GENERAL TELEPHONE OF MICHIGAN
OSHRC Docket No. 14193
Occupational Safety and Health Review Commission
April 13, 1978
[*1]
Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
David C. Lee and W. Wayne Walston, General Telephone Co., of Michigan, for the employer
Newton E. Barnett, Asst. Business Manager, I.B.E.W. Local 1106, for the employees
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Chairman:
On March 11, 1976, Judge George W. Otto issued a decision and order in this case, affirming a single serious violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., for failure to comply with the telecommunications safety standards at 29 CFR § 1910.268(e) n1 and 29 CFR § 1910.268(n)(11)(iv). n2 A penalty of $100 was assessed.
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n1 This standard provides:
Tools and personal protective equipment -- Generally. Personal protective equipment, protective devices and special tools needed for the work of employees shall be provided and the employer shall ensure that they are used by employees. Before each day's use the employer shall ensure that these personal protective devices, tools, and equipment are carefully inspected by a competent person to ascertain that they are in good condition.
n2 This standard requires the following precautions when handling poles near energized power conductors:
Insulating gloves shall be worn when handling the pole with either hands or tools, when there exists a possibility that the pole may contact a power conductor. Where the voltage to ground of the power conductor exceeds 15kV to ground, Class II gloves (as defined in ANSI J6.6-1971) shall be used. For voltages not exceeding 15kV to ground, insulating gloves shall have a breakdown voltage of at least 17kV.
[*2]
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Pursuant to section 12(j) of the Act, I directed that the case be reviewed on the issue of whether respondent knew, or with the exercise of reasonable diligence, could have known of the existence of the hazardous conditions under the circumstances of this case. Former Commissioner Moran also issued a direction for review but did not specify any issues.
Respondent is a large corporation in the telecommunications industry. Jurisdiction is undisputed. The citation in this case was issued as a result of an inspection following a fatal accident involving respondent's linemen. The circumstances surrounding the accident were largely stipulated and are therefore undisputed.
On May 27, 1975, three employees of respondent were dispatched to a rural worksite for the purpose of setting a telephone pole and transferring to the pole telephone cables that had been hung temporarily from a second pole. An overhead power conductor energized at approximately 4800 y-system volts was also suspended from the second pole. The energized conductor was about 30 feet 9 inches above the ground. The new pole to be set was [*3] 35 feet long and of creosoted southern pine. Two steel-stranded guy wires, each 40 feet in length, were attached within 2 feet of the top of the new pole.
The telephone line crew was composed of three men: Robert Martin, Roy Witgen, and Donald Dramer. Martin was the senior member of the crew. He possessed 23 years of experience and was designated "working leader" of the crew. The "working leader" designation relates to premium pay rates in respondent's labor contract. The designation is assigned by respondent as required by the work situation. Employees need not accept the designation. The other two members of the crew, Witgen and Kramer, had 3 1/2 and 3 years of experience, respectively.
The pole was to be set by means of a 28 foot augerboom mounted on a line truck. When the crew arrived at the worksite, the truck was parked parallel to the overhead power line at a distance of approximately two feet from the vertical plane of the power line. A hole was dug about 10 feet north of the conductor and the pole was set into the hole. It was then discovered that in order to make the cable attachment, the pole would have to be moved about 4 feet to the northwest of the first [*4] hole. Therefore, a second hole was dug at a location about 4 feet northwest of the first hole.
The pole was removed from the first hole using the boom and winch line on the truck. Kramer used his hands and shoulders to guide the pole into the second hole. Martin operated the controls of the boom, and Witgen was on a ple 75 feet away. As the bottom of the pole was being inserted into the second hole, a flash occurred and Kramer fell to the ground. Despite efforts at revival, Kramer died of cardiac arrest resulting from electrical shock. Kramer was wearing leather and canvas gloves at the time of the accident, but none of the three employees wore insulated gloves. The pole and guy wires were not protected by any form of insulated covering. Insulated blankets or pole guards were not available at the worksite.
Judge Otto affirmed a serious violation for the failure of respondent to comply with the two standards. He found that the failure of respondent's employees to wear insulating gloves constituted noncompliance with the cited standards because some possibility existed that the pole might contact the power conductor while the work was being performed. n3 He further found that [*5] the violation was serious because there was a substantial probability of death or serious physical harm if an accident resulted from the violative conditions. The proposed penalty of $600 was reduced to $100 on the basis of respondent's good faith and lack of previous violations.
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n3 He also found that the standard did not require the use of insulating blankets and plastic pole guards. The Secretary disagrees with that interpretation but does not seek reversal of that portion of the Judge's decision. Therefore, we do not review it.
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On review, respondent argues that no violation was shown because the Secretary did not establish that respondent either knew or, with the exercise of reasonable diligence, could have known of the violative conditions. Respondent asserts that the knowledge of its "working leader" should not be imputed to respondent because it had an adequate safety program and because the "working leader" was not a supervisor whose knowledge can be imputed to respondent.
It is well-settled that the actions [*6] and knowledge of supervisory employees are imputed to their employer and that the employer is responsible for violations they create or of which they have actual or constructive knowledge unless respondent establishes that the acts of the supervisor were contrary to a uniform and effectively enforced work rule. See e.g., Larkan Steel Erectors, 77 OSAHRC 167/B12, 5 BNA OSHC 1783, 1977-78 CCH OSHD para. 22,100 (No. 15016, 1977); Ocean Electric Corp., 75 HSAHRC 6/C14, 3 BNA OSHC 1705, 1975-76 CCH OSHD para. 20, 167 (No 5811, 1975), aff'd, No. 76-1060 (4th Cir., August 2, 1977), opinions withdrawn and rehearing granted, No. 76-1060 (4th Cir., Oct. 26, 1977). Commissioner Barnako and I agree that a supervisor of respondent had the requisite knowledge but disagree as to which of respondent's supervisor's knowledge is relevant with respect to imputing knowledge to respondent. We find however that respondent failed to establish that it had an effectively enforced workrule which would negate the imputation theory.
I find that Martin, respondent's "working leader," was a supervisor whose knowledge is imputed to respondent. It is apparent from the testimony of the [*7] respondent's construction supervisor, George Brown, that great reliance was placed on Martin to control the aspects of work at the jobsite. Martin was responsible for the efficient operation of his crew and for the "method of work operations, quality and quantity of work performed,. . . work flow and direction." Even if Martin was not a full-time supervisor, he was in fact a supervisor at the time of the alleged violation and had actual knowledge of the failure to use insulating gloves. His knowledge is imputable to respondent. See Mercer Well Service, Inc., 77 OSAHRC 178/C6, 5 BNA OSHC 1893, 1977-78 CCH OSHD para. 22,210 (No. 76-2337, 1977); Iowa Southern Utilities Co., 77 OSAHRC 32/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD para. 21,612 (No. 9295, 1977).
Commissioner Barnako finds that the knowledge of Brown, respondent's construction supervisor, is imputable to respondent. Brown had supervisory authority over the crew involved in this case. His duties included the assignment and inspection of work and the correction of violations of respondent's safety policies. Thus, Brown's authority over the pole-setting operation was sufficient to impute any knowledge that he [*8] had with respect to work practices of the employees. See Iowa Southern Utilities Co., supra.
Commissioner Barnako further finds that Brown had knowledge of the violative condition. Brown had inspected the worksite prior to the time the work was done, and knew of the presence of the power line in proximity to the location where the new pole was to be set. Although Brown knew of the work to be performed he had no reason to believe that the employees would wear rubber gloves while setting the pole. He did not think that the power line presented a problem, and indeed thought that the work did not require the employees to wear rubber gloves. Furthermore, Brown could not recall whether Martin, Witgen, or Kramer had ever before set a pole or otherwise worked in close proximity to a power line. Respondent, however, stipulated, and the record establishes, that the possibility of the pole contacting the line existed. Had he exercised reasonable diligence, Brown would have been aware of the danger. Since he realized that the employees might not wear rubber gloves, in Commissioner Barnako's opinion, Brown should have issued specific instructions to insure the use of rubber [*9] gloves. His failure to do so demonstrates a lack of reasonable diligence, and therefore constructive knowledge of the violation.
As indicated above, an employer is excused for the acts of its supervisors only if it shows that such acts were contrary to a uniform and effectively enforced work rule. Larkan Steel Erectors, supra. Such a work rule must be explicit and include specific safety instructions concerning particular hazards to be encountered on the job being performed. Enfield's Tree Service, Inc., 77 OSAHRC 32/B3, 5 BNA OSHC 1142, 1977-78 CCH OSHD para. 21,607 (No. 9118, 1977). Commissioner Barnako and I agree that respondent's work rules do not conform to these criteria. The evidence shows that it was left to the discretion of individual employees as to where insulating gloves should be used. Brown's testimony indicates that the crew applied its own judgment in situations such as this in excess of 50 percent of the time. Under these circumstances, it cannot be said that the violation was unpreventable.
Respondent contends that the Secretary has failed "to demonstrate that a hazardous condition existed to which employees were exposed" and that it was [*10] reasonably possible for the pole to contact the power conductor. These contentions lack merit.
The standard presumes the existence of a hazardous condition "when there exists a possibility that [a] pole may contact a power conductor" and the standard's requirements are not met. See Vecco Concrete Construction, Inc., 77 OSAHRC 183/a2, 5 BNA OSHC 1960, 1977-78 CCH OSHD para. 22,247 (No. 15579, 1977). The parties stipulated that the possibility existed that the pole would contact the power conductor. We find also that the evidence independent of the stipulation is a sufficient predicate on which to find a violation. The length of the pole exceeded the height of the power line by about 4 feet. With the pole in a vertical position, the two, 40 foot steel guy wires were also attached at points 2 to 3 feet above the height of the power conductor. The 35 foot pole was handled by a boom at two separate locations within 14 feet of the energized power line. From these facts, we find that sufficient possibility of contact between the pole and guy wires and the power conductor existed even if we assume, as respondent argues, that the "possibility" of which the standard speaks [*11] must be a reasonable possibility. We, therefore, find that respondent's employees were exposed to the hazardous situation at which the standard is directed.
Accordingly, the Judge's decision is affirmed.