HAMMONDS CONSTRUCTION, INC.
OSHRC Docket No. 2283
Occupational Safety and Health Review Commission
June 4, 1975
[*1]
Before MORAN, Chairman; and CLEARY, Commissioner
OPINION:
BY THE COMMISSION: A decision of Review Commission Judge J. Marker Dern, dated August 20, 1973, has been before this Commission for review pursuant to 29 U.S.C. § 661(i) for more than 20 months. Rather than further delaying the disposition of this case until a third member is appointed to the Commission, the Commission as presently constituted agrees to decide the case at this time.
The members of the Commission are equally divided on the Judge's disposition of this case. Accordingly, the decision of the Judge is affirmed by an equally divided Commission. Therefore, this decision has no precedential weight. Neil v. Biggers, 409 U.S. 188 (1972).
Commissioner Cleary agrees with the findings and reasoning of the Judge. Chairman Moran would reverse the Judge because the evidence establishes that the failure to de-energize the power line directly resulted from employee misconduct in disobeying the express orders of the owner of the respondent corporation. In his opinion, the general duty clause, 29 U.S.C. § 654(a)(1), was not intended to inpose strict liability on employers for work related injuries and illnesses. [*2] National Realty and Construction, Inc. v. OSAHRC, 489 F2d 1257 (D.C. Cir., 1973).
[The Judge's decision referred to herein follows]
DERN, JUDGE: This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 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 Mogaffin County, Kentucky and described as "power line construction," the respondent has violated section 5(a)(1) 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 February 5, 1973, alleges that the respondent violated section 5(a)(1) of the Occupational Safety and Health Act of 1970, the so-called general duty clause. The description of the alleged serious violation contained on said citation states:
Employee was directed and permitted to work aloft on an [*3] electrical distribution power pole in close proximity to an energized 7200-volt power line, without the employee's being insulated or guarded from energized parts, under conditions that were not free from a recognized hazard likely to cause death or serious physical harm.
Pursuant to the enforcement procedure set forth in section 10(a) of the Act, the respondent was notified by letter dated February 5, 1973, from Mr. Frank P. Flanagan, Area Director of the Louisville Kentucky, area Occupational Safety and Health Administration, U.S. Department of Labor, that he proposed to assess a penalty for the violation alleged in the amount of $600.00.
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 Louisville, Kentucky, on May 15, 1973.
THE ISSUES
The issue presented is whether the respondent was in violation of section 5(a)(1) of the Act which provides:
Each employer shall furnish to each of his emplovees 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 emplcyees.
If a violation [*4] occurred, a determination must be made whether the violation was of a serious nature under the criteria of section 17(k) of the Act. If a violation did occur, then a determination must be made as to the appropriate penalty, if any, to be assessed.
FINDINGS OF FACT
The evidence of record has been carefully evaluated and the facts hereinafter set forth are specifically determined in resolving these proceedings.
1. The respondent, Hammonds Construction, Inc., is a corporation engaged in the business of power line construction with its principal office at Route 3, Murphy Road, Bowling Green, Kentucky (admitted by Answer).
2. The respondent, Hammonds Construction, Inc., regularly employs approximately six employees in and around the Bowling Green, Kentucky area in the handling, constructing and working on power lines and electric poles. Many of the materials and suplies used by respondent's employees in the aforesaid construction work are transmitted, shipped and delivered across various state boundaries. Substantial quantities of the electrical power transmitted by the power lines regularly cross state boundaries and are regularly delivered to many establishments which are engaged [*5] in producing goods, substantial quantities of which will be shipped into other states. By reason of the aforesaid activities, respondent is an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act and is subject to the jurisdiction of the Occupational Safety and Health Review Commission.
3. The complainant, through one of its authorized compliance officers, Stephen Ray Fewell, conducted an inspection of respondent's workplace, interviewing the employer, Billy C. Hammonds, and others.
4. Hammonds, owner of the corporation, had, on November 20, 1972, been engaged in electrical work for more than 20 years in various capacities including field engineer with duties of power line surveying, electrical inspections and electrical mapping; he has also designed and supervised construction of power lines, conducted electrical cost accounting and participated in other phases of electrical engineering.
5. On November 20, 1972, respondent was engaged in the reconstruction of electrical transmission lines for Licking Valley RECC at a site approximately one-half mile off Kentucky Highway 30, on Mill Branch Road, approximately seven miles [*6] east of Salyersville, Kentucky (Complainant's Exhibit 2).
6. The contract with Licking Valley RECC required that the construction work be accomplished only after electrical lines had been de-energized. "De-energized" means that the electric current is "turned off" and this type of contract is known in the trade as a "cold line contract" as opposed to a "hot line contract" wherein construction work is done without de-energizing electrical lines.
7. Prior to November 20, 1972, Hammonds conferred at the job site with his employees, including his foreman, Mr. Kenneth Ray Flenner, in respect to the job to be done on November 20, 1972. This discussion involved actual inspection of the work site and specific directions to the foreman indicating where to deenergize the electrical lines, including a visit to the exact locations where electric current was to be turned off.
8. Prior to beginning work on the morning of November 20, 1972, Hammonds once again conferred with his employees and the foreman concerning the work to be done on that particular day and specifically instructed the foreman to "kill" (de-energize and ground) the lines and to "be careful."
9. The work to be accomplished [*7] on November 20, 1972, consisted of detaching two wires located on the opposite ends of a crossarm on an old utility pole and transferring these two wires to a similar crossarm to be located on a new utility pole which had been located within two feet of the old pole. Located approximately four feet below the crossarm on the old pole was a single phase electric line carrying 7200-volts; this line, sometimes referred to as a "tap," angled in from the side and terminated on the pole. The source of current was in the direction from whence the tap came, there being no connection on this pole between the single phase line carrying 7200-volts and the two phase lines which rested on the crossarm. Other wires and a transformer were also located on the old pole but their presence does not appear significant.
10. Hammonds' instructions given to his employees and especially to his foreman, Flenner, prior to November 20, 1972, and again on the morning of November 20, 1972, included directions to de-energize (turn off) all electrical lines located on the old pole, including the 7200-volt tap.
11. A fatality occurred November 20, 1972, when two employees of respondent attempted [*8] to work within approximately four feet above the 7200-volt tap without first de-energizing the line.
12. At the time of the accident the respondent's employees were in the process of changing a crossarm and wires from an old pole to a new pole. A new pole had been placed in the ground immediately adjacent to the old pole. The old pole had two 7200-volt lines across the top of the crossarm. A third 7200-volt line was attached to one side of the old pole approximately four feet below the crossarm and parallel to the crossarm. Before beginning work on the old pole, the employees had de-energized the top two 7200-volt lines. However, they had not de-energized or covered or insulated in any way the 7200-volt tap line located four feet under the crossarm. Two employees, Darrell Caskey and Mike Neighbors, went up the poles to accomplish the work. Caskey was on the new pole and Neighbors was on the old pole. Neighbors and Caskey were proceeding to remove one of the top wires over the end of the crossarm when Neighbors let go of the wire and it touched the energized 7200-volt line which was four feet immediately below the crossarm, which caused the death of Caskey (Complainant's Exhibits [*9] 1 and 2).
13. Both employees who were working on the poles were within close proximity to the energized 7200-volt tap line. Both employees while they worked at the top of the poles were within reach of the energized 7200-volt tap line. Mr. Billy G. Hammonds, owner and president of the respondent, knew before the employees started work on the poles that the 7200-volt tap line was an energized line. Mr. Kenneth Flenner, the foreman of respondent, was Mr. Hammond's No. 2 man. In that capacity, he had been left in complete charge of the construction work at the time of the accident. Mr. Hammonds was not present. Mr. Flenner knew that the 7200-volt tap line was still energized when he sent the two employees up the pole. The employees also knew that the lower tap line was still energized. The two employees were directed by the foreman to go up the poles and do the work when the foreman knew that the 7200-volt tap line was energized and was not covered, guarded or insulated in any way (Complainant's Exhibits 1 and 2).
14. Mr. Hammonds considered Mr. Flenner to be a competent, honest foreman. Prior to the hearing, the respondent never suggested that the foreman had [*10] failed to follow instructions (Complainant's Exhibit 2).
15. Other than helmets, the employees who were working on the poles at the time of the accident had no protective equipment such as gloves or insulated blankets. The actual de-energizing of the 7200-volt tap line presented no difficulty.
16. The respondent had previously permitted employees to work on poles to which an energized source was still connected. When lines on a pole remain energized, work on that pole is considered "hot pole" work. The respondent's employees had previously worked on such poles where lines were still energized within reach of the employees working on the pole.
17. A 7200-volt line is a recognized hazard. The preferred safety procedure is to de-energize and ground all such lines before work is done on the pole. If such lines are not de-energized and grounded, the employees should have adequate protective equipment such as gloves and should use insulated blankets to cover any part of the energized line that the employee could accidentally touch.
18. Hammonds did not have written safety rules but relied on an informal safety program carried on in close association between himself [*11] and his small number of employees.
19. Prior to November 20, 1972, Hammonds Construction, Inc., had never experienced a single on-the-job accident.
20. A penalty of $600.00 was proposed by complainant for the alleged serious violation, giving a reduction of 20 per cent for no previous history of a violation of the Occupational Safety and Health Act, 10 per cent for size having six or seven employees and 10 per cent for good faith. The gravity of the alleged violation was considered to be high.
OPINION
Respondent is charged with having violated section 5(a)(1) of the Act in that he failed to furnish employment "free from recognized hazard . . . causing death or serious physical harm to his employee."
The respondent recognizes the hazard associated with working in close proximity to energized electrical lines, but expressly denied that any of his employees were ever "directed and permitted" to work aloft in close proximity to an energized 7200-volt electrical line as alleged in complainant's citation and complaint.
In summary of the voluminous record, it appears that respondent was engaged in electrical construction work under a "cold line" contract whereby all electrical lines [*12] in close proximity to the work area were to be de-energized before the work began. Respondent stated he fully explained the de-energizing of "all lines" to his foreman. On November 20, 1972, the work crew consisted of a foreman, Flenner, and two other employees, Neighbors, relatively inexperienced and Caskey, an experienced lineman. Work consisted of detaching two wires located on the opposite ends of a crossarm on an old utility pole and transferring these two wires to a similar crossarm to be located on a new utility pole. Approximately four feet below the crossarm on the old pole was a single phase electrical line carrying 7200-volts which angled in from the side and terminated on the pole. Caskey was fatally injured when he lifted one of the de-energized two-phase wires after it was detached from the crossarm, over the ends of the crossarm and allowed it to drop into contact with the energized 7200-volt tap. Neighbors was uninjured.
Flenner, the foreman, was present prior to the time the two employees went up the two poles, saw what the two employees were doing while up the pole and cried out an alarm when he saw what Caskey was doing just prior to the accident. [*13] The evidence indicates that the respondent and his foreman were aware of the energized 7200-volt tap line and that the foreman permitted and caused the two employees to go up the two poles and work above and within approximately four feet of the energized 7200-volt tap line. There is some question whether the two employees, Neighbors and Caskey, knew or did not know that the tap line was energized. Certainly, the respondent entered into a "cold line" contract but the record evidence would lead to the conclusion that under such contract it was the respondent's responsibility and his alone to see that all electrical lines were de-energized and thus met the terms of the contract. Any violation of the "cold line" contract must be the responsibility of the respondent or attributed to him by failure of his first line supervisor, Flenner, to de-energized "all lines."
The respondent contends that since Flenner and Caskey were both highly experienced they should have known the danger involved in working above in close proximity to the hot line. Thus, invoking the law of contributory negligence particularly to Caskey since he did not take reasonable precaution to prevent injury to himself. [*14] As the Review Commission noted in National Realty and Construction Company, action, and that the main victim of the violation is the offending employee is not per se a defense to a charge that the employer has violated the Act. Here, it is clear that the respondent "knew" of the presence of the violation within the meaning of section 17(k) of the Act. The courts have long held that a principal is not only liable for the acts he has directed his agent to commit, but also for all other acts committed by his agent while acting within the scope of his authority. There is no claim that the foreman, Flenner, was not acting within the scope of his employment. Thus, it must be concluded that the violative act of respondent's foreman is imputed to the respondent. [*15]
Based upon the reliable, probative, substantial evidence of record, it must be concluded that the respondent did not provide a workplace which was free from recognized hazards. Working above and in close proximity to an energized 7200-volt electrical line is a hazard recognized by an ordinary layman as well as a recognized hazard within the electrical industry. This was evident by the testimony adduced at the hearing as well as the various publications cited by the several witnesses. In view of the severity of employee harm, death, which resulted from the existence of the hazard, it must be concluded that a violation of section 5(a)(1) of the Act has been shown.
Likewise, there is substantial evidence to support the violation of a serious nature which was charged by the complainant in the citation. It is stated in section 17(k) of the Act:
. . . a serious violation shall be deemed to exist in a place of employment if there is substantial probability that death or serious physical harm could result from a condition which exists, from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer [*16] did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
The respondent has cited failure of his foreman in obeying specific instructions and equates this with the "foreseeability test which is similiar to the law of torts and constitutes a defense claim for damages from unanticipated sources." In support of such contention, the respondent cited the cases of Secretary of Labor v. Vy Lactos Laboratories, Secretary of Labor v. Clements Paper Company, Inc., These cases are distinguishable from the instant case in that in neither of the cases cited was there a first line supervisor present at the time of the so-called employees' disobedience of the employer's instructions. In this case, as previously mentioned, respondent's first line supervisor was present and was in charge of the two employees at the work site. Respondent further cites the case of Secretary of Labor v. Richmond Block, Inc., since in the Richmond Block case the superintendent, being present at the work site issued certain instructions and then, "left and went to another job site across the street." Here, the foreman was present when the employees climbed the poles, present while the employees were on the poles and apparently continuously watched their actions since he called a warning when he saw what Caskey was doing, immediately prior to the fatal accident. Also mentioned is the case of Secretary of Labor v. Bratcher Company, reasonably anticipate that his employees would use the aluminum ladder . . . in a way that it might come in contact with, or in close proximity to, the electrical line. In the instant case, respondent's foreman caused two employees to work above and in close proximity [*18] to a 7200-volt electrical line knowing that the line was energized.
THE PENALTY
Turning now to the question of the appropriate penalty for the serious violation charge, the penalty proposed was $600.00 after giving appropriate credit within the guidelines of the complainant for no history of previous violations of the Act, for size, having six or seven employees, and for good faith. While the gravity of the violation is high and is a factor which must be highly considered in determining the appropriate penalty, nonetheless, a penalty cannot undo what has been done. The evidence reveals that the net worth of the respondent is less than $5,000 with normal employment during the construction season not exceeding seven employees and that the corporation is totally owned by a single individual, Mr. Hammonds. The record evidence is clear that respondent's foreman disobeyed instructions and this is a factor which should be taken in consideration in mitigating the proposed penalty. Furthermore it is clearly apparent that Hammonds constantly talked with his employees regarding safety. The Review Commission has in numerous cases refused to agree with any rigid formula of [*19] the complainant in setting a penalty, but held that each case must be viewed separately to evaluate all the facts of the case. Accordingly, under all of the circumstances of the case, it is believed that the appropriate penalty and one that is more reasonable, should be $300.00.
CONCLUSIONS OF LAW
1. The respondent was at all times material hereto engaged in a business affecting commerce within the meaning of section 3(m)(5) of the Act. The Commission has jurisdiction of the parties and of the subject matter herein.
2. On November 20, 1972, the respondent violated section 5(a)(1) of the Act in that an employee was directed and permitted to work aloft on an electrical distribution pole in close proximity to an energized 7200-volt power line without the employees being insulated or guarded from energized parts under conditions that were not free from a recognized hazard or likely to cause death or serious physical harm.
3. Respondent's violation of the general duty clause, section 5(a)(1) of the Act constituted a serious violation with the meaning of section 17(k) of the Act, as the violation was such that there was substantial probability that death or serious physical [*20] harm could result to an employee working in proximity to the high voltage distribution line.
ORDER
Upon the basis of the foregoing finding of fact, conclusions of law and upon the entire record, it is Ordered:
1. The citation issued for serious violation be and the same is hereby affirmed.
2. A penalty in the sum of $300.00 is assessed against the respondent.