acting through its foreman, knew, or with the exercise of reasonable diligence would have known, of the presence of the violation.

5. A penalty of $600 is appropriate, considering the size of the business of Respondent, the gravity of the violation, the good faith of Respondent, and history of previous violations.

CONCLUSIONS OF LAW

1. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter within the meaning of Sections 3 and 4(a) of the Occupational Safety and Health Act of 1970.

2. On June 6, 1972, Respondent failed to comply with the standard contained in 29 CFR 1910.132(a), promulgated pursuant to Section 6(a) of the Act, thereby violating Section 5(a)(2) of the Act, as alleged in the Citation issued on July 10, 1972.

3. Said violation was a serious violation within the contemplation of Section 17(k) of said Act.

4. The proposed penalty of $600.00 is [*25] appropriate and reasonable, in accordance with Section 17(b) and (j) of the Act.

ORDER

It is ORDERED that the Citation and Proposed Penalty be, and the same hereby are, AFFIRMED.