Docket No. 3211

C.E.C. ELECTRICAL COMPANY

OSHRC Docket No. 3211

Occupational Safety and Health Review Commission

July 2, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge James D. Burroughs, dated January 3, 1974, is before this Commission for review pursuant to 29 U.S.C. § 661(i). At issue is whether the occupational safety standard codified at 29 C.F.R. § 1926.28(a) is unenforceably vague. n1 The Commission has recently answered that question in the negative under substantially similar circumstances in Secretary v. General Bronze Architectural Products, 18 OSAHRC 224 (1975). That decision is dispositive in the instant case.

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n1 On December 16, 1972, the Secretary of Labor republished the standard changing the word "and" to "or." The citations in this case were issued after the change was promulgated. Concerning the significance and validity of that modification, see Secretary v. Leon Marrano & Sons, Inc., 17 OSAHRC 202 (1975) (Moran, Chairman, concurring opinion); Secretary v. Carpenter Rigging and Contracting Corporation, 15 OSAHRC 400 (1975); Secretary v. Hoffman Construction Company, 15 OSAHRC 327 (1975) (concurring opinion).

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Accordingly, having reviewed the entire record and finding no prejudicial error therein, the Judge's decision is affirmed in all respects.

[The Judge's decision referred to herein follows]

BURROUGHS, JUDGE: This proceeding arises under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., 84 Stat. 1590 (hereinafter referred to as the Act). Respondent seeks a review of a citation and a citation for serious violation issued to it on May 24, 1973, by the complainant pursuant to section 9(a) of the Act. Review is also sought by respondent of the penalties proposed, pursuant to section 10(a) of the Act, for the alleged violations set forth in the citation and citation for serious violation.

The citation, citation for serious violation and notification of proposed penalty were issued as the result of an inspection on May 14, 1973, of a workplace under the operation or control of the respondent located at Building K 1200, Oak Ridge Atomic Energy Plant, Oak Ridge, Tennessee. Respondent was engaged in electrical work in the building at the time of inspection. [*3]

The citation issued on May 24, 1973, alleges that respondent violated section 5(a)(2) of the Act by failing to comply with four (4) separate safety and health standards promulgated by complainant pursuant to section 6 of the Act. The alleged violations and the descriptions were set forth in the citation in the following manner:

1. 29 CFR 1926.400(g)(1)

Circuits that were de-energized did not have tags at all points where circuits could be energized.

2. 29 CFR 1926.400(a)

Live parts exposed to contact by employees were not guarded or identified by conspicuous warning signs as specified in Article 110-17 "National Electrical Code", NFPA 70-1971; ANSI C1-1971.

3. 29 CFR 1926.402(a)(8)

Electrical lines and cords to equipment and temporary lights were not kept clear of work spaces, walkways and similar locations.

4. 29 CFR 1926.402(c)(3)

Switchboxes were wired through the closure which prevented the cover from being closed and the boxes were not securely and ridgedly (sic) mounted.

The citation for serious violation issued on May 24, 1973, alleges that respondent committed a serious violation of section 5(a)(2) of the Act by failing to comply with the provisions of [*4] the standard published at 29 CFR 1926.28(a). The alleged violation of 29 CFR 1926.28(a) was described as follows:

An employee working from a scaffold approximately seventy (70) feet above floor level was not protected by safety belt, safety nets or other equivalent means.

Paragraph V of the complaint alleges that the serious violation resulted from a violation of 29 CFR 1926.500(d)(1). No reference to 29 CFR 1926.28(a) is made in the complaint. The complaint and citation for serious violation were amended at the hearing to refer to 29 CFR 1926.500(d)(1) and 29 CFR 1926.28(a) as being the applicable sections. (Tr. 11-12) A notification of proposed penalty was issued on May 24, 1973, proposing penalties in the aggregate amount of $997.00 for all of the violations. A penalty of $650.00 was proposed for the alleged serious violation of 29 CFR 1926.28(a). Penalties were proposed as follows for the alleged non-serious violations:

Item Number and
Alleged Violation	Proposed Penalty
1. 29 CFR 1926.400(g)(1)	$65.00
2. 29 CFR 1926.400(a)	162.00
3. 29 CFR 1926.402(a)(8)	30.00
4. 29 CFR 1926.402(c)(3)	90.00

The case was assigned to this Judge on August 29, [*5] 1973, for purposes of conducting a hearing pursuant to section 10(c) of the Act. The hearing was held in Knoxville, Tennessee, on October 4, 1973. No additional parties desired to intervene in the proceedings.

JURISDICTION AND ISSUES

Respondent concedes that at all times material to this proceeding it was engaged in a business affecting commerce within the meaning of the Act and that the Commission has jurisdiction of the parties and of the subject matter herein. (Par. I, III, Complaint and Answer) n1

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n1 A formal answer was not filed by respondent. Respondent's admissions and denials to the complaint were made orally at the hearing.

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The following issues are pertinent to a disposition of this case:

1. Did respondent fail to comply with the standards published at 29 CFR 1926.28(a), 29 CFR 1926.500(d)(1), 29 CFR 1926.400(g)(1), 29 CFR 1926.400(a), 29 CFR 1926.400(a)(8) and 29 CFR 1926.402(c)(3) and thereby violate section 5(a)(2) of the Act?

2. If respondent violated 29 CFR 1926.28(a) or 29 CFR 1926.500(d)(1) [*6] was the resulting violation of a serious nature as defined by section 17(k) of the Act?

3. What penalty, if any, should be assessed for any violations of the Act?

FINDINGS OF FACT

The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving the issues in this case.

1. The respondent, C.E.C. Electrical Company, is a corporation with its principal office at Oak Ridge Highway, Norwood Station, Knoxville, Tennessee. At all times material to this proceeding it maintained a workplace at the K25 area, Oak Ridge Atomic Energy Plant, Oak Ridge, Tennessee. (Par. II, Complaint and Answer)

2. Respondent is engaged in the electrical construction and electrical contracting business. It regularly performs electrical construction work at various locations. Much of its work is performed under Federal contract in buildings under construction or reconstruction. At all times material to this proceeding respondent was engaged in electrical work in building K1200 in the K25 area, Oak Ridge Atomic Energy Plant. (Pars. III, IV, Complaint and Answer)

3. On May 14, 1973, complainant, through [*7] a duly authorized compliance officer, conducted an inspection of respondent's workplace at building K1200, Oak Ridge Atomic Energy Plant.

4. Respondent employed a total of 23 employees at the K1200 building workplace located at Oak Ridge, Tennessee, at the time of inspection. Average employment by respondent during the last year was approximately 25 persons.

5. A de-energized circuit was observed on the outside of building K 1200 near the vehicle entrance. Three de-energized circuits were observed inside of the building at various locations. One de-energized circuit was near the mechanical equipment room. A second de-energized circuit was in close proximity to the middle of the building. The third de-energized circuit was near the open pit in the rear of the building. None of the de-energized circuits had been tagged to indicate that they were de-energized.

6. Live parts were exposed at the electrical panel located in the center of the building. Live parts were also exposed at the mechanical equipment room and the pit location. There was no type of guarding at these locations to prevent accidental contact by employees. (Exs. 1, 2)

7. Electric lines that passed [*8] through doorways and walkways were not elevated and were not covered to protect them from damage by employees walking on them or by mechanical equipment being driven over them. (Exs. 1, 3) The cables in some locations were covered or elevated.

8. A switchbox located at the center of the building was dangling on a piece of wire and not secured to the building. At the pit location a switchbox was attached to a board leaning against the wall. The board was not secured to the wall. (Exs. 1, 2)

9. An overhead crane was holding an aluminum walkway or pick board approximately 70 feet in the air. An employee was observed lying on the walkway and leaning out from it in order to do some arc welding. Another employee was with him on the walkway. The walkway had no guardrails or toeboards. No screens or safety nets were being used. (Ex. 4) The employee lying on the walkway was not protected by a lifeline or safety belt.

10. The walkway was approximately 24 inches in width. It was lifted and held in the air by the crane to serve as a temporary working surface for respondent's employees and had been used by employees for quite some time.

11. The crane was mobile and could have [*9] been shifted to a height and position that would not have necessitated the employee lying on the walkway and leaning over to do the welding.

12. Respondent has a policy of requiring its employees to wear safety belts while working on the walkway or pick board.

13. In computing the proposed penalties for the alleged non-serious violations, complainant allowed a reduction of 10 percent for good faith, 5 percent for size and 20 percent for history. A further reduction of 50 percent was allowed as an abatement credit.

14. The unadjusted penalty proposed for the serious violation was $1000.00. The unadjusted penalty was reduced 35 percent to allow a 10 percent reduction for good faith, a 5 percent reduction for size and a 20 percent reduction for history.

15. All of the violations set forth in the citation and citation for serious violation were corrected on May 14 and 15, 1973.

LAW AND OPINION

Complainant alleges that respondent violated section 5(a)(2) of the Act by failing to comply with safety standards promulgated under the Act. Section 5(a)(2) of the Act provides that each employer shall comply with occupational safety and health standards promulgated under [*10] the Act.

The safety standards allegedly violated and set forth in the citation provide as follows:

1. 29 CFR 1926.400(g)(1)

Equipment or circuits that are deenergized shall be rendered inoperative and have tags attached at all points where such equipment or circuits can be energized.

2. 29 CFR 1926.400(a)

All electric work, installations, and wire capacities shall be in accordance with the pertinent provisions of the National Electrical Code, NFPA 70-1971; ANSI C1-1971 (Rev. of C1-1968), unless otherwise provided by regulations of this part.

Article 110-17, National Electrical Code; NIPA 70-1971; ANSI C1-1971 (Rev. of C1-1968) provides as follows:

Except as elsewhere required or permitted by this code, live parts of electrical equipment operating at 50 volts or more shall be guarded against accidental contact by approved cabinets or other forms of approved enclosures, . . .

3. 29 CFR 1926.402(a)(8)

Cable passing through work areas shall be covered or elevated to protect it from damage which would create a hazard to employees.

4. 29 CFR 1926.402(c)(3)

Boxes for disconnecting means shall be securely and rigidly fastened to the surface upon which they are mounted [*11] and fitted with covers.

The facts of record clearly establish a violation of the standards set forth in the citation issued May 24, 1973. The evidence of the compliance officer is undisputed, and the owner of respondent admits that the four violations existed. The owner frankly admitted that the job was not safe. While admitting some responsibility for employee safety under the Act, respondent's primary argument is that employees also have a responsibility under the Act and that they failed to live up to that responsibility in this case.

Respondent's argument raises a question basic to the Act: how does an employer comply with occupational safety and health standards? Section 5(a)(2) of the Act simply states that each employer shall comply with occupational safety and health standards promulgated under the Act. Since employees carry out the work assignments, the compliance of the employer is in many instances directly dependent upon the employee. Cooperation of employees is essential if the objectives of the Act are to be accomplished.

The Act recognizes that safety and health must be a cooperative effort between the employer and his employees. Section 5(b) of the [*12] Act provides:

Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.

It is clear that employees have a definite responsibility under the Act. The use of the words "shall comply" in section 5(b) mandatorily requires that employees observe all occupational safety and health standards. The responsibility of the employee to comply can not be transferred to the employer.

While the Act recognizes the responsibility of employees to comply with all safety and health standards, the primary responsibility for health and safety is placed on the employer. The Senate Committee on Labor and Public Welfare in reporting favorably on the bill before it emphatically stated that "(F)inal responsibility for compliance with the requirements of this Act remains with the employer." S. Rept. No. 91-1282, 91st Cong., 2nd Sess., page 11 (1970). The employer is charged with the ultimate duty of furnishing a safe workplace for the employee. Final responsibility for compliance must be on the employer since he has control of the work environment and an economic control [*13] over the employee.

In order to meet his responsibility under the Act, an employer must have a viable safety program that includes implementation of the standards and some means of enforcement. The employer has a duty to bring the problems of safety and the applicable standards to the attention of the employees. The employer must educate his employees as to the standards applicable to their duties and as to the recognition and avoidance of unsafe working practices. He must also furnish equipment, materials and sufficient personnel to render the job safe. All machinery, tools, materials or equipment furnished must comply with all applicable standards and only those employees qualified by training or experience shall be permitted to operate equipment and machinery.

The employer must also see that employees are carrying out his safety program. He can not ignore the fact that employees fail to comply with the standards. This does not mean that the employer is an absolute guarantor or insurer that his employees will observe all the standards at all times. n2 It does mean that an employer can not ignore violations by employees where he has knowledge of the violations. Under [*14] such circumstances, the failure to bring the matter to the attention of the employee implies tacit approval of the employee's actions.

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n2 See Commission decision in Secretary of Labor v. Standard Glass Company, Inc.

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Where an effective safety program is implemented by the employer, a brief and isolated violation of a standard by an employee does not necessarily constitute a violation of section 5(a)(2) of the Act by the employer. This presupposes that the violation is contrary to an employer's instructions and standards uniformly enforced and that the employer is without knowledge of the violation. See Secretary of Labor v. Standard Glass Company, Inc., This rule recognizes that the emplovee also has a responsibility under section 5(b) of the Act. The best safety program devised is of little consequence if an employee chooses to ignore its objectives and fails to properly implement it.

The evidence of record clearly reflects that the respondent failed to meet [*15] its responsibilities under the Act. The owner admitted that the job was not safe. He testified that he had seen the same type of violations for 20 years, but at no time called the safety hazards to the attention of his employees. He stated that he left such matters up to his foreman or superintendent. He never told the superintendent or foreman that they should hold safety meetings and was not aware of whether any safety meetings had ever been held. Under these circumstances, the employer must be held accountable for the violations.

The citation for serious violation alleges a violation of 29 CFR 1926.28(a), which provides:

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

The complaint amended the citation to allege a violation of 29 CFR 1926.500(d)(1) and the complainant stated at the hearing that he relied on both of the standards as constituting the serious violation. Section 29 CFR 1926.500(d)(1) provides as follows:

Every open-sided floor [*16] or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

Complainant does not specifically state his preference as to applicability. It is assumed that he simply contends that respondent could have complied with section 5(a)(2) by complying with the provisions of either of the standards. In any event there is nothing in the Act which requires double protection where employees are adequately protected by one standard.

The facts reflect that an aluminum walkway or pick board which was approximately 24 inches wide was being held at a height of approximately 70 feet by an overhead crane. An employee was lying on the walkway and leaning out from it in order to do some arc welding. Another employee was with him on the walkway. The walkway was being used as a temporary working [*17] surface to accomplish some installation work. The walkway had no guardrails or toeboards. The employee lying on the walkway was not protected by a lifeline or safety belt. Respondent does not dispute these facts.

While complainant does not state a preference as to the applicability of the two standards, the facts justify the conclusion that both standards were violated. The standard most specifically applicable is 29 CFR 1926.500(d)(1) since it applies to platforms. The provisions of 29 CFR 1926.28(a) are general and must be considered secondary to 29 CFR 1926.500(d)(1). Section 29 CFR 1910.5(c)(1) provides that a particular standard applicable to a condition shall prevail over any different general standard which might otherwise be applicable to the same condition. Where the particular standard applicable to a condition does not protect an employee, as in this case, a secondary standard will prevail where it furnishes protection not provided by the specific standard normally applicable.

The aluminum walkway constituted a platform within the definition of 29 CFR 1926.502(e) n3, and was being used by the respondent's employees as a working surface to accomplish certain [*18] installation work. The platform was in general use by employees of respondent, and they were in need of protection while working off of it. Guardrails and toeboards would have afforded excellent protection to all employees in an upright position. Under normal conditions employees would work off of a platform in such a position. The employee observed lying on the platform must be considered as an isolated use of the platform. Since guardrails and toeboards were not installed, respondent is deemed to have been in violation of 29 CFR 1926.500(d)(1).

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n3 29 CFR 1926.502(e) defines a platform as follows:

A working space for persons, elevated above the surrounding floor or ground, such as a balcony or platform for the operation of machinery and equipment.

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The undisputed facts disclose that one employee was observed lying on the walkway and leaning out from it to accomplish some arc welding. Assuming guardrails and toeboards had been installed in accordance with 29 CFR 1926.500(d)(1), the employee lying on the walkway [*19] would still have had no protection against a possible fall of 70 feet. The installation of guardrails in such a situation would have amounted to a useless act insofar as that employee was concerned. Under such circumstances the provisions of 29 CFR 1926.28(a) required an alternative means of protection, such as lifelines or safety belts. The employee must be protected in his work environment. In this case the employee was exposed to a 70 foot fall without any type of protection. The employer should have recognized that some type of protection was essential to the welfare of that employee.

The employer could have obviated the applicability of 29 CFR 1926.28(a) by moving the platform to a proper working position for the employee. Since he chose not to follow that procedure, he was obligated to see that the employee lying on the platform was properly protected. There is nothing in the Act or standards which would have required respondent to move the platform to a proper working position. It is not the function of the standards to specify the manner or position in which a platform will be utilized. However the employer does have a responsibility to observe all standards [*20] applicable to the protection of his employees. Regardless of the manner or position in which a platform is utilized, the employer has the ultimate responsibility of insuring that his employees are adequately protected. The employer failed to meet his responsibility in this case.

Respondent had a policy of requiring employees to wear safety belts while working on the walkway. However, there is no competent evidence as to how stringently that policy was enforced. In view of the loose safety practices by employees in other areas and the lack of an effective safety program, it would be presumptuous to conclude that the policy was strictly enforced. This is especially true since an employee was observed lying on the walkway without a safety belt. The facts do not justify the application of the rationale of the Commission in Secretary of Labor v. Standard Glass Company, Inc., OSHRC Docket 259, to relieve the employer of responsibility for the violation in this case.

TYPE OF VIOLATION

Complainant contends that the violation of 29 CFR 1926.500(d)(1) and 29 CFR 1926.28(a) was a serious violation within the meaning of Section 17(k) of the Act. This section provides as follows: [*21]

For purposes of this section, 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, 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.

It is clear that Section 17(k) requires two findings prior to determining that a violation constitutes a serious violation. These are: (1) substantial probability that death or serious physical harm could result from the violation, and (2) the employer did not, and could not with the exercise of reasonable diligence know of the presence of the violation.

There has been no showing that the respondent was not aware of the violation. This leaves the question as to what type of injury was likely to result from the violation. Employees on the walkway were exposed to the possibility of a 70 foot fall. One employee was lying on the walkway without any type of protection. Under the circumstances it [*22] is concluded that the violation must be deemed a serious violation. An accidental fall of 70 feet was certain to result in death or serious physical injury.

PENALTY DETERMINATION

Once a notice of contest is served, the authority to assess civil penalties under the Act resides exclusively with the Commission. The Commission, in Section 10(c) of the Act, is charged with affirming, modifying or vacating citations issued by the Secretary under Section 9(a) and notifications issued and penalties proposed by the Secretary under Sections 10(a) and 10(b). The Commission, by Section 17(j) of the Act, is expressly required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer and the history of previous violations in determining the assessment of an appropriate penalty. See Secretary of Labor v. Nacirema Operating Company, Inc., In Nacirema the Commission stated that the four criteria to be considered in assessing penalties cannot always be given equal weight. It indicated that the principal factor to be considered in assessing an appropriate penalty for a violation is the [*23] gravity of the offense.

In Secretary of Labor v. National Realty and Construction Company, Inc.,

After due consideration of all factors provided by section 17(j) of the Act, with particular emphasis on the gravity of the violations, it is concluded that the following penalties are fair and appropriate for the violations in this case:

	Amount of
Violation	Penalty
29 CFR 1926.400(g)(1)	$65.00
29 CFR 1926.400(a)	162.00
29 CFR 1926.402(a)(8)	30.00
29 CFR 1926.402(c)(3)	90.00
29 CFR 1926.500(d)(1) and
29 CFR 1926.28(a)	650.00

The gravity of the non-serious violations are considered to be low or moderate with a minimum of exposure. The gravity of the serious violation is considered to be quite severe since a fall would have in all likelihood resulted in death or, at the [*24] least, serious physical injury.

CONCLUSIONS OF LAW

1. The respondent was at all times material hereto engaged in a business affecting commerce within the meaning of Section 3(5) of the Act.

2. The respondent was at all times material hereto subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.

3. The final and ultimate responsibility for compliance with the Act remains with the employer. The respondent failed to meet its responsibility in this case and can not escape responsibility for violations of safety standards by shifting the blame to employees.

4. The respondent committed non-serious violations of the safety standards set forth at 29 CFR 1926.400(g)(1), 29 CFR 1926.400(a), 29 CFR 1926.402(a)(8), and 29 CFR 1926.402(c)(3) and thereby violated section 5(a)(2) of the Act.

5. An employee must be protected in his work environment. In the event the employee deviates from normal work practices and the standard specifically applicable to normal work practices provides no protection, the employer must seek alternative means of protecting the employee.

6. [*25] Respondent committed a serious violation of the Act by failing to comply with the standards published at 29 CFR 1926.500(d)(1) and 29 CFR 1926.28(a). Section 1926.500(d)(1) was specifically applicable since employees were working from a platform at a height of 70 feet. Section 1926.28(a) was applicable to an employee lying on the platform since guardrails and toeboards would have afforded no protection to him.

7. The following penalties are fair and appropriate for the violations:

	Amount of
Violation	Penalty
29 CFR 1926.400(g)(1)	$65.00
29 CFR 1926.400(a)	162.00
29 CFR 1926.402(a)(8)	30.00
29 CFR 1926.402(c)(3)	90.00
29 CFR 1926.500(d)(1) and
29 CFR 1926.28(a)	650.00

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, it is

ORDERED:

That the citation, citation for serious violation, as amended, and the notification of proposed penalty issued on May 24, 1973, are affirmed.