UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 4654
FISK-OESCO JOINT VENTURE,
Respondent.

April 22, 1977

DECISION

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

MORAN, Commissioner:

A May 1, 1974, decision of Review Commission Judge J. Paul Brenton is before this Commission for review pursuant to 29 U.S.C. § 661(i). That decision, which is attached hereto as Appendix A, vacated items A and B of a citation which alleged serious violations of 29 U.S.C. § 654(a)(2) and item 2 of a citation that alleged a nonserious violation of the same statute. It also affirmed item 1 of the latter citation but assessed no penalty therefor.

This case is before us as a result of a sua sponte direction for review by Commissioner Cleary which provides as follows:

The undersigned hereby directs review of the Judge’s decision and order in the captioned case pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.).

Submissions are invited on the following issue:

Whether the Administrative Law Judge committed reversible error.

We answer the question raised in the direction for review in the negative and affirm the Judge’s decision for reasons that follow.[1]

In item A of the serious citation, it was alleged that an employee of respondent was exposed to an electrical hazard in violation of the safety standard that appears at 29 C.F.R. § 1926.400(a) because one prong of the plug for the cable supplying power to an electric welder was exposed. The prong was exposed because the receptacle for the plug had been cracked or broken. The hazards allegedly created by this condition were the risk of physical contact with the exposed prong while energizing or deenergizing the welder and accidental contact when the line was energized.

Section 1926.400(a) requires that electrical work be done in accordance with the pertinent provisions of the National Electrical Code, NFPA 70 1971. The citation specifically charged that the use of the broken receptacle with the resulting exposed prong was not in accordance with Article 400 1, NFPA 70 1971.[2] Article 400 1 thereof provides:

‘Flexible cords and cables and their associated fitting shall be suitable for the conditions of use and location.’

The facts relevant to this alleged violation are as follows. The break in the receptacle was discovered by two journeymen electricians who used the welder on the day before the inspection. When they discovered the break, they taped the receptacle and ordered a replacement. The replacement was received the day after the inspection. Until the replacement was received, the electricians, both of whom knew of this condition, continued to use the welder. Their regular practice was to deenergize the circuit, irrespective of the condition of the receptacle, prior to engaging the plug. They followed this procedure as a safety precaution against a possible faulty switch on the welder. Together, the electricians who used the welder had a total of 45 years’ experience in electrical construction. The welder was being used in an isolated area of the construction site and there was no evidence that any other employees used or would have reason to use the welder.

In his decision, Judge Brenton noted that use of a broken receptacle does not in and of itself establish a violation since Article 400 1, NFPA 70 1971, does not prohibit the use of a broken receptacle per se. The showing that must be made to establish a violation of this standard, he ruled, is that the use of a particular cable or fitting subjects an employee to the chance of injury because of the place where it is used and because of the conditions surrounding its use. He then concluded that this showing had not been made because the receptacle was used for less than two days by experienced electricians, both of whom knew of the condition and took the precaution of deenergizing the circuit before engaging the plug.

Considering the experience of the employees using the welder, their awareness of the condition and the precautions they took, and the short time that elapsed before the condition was corrected, we find that the complainant failed to establish, as required by Article 400 1, that the use of the broken receptacle was not ‘suitable for the conditions of use and location.’ The fact that injury could potentially result if an employee grasped an exposed prong when the circuit was energized does not, as complainant argues, establish a violation of the standard. Rather, the totality of the circumstances surrounding the use of the receptacle must be examined to determine if its use was suitable.

In order to establish a violation of a broadly worded regulation such as this, the complainant must establish by a preponderance of the evidence that ‘a reasonably prudent man familiar with the circumstances of the industry would have protected against the hazard.’ Cape and Vineyard Division of the New Bedford Gas and Edison Light Company v. OSAHRC, 512 F.2d 1148, 1152 (1st Cir. 1975). Not only has the complainant failed to do that in this case but, for the aforementioned reasons, the weight of the evidence is to the contrary.

Furthermore, we note another deficiency in the complainant’s proof. Although there was testimony that exposed plugs in general presented a hazard, there is no evidence establishing that this particular connection, with only one plug partially exposed, presented a hazard of electrical shock.

Item B of the serious citation involved failure to cover or elevate the electrical cable used to supply power to the welder. This condition allegedly contravened 29 C.F.R. § 1926.400(a),[3] the standard which as noted above, directs compliance with the provisions of NFPA 70 1971. The code provision specifically referred to in the complaint is Article 305 2(c) which in pertinent part states that ‘[n]o conductor shall be laid on the floor.’ The hazard this standard seeks to prevent is cutting the wire insulation by stepping on it and, thereby, creating the risk of physical contact with a hot wire.

The circumstances surrounding this alleged violation are as follows. On the morning of the inspection, the two electricians were in the process of moving the welder from one location to another. This task was interrupted because one of the electricians was designated to join the party that accompanied complainant’s inspector during the inspection of the worksite. When the inspection party reached the location to which the welder had been moved, they found a portion of the welder cable lying on a catwalk. The electrician who did not participate in the inspection was not in this location when the inspection party arrived in the area. He testified that he had strayed away to get a drink of water and a tieboard, the latter for the purpose of fastening the cable to the ceiling before he began to work with the welder. When he returned, he found the inspecting party on the catwalk.

There was testimony that respondent had instructed its employees to keep cables elevated and that the electricians using the welder, in accordance with company policy, had previously adhered to this practice. Thus, the cable had been tied up in the location from which the welder had been moved on the morning of the inspection.

The Judge vacated this citation on several grounds, one of which was complainant’s failure to establish by a preponderance of the evidence that respondent knew or should have known that the condition existed. In this connection, he concluded that the failure to elevate the cable was contrary to respondent’s instructions and the prior practice of its electricians.

We agree with the Judge’s conclusion and find that the respondent could not reasonably have been expected to foresee such aberrant behavior by its greatly experienced electricians. It is now well-settled that a serious or nonserious violation cannot be affirmed unless the complainant establishes that the respondent knew or, with the exercise of reasonable diligence, should have known of the conditions or practices upon which the alleged violation is based. HornePlumbing and Heating Co. v. OSAHRC, No. 74 3897 (5th Cir., February 26, 1976); Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Co., 511 F.2d 1139 (9th Cir. 1975); Secretary v. Engineers Construction, Incorporated, 20 OSAHRC 348 (1975).

In item 1 of the nonserious citation, respondent was charged with noncompliance with 29 C.F.R. § 1926.400(a) in that the wire terminations cover for the attachment plug of an electrical pipe bender was missing contrary to the provisions of Article 410 52(d), NFPA 70 1971.

The evidence that the cover was missing was unrebutted. The hazard posed by lack of a cover was that an employee could be injured by an electrical flash if the wires of the plug short circuited while the machine was being plugged or unplugged. The Judge affirmed the violation but vacated the proposed penalty because he found that the gravity of the violation was low. We agree and, accordingly, affirm.

Item 2 of the nonserious citation averred that a ladder which came up through a floor hole from one floor to another did not extend 36 inches above the landing as required by 29 C.F.R. § 1926.450(a)(9), which provides that:

‘The side rails [of ladders] shall extend not less than 36 inches above the landing. When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed.’

The floor hole through which the ladder passed was completely enclosed by a fixed standard railing that consisted of a midrail about 21 inches high and a top rail about 42 inches high.

The Judge held that a violation of the standard was not established because the guardrail made it impractical to extend the side rails of the ladder 36 inches above the landing. He found in addition that the rails of the guardrail provided a secure grip enabling an employee to safely move to or from the access point of the ladder.

Complainant does not dispute the Judge’s finding that it was not practical to extend the ladder the required 36 inches. Complainant argues, however, that the Judge’s conclusion that the guardrails made it possible for an employee to safely move to and from the ladder is not supported by the record. He contends that the motions an employee would have to make because of the guardrails to go to and from the access point of the ladder would increase the likelihood of a fall.

The difficulty with complainant’s position, however, is that he has not established that the configuration at the landing was a violation of the standard respondent was charged with violating. The installation of grab rails, as urged by complainant, would not remedy the hazard presented because an employee would still have to bend down to go through the guardrail. Removal of the guardrails has not been suggested, apparently because it would be violative of another regulation. See 29 C.F.R. § 1926.500(b). Moreover, the purpose of the grab rail is to provide a means to pull oneself above a landing, and as the complainant’s inspector testified, the midrail would serve that purpose as well as a grab rail. Accordingly, the Judge’s vacation of item 2 was proper.

It may well be that the hazard at the landing was a violation of some standard. It was not, however, a violation of the standard respondent was charged with violating. Since complainant has not sought to amend the citation to allege a violation of a different standard nor argued that any other standard was violated, amendment of the citation is not permissible. See Secretary v. Marquette Cement Manufacturing Company, OSAHRC Docket No. 4725, January 27, 1976, and the authorities cited therein.

For the foregoing reasons, the Judge’s decision is affirmed.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

BY: Gloria W. White

Acting Executive Secretary

DATED: APR 22, 1977

BARNAKO, Chairman, concurring:

I concur in affirming the Judge’s decision and agree generally with the reasons stated by Commissioner Moran.[4] I would add, however, the following comments.

Concerning the welder cable, Respondent instructed its electricians to elevate cables, and one of the electricians was in the process of obtaining the equipment necessary to comply with this instruction. Thus, rather than being ‘aberrant’, the employee’s behavior conformed to the instructions he was given. Nevertheless, the standard absolutely proscribes cables being laid on the floor, and there was technically noncompliance. Because of the brevity of the condition, however, and the fact that steps were being taken to comply, I agree that Respondent did not and could not, with reasonable diligence, have known of the violation. The citation is therefore properly vacated. Green Const. Co. and Massman Const. Co., 76 OSAHRC 134/D9, 4 OSHC 1808, 1976 77 OSHD para. 21,235 (1976).

I agree that the standard railing surrounding the floor opening served as an adequate grab rail, and that Respondent therefore did not violate 29 C.F.R. 1926.450(a)(9). The Secretary’s concern is that, in order to reach the landing from the ladder, an employee would be required to either go through or over the railing and might fall in attempting to do so. That hazard, however, is not encompassed within the cited standard. The Secretary has not moved to amend the citation, nor was a violation of a different standard tried by consent. Compare Kaiser Aluminum and Chemical Corp., 76 OSAHRC 52/C10, 4 OSHC 1162, 1975 76 OSHD para. 20,675 (1976). I therefore concur in vacating this item.

Finally, I do not agree that our method of handling this case differs from prior comparable cases, as Commissioner Moran states in footnote 1. The cases he cites are those in which the direction for review assertedly was issued solely for the purpose of assuring publication of the Judge’s decision. These directions for review were vacated because they were unrelated to any controversy between the parties, and therefore were outside the authority granted to the Commission members to direct review of a case for adjudicatory purposes. In those cases in which the direction for review is, on its face, issued for adjudicatory purposes but states no specific issue to be decided, our prior uniform practice has been to decide those issues for which a party has requested reversal or modification of the judge’s decision. See e. g. United States Steel Corp., No. 2975, 4 OSHC 2001, 1976 77 OSHD para. 21,463 (Jan 17, 1977); Rollins Outdoor Advertising Corp., No. 6954, 4 OSHC 1861, 1976 77 OSHD para. 21,311 (1976) (Barnako, Chairman, concurring). In this case, the Secretary filed a brief in response to the direction for review, taking exception to the judge’s disposition of the serious citation and item 2 of the nonserious citation.[5] Accordingly, consistent with our usual practice, we decide the issues raised by the Secretary.

CLEARY, Commissioner, CONCURRING IN PART AND DISSENTING IN PART:

I agree with the vacating of item 2 of the citation for ‘nonserious’ violation of 29 CFR § 1926.450(a)(9) for the reasons stated by the Chairman. I disagree with the action of the majority in vacating items A and B of the citation for ‘serious’ violation.[6]

Serious Item A

The photographic evidence submitted by complainant concerning this item clearly establishes that the prong inserted into the broken receptacle was exposed, visible and accessible to physical contact. Two of respondent’s employees were exposed to the violative condition. I disagree with the conclusion of the majority that the exposed prong did not present a hazard of electrical shock.

The majority accords great weight to the fact that the two employees exposed to the hazard were experienced electricians, and consequently concludes that the use of the broken receptacle was ‘suitable for the conditions of use and location.’ Apparently, the majority would allow employees to be exposed to the hazard as long as the employees are experienced and have knowledge of the safety violation. This rationale ignores the purpose of the Act which is to prevent injuries to employees.[7] See Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864, 870 (10th Cir. 1975); Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974).

The OSHA compliance officer and the area director testified that the exposed prong was not ‘suitable for the conditions of use and location’ because of the possible electrical shock which could occur if an employee were to inadvertently make contact with the prong. Persuasive evidence was adduced from these witnesses showing that serious injury or death could result from contact with the exposed prong. Respondent’s expert witness, relied upon by the Judge, was not employed in the construction field and his practical training was limited to work as a research assistant with electrical gas discharges.[8]

The reliance of the majority on Cape and Vineyard Division of the New Bedford Gas and Edison Light Co. v. O.S.H.R.C., 512 F.2d 1148 (1st Cir. 1975) is misplaced. We are not dealing with industry customs and practice nor with whether a reasonably prudent person would have been protected against the hazard. Rather, we are concerned with whether the cords, cables and associated fittings were ‘suitable for the conditions of use and location’ as required by the applicable NFPA standard.[9] The Secretary’s witnesses established that the exposed prong and receptacle were both unsuitable and hazardous. The Secretary has sustained his burden of proof and the violation should be affirmed.

Serious Item B

The majority errs in vacating the citation for ‘serious’ violation of 29 CFR § 1926.400(a) involving the failure to cover or elevate the cable used to supply power to the welder. As correctly stated in the majority opinion, the pertinent part of the standard states that ‘(n)o conductor shall be laid on the floor.’ The requirements of the standard are clear. Respondent was in violation because the triplex cable in question was lying on a catwalk with sharp edges, exposing respondent’s employees to the possibility of electrical shock which was likely to cause serious injury or death.

The lead opinion vacates the citation on the ground that the Secretary did not prove that respondent had knowledge of the violation. The concurring opinion suggests that, although there was a breach of the standard, it is to be excused in this case because the hazardous condition was brief in duration and it was not proved by the Secretary that respondent had knowledge of the condition.

In my view, knowledge is not an element of the Secretary’s proof in this case because the case presents an appropriate circumstance for the assertion of an ‘isolated occurrence’ defense by respondent employer. The defense is affirmative, and is a corollary to the rule that an employer has a duty to accomplish what is preventable in the way of job safety and health and of proving what is unpreventable in avoidance of that duty. See National Realty & Construction Co. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973). In showing that the triplex wire was laid on the floor, the Secretary established a prima facie case of violation of the standard. Respondent was then free to establish an ‘isolated occurrence’ defense by proving that the actions constituting noncompliance were: (a) unknown to the employer and (b) contrary to both the employer’s instructions and a company work rule that has been uniformly enforced. B-G Maintenance Management, Inc., 4 BNA OSHC 1282, 1976 77 CCH OSHD para. 20,744 (No. 4713, 1976); Floyd S. Pike Electrical Contractors, Inc. (February 25, 1977).[10]

In this case respondent presented evidence that instructions were given to its employees to tie up the triplex cable. The compliance officer, however, testified that one other area of respondent’s worksite did not have electrical cable properly elevated to avoid injuries.[11] The testimony of the compliance officer, in addition to the testimony of respondent’s employee that the use of unsafe equipment is taken for granted,[12] points to a conclusion that respondent’s safety program was inadequate. As such, the ‘isolated occurrence’ defense has not been established. Inasmuch as the Secretary has made out a prima facie case, the citation should be affirmed.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 4654
FISK-OESCO JOINT VENTURE,
Respondent.

FINAL ORDER DATE: May 31, 1974

DECISION AND ORDER

APPEARANCES:

Arnold Battise, Esquire, of Dallas, Texas, for the Secretary of Labor.

John Harrington, Esquire, of Oklahoma City, Oklahoma, for the Respondent.

STATEMENT OF THE CASE

Brenton, Judge, OSAHRC.

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act.

The Citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at 700 Northeast 12th Street, Oklahoma City, Oklahoma, and described as follows: ‘Electrical Contractor’, the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain Occupational Safety and Health Standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation, which was issued on August 14, 1973, alleges that the violation results from a failure to comply with standards promulgated by the Secretary by publication in the Federal Register on December 16, 1972, (Volume 37, F.R. 243), and codified in 29 CFR Part 1926 as adopted by 29 CFR 1910.12.

The description of the alleged violations contained on said Citation states:

Item A 29 CFR 1926.400(a) Electrical work was not in accordance with National Electrical Code 400–1; i.e., electrical plug on the cable supplying power to the Liquid Air portable electric welder at the 1st floor interstitial B7 section was cracked and/or broken. One prong on the welder plug was exposed.

Item B 29 CFR 1926.402(a)(8) Electrical cable passing through work areas was not covered or elevated to protect it from damage which would create a hazard to employees; i.e., cable used to supply power to Liquid Air electrical welder at the 1st floor interstitial B7 section was laid on sharp and/or rough edge walking surface.

Employee was exposed to electrical hazards when he worked using a cracked and/or broken plug on a power cable and that power cable was laid on the sharp and/or rough edge walking surface that could damage the insulation of the power cable. Therefore, two standards were allegedly violated which combined constitute a serious violation.’

Item 1 29 CFR 1926.400(a) The attachment plug on the electrical pipe bender, SN 21, was not in accordance with National Electrical Code 410–52(d); i.e., the wire terminations cover was missing.

Item 2 29 CFR 1926.450(a)(9) The access ladder used in the utilities area of section ‘A’, 1st floor, did not extend 36 inches above the landing.

The standards as promulgated by the Secretary provide as follows:

Rules and Regulations for Construction

Subpart K—Electrical:

Item A. ‘Section 1926.400 General requirements.

Item B. ‘Section 1926.402 Equipment installation and maintenance.

(a) Flexible cable and cords. (8) Cable passing through work areas shall be covered or elevated to protect it from damage which would create a hazard to employees.’

(Item B as amended at the hearing—Article 305—National Electric Code—Temporary Wiring—305–2. General. (c) Branch Circuits. All branch circuits shall originate in an approved distribution cabinet or panel board. Conductors may be contained in multi-conductor, cord, or cable assemblies or as open wiring. All conductors shall be protected by over-current devices at their rated ampacity. When run as open conductors they shall be fastened at ceiling height every 10 feet. No conductor shall be laid on the floor. Each branch circuit which supplies receptacles or fixed equipment shall contain a separate equipment grounding conductor when run as open wiring.)

Item 1. Section 1926.400 General requirements

(a) All electrical work, installation, and wire capacities shall be in accordance with the pertinent provisions of the National Electrical Code, NFPA 70–1971; ANSI C1–1971 (Rev. C1–1968), unless otherwise provided by regulations of this part.’ (Article 400—National Electrical Code—K. Receptacles, cord, connectors, and attachment plugs (Caps). 410–52. Rating and Type. (d) All 15- and 20- ampere attachment plugs and connectors shall be so constructed that there are no exposed current-carrying parts except the prongs, blades or pins. The cover for wire terminations shall be mechanically secured, or an integral part of the attachment plug or connector.)

Item 2. Section 1926.450 Ladders.

(a) General requirements. (9) The side rails shall extend not less than 36 inches above the landing. When this is not practical, grab rails, which provide a secure grip for an employee moving to or from the point of access, shall be installed.’

Pursuant to the enforcement procedures set forth in Section 10(a) of the Act, Respondent was notified by letter dated August 29, 1973, from J. T. Knorpp, Area Director of the Oklahoma Area, Occupational Safety and Health Administration, U.S. Department of Labor, proposed to assess penalties for the violations alleged in the amount of $600; i.e. $550 for the alleged serious violations under the combined items of A and B and $25 each for items 1 and 2 of the Citation.

After Respondent contested this enforcement action, and a Complaint and an Answer had been filed by the parties, the case came on for hearing at Oklahoma City, Oklahoma, on January 9, 1974.

INTRODUCTORY

Upon the initiation of this hearing Respondent moved to amend its Answer to include therein a specific denial to the averments contained in paragraph VI of the Complaint which motion was thereupon granted and the Answer thereby amended accordingly.

Further, paragraph IV(b) of the Complaint departed from 29 CFR 1926.402(a)(8), the Standard cited in the Citation and to which the Notice of Contest was directed, and alleged violation of 29 CFR 1926.400(a) referencing specifically the violation of the National Electrical Code at 305–2(c) which provides as follows:

Branch Circuits. All branch circuits shall originate in an approved distribution cabinet or panelboard. Conductors may be contained within multi-conductor cord or cable assemblies or as open wiring. All conductors shall be protected by overcurrent devices at their rated ampacity. When run as open conductors they shall be fastened at ceiling height every 10 feet. No conductor shall be laid on the floor. Each branch circuit which supplies receptacles or fixed equipment shall contain a separate equipment grounding conductor when run as open wiring.

Respondent’s Answer denies the foregoing allegation of the Complaint without objection to the departure. It is observed that the charge in the Complaint is in part in the words of the standard cited in the Citation rather than the words of the N.E.C. as cited in the Complaint. In any event it appears that the change in the standard alleged to have been violated neither narrows nor expands the issue presented and Respondent has not suffered any prejudice as no new or different violation was asserted by the Complaint.

FINDINGS OF FACT

Upon the record, as a whole, the facts and rational inferences to be drawn therefrom, upon which a determination of the issues may be predicated, are hereby delineated as follows:

1. Respondent admits that in the conduct of its business, it engages in interstate commerce thereby precluding jurisdiction as an issue.

2. Respondent is an electrical contractor and as such it was engaged in electrical circuit installation in the construction of the Presbyterian Hospital in Oklahoma City, Oklahoma, on August 14, 1973, engaging forty-one (41) employees on the project.

3. During the inspection of Respondent’s work places electrical flexible cables and their respective fitting were discernable as follows:

(a) The receptacle attached to an electric welder was cracked but taped, and the extension cable, termed triplex (Exh. C–3), was plugged into this receptacle exposing one prong or blade as it is sometimes described.

(b) A portion of this extension cable was resting on rough edges of a metal catwalk.

4. The hazard attributable to 3(a) is the risk of physical contact with the exposed prong while energizing or deenergizing the welder and/or accidental contact when the line is energized.

5. The hazard attributable to 3(b) is, that while working in and about such a condition, the chance of cutting or breaking the insulation by physically stepping on the cable or by other physical means to such an extent that it in turn may result in bodily contact with electrical energy.

6. The hazard attributable to 3(c) is the chance of a flash type electrical bodily contact upon plugging or unplugging the plug into a receptacle if at the same time the wires of the plug short circuited.

7. The side rails of a ladder used as a means of ingress and egress to a lower level extended less than thirty-six (36) inches above the landing. The landing was at the edge of a floor hole through which the ladder protruded. The floor hole was guarded by a fixed standard railing.

8. The three (3) rails on the railing were used as grab rails to and from the point of access to the ladder by one to three of Respondent’s employees.

9. W. W. Real, a journeyman electrician for twenty-eight (28) years and Larry Brannon for seventeen (17) were the only employees that were exposed to the welder and its cable connections.

10. Real was assigned to and accompanied the inspecting party totaling eight persons at the time he and Brannon were in the process of moving the welder and attachments from one area of work to the next succeeding area.

11. At the time the event in 11 occurred these two electricians had succeeded in moving the equipment to the new location, the welder and a portion of the cable in a rolled condition, then resting on the catwalk, at which time Brannon strayed away to get a drink of water and tieboard, the latter for the purpose of fastening the cable to the ceiling.

12. Upon Brannon’s return he found the inspecting party upon the catwalk in and about the place that was about to become the new work area and thereupon observed Bobby L. Henry, Safety Director for the general contractor and a member of the inspecting party, step on the cable at which time there was a flash of light. There was no shock nor injury to Henry. This incident resulted in a burn to the underside of the insulation of the cable the size of a pinhole and did not trip the circuit breaker.

13. Real and Brannon had specific instructions to tie up all branch circuits to the ceiling as they progressed and performed their work. This they had done throughout the entire course of their work. The safety director on the project had never seen the cable resting on the catwalk or any floor prior to this inspection.

14. But for the inspection the cable would have been tied up to the ceiling and in fact was so tied before either Brannon or Real proceeded with their work within the area in question.

15. The breakage to the receptacle was discovered by Brannon and Real the day before the inspection at which time a replacement was ordered, however, they taped it and continued to use it in that condition until they installed the replacement received soon after the inspection.

16. Regular practice and procedure was to deenergize the circuit, irrespective of the condition of the receptacle, prior to engaging the plug, as a safety precaution against a possible faulty switch on the welder.

17. The Secretary’s Compliance Officer and Area Director considered the hazards to be encountered as set forth in Findings of Fact 4 and 5 as representing a high probability that serious physical harm or death could ensue. Whereas Respondent’s journeymen electricians, with 45 years combined experience, together with Dr. Klaus Rossberg, a qualified and experienced physicist, considered that the likelihood thereof was miniscule, if at all.

18. Exposure to the hazard related in Findings of Fact numbered 6 occurred prior to inspection involving one or more of Respondent’s employees.

19. There is no evidence that Respondent knew that the cable was resting on the catwalk under any conditions. Nor that it had knowledge that Brannon and Real worked with an energizied cable one prong of which was exposed for any period of time.

ISSUES

Has there been a serious violation as charged within the concept of the provisions of Section 17(k) of the Act.

What considerations does the phrase ‘shall be suitable for the conditions of use and location’ as contained in Article 400–1 of the N.E.C. impose in the determination of an alleged violation of that standard.

If charges A and B of the Citation or either of them are serious violations could Respondent have known the presence of such violation by the exercise of reasonable diligence.

Is the penalty of $25.00 proposed to be assessed for the violation of 410–52(d) of the N.E.C. appropriate.

Was it impractical to extend the side rails of the ladder not less than 36 inches above the landing.

Did the rails of the standard railing at the floor hole provide a secure grip for an employee moving to or from the point of access to the ladder.

The totality of the evidence fails to show a violation of Article 305–2(c). The standard does say ‘no conductor shall be laid on the floor.’ As applied to occupational safety this means it shall not be laid on the floor under circumstances that could creat a hazard to employees, and this is the precise allegation in the Secretary’s Complaint, that is, failure to elevate left it on rough edge walking surface in a workplace. Here the cable was in the process of being moved from an area that had been worked to an area to be worked at the time of the inspection. The preponderance of the evidence established the fact that no work of any kind had been performed in the area to be worked except, in moving the equipment forward, the two employees in so doing, naturally caused the equipment to come to rest in the area. This process did not place any of it in position for the performance of any job task. The very next procedure was to tie the cable to the ceiling.

Arguably, perhaps, a work area was created upon each step of the move, however, it is apparent that the cable was rolled up and carried forward upon removing it from the ceiling. Further, arguably, Brannon and Real could have hung or curled the cable over and about the welder which would have prevented the safety director from having an occasion to step on it. But that is not the question relating to the alleged violation. The question is: did the condition, created by Brannon and/or Real, exist in a place of employment, and, if so, was there a substantial probability that death or serious physical harm could result therefrom, which condition was either known or could have been known by the employer with the exercise of reasonable diligence.

The rational answer, from all the facts and circumstances, is that no work was performed in the area of the cable where it rested on the catwalk nor was there any intention so to do until after it was fastened to the ceiling. Moreover, even though the facts and circumstances may arguably be considered the performance of work by Brannon and/or Real in the area of the cable on the catwalk, there has been a complete failure to show that there was a substantial probability that death or serious physical harm could result therefrom. Further, assuming there was such a showing, there is not a scintilla of evidence that Respondent knew that the condition existed nor that it could have known with the exercise of reasonable diligence. If they went about their tasks under such a condition the Respondent could not be expected to anticipate it as it would have been unwarranted as being contrary to instructions and to all previous practices and processes performed by them. In the fact situation here, assuming a serious violation, it would have required one on one supervision which the Act does not mandate in exercising reasonable diligence.

The Secretary has failed to make a case for any kind of violation of the cited Standard, 29 CFR 1926.402(a)(8), or the alleged Standard, Article 305–2(c) as referenced by 29 CFR 1926.400(a). This item B of the Citation should be vacated.

By the evidence adduced under the allegation of Item A of the Citation the Secretary has avered that the broken receptacle on the cable supplying current to the welder was an associated fitting unsuitable for the conditions of its use at the place where it was used, and that such is a serious violation either alone or in combination with the averment of Item B of the Citation.

This poses an examination into the meaning of the phrase ‘for the conditions of use and location.’ Obviously the Standard is couched in general terms. So what does it prohibit. It certainly does not prohibit the use of a broken receptacle in specific terms nor does it prohibit the use of any associated fitting per To make a case for a violation of Article 400–1 N.E.C. there must be a showing, under the peculiar facts and circumstances of a given case, that the use of a particular fitting subjects an employee to the chance of injury because of the place where it is used and because of the conditions surrounding its use.

Here the broken receptacle was used in an isolated area by two journeyman electricians, with a total of 45 years’ experience in electrical construction, for less than two days. Upon discovering its condition it was taped and a replacement ordered. Each electrician knew the existing condition. When it was necessary to engage the plug with the receptacle, which was seldom, the circuit was deenergized regardless of its condition. Each was an expert in harnessing electricity. The blade or prong, when engaged in this receptacle, then, was the sole exposure upon energizing the circuit. The sole function of the receptacle was to conduct energy to the welder. There was adequate lighting and the two electricians were comfortable in an erect position.

Query: At this location and under these very limited conditions of use was there a risk of contact with this exposed prong when the circuit was energized, and, if so, what is the consequence? According to the evidence one of the experienced electricians would have to take hold of the exposed fitting with a bare portion of skin and hang on to sustain an electrical shock or burn of any consequence. Touching alone would produce nothing but a reflex sensation.

The evidence just fails to show that there was even a remote chance that either Brannon or Real could make contact with bare skin to the extent that any injury, however slight, would ensue. Thusly, the apparent conclusion is inescapable in the instant case, that the associated fitting of the cable was suitable for the conditions of use and location.

Finally, there being no evidence to support a finding of a substantial probability that death or serious physical harm could result from this existing condition, within this place of employment, either singly or combined as alleged, a discussion of whether Respondent should have known with the exercise of reasonable diligence of this existing condition serves no useful purpose.

Item A of the Citation should be vacated.

III

A finding that the cover for wire terminations on the attachment plug of the pipebender was absent, and that there had been exposure at some time to one or more of the workmen, imposes liability upon the employer for a violation of Item 1 of the Citation.

The proposed penalty here is $25.00, however, the Secretary failed to prove its appropriateness. Nevertheless, the evidence does establish that the degree of probability of any injury occurring is extremely low. Additionally it does not show the number of employees, except one or more, exposed, but it does show that if exposure ensued, upon plugging or unplugging the attachment, that its duration would be only a flash of a second.

Concluding, therefore, that the gravity of this violation is exceedingly low, the penalty proposed to be assessed will serve no useful purpose as contemplated by the Act. Consequently it is inappropriate and should be vacated.

Because the floor hole was protected by a standard railing it was impractical to extend the side rails of the ladder 36 inches above the landing. Furthermore the rails of the standard railing provided a secure grip enabling an employee to safely move to or from the access point of the ladder.

The facts related to the alleged violation at Item 2 of the Citation show that the employer was not engaging in a practice prohibited by the Standard, 29 CFR 1926.450(a)(9). Accordingly Item 2 of the Citation and its corresponding proposed penalty should be vacated.

CONCLUSIONS OF LAW

1. The Act imposes upon the Secretary a heavy burden in proving up a serious violation.

2. Where two Standards are combined alleging a serious violation there must be a showing of a violation of at least one of them in addition to a showing that it is a Section 17(k) violation to make a case.

3. Where the evidence is rather conclusive that the gravity of a violation is remote the penalty is inappropriate, especially when the factors of good faith, size of the business, and history of previous violations are apparently favorable.

4. An employer who provides a standard railing around a floor hole in accordance with law rendering it impractical to extend a ladder within that hole 36 inches above the landing is not accountable to 29 CFR 1926. 450(a)(9) inasmuch as the rails act as grab rails providing a secure grip for movement to and from the access point.

ORDER

Wherefore it is Ordered and Adjudged:

1. That Items A and B of the Citation together with the penalty proposed to be assessed therefor be and they are hereby vacated.

2. That Item 1 of the Citation be and it is hereby affirmed.

3. That the penalty proposed to be assessed for Item 1 of the Citation be and it is hereby vacated.

4. That Item 2 of the Citation and the penalty proposed to be assessed therefor be and they are hereby vacated.

It is so ordered at Dallas, Texas.

J. PAUL BRENTON

OSHRC Judge

Dated: May 1, 1974

[1] In the past, sua sponte directions for review which list no ‘specific issue’ have been vacated without any discussion of the merits of the issues in dispute, findings of fact, or disposition of the Judge’s decision upon which review was directed. See, for example, Secretary v. Francisco Tower Service, OSAHRC Docket No. 4845, February 6, 1976; Secretary v. Mohawk Excavating, Incorporated, OSAHRC Docket No. 8845, February 17, 1976; Secretary v. Desarrollos Metropolitanos, Inc., OSAHRC Docket No. 11884, February 17, 1976; and Secretary v. Texaco, Incorporated, OSAHRC Docket No. 11903, February 17, 1976. This decision represents a beneficial departure from that practice.

[2] The citation alleged that this condition was contrary to the requirements of section 1926.402(a)(8). The complaint amended the standard allegedly violated to 29 C.F.R. § 1926.400(a). The Judge allowed this amendment because it was not objected to by respondent, did not significantly change the issue presented, and did not prejudice respondent.

[3] The citation alleged that this condition was contrary to the requirements of section 1926.402(a)(8). The complaint amended the standard allegedly violated to 29 C.F.R. § 1926.400(a). The Judge allowed this amendment because it was not objected to by respondent, did not significantly change the issue presented, and did not prejudice respondent.

[4] I do not agree to the attachment of the Judge’s decision.

[5] Commissioner Moran also discusses item 1 of the nonserious citation. Neither party has taken exception to the Judge’s disposition of that item. Accordingly, no issue concerning that item is before us, and I do not join in Commissioner Moran’s discussion of it.

[6] Inasmuch as neither party has taken exception to the Judge’s disposition of the citation for ‘nonserious’ violation of 29 CFR § 1926.400(a) relating to a missing wire termination cover on an attachment plug, that item is not before us and I do not join in Commissioner Moran’s discussion of that item.

[7] The experience of employees does not negate the existence of a hazard. Through carelessness or inadvertence, employees, no matter how experienced, may be injured. See Great Atlantic & Pacific Tea Co., Inc., 4 BNA OSHC 1025, 1028, 1975 76 CCH OSHD para. 20,543 (1976). One of respondent’s employees testified that ‘. . . we take it for granted that we have to use some things that is not (sic) safe right at the time for the simple reason that a contractor has to make a profit, too.’ This statement is evidence of respondent’s lax safety program and the resulting predictable attitude of one of its employees.

[8] I accord little weight to the testimony of respondent’s ‘expert’ witness, whose opinion was based on an article, which he had ‘picked up recently,’ entitled ‘Electricity in Hospitals.’ His opinion that a 110 volt hazard is not serious is directly contrary to the area director’s testimony that ‘most of the fatalities (from electrical shocks) are within the 110, 220 range.’

[9] To the extent that the majority uses a ‘reasonably prudent employer’ test in light of industry customs and practices as a condition precedent to the finding of a hazardous condition, I disagree. If a hazard is obvious, as in this case, it is unnecessary to resort to such a test. B & B Insulation Co., No. 9985 (April 11, 1977) (Cleary, concurring, slip op. p. 13). Under Chairman Barnako’s own theory ‘. . . when a compliance officer observes a violation in the course of a routine inspection, the fact that the violation is visible and occurs on a worksite that is under the employer’s control is sufficient to give rise to a presumption (of employer knowledge of the hazard).’ Green Construction Co. and Massman Construction Co., 4 BNA OSHC 1808, 1810, 1976 77 CCH OSHD para. 21,235 (No. 5356, 1976).

[10] The majority opinion in Green Construction Co. and Massman Construction Co., supra, cited in the concurring opinion, applies to an employer’s lack of knowledge of hazards which are not readily detectable. E. J. Albrecht Co. (Cleary, dissenting) (March 8, 1977). The hazard involved in this case was not hidden, but obvious, and this case does not fall within the facts presented in Green and Massman.

[11] Respondent was not cited in this instance because no employees were working in the area.