HOWARD P. FOLEY COMPANY

OSHRC Docket No. 13244

Occupational Safety and Health Review Commission

May 23, 1977

  [*1]  

Before BARNAKO, Chairman; CLEARY, Commissioner.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Reg. Sol., USDOL

Ira J. Smotherman, Jr., for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

The issue in this case is whether Judge Paul L. Brady erred in vacating a citation alleging a serious violation of 29 C.F.R. 1926.400(c)(1) and (g)(1) n1 on the ground that Respondent adequately instructed and supervised its employees regarding safety procedures.   We affirm the Judge's decision.

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n1 Section 1926.400(c)(1) provides, in pertinent part:

No employer shall permit an employee to work in such proximity to any part of an electric power circuit that he may contact the same in the course of his work unless the employee is protected against electric shock by deenergizing the circuit and grounding it or by guarding it by effective insulation or other means. . . .

Section 1926.400(g)(1) provides:

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

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The citation was issed following the investigation of a fatal accident at Respondent's worksite.   The deceased, George Drew, was a highly capable and experienced journeyman electrician. He was engaged in installing 277 volt exit light fixtures in a building under construction.   After completing the installations on the second floor, he began work on the first floor.   His supervisor, Gary Miller, observed him installing a fixture at the southeast exit, and instructed him to next install a fixture in the adjoining stairwell.   Approximately 15 minutes later, Drew was electrocuted while attempting to install the second fixture.

An investigation of the accident revealed that the circuit breaker shown on the wiring diagram as controlling the circuit to the second fixture was disconnected.   This should have resulted in the circuit being deenergized. Due to an error in splicing at the junction box, however, the circuit was in fact energized. At the time of the accident, Drew had a pocket current tester with him.   The tester was in proper working condition, and the fact that the line was energized could have been determined [*3]   by using the tester.

The circuit breaker which ostensibly controlled the circuit on which Drew was working at the time of the accident was located in the power equipment room.   The door to the room was locked, and several persons at the site in addition to Drew had keys.   A tag warning against energizing the circuit was not placed on the circuit breaker.

Miller testified that it was Respondent's policy, with limited exceptions, to only work on circuits which had been deenergized. When the stage of a job was reached in which circuits might be energized, n2 each circuit was considered to be energized unless determined otherwise, and each electrician was required to use a pocket tester to determine whether a circuit on which he was working was in fact energized. A circuit found to be energized had to be deenergized before further work was done unless it was absolutely necessary to work on the circuit while energized. In the latter case, special precautions, including the obtaining of permission and the use of insulating equipment, were taken.   Miller testified that he periodically checked to determine whether the testers were used, and that he had never observed an employee without [*4]   a tester when the employee should have had one.   He stated that, if he had observed such a condition, he would have warned the employee the first time, and discharged him for a subsequent violation.   On one prior occasion, Miller had discharged an employee for refusing to comply with a safety rule.

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n2 Miller stated that testing was not required in operations such as pulling wires through conduit prior to the time that the wires are connected to a power source.   In general, employees were not required to carry and use testers "in the stage of a job where we didn't even have any potential voltage that could be applied to these wires."

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Miller also testified it was Respondent's policy that all deenergized circuits should be tagged.   Tags were available at the site, and Drew and all other electricians knew where they were kept.   Miller periodically checked to assure that the tags were used.

Each employee of Respondent was issued a safety manual upon starting work.   The supervisor on each jobsite was given a safety packet [*5]   containing OSHA information and other safety material.   Weekly safety meetings were held.   Employees, including Miller and Drew, attended safety seminars and classes conducted by both Respondent and OSHA.

Respondent's safety supervisor, E. Stewart Justice, testified that he visited Respondent's jobsites to inspect for safety violations.   Although he found some violations on sites where Miller was foreman, the violations were not serious and he felt that Miller was effectively implementing Respondent's safety program.   He also testified that Respondent maintained a computer printout of all accidents which had occurred in the prior ten years.   When an employee's name regularly appeared on the list, his supervisor was instructed to pay special attention to that employee to determine whether he was deviating from safety rules.

It is undisputed that Drew's failure to check the circuit on which he was working to determine if it was energized resulted in noncompliance with 1926.400(c)(1), and that his failure to tag the circuit was contrary to 1926.400(g)(1).   Judge Brady found, however, that in view of Drew's skill and experience, he had been adequately supervised with respect to Respondent's [*6]   safety program.   He concluded that the violations were therefore not reasonably forseeable by Respondent, and vacated the citation.

On review, the Secretary argues that Respondent's safety program was inadequate to prevent the violation.   He points to evidence that Miller did not carry a pocket tester, n3 that Respondent did not have a separate manual specifically instructing foremen in their responsibilities with respect to safety, and that Respondent's safety supervisor could only recommend, and not compel, the correction of safety violations he discovered.   He contends that Respondent's safety program "existed solely on paper."

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n3 Miller testified that a foreman, under Respondent's union contract, could only perform installation work if there were fewer than five other journeymen on the jobsite. On the job involved in this case, there were six journeymen working under Miller.   He therefore could not perform installation work and, for that reason, did not carry a pocket tester.

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In general, an employer is only   [*7]   responsible for violations it has the ability to prevent.   If an employer has a safety program which would normally be adequate to prevent a violation of a particular standard, then a violation which occurs in spite of its program is unpreventable, and the employer is not responsible.   Elements of an effective safety program include work rules designed to prevent violations, adequate communication of the rules to employees, methods of discovering whether violations occur, and enforcement of the rules if violations are discovered.   Utilities Line Construction Co., 76 OSAHRC 121/A2, 4 OSHC 1681, 1976-77 OSHD para. 21,098 (1976); Scheel Construction, Inc., 76 OSAHRC 138/B6, 4 OSHC 1824, 1976-77 OSHC para. 21,263 (1976); The Weatherhead Co., 76 OSAHRC 61/E7, 4 OSHC 1296, 1976-77 OSHD para. 20,784 (1976).

In this case, there is evidence from which it can be concluded that Respondent's safety program contained all the required features, and that the violation was therefore unpreventable. After weighing all the evidence, Judge Brady reached this conclusion.   The Secretary would have us infer, from certain aspects of Respondent's program, that the program was inadequate.   The [*8]   Judge's conclusion, however, is supported by the preponderance of the evidence, and we will not reweigh the evidence simply because different inferences can be drawn.   Okland Construction Co., 76 OSAHRC 30/F4, 3 OSHC 2023, 1975-76 OSHD para. 21,441 (1976). We therefore accept the Judge's conclusion that the violations were not reasonably foreseeable, and were therefore unpreventable.

The Secretary also contends that, assuming the adequacy of Respondent's safety program, a nonserious violation should be found.   He claims that actual or constructive knowledge of a violation is only relevant to whether a violation is properly classified as serious.   The argument has previously been rejected.   Wally Taylor Construction Co., 76 OSAHRC 142/F6, 4 OSHC 1890 (1976) and cases cited therein; See also Scheel Construction, Inc., supra. Those decisions are controlling here.

Accordingly, the Judge's decision is affirmed.  

CONCURBY: CLEARY

CONCUR:

CLEARY, Commissioner, CONCURRING:

I concur in this disposition.   I agree with my colleague that at the time of the accident the employer had done all that could be reasonably done to comply with the cited standards.   In addition, no order can be fashioned [*9]   requiring additional steps be taken to prevent recurrence of the idiosyncratic behavior of an employee.   Green Construction Co. & Massman Construction Co., BNA 4 OSHC 1808, 1976-77 CCH OSHD para. 21,235 (No. 5356, 1976) (concurring opinion).   Knutson Construction Co., BNA 4 OSHC 1759, CCH [omitted] (No. 765, 1976) (Cleary, Commissioner, concurring in part and dissenting in part).