Docket No. 7066

CONSUMERS POWER COMPANY

OSHRC Docket No. 7066

Occupational Safety and Health Review Commission

August 26, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Herman Grant, Regional Solicitor

C. D. Dawson, CONSUMERS POWER COMPANY, Legal Department, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

This matter is before us on review of a decision rendered by Judge Sidney J. Goldstein on June 3, 1975. The Judge found Respondent in violation of the standards published at 29 C.F.R. 1926.955(c)(1) and (5), and, therefore, affirmed the Secretary's citation and proposed penalty of $150.

On review, Respondent argues that the Judge erred in finding it in violation of the standard. Respondent also contends that the Judge erred in rejecting its claims that the citation should be vacated because not issued with reasonable promptness and because Complainant did not transmit the notice of contest to the Commission within seven days, as required by 29 C.F.R. § 2200.32. Finally, Respondent takes exception to Judges' rulings on two prehearing motions.

Having examined the record in its entirety, we find Judge Goldstein properly affirmed the Secretary's citation and proposed penalty for the reasons he assigned in his decision. We also find that Judges Brennan and Worcester acted properly [*2] on the motions before them for the reasons assigned in their orders.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The majority's affirmance of the citation is wrong for several reasons, each of which is addressed below. A preliminary review of the facts is necessary, however, for a more complete understanding of the absurdity of the majority's action in this case.

On October 5, 1973, respondent's employees were engaged in the removal of three deenergized conductors from an electric pole. The procedure that was employed involved the rigging of a tieline, attaching it to the conductor by means of a "cumalong" clamping device, n1 cutting the conductor, and then lowering it. The lineman on the pole attached the tieline and out the wire, the ground man controlled the tieline to lower the conductor. Two conductors had been removed in this manner without mishap. When the third conductor was being lowered it moved in an unanticipated manner and contacted an energized circuit, resulting in a flash of light and injury to the lineman on the pole.

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n1 This is a gripping device which attaches to the conductor and by which the tieline is fastened to the copper conductor.

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On January 23, 1974, an authorized representative of the Secretary of Labor conducted an investigation of the incident in question. Subsequent thereto, on February 22, 1974, a citation alleging noncompliance with 29 C.F.R. § 1926.955(c)(1) and (5) n2 was issued to respondent and was timely contested. The citation alleged:

"Employer failed to provide a positive control for removing a conductor by the use of an adequate tieline and other means (rubber protective devices) to prevent accidental contact with energized circuits. Ref: The energized conductor trainer under the conductor being removed had no protective device covering it."

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n2 The standards provide:

"(c) Stringing or removing deenergized conductors.

(1) When stringing or removing deenergized conductors, the provisions of subparagraph (2) through (12) of this paragraph shall be complied with."

* * *

"(5) Conductors being strung in or removed shall be kept under positive control by the use of adequate tension reels, guard structures, tielines, or other means to prevent accidental contact with energized circuits."

[*4]

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On April 17, 1974, complainant moved to amend his allegations to change the factual basis of his original charge to allege that respondent:

"[F]ailed when stringing or removing deenergized conductors to provide that the conductors . . . be kept under positive control . . . .

Ref: On October 5, 1973, . . ., a 1/0 conductor being removed had a 30 inch tail behind a cumalong . . . which tail was not under positive control during the removal of the 1/0 conductor."

Complainant's motion to amend was granted over respondent's objections on May 7, 1974. n3

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n3 The amendment in this case was improper. 658(a) is unlike traditional pleadings. It is a creature of statute - not a pleading - and unique statutory requirements for particularity have been attached to it. For the reasons I gave in Warnel, the liberal rules for amending pleadings provided in Rule 15, Federal Rules of Civil Procedure, therefore do not apply to job safety citations.

[*5]

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A hearing in this matter was held on February 5, 1974, before Review Commission Judge Sidney J. Goldstein. Judge Goldstein's subsequent decision affirmed the alleged violation.

The record in this case demonstrates a dramatic lack of probative evidence upon which to base a violation of the cited standard. In fact, what the record does demonstrate is that respondent complied with the standard by employing one of the enumerated alternative control devices - a tieline.

Judge Goldstein finds respondent liable for a failure to maintain "positive control" n4 of the conductor because the conductor was not kept under "positive control." n5 He reaches this conclusion after equating the word "positive" with the word "absolute," and noting that there was accidental contact. The effect of the Judge's holding is that an employer is automatically deemed to have violated the Act, regardless of what alternative prescribed by the standard he chooses to employ (in this case he chose a tieline), if the result is accidental contact with an energized circuit. This absolute control standard, however, is contrary to law [*6] because it places respondent in the role of a guarantor of employee safety. As the Commission and several Circuit Courts have acknowledged, the Act does not impose such absolute liability. Secretary v. Engineers Construction, Incorporated, 20 OSAHRC 348 (1975), and the cases cited therein.

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n4 I note that the absence of a definition of "positive control" in the cited standard raises serious due process questions with respect to its enforceability. In affirming the citation against an employer who has apparently complied with the plain wording of a standard, the majority is illustrating the dangers of applying a standard in a manner which affords an employer little warning of what is required by way of compliance. Such a standard does not provide constitutionally adequate notice. Cape and Vineyard Division of the New Bedford Gas and Edison Light Company v. OSAHRC, 512 F.2d 1148 (1st Cir. 1975).

n5 The same circuitous logic was used by the complainant's inspector to justify his recommendation that a citation be issued against respondent.

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Complainant alleged in his amended complaint that respondent failed to keep a 30-inch tail that extended behind a cumalong under positive control. The only information of record which would in any way support the existence of a 30-inch tail is an accident investigation report, prepared by one of respondent's employees, which was based on hearsay information, and which was totally repudiated by its author, under oath at the hearing, after he heard the contrary testimony of complainant's eyewitness, the injured employee. The eyewitness testified that the tail was closer to six inches long! Neither he nor the other eyewitness, the ground man, could explain how the accident occurred.

The procedure employed for the removal of the conductor had been used prior to the accident and has been used since, without mishap. Judge Goldstein assigns no significance to the prior successful use of the identical procedure by the employees involved, noting:

"If the practice was in violation of the regulation, it was wrong no matter how long it was permitted."

I am as much in the dark as respondent in trying to understand just what practice the Judge is referring [*8] to because the respondent's use of a tieline was one of the practices directed by the standard.

It is indeed unfortunate that the employee involved was injured while performing his assigned task. However, just as the Act may be violated even though no injuries have occurred, n6 the fact that injuries have occurred does not necessarily mean that the Act has been violated. n7 The burden of proof is on complainant to prove, by a preponderance of the evidence, that the requirements of the cited standards have been violated as alleged. Secretary v. Armor Elevator Company, Inc., 5 OSAHRC 260 (1973). The record in this case is devoid of any evidence which would indicate what respondent did or did not do to violate the standard. This makes it impossible to know what must be done to abate the condition which was alleged to be hazardous. Without such knowledge the very purpose of the Act's existence is frustrated.

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n7 Cape and Vineyard Division of New Bedford Gas and Edison Light Company v. OSAHRC, supra.

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My view of the evidence convinces me that respondent did what was required to comply with the standards cited. The accident which occurred was just that - an accident. As Commissioner Cleary correctly stated in Secretary v. Fort Worth Enterprises, Inc., 10 OSAHRC 280, 284 (1974):

"The Commission cannot decide cases based on speculation and conjecture. The Secretary has failed to meet his burden of proof in establishing by a preponderance of the evidence that non-complying conditions existed."

Another reason which requires vacation of the citation in this case is complainant's failure to issue it "with reasonable promptness" as required by 29 U.S.C. § 658(a). There is no showing of "exceptional circumstances" to justify the delay of 30 days between the inspection and issuance of the citation involved. Since that delay is ten times longer than the delay authorized by Congress, vacation of the citation is required.

In view of the majority's adoption of Judge Goldstein's decision, the same is attached hereto [*10] as Appendix A in order that the holding in this case may be fully known.

APPENDIX A

DECISION

This matter arises under Section 10(c) of the Occupational Safety and Health Act of 1970 and involves the alleged violation of regulations thereunder relating to stringing and removing overhead deenergized conductors.

After an inspection of a work site of the Consumers Power Company (sometimes hereinafter referred to as the Respondent or the Company), the Occupational Safety and Health Administration issued to it a Nonserious Citation and Notification of Proposed Penalty. The Respondent took issue thereto and submitted a Notice of Contest. Thereafter the Secretary filed a Complaint with this Commission to affirm the Citation and Proposed Penalty, and the Company forwarded an Answer. A hearing on amended pleadings was held in Flint, Michigan on February 5, 1975.

In the Citation the Complainant charged that the Respondent:

"failed when stringing or removing de-energized conductors to provide that the conductors being strung in or removed be kept under positive control by the use of adequate tension reels, guard structures, tie lines, or other means to prevent accidental contact with [*11] energized circuits.

(Ref: On October 5, 1973, on the east end of the above-mentioned workplace where a line crew was reconductoring a portion of the Wood Street Circuit, a 1/0 conductor being removed had a 30 inch tail behind a cumalong (which connected a tie line to the said 1/0 conductor so the tie line could be used to lower conductor) which tail was not under positive control during the removal of the 1/0 conductor)."

in violation of the standards found at 29 CFR 1926.955(c)(1) and (5) reading as follows:

1926.955(c)(1)

* * *

(1) When stringing or removing deenergized conductors, the provisions of subparagraph (2) through (12) of this paragraph shall be complied with.

1926.955(c)(5)

* * *

(5) Conductors being strung in or removed shall be kept under positive control by the use of adequate tension reels, guard structures, tie lines, or other means to prevent accidental contact with energized circuits.

The record discloses that on October 5, 1974, The Company was engaged in reconductoring transmission lines on one of its circuits, replacing 1/0 copper conductor with other wire. It assigned to the job a work crew, including [*12] a foreman and linemen. On that day, to facilitate the completion of the task, the foreman was assigned five additional men.

When the work progressed to the point of removal of the old 1/0 conductor previously set out on fibreglass crossarm extension sticks, the foreman split the crew. The regularly assigned linemen were dispatched to the east end of the job, and the newly assigned group went to the west end. Inasmuch as the foreman was not familiar with the capacity of the new work crew, he remained with that staff and entrusted his regularly assigned crew to work without his supervision.

The work plan called for a lineman to release three old conductors. The lineman who assumed the duty requested that a nearby spur line or energized circuit be deenergized for a momentary interruption until the pole work was completed, but the foreman told him to see if he could do without it. Carrying out his assignment, the lineman ascended the pole and utilized an extension strap to place his body in a position to cut the old conductors. Another worker remained on the ground and maneuvered a tie line. The first two wires were cut without mishap. Using the same procedure, the lineman cut [*13] the third wire. This time, however, as the conductor was being lowered, it whipped or flipped into the nearby energized conductor, creating a flash and resulting in thermal burns to the lineman's face and neck.

The exact reasons for the accident are not clear, but it is undisputed that the deenergized conductor did not drop or fall in an anticipated manner.

After reviewing the facts which led to the incident, an investigator employed by the Company concluded that the rope tie line clipped over the end of the crossarm extension stick and that there was inadequate use of cover-up protective devices. In addition he felt that improper work procedures were a contributing factor in that the injured lineman cut the conductor in such a manner that there remained a 30 inch tail behind the cumalong that flipped into the energized conductor. This situation caused the injured lineman to lose control of the conductor being lowered. The investigator also commented that there were too many workers for one foreman to supervise effectively, and that there was over confidence in the injured lineman's ability.

After a later independent investigation, a Compliance Officer for the Secretary of [*14] Labor concluded that the Respondent was in violation of the standard requiring positive control of the tie line. The Citation in issue followed. In its Notice of Contest and Answer to the Complaint, the Company contended that it was not in violation of the standard in question.

The regulation involved in this case provides that "Conductors being strung in or removed shall be kept under positive control by the use of * * * tie lines, or other means to prevent accidental contract with energized circuits." I take special note of the term "positive" placed into this regulation to describe the type of control required. The framers of this regulation must have intended that no chances be taken in this particular area where an accident could cause serious injury or death. In fact the word "positive" has been equated with the word "absolute." There is thus a pressing responsibility upon an employer to conform to the standards in the removal of conductors.

The testimony is uncontradicted to the effect that there was no positive control of the tie line at the time the de-energized conductor was being removed and that there was accidental contact with an energized circuit in contravention [*15] of the standard or regulation. No exception to the regulation is permitted because there was an unanticipated movement or slackening of the wire or because there was a long or short remaining portion of the wire behind the cumalong, rendering control more difficult.

The language of the regulation is clear, and the standard was intended to prevent an incident such as gave rise to the case under consideration. The fact that the same procedure in removing conductors was in effect prior to and subsequent to the accident is of no moment. If the practice was in violation of the regulation, it was wrong no matter how long it was permitted. I therefore conclude that the Respondent was in violation of the standard in question when it permitted the removal of the deenergized conductors without positive control of the tie line.

In support of its position, the Respondent asserts that it was not in violation of the regulation because the Secretary failed to prove that it knew or should have known of the act or omission on the part of its employee which constituted a violation of the standard. The record does not support this argument. There was testimony to the effect that the injured [*16] lineman was award of the dangerous task assigned to him, and the proximity of the energized conductor was called to the attention of the foreman on the job. Unfortunately the worker was told to proceed without the safety precaution. As a result there was no supervision of the tie line activity to assure that there would be positive control.

We do not have a case where an employee in a demented, suicidal or willfully reckless manner circumvented the best conceived or vigorously enforced safety rules. The defense of lack of knowledge on the part of the Company is not available to it when its supervisors on the job did not take the necessary safety measures to assure that there was positive control of the tie line.

The Respondent also advanced a number of technical and formal objections to the Citation. It argued that the Citation should be dismissed because it was not issued until four weeks and one day after the inspection and therefore not in compliance with the statute which requires that a Citation be issued with reasonable promptness. The Company relied in part upon Secretary v. Chicago Bridge and Iron Company, 6 OSAHRC 244 wherein the Commission dismissed a Citation [*17] issued four weeks and two days after the inspection. The Respondent's brief arrived prior to the publication of the decision of the U.S. Court of Appeals, reversing the ruling of the Commission and holding that the Citation was in fact issued with reasonable promptness as required by statute. Brennan v. Chicago Bridge and Iron Company and OSAHRC, F 2d (7th Cir. No. 74-1214 issued April 22, 1975). In the instant matter there has been no showing that the delay from the inspection to the Citation date interfered with the Company's ability to prepare for these proceedings or otherwise was detrimental to its defense. The ruling of the Court in the Chicago Bridge and Iron Company case should therefore be followed in this cause.

The Respondent also contended that the Secretary violated Rule 32 of the Commission's Rules of Procedure in failing to transmit the Notice of Contest to the Commission within seven days. The Company previously filed a Motion to Dismiss the Citation and Complaint for this reason, but Judge Worcester denied the Motion. No new reasons have been advanced to suggest that the Judge's decision was in error, and it should be followed at this stage of [*18] the proceedings.

The same conclusion is reached with respect to Respondent's argument that it was error to permit the Secretary to proceed on the basis of the Amended Complaint. Commission Judge Brennan ruled adversely to the Respondent on this point and permitted the Secretary to amend the Complaint. Again no additional material was submitted to warrant a change in that Order. It does not appear that the Respondent's case was prejudiced by this ruling, and its should not be disturbed.

In summary, we do not have a situation wherein an employee failed to follow safety instructions. On the contrary safety precautions were mentioned to the foreman to no avail. In high voltage work effective supervision is necessary to prevent accidents and to promote safety, but in this instance there was no foreman on the particular work site to confirm that the tie line was under positive control. Work around high voltage wires must be considered dangerous, and the Company was in violation of the regulation when it did not take the necessary steps to assure positive or absolute control of the tie line to prevent contact with energized wires.

There does not appear to be any quarrel with respect [*19] to the amount of the penalty proposed by the Secretary. The Compliance Officer testified concerning the method by which the proposed penalty was assessed, and it appears that he took the statutory criteira into account when the assigned the proposed penalty. Without testimony to the contrary, the proposed penalty should be affirmed.

From the foregoing and on the basis of the record in this case, I find that the Respondent at the time and place charged by the Complainant failed when removing a deenergized conductor to keep it under positive control by the use of tie lines or other means; and that by virtue of such failure the aforementioned conductor came into accidental contact with an energized circuit.

It is also concluded that at the time mentioned herein the Respondent was an employer within the meaning of Section 3 of the Occupational Safety and Health Act of 1970; that the Occupational Safety and Health Review Commission has jurisdiction over the parties and subject matter; and that the Respondent was is violation of the standards found at 29 C.F.R. 1926.955(c)(1) and (5).

Based upon these findings of fact and conclusions of law, it is hereby ordered that the Citation dated [*20] February 22, 1974, and the proposed penalty therefor, be AFFIRMED.

Sidney J. Goldstein, Judge, OSAHRC

Dated: June 3, 1975