OSHRC Docket No. 329

Occupational Safety and Health Review Commission

October 18, 1973


Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners



  VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order directing review of a decision of Judge Robert N. Burchmore.   By his decision, the Judge affirmed a citation for violation of section 5(a)(1) n1 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter "the Act").   He assessed a civil penalty of $600.   The Judge also concluded that Respondent had not violated the standard prescribed by 29 CFR 1910.23(c), and he vacated a citation alleging such violation. n2 We have reviewed the record, and for the reasons given herein vacate the citation for violation of section 5(a)(1).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Section 5(a)(1) provides:

Each 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; . . .

n2 The Judge's reasoning as regards this allegation was eminently sound, and we concur in his disposition.

- - - - - - - - - - - - - - - -   -End Footnotes- - - - - - - - - - - - - - - - -

The facts are essentially undisputed.   Respondent had a crew of electricians employed on and about a transformer. The transformer was about 17 feet high and had a 7 by 8 foot unguarded flat roof.   Electrical bushings extended upward from the roof of the transformer, and a steel lattice framework consisting of box-like sections surrounded the transformer above the bushings.

Three lightning arresters were spaced apart and extended upwardly from the framework.   Each arrester consisted   of a stack of five series connected impedance units, and each was energized at 38 kv (kilovolts) to ground at its uppermost end.   The potentials to ground decreased through the impedance units such that the bottom end of each arrestor was at ground potential (0 volts).   The entire system was de-energized below the arresters.

Three of Respondent's employees were on the roof of the transformer for the purpose of placing coils in the transformer. To this end a wood beam (hereinafter "gin pole") equipped with lift blocks was tied down in the steel framework and was used to lift the bushings out of the transformer. The gin pole had to be repositioned for each lifting operation.   In repositioning the gin pole it was possible for an employee to come in close proximity to the arresters and thus be affected by an electrical hazard. The nearness of the approach depended on the route taken by the employee through the steel framework.

Respondent has published a safety handbook which among other things specifies safety distances for approaching live lines.   Thus, if the voltage is from 0 to 34 kv the safe distance is two feet and it is four feet when the voltage ranges from 34 to 69 kv.   Respondent's employees were fully aware of the safe distance rules and knew that infractions thereof could result in dismissal.

On September 23, 1971, after completing the placement of a coil two of Respondent's employees, Davy and Meade, climbed onto the steel framework to reposition the gin pole. Davy was an experienced journeyman electrician and knew that the arresters were energized. Nevertheless, he climbed onto the top of the framework, contacted an arrester, and was killed.

Meade was an apprentice electrician and didn't realize until after the accident that Davy had informed him of the live state of the arresters. n3 He approached the gin pole   through the steel framework by a route that would have brought him within one or two feet of the middle arrester. Meade never reached the gin pole because he stopped his ascent when the accident occurred.   His closest actual approach was three feet from the bottom of one arrester.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 Davy had pointed out to Meade that input lines to the transformer were live.   The lines were energized at 69 kv, phase-to-phase, and were connected by risers to the top of the arresters.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

On these facts Judge Burchmore concluded that Respondent violated section 5(a)(1) because Meade's route was not free of a recognized hazard. As to Davy's route the Judge concluded no violation had occurred.   The predicate regarding Davy's route was that Respondent could not reasonably be held to have been on notice that its instructions and rules would be ignored.

We concur in the Judge's disposition concerning Davy.   Secretary of Labor v. Hansen Brothers Logging,

We do not concur in his disposition concerning Meade.   The recognized hazard in this case was the electrical shock hazard created by the energized state of the lightning arresters. The facts are that an employee could come as close as two feet to an arrester without being exposed to the hazard, and Meade's nearest actual approach was three feet. Accordingly, Meade was not in fact exposed to the hazard. The mere fact that his path of travel could have exposed him to the recognized hazard, if he followed it to the end, is not enough to create a violation.   The path only gave rise to a possibility of exposure.

Section 5(a)(1) requires more than a mere possibility.   By its plain terms it proscribes the existence of recognized hazards which ". . . are causing or are likely to cause death or serious physical harm . . ." in employments and places of employment.   The term "likely" denotes a higher degree of probability than a mere possibility.   Clearly, there must be exposure to the hazard before it can be said that there is a likelihood of death or serious physical harm. Since Meade was not actually exposed there is no violation.

Accordingly, it is ORDERED that the Judge's order is amended to vacate Complainant's citation for serious violation and notification of proposed penalty and as amended is affirmed.  



  CLEARY, COMMISSIONER, dissenting: The majority opinion notes in a footnote that Mr. Davy told Mr. Meade that input lines to the transformer were "live." However, the majority fails to point out that Meade was unaware that the arresters adjacent to where he was working were also "live." In response to clarifying questions by the Judge, the following colloquy occurred:

EXAMINER: . . .   I'd like to recall Mr. Meade to ask a clarifying question. . . .

. . . Did you know that the resistor (sic) was hot or didn't you?

THE WITNESS: I didn't at the time know the arrester was hot because the main reason, it sits so far back and away from the line.   It never dawned on me at that time.

Mr. Meade was an apprentice electrician. Given the seriousness of the acknowledged "recognized hazard" it is my view that the employer had the responsibility of providing clear and more adequate safety instructions to an employee exposed to an energized arrester of high voltage. The instructions of his agent Mr. Davy were obviously inadequate.   The evidence indicates that the employer was certainly aware of the hazards of working on "live" lines.   His safety handbook, among other things, specified safe distance and protective guarding rules for approaching "live" lines or other apparatus which would include the arresters. n4

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 See Appendix with portions of Respondent's safety rules.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Also, I would affirm the Judge's conclusion that:

. . . Meade's route therefore passed within less than 24 inches of the high voltage and was consequently contrary to the company rule.   The arrester was within easy reach of Meade's route and this is clearly depicted in the aforementioned photograph.   Another company rule (3-42) provides that when working on a level with energized circuits of 500 volts or more, all conductors that are within reach of the workmen shall be completely covered with protective devices.   There was no covering provided on the arresters, although the middle one was   within easy reach of Meade's route. No other route was shown to have been available to Meade, whereby he could have done the job in accordance with the company's safety rule.

In short, it seems to me that section 5(a)(1) requires that more should have been done in this case to protect the employee Mr. Meade from the "recognized hazard" involved.



10-1 Scope

This section shall apply to all electric distribution and transmission personnel.   Personnel from other departments or divisions engaged in distribution or transmission work shall also comply with the rules of this section.

Transmission work usually involves heavier equipment, higher structures and higher voltages, as well as heavier tools.   It has its inherent hazards, but this is no reason why it cannot be done safely.

10-27 Minimum Climbing and Passing Distances

Workmen shall not pass, or take any conducting object, within the following specified distances of any electrical conductor or apparatus energized at the following voltages, phase to phase, unless protective measures contained in these rules have been complied with:


Clearances Distances

Over 2-22
















10-28 Maintenance of Clearance

When men are required to work near or above energized   wire and apparatus that cannot be covered with rubber goods or plastic shields, they shall install guards and barriers or use other limiting device to maintain the above clearance.

[The Judge's decision referred to herein follows]

BURCHMORE, JUDGE, OSAHRC: By citation issued December 14, 1971, the Secretary of Labor charges that on or about September 27, 1971, the Arizona Public Service Company, respondent, failed to provide safe access to a work area and permitted an employee to use an unsafe access route dangerously close to an energized 69KV arrester, in serious violation of the general duty clause of section 5 of the Occupational Safety and Health Act of 1970.   A non-serious citation contemporaneously charged violation of the safety regulation contained in 29 CFR 1910.23(c) in that a standard railing was not provided on a transformer top being used as a work platform. Penalties in the amount of $600 and $30, respectively, were proposed.   A notice of contest was duly filed and this Commission has jurisdiction of the resulting proceeding by virtue of section 10 of the Act.

The case was referred to the undersigned judge for hearing and determination.   Hearing was held at Phoenix, Arizona, on March 28, 1972; the parties have submitted proposed findings and conclusions.   Requested findings and conclusions that are not specifically discussed or adopted herein have been considered and found not justified.

There is no material dispute as to the circumstances.   An electrical work crew of the respondent company was engaged in repair of a transformer unit at the company's switchyard near Phoenix, Arizona.   The transformer was a rectangular solid about 17 feet high with a fairly flat top about 7 X 8 feet in size; six bushings protruded upward from the transformer top. Above the tops of the bushings, and surrounding the transformer was a steel lattice   framework consisting of a box-like section on each side of the transformer, said boxes being joined at the corners in a continuous channel around, above and outside the transformer. Fixed on top of the box-like framework, on the north side, were three lightning arresters. Each arrester consisted of five 16 inch stacks of ceramic material reaching a total height of 81 inches.

Energized 67 kilovolt electric lines ran to the point of open switches located on the steel framework.   Energized risers also ran to the tops of the arresters giving them a potential-to-ground of 39 kv at their tops. The electrical potential-to-ground decreased lineally downward and was therefor 7800 volts at the top of the lowest ceramic stacks, this at a level about 16 inches above the steel framework.   The open switches rendered the transformer and all the rest of the surrounding framework electrically inert.

The respondent company maintains detailed safety rules which are published in a handbook and which all employees are required to observe.   The rules provide that workmen shall not pass within specified distances of equipment energized at various voltages, without protective measures.   The minimum clearance required in passing equipment energized at 2 to 22 KV is 24 inches.

In working on the transformer itself the crew was so far away from any energized equipment that there was no risk of coming into contact with it.   However, in order to lift parts of the transformer it was necessary to rig a wood boom, or gin pole, in the overhead steel framework so as to extend out over the transformer. Roger Davy, a journeyman electrician, and apprentice Ross Meade undertook to do so.   A photograph (Exh. 14) shows how this was done, with the pole at an angle to the ground and tied to the uppermost portion of the framework on a level with the bottom of the arresters.

Meade approached the position in which the gin pole was to be rigged by climbing on the framework with his feet on its lower edge and grasping the upper edge with his hands at about chest height.   This brought his head about level with the lowest stack on each of the arresters,   but as he moved past the westernmost arrester he was separated from it by the diagonal dimension of the framework and the arrester was beyond his reach.   A diagram of the structure, drawn to scale, was introduced in evidence (Exh. 1) and shows that Meade passed at a horizontal distance of about three feet from that arrester. His route up to that point was therefor in accordance with the company's safety rule, which prohibits approaching within 24 inches of equipment energized at between 2 kv and 22 kv.

Davy chose to climb all the way up on top of the framework so that his feet were on a level with Meade's chest; his arms and chest were thus higher in relation to the arrester and he did not have the framework between him and the arrester as he moved to pass it.   He came into contact with the arrester and was killed.

Up to this point the employees' routes have been considered only in connection with the westernmost arrester. Turning now to the middle of the three arresters, the route which Meade followed (or would have followed before the job was completed) passed within 12 inches of the center of the middle arrester and therefor less than 12 inches from its surface.   The dimensions are shown in scale drawings introduced in evidence (Exh. 1,5) and, as already stated, the arrester was energized to 7800 volts at a point about 16 inches above the framework.   Meade's route therefor passed within less than 24 inches of the high voltage and was consequently contrary to the company rule.   The arrester was within easy reach of Meade's route and this is clearly depicted in the aforementioned photograph.   Another company rule (3-42) provides that when working on a level with energized circuits of 500 volts or more, all conductors that are within reach of the workmen shall be completely covered with protective devices.   There was no covering provided on the arresters, although the middle one was within easy reach of Meade's route. No other route was shown to have been available to Meade, whereby he could have done the job in accordance with the company's safety rule.

  The occurrence of an employee injury or death on the employer's premises does not, of itself, established a violation of the Act by the employer.   Moreover, if a safe route to a worksite is provided by the employer and an employee acts contrary to the employer's rules and instructions to go outside that route under circumstances which the employer could not reasonably be expected to control, the employer cannot fairly be held to have violated the Act.   Accordingly, the conclusion reached herein on the citation for serious violation of the general duty clause of section 5 is not based upon the route followed by Davy or upon the accident in which Davy was killed.   Rather the conclusion is based on the facts pertaining to the route followed by Meade in relation to the middle arrester, the route which the company provided and which it claims to have been safe. It is my conclusion that said route was in violation of section 5(a)(1) of the Act in that it was not free from recognized hazards likely to cause death or serious physical harm and that the citation should therefor be affirmed.   The basis for that conclusion is the fact that the route permitted the employee to pass in closer proximity to energized equipment than was allowed by the company's own safety rules, the further fact that the energized equipment was within easy reach of the employee at a time when he was in an awkward position climbing along the structure, and the further fact that the equipment was not covered although a company rule required that it be covered.

Considering all of the criteria provided in section 17(j) for assessing an appropriate penalty (the size, previous history and good faith of the employer, and the gravity of the violation) it is my conclusion that the proposed penalty is appropriate and should be affirmed.

The non-serious citation charges violation of a regulation contained in 1910.23(c) in that no railing was provided around the top of the transformer while the men were working on it.   The considered regulation is found in Subpart D of Part 1910   under the general subject heading "Walking-Working Surfaces"; section 23 is entitled   "Guarding floor and wall openings and holes." Paragraph (c) provides: "Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder."

Section 1910.21(a) provides that, as used in section 23, floor and wall opening terms shall have the meanings ascribed therein, and paragraph (4) provides: "Platform. A working space for persons, elevated above the surrounding floor or ground; such as a balcony or platform for the operation of machinery and equipment."

In this case it is true that the members of the crew did actually perform work while standing on the transformer top. On the other hand, the testimony introduced by respondent, which stands uncontroverted on this record, shows that there are many transformers of the type involved herein, that the tops of most of them are never worked on and that the necessity for work on the top of the involved transformer could not be foreseen.   There was also testimony to the effect that the erection of a railing would involve hazards that might exceed the hazard of working on the top without a railing.

Considering all of the evidence in the light of the language of the regulation, it would require a strained and unnatural construction of that language to hold that the transformer top, cluttered as it is with projecting parts and connected to various conductors, is a working space for persons such as a balcony or platform for the operation of equipment.   While the transformer top was a working space in the sense that work was performed on it, the same is true of the overhead structure on which the crew also performed work.   The Secretary does not suggest that a railing or scaffold was required on the overhead structure, and it is clear that the regulation does not express an intent to prohibit the performance of work that requires some climbing on the article under repair.   Here the transformer was a piece of equipment under repair and the   preliminary erection of a railing for the special purpose involved would not have contributed substantially to job safety.   I conclude that the regulation does not require a railing around the transformer top under the circumstances here present and that no violation of the regulation has been shown.

Premises considered, it is ORDERED that the serious citation and proposed penalty be and the same are hereby affirmed, the citation and proposed penalty for violation of the regulation contained in 1910.23(c) be and the same are hereby vacated, and this proceeding is hereby discontinued.