Docket No. 79-504

GENERAL ELECTRIC CO.

OSHRC Docket No. 79-504

Occupational Safety and Health Review Commission

September 30, 1982

[*1]

Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Mr. Albert H. Ross, Regional Solicitor, USDOL

Edward L. Dobbins, General Electric Company, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Foster Furcolo is before the Commission for review pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). At issue before the judge was a citation that alleged a violation of section 5(a)(1) of the Act. n1 The citation's description of the violation, as amended, was as follows:

Employees were exposed to electrical hazards by failure to control employee movements in and around high voltage test equipment in the testing area ["Test Area"] with strict enforcement of recognized industry tagging and lockout procedures by:

1. The use of danger tags;

2. Proper instruction of lockout procedures;

3. Proper identification of incoming power disconnecting means, circuit breakers and control switches, so their purpose is evident; and

4. Proper lockout of power and control devices.

In his decision, Judge Furcolo concluded that Respondent, [*2] General Electric Co. ("G.E."), violated section 5(a)(1) of the Act by exposing its employees to the hazard of electrical shock due to its failure to control employee movements, to use red (danger) tags, to have proper lockout procedures and devices, to identify electrical devices so their purpose was evident, or to have an adequate safety program. Respondent sought review of this holding, and review was directed. For the reasons set forth in this decision, we agree with Judge Furcolo's conclusion that the Secretary established that G.E. violated section 5(a)(1). However, we affirm the citation on a more limited basis than that set forth by the Judge.

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n1 Section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1), provides that "[e]ach employer . . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

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At the cited worksite, a plant in Pittsfield, Massachusetts, G.E. [*3] manufactured large, high-voltage power distribution transformers, devices designed to increase or decrease the voltage of electrical power going through them. Each transformer weighed up to 500 tons. As part of the manufacturing operation, during each of the three work shifts, Test Operators in G.E.'s Product Test Unit conducted electrical tests on power transformers after they had been assembled. These tests were designed to assure compliance with transformer manufacturing industry standards and customer specifications. Transformers were assembled and tested in Building 100, a very large, high, rectangular structure that was comprised of the Test Area at one end and the Assembly Area at the other. These two areas were separated by a chain-link fence. The Test Area was open in the center but, along the outside edge of at least one side, above the first (ground) floor, it had two additional levels.

The Test Area's first floor consisted primarily of six high voltage test berths and two impulse test berths. At issue in this proceeding are the conditions relating to the use of five of the high voltage test berths. Each of these berths was surrounded by a chain-link fence 8 feet [*4] in height having one pedestrian gate at the first floor level. The chain-link fence separating the Test Area from the Assembly Area constituted part of the outer perimeter of the test berths. The other three sides of the fence around each berth were movable to accommodate transformers of differing sizes. At the second level of each berth, another gate separated a room where electrical controls were located from a catwalk that provided access to the tops of the transformers.

G.E.'s power system was "remote" in that the primary sources of power for the berths were sets of motor generators that were located in another building, Building 100A, and the controls for that power were in Building 100A. The set voltage supplied by the generators to the test berths ranged from 24,000 volts at Berth #5 to 230,000 volts each at Berths #1 & #2. Auxiliary power was also generated and controlled in Building 100A, as was the third source of power, which energized the wire resistance bridge. Each source of power had its own controls. In Building 100A were located the circuit breakers of the generators and about 35 selector board switches that routed the power from the generators to the various [*5] berths. The only G.E. employees who had keys to Building 100A were Granville Kemp, who was the Manager of the Product Test Unit, the five Test Foremen, the electrical maintenance crew, and two specialists. The Test Foremen were the supervisors of the Test Area; the first and second shifts each had two Test Foremen, while the third shift had one.

When a transformer was assembled and ready to be tested, it was moved by a huge crane from the Assembly Area to the Test Area, where it was placed in one of the berths. High voltage Test Operators then prepared the transformer for testing while the berth was deenergized. According to Test Operator James Kennedy, before Test Operators took any steps to energize a berth, they made sure that everyone was out of the berth. Kemp, the Manager of the Product Test Unit, similarly testified that Test Operators were responsible for inspecting the berths before the berths were energized to assure that no unauthorized personnel were in them.

These three steps had to be taken before a berth could be energized: completion of the safety circuit, movement of controls on the second level, and movement of controls in Building 100A. To complete the safety [*6] circuit, the Test Operator (1) made sure the fence sections were interlocked, (2) connected leads that were located on the sides of the fence, (3) plugged in the cord at the gate, and (4) closed and locked the gate with a padlock. The berth could not be energized unless the safety circuit was completed. Moreover, if the safety circuit was broken during a test, e.g., by unlocking and opening the gate, the berth was automatically de-energized. Once the safety circuit was completed (but before the berth was energized), the pairs of lights over the pedestrian gates at the first and second levels and on the fence sections at the opposite end of the berth enclosure came on as yellow. The yellow lights alerted employees that the system was ready for the application of power.

Once the Test Operator completed the safety circuit, he or she climbed the stairs to the second level. Tests were conducted from that level by operating the controls located on a console there. The next steps in energizing the berth were for the Test Operator to move a switch on the console (the power change/power lock switch) to the power change position and to call for power from the Test Foreman. To route [*7] power from the generator to the designated berth, the Test Foreman moved the appropriate switches in Building 100A. A display board on the console at the second level of the Test Area notified the Test Operator when this power had been directed to the berth. When the Test Operator moved the power change/power lock switch back into the power lock position, he or she gained sole control over the power in the berth. The Test Operator then moved some switches and breakers, and the various lights around the berth turned red, thereby signalling that the berth was energized. Only after all of these steps had been completed could the necessary tests be performed.

Assemblers spent most of their working time in the Assembly Area, where they completed the assembly of transformers before that equipment was sent into the Test Area berths. After the transformers had been moved to Test Area berths, either prior to or as a result of tests conducted on them, certain parts of the transformer often needed adjustment or repair. Presumably upon the request of the Test Operator or Test Foreman, the Assembly Foreman gave certain assemblers such work assignments as assembling cooler equipment and [*8] doing external and internal repairs. Assignments were given "probably on a daily basis" for about 15% of the assembler's working hours per week. The assemblers usually worked in pairs in the Test Area and brought with them from the Assembly Area the tools, such as wrenches and power tools, that they used for repairs.

After receiving their assignment, the assemblers entered the Test Area by way of the first-floor gate to the fence separating the Assembly Area from the Test Area. The assemblers were then supposed to climb the stairway to the second level where they could contact the Test Foreman to obtain a pass. Under the provisions of G.E.'s Product Test Unit safety manual, all employees who did not regularly work in the Test Area, a category that included assemblers, were required to get a pass from the Test Foreman before they entered a test berth. Upon receiving a request for a pass, the Test Foreman filled in the blanks on the pass form, usually with either one or both of the assemblers' names, and gave them one copy of the pass, keeping the other copy in the pass book. The pass contained blanks in which to write, among other information, the name(s) of the employee(s) [*9] to whom it was issued, the reason for the issuance, and the date and time during which the pass was valid. n2

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n2 In addition, the pass stated that the undersigned Test Foreman certified that employees could proceed to work in safety because all power was off in the designated berth, all the safety gates were padlocked, and all incoming power breakers and switches were open and marked with red safety tags. Some of these precautions, however, were not in fact taken. Because G.E. had been using that same pass form since 1959, which was before Building 100 was constructed, some of the language on it applied only to the older facility, which had a different switching system than Building 100. According to Kemp, the pass, as it was used in Building 100, was intended to represent only the Test Foreman's permission to enter a designated berth and his assurance that the berth was safe, but Kemp admitted that the pass could mislead an employee to think that all of the specific instructions on it applied and were carried out. One assembler, Bernard Gregory, testified that he assumed that by signing the pass the Test Foreman certified that all of the precautions listed on the pass had been taken.

[*10]

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When assemblers followed prescribed procedures in obtaining a pass, the Test Foreman also pointed out to them the berth in which they were to work. The Test Foreman's direction was necessary because the only information that the assemblers usually had on their assigned transformer was the purchase order number. The assemblers did not know the number of the berth that the transformer was in. Even if they did know the berth number, they usually did not know where to go because the berths were not marked by number. In addition, before the assemblers entered a berth, the Test Foreman moved and tagged a few switches located on the first and second floors. The Test Foreman then hooked or tied the cable at either the first- or second-level gate to the berth so that it would not be plugged in and, with a padlock, locked the gate in the open position so that no circuit could be completed and the berth could not be energized. After the assemblers had completed their work or their shift, they were expected to go back up to the second level to return their copy of the pass to the Test Foreman.

Kemp testified [*11] that a copy of G.E.'s Power Transformer Product Test Safety Manual had been available in each test berth since 1976. On the fence near the pedestrian gate at both the first and second levels of each berth was a sign reading: "NOTICE - NO ONE ALLOWED IN TEST AREA WITHOUT PERMISSION OF FOREMAN."

The testimony of several of G.E.'s assemblers established deficiencies in the nature and execution of G.E.'s pass procedure. When asked at the hearing if he got the permission of the Test Foreman before entering a test berth, Walter Milette responded, "Not necessarily the Test Foreman. We had a job assignment by the Tanking [Assembly Area] Foreman and this is an assignment by a Foreman that is supposed to know what he is doing." Milette further testified that he had not been issued a pass until about one week before the inspection. When asked if the Test Foreman stayed with him, Milette replied, "Periodically to check you out maybe, but he doesn't stay with you." Bernard Gregory testified that he had received passes at times from Kemp rather than from a Test Foreman. Gregory, as well as Stephen Volin, stated that there had been occasions when other employees who did not regularly work [*12] in the Test Area had entered through the open gate into the test berth in which the assemblers were already working without first obtaining a pass or having their names added to the assemblers' pass. Gregory stated his opinion that the Test Foreman probably would have assumed that all employees were out of the berth when a pass was returned even though some employees not specifically named on the pass could still be in the berth. Furthermore, Volin testified that, when he and his partner had requested entry, the Test Foreman had on occasions issued them a pass stating that it was for "Volin and company" and giving no other name. He added that a pass issued to "Volin and company" could cover as many as ten people. At the hearing, a pass was shown to Kemp that was completely filled out except that a question mark was in the space for the employees' names. The evidence described above establishes that G.E.'s pass system did not account for each assembler who entered a berth and that passes were issued by at least one employee who, unlike the Test Foreman, played no part in energizing berths.

Unless the assemblers' job was one of very short duration, the Test Foreman usually did [*13] not stay with the assemblers while they worked in a berth, and the assemblers were not able to see the Test Foreman at all times while they were working in the berth. Moreover, when the assemblers performed internal repair work, they went inside the transformers where they were hidden from view. In response to a question as to how long he would stay inside a transformer, Milette testified that "I'd spend the whole night [shift] in there." The evidence also indicates that there was no physical obstruction to prevent an assembler from leaving an assigned berth and entering into any other berth if the gate to that berth were open. In addition, assemblers in one berth could have entered an adjacent berth without having to use the pedestrian gate, for they could have reached another berth by merely opening a section of the fence. One assembler testified that an employee could have crossed from one berth to the other without knowing it when some of the fence sections were not connected.

The record further shows that the assemblers as a group were generally unaware of the precautions that they themselves could take or that other employees were supposed to take and the safety rules that [*14] were established by G.E. in order to prevent their exposure to electrical shock. Specifically, the assemblers testified that, as of the time of the Secretary's inspection, they: (1) had not been formally told by management in writing or orally what procedures to follow in the Test Area (instead new employees learned what to do from more experienced workers); (2) had not received any information about the hazards facing assemblers in the Test Area in the Job Hazard Analysis Guide for their job; (3) had not seen G.E's Power Transformer Product Test Safety Manual; (4) did not know what some of the language on the pass referred to; (5) had not received any information, orally or in writing, on the Test Area's circuitry and the location and function of the switches and breakers; and (6) did not know what the power, control, and fence voltages were in the various berths. Assemblers testified that they relied solely on the Test Foreman to assure that the berth was safe.

The testimony of the assembers indicates that they did not understand the hazards in the Test Area berths or the signals installed to alert them of the hazards. Both Gregory and Volin testified that, when they prepared [*15] to enter a berth after receiving a pass, they did not know for sure, but rather assumed, that power was out of the berth. Gregory also stated that, even if he had seen someone taking steps to "route the generators out of [the] berth," he would not have known what that person was doing. He indicated that, even if he had seen blinking lights or signals in the Test Area, he would not have known what they signified. Volin, who was a Safety Observer for the Assembly Division, testified that as far as the Test Area was concerned he had not reported any safety problems to anyone because he "wouldn't know what was right and what was wrong in there."

The Secretary's expert witnesses were critical of G.E.'s system of requiring assemblers to rely totally on the Test Foreman without being informed of hazards in the Test Area and means to prevent or avoid them. Bernard Battles, the compliance officer who inspected G.E.'s facility and was qualified as an expert, testified that in his experience supervising employees who worked in high voltage areas in both manufacturing and utility industries he could not recall a system requiring those employees to rely solely on their foreman's word that [*16] the area was deenergized before they began working there. When asked if G.E.'s procedures complied with the custom and practice of the utility industry, n3 Wallace Edwards, who had worked as a formeamn supervising employees in high voltage areas during his 35 years at Western Massachusetts Electric, testified:

Absolutely not. I was appalled at what I heard. I cannot believe bringing a human being into a room with the possibility of such voltage where they don't know a darn thing about what is possible . . . .

I think that General Electric Company could no much more in educating these people who go in there who are not electrical trades people.

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n3 We recognize that the utility industry differs from the power transformer manufacturing industry in many respects. However, the two industries are similar in that both involve work that at certain times exposes some employees to high voltage electricity.

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The testimony of the Secretary's experts as well as that of the assemblers noted above establishes that assemblers [*17] were not given training commensurate with the danger of exposure to high voltage electricity that was part of their duties.

G.E. argues on review that the judge erred in determining that the Secretary proved by a preponderance of the evidence that G.E.'s employees were exposed to the hazard of electric shock in the test berths because it did not control employee movements, use red (danger) tags, have proper lockout procedures and devices, identify electrical devices so their purpose was evident, or have an adequate safety program. G.E. contends that it need not take those actions because its safety system, including the interlocked safety circuit and the precautions taken by the Test Foreman and the Test Operator, had already eliminated the hazard. Indeed, G.E. asserts that there is no evidence in the record that its employees were or could be exposed to electricity, and therefore electrical shock, while in the Test Area berths. It therefore concludes that the asserted omissions specified by the judge are irrelevant and immaterial because there was no hazard.

G.E. also takes exception to the judge's finding and conclusion that the recognition element of the alleged violation [*18] was established because G.E.'s supervisory personnel knew of "the hazardous conditions that existed." It reasons that its supervisors could not have known of a nonexistent hazard. According to G.E., "[w]here the Secretary relies on the employer's knowledge of a recognized hazard, the Secretary has the burden of demonstrating . . . that the existing safety precautions were unacceptable in a relevant industry," a burden which he did not meet in this case.

G.E. also contends that the Secretary failed to show, as required to establish a section 5(a)(1) violation, that his suggested means of abatement were feasible and that they would eliminate or materially reduce the alleged hazard. G.E. argues that it established that "considerable operating problems and expense would be encountered if locking and tagging were forced into the system where they are not necessary." G.E. further asserts that the Secretary "failed to prove that there is a recognized industry procedure by which to control employee movements as charged in the Complaint." G.E. supports its principal position that there was no hazard by asserting that the Secretary's evidence on abatement measures consists of "arbitrary" [*19] opinions from persons inexperienced in the transformer manufacturing industry that certain measures should be taken "in order to prevent hazards which already have been eliminated by a safety circuit system." Finally, G.E. notes that, where necessary and sensible in its view, it did control employee movement, use danger tags, use lockout devices, identify switches, and otherwise follow an adequate safety program.

III

In order to establish a section 5(a)(1) violation, the Secretary must prove that: (1) the cited employer failed to render its workplace free of a hazard; (2) the hazard was recognized either by the cited employer or generally within the employer's industry; (3) the hazard was causing or was likely to cause death or serious physical harm; and (4) there was a feasible means by which the employer could have eliminated or materially reduced the hazard. E.g., Little Beaver Creek Ranches, Inc., 82 OSAHRC , 10 BNA OSHC 1806, 1982 CCH OSHD P26,125 (No. 77-2096, 1982). We conclude that the Secretary sustained his burden of proving each of these elements, and we therefore affirm the Secretary's citation.

The hazard in this case is shock or electrocution due to [*20] accidental contact by an assembler with an energized transformer undergoing production testing. As evidenced by its pass system, warning lights, and the fences around the berths, as well as the other precautions it has taken, G.E. itself recognized this hazard. Indeed, G.E. in effect conceded this when it made the following statement in its post-hearing brief, which it reiterated before the Commission on review:

General Electric has recognized that unless properly handled and controlled serious injury or death can result from high voltage electricity. As a consequence it designed, built and operated its Transformer Test facilities with the safety of employees and others of paramount concern.

We reject G.E.'s contention that the Secretary's evidence is deficient because he failed to establish that there was a recognized industry procedure for controlling employee movement. The recognition element of a section 5(a)(1) violation refers to knowledge of a hazard and not recognition of the means of abatement. Kansas City Power & Light Co.. 82 OSAHRC , 10 BNA OSHC 1417, 1982 CCH OSHD P25,957 (No. 76-5255, 1982). We also reject G.E.'s arguments that (1) the Secretary had the [*21] burden of proving that its safety precautions were unacceptable in its industry and (2) the precautions it took rendered its workplace safer than the workplaces of others in the transformer manufacturing industry. Required abatement is determined by feasibility and an abatement order may prescribe practices of a higher standard than those an industry presently considers to be reasonable. Id. We conclude that the Secretary has met his burden of establishing the recognition element of the alleged violation.

G.E.'s principal argument on review is that it has satisfied its duty to "free" its workplace of the recognized hazard. G.E.'s use of the interlocking safety circuit and its system of warning lights substantially reduced the danger of an assembler entering a berth after it had been energized. Similarly, the procedures involving completion of the safety circuit, movement of controls in Building 100A, and movement of controls on the second level console reduced the possibility that a berth could be inadvertently energized.

Nevertheless, we do not agree with Respondent that its workplace was free of the hazard of shock or electrocution due to accidental contact by an assembler [*22] with an energized transformer undergoing production testing. Assemblers were exposed to this hazard if their presence inside a berth was not detected by the Test Operator or Test Foreman prior to energization of the berth. n4 For example, an assembler working inside a transformer or behind some obstacle could have been overlooked by a Test Operator during the visual inspection of the berth in preparation for energizing it. In addition, a Test Operator could fail to detect an assembler inside a transformer if the Test Operator failed to conduct a thorough inspection. Such an oversight by the Test Operator would not have been remedied by the Test Foreman if the latter had no pass on file indicating that an assembler was still in the berth. Indeed, the record establishes that it was not uncommon for an employee to be inside a berth without the knowledge of the Test Foreman, in part because of the Test Foreman's failure to issue a pass to each assembler who entered a berth and his failure to list the name of each assembler who entered a berth under a group pass. Furthermore, the evidence establishes that assemblers did not always get a pass for each berth they entered, assemblers [*23] sometimes went into the Test Area without getting any pass at all, and passes could have been returned to the Test Foreman before all of the assemblers were out of the berth. G.E.'s pass system therefore did not render the test berths free of the hazard.

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n4 G.E.'s safety circuit would provide no protection to an assembler who entered a berth before the safety circuit was completed and who remained in the berth when it was energized. Similarly, G.E.'s multi-step procedure for energizing a berth, while effective in preventing inadvertent energization of the berth, would provide no protection to an assembler if a Test Operator intentionally energized the berth without knowing the assembler was in it. To eliminate the risk of an assembler being present inside a berth without the knowledge of the Test Operator and the Test Foreman at the time the berth is energized, it was necessary for Respondent to enforce an effective pass system and to train assemblers in proper Test Area procedures and safety precautions. This it did not do, as discussed infra.

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Neither did other aspects of G.E.'s safety program, especially given the fact that the assemblers did not work with electricity or understand its properties. G.E. did not formally communicate the applicable contents of its Test Area safety manual to the assemblers and did not uniformly enforce those rules. Moreover, assemblers were not instructed as to the purpose and design of the safety precautions for the test berths or what steps they themselves could take to prevent exposure to the recognized hazard. n5 As a result, assemblers were generally unaware of proper procedures in the Test Area and the precautions that could be taken to prevent injury. We therefore conclude that the absence of adequate safety training increased the possibility that an assembler would enter a berth before it was energized without the knowledge of the Test Foreman or the Test Operator, thereby increasing the risk that the assembler would be injured when the Test Operator subsequently energized the berth.

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N5 In Little Beaver Creek Ranches, Inc., 82 OSAHRC , 10 BNA OSHC 1806, 1982 CCH OSHD P26,125 (No. 77-2096, 1982), the Commission recently relterated its observation that safety rules are more likely to be followed if their rationale is explained and understood. This case is distinguishable from cases such as Jones & Laughlin Steel Corp., 82 OSAHRC 34/A2, 10 BNA OSHC 1778, 1982 CCH OSHD P26,128 (No. 76-2636, 1982), in which employees knowingly violated company safety rules on crane boarding solely for convenience.

[*25]

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The fact that no one has yet been electrocuted is not proof that G.E.'s safety program was adequate. In the first place, "[t]he keystone of the Act . . . is preventability." Brennan v. OSHRC (Underhill Construction Corporation), 513 F.2d 1032, 1039 (2d Cir. 1975). Inasmuch as "[o]ne purpose of the Act is to prevent that first accident," actual death or injury is not a prerequisite to establishing a violation. Lee Way Motor Freight Inc. v. Secretary of Labor, 511 F.2d 864, 870 (10th Cir. 1975); Brennan v. Butler Lime and Cement Co., 520 F.2d 1011 (7th Cir. 1975). Secondly, an employer may not shift responsibility for employee safety and health onto its employees by undue reliance on employee skill, intelligence, prudence, and the like. An employer's duty to do all it feasibly can to prevent or substantially reduce hazards includes the duty to anticipate and guard against that employee error and misconduct which falls short of the bizarre and uncontrollable. See General Dynamics Corp., Quincy Shipbuilding Div. v. OSHRC, 599 F.2d 453 (1st Cir. 1979); National Realty and Construction [*26] Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1974); see also Booneville Division of Ehan Allen, Inc., 78 OSAHRC 105/B4, 6 BNA OSHC 2169, 1979 CCH OSHD P23,219 (No. 76-2419, 1978). A pass system which is so lax that it ultimately depends on visual inspection by the supervisor for discovery of employees exposed to electrocution hazards does not adequately protect against human error.

It is undisputed that the recognized hazard fo shock or electrocution from contact with an energized transformer is a hazard that is likely to cause serious physical harm or death. Therefore, the only remaining issue to be determined is whether the Secretary established the feasibility and likely utility of the abatement measures he proposed.

We conclude that inclusion of the name of each assembler who enters a berth on an individual or group pass, uniform enforcement and effective communication of G.E.'s written rules regarding pass procedures, and improvement in safety training for assemblers were all proven to be feasible and useful measures that would eliminate or materially reduce the hazard in G.E.'s test berths. Accordingly, the Secretary has also established this final element of the [*27] alleged violation. n6

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n6 In addition to the methods that we have determined to be feasible, other abatement measures were suggested by the Secretary, i.e., using danger tags on switches, identifying switches so that their purpose is evident, locking switches, and permitting each assembler to use his or her own lock on the berth gate. While we do not rule on the feasibility of these measures, we note that G.E. must free its workplace of the hazard by any feasible means.

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Accordingly, we affirm Judge Furcolo's conclusion that G.E. violated section 5(a)(1) of the Act. Having considered the factors set forth in section 12(j) of the Act, 29 U.S.C. § 666(i), and particularly the good faith shown by G.E. in taking extensive precautions in an attempt to eliminate the hazard, we assess a nominal penalty [*28] of $1.

IT IS SO ORDERED.

DISSENTBY: ROWLAND

DISSENT:

ROWLAND, Chairman, dissenting:

I disagree with the majority's conclusion that G.E. failed to keep its workplace free from the recognized hazard of electrocution due to accidental contact by an assembler with an energized transformer during production testing. n1 As the majority correctly observes, the safety circuit and warning lights installed by G.E. made it unlikely that an assembler would enter an energized berth, and these measures together with the sequence of steps required to energize a berth were sufficient to protect an employee against inadvertent reenergization of a berth which had been deenergized. The majority errs, however, in its further conclusion that assemblers were nevertheless exposed to the hazard because the measures required to reenergize a berth might be initiated while assemblers remained within the berth.

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N1 I conclude that this formulation of the recognized hazard gives G.E. sufficient notice of its obligations consistent with my dissenting opinion in Kansas City Power & Light Co., 82 OSAHRC 13/A2, 10 BNA OSHC 1417, 1982 CCH OSHD P25,957 (No. 76-5255, 1982). Accordingly, I need not now consider whether, as the majority states, a recognized hazard cannot be defined in terms of specific abatement methods. Similarly, in view of my disposition in this case, I express no opinion on whether under 29 U.S.C. § 654(a)(1) the Commission can require an employer to institute practices other than those presently understood as reasonable in the employer's industry.

[*29]

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The majority's view is based on supposed deficiencies in G.E.'s system for insuring that all employees have left a berth before it is reenergized. As the majority indicates, G.E. required that test operators visually inspect each berth prior to initiating the reenergization procedure and also had a pass system by which the test foreman would be aware of the presence of assemblers in a berth. The majority claims, however, that a test operator might conduct his inspection of a berth in a careless manner or otherwise might overlook an employee. As to the pass procedures, the majority apparently concedes that power would not be restored to a berth until an outstanding pass had been returned to the test foreman but finds this assurance inadequate for the reasons that a separate pass was not issued to each individual employee and, in some instances, assemblers entered a berth for which no pass had been issued. The evidence does not support the majority's conclusions.

In describing the visual inspection of the test berth, Kemp, the test unit manager, stated that the test operator has the responsibility [*30] to "assure" himself that the test berth is clear prior to initiating reenergization. Test operator Kennedy, who testified as to the manner in which he discharges this responsibility, expressly stated that the inspection he performed was sufficient to insure that no one remained in the berth. In his words, "[i]f we have to walk around the tank or stand on top and walk around the tank, we do it and then we close the gates and then we apply power. First and foremost, we make sure that everyone is out of the area." There is absolutely no testimony to the contrary by any witness that a test operator's inspection of a berth prior to reenergization is not sufficiently thorough, nor is there any evidence that any employee had ever been undetected by a test operator during his inspection. Accordingly, the majority's conclusion that this visual inspection might be inadequate or performed improperly is nothing more than sheer speculation, unsupported by and indeed contrary to the evidence of record.

The same is true of the majority's determination that due to inadequacies in G.E.'s pass system the test foreman might not be aware of the presence of assemblers in a test berth. With the exception [*31] of instances in which assemblers are actually escorted and accompanied by either the test operator or test foreman, n2 all of the employees testified either that they would obtain a pass before entering a specific berth or would enter without a pass only to assist other assemblers who had obtained a pass for that berth. n3 Clearly, while the test foreman might not know the number and identity of all employees who are in a berth at any given time, he would be aware from the fact that a pass had been issued to a least some employees that work was being performed in the berth.

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n2 The testimony of Milette to which the majority refers does not establish that the test operator or foreman was unaware of his presence in the berth. In any event, as noted in the text of my opinion there is no evidence that a berth had ever been reenergized while an employee remained in it.

n3 The majority refers to a possibility that an assembler assigned to work in a particular berth could without the knowledge or authorization of a supervisor enter another berth in which he had no assigned duties. The record, however, fails to show that any employee had ever done so, nor is there any evidence from which one can conclude that the employer could reasonably be expected to anticipate such action by an employee. Indeed, at the majority itself indicates, the work is always assigned by the test foreman to a specific berth. Assembler Gregory stated that it is never necessary for non-test personnel to go into more than one berth at a given time and that he had never seen anyone go into a berth without proper authorization.

[*32]

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It is of course true as the majority states that the reenergization process can commence once all outstanding passes are returned to the test foreman. However, the record does not support the majority's supposition that passes might be returned before all employees have left the berth. The testimony of the employees indicates that passes are customarily issued to assemblers as opposed to other categories of employees who may have occasion to enter a berth to assist assemblers, and Gregory, who had 11 years experience working in the test building, stated that assemblers normally would be the last employees to leave the berth. n4 Furthermore, there is no evidence of any instance in which the employees holding a pass had not been the last to leave a berth and, finally, no evidence that at any time a berth had been reenergized before all employees had left. Accordingly, the record fails to support the majority's conclusion that G.E.'s pass system exposed assemblers to the hazard of accidental contact with energized transformers during testing.

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n4 Gregory mentioned crane operators and oilers as individuals who would on occasion assist him in his work.

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Finally, the majority errs in its conclusion that apprising assemblers of the applicable contents of the test area safety manual and instructing them in the purpose and design of the safety precautions including the circuitry and switches would have materially reduced the exposure of assemblers to the hazard in question. On the contrary, the record including the testimony of the assemblers themselves amply demonstrates that they were sufficiently trained for the performance of their duties.

Other than its generalization that employees should be advised of the "rationale" underlying safety rules the majority does not specify what particular information should have been communicated to assemblers, nor does the majority explain how instructions in the "purpose and design" of the safety precautions would eliminate the hazard the majority finds in this case, that is, the possibility of an assembler entering or remaining in a berth without the knowledge of the test operator [*34] or test foreman. In any event, the record demonstrates that assemblers are fully aware of the importance of insuring that their presence in a test berth is known to the test operator or test foreman. Gregory, in describing the pass system, characterized it as affording security for an assembler to enter by providing assurance that the berth had been cleared. Similar testimony was given by Volin, who stated that based on the issuance of a pass he would assume that the foreman had taken responsibility for his safety while in the berth. Both Volin and Jordon further stated that the performance of their duties as assemblers did not require that they be familiar with the test area circuitry, and Gregory testified that any explanation or demonstration of the deenergization procedures prescribed in the safety manual would not be meaningful to him. This employee testimony is consistent with the opinion expressed by Kemp. In testifying that assemblers did not need to be aware of the contents of the test area safety manual or of the location of breakers, disconnect switches and tags, Kemp described the philosophy of G.E.'s system:

I think [assemblers] need to be provided an area to work [*35] in that is totally safe and they need to have that provided for them by someone who is knowlegeable and responsible. The system was desinged around that and we selected a Test Foreman, who had certain chores to do such as moving power from the test berth, which he normally does, and who is knowledgeable enough to know whether that has been accomplished and which gates to lock and which leads to intertwine and which switches to red tag. That is the reason it is written the way it is.

Although the majority notes the Secretary introduced testimony contrary to Kemp's opinion, that testimony is not persuasive. As the majority itself concedes, the Secretary's witness Edwards was limited in his experience to a substantially different industry from that at issue in this case. While witness Battles did have extensive experience with manufacturing facilities, his testimony demonstrates that he specialized in in-plant power distribution systems for plant operations. Kemp testified without rebuttal that G.E.'s test facility is distinguishable from such distribution systems because its function is to supply current on an intermittent as opposed to continuous basis. In view of Kemp's extensive [*36] experience and the fact that his testimony is consistent with that of the employees themselves, his opinion is reasonable and entitled to weight.

Based on this evidence, the majority clearly errs in concluding that G.E.'s employees were not sufficiently aware of the established safety procedures and in assuming that the employees could not be expected to comply with those procedures without additional instructions. n5 See Little Beaver Creek Ranches, 82 OSAHRC 36/A2, 10 BNA OSHC 1806, 1982 CCH OSHD P26,125 (No. 77-2096, 1982) (dissenting opinion). As the Commission recently held in Jones & Lauglin Steel Steel Corp., 82 OSAHRC 34/A2, 10 BNA OSHC 1778, 1982 CCH OSHD P26,128 (No. 76-2636, 1982), additional distribution of safety rules and formal discussion of such rules is not necessary when employees indicate that they are familiar with the basic elements of the rule and show appreciation of the hazards to which the rules are directed.

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n5 The majority claims that G.E. did not "uniformly enforce" the rules set forth in the test area safety manual but does not specify on what basis it reaches this conclusion. Kemp testified without rebuttal that G.E. maintains a program for disciplining employees who violate its safety rules, and the Secretary presented no evidence to show that this program was not adequately implemented. In any event, as explained in the text of my opinion, the existence of G.E.'s pass system, together with its requirement that berths be inspected prior to reenergization, has been sufficient to protect assemblers from the hazard at issue. Accordingly, G.E. would not have been on notice of a need to take further steps to implement its safety rules. For this reason, I do not at this time consider whether an employer may properly be required to enforce workrules which have been communicated to employees. See Jones & Laughlin Steel Corp., 82 OSAHRC 34/A2, 10 BNA OSHC 1778, 1782-83 & n.9, 1982 CCH OSHD P26,128 at 32,887-88 & n.9 (No. 76-2636, 1982).

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I therefore would vacate the citation for failure of the Secretary to show that G.E.'s worksite was not free form the recognized hazard.