TYEE CONSTRUCTION COMPANY
OSHRC Docket No. 532
Occupational Safety and Health Review Commission
August 10, 1973
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: CLEARY
OPINION:
CLEARY, COMMISSIONER: On September 11, 1972, Judge Vernon Riehl issued a decision in this case holding that respondent had violated section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act"), in that it allowed an employee to splice a live electrical power line in a manner inconsistent with the requirements of the Occupational Safety and Health Standard at 29 CFR 1518.400(c). He assessed a penalty of $500. Thereafter, pursuant to section 12(j) of the Act that decision was directed to be reviewed by the Commission.
Having examined the record in its entirety, the Commission finds no prejudicial error therein.
Accordingly, it is ORDERED that the Judge's decision and order are hereby affirmed in all respects.
DISSENTBY: MORAN
DISSENT:
MORAN, CHAIRMAN, dissenting: This record does not support the statement made by the Commission in this decision that respondent allowed an employee to splice a live electrical power line "in a manner inconsistent with" the requirements of the occupational safety and health standard published as 29 CFR 1518.400(c). The record shows only that one of respondent's employees spliced a live electrical power line and that prior to so doing he protected himself against electric shock by placing a piece of plywood on the ground upon which to stand while making the splice. There is nothing to show that this means of protecting himself from electrical shock was "inconsistent with" the standard which states as follows:
Protection of employees. (1) 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 . . . . [emphasis added]
The employee completed the splice at issue in this case without incident. He did not receive an electrical shock and was not injured. The power line involved was neither owned nor controlled by respondent.
The fact that no injury occurred in this case is not, of course, a factor in determining whether the respondent was in violation of the Act, because section 5(a)(2) imposes a specific duty on employers to comply with occupational safety and health standards properly promulgated under the Act irrespective of whether or not injuries occur as a result of noncompliance.
Section 3(8) of the Act defines an occupational safety and health standard as a requirement that an employer adhere to specific conditions, practices, means, methods, operations or processes which the Secretary of Labor has determined to be necessary in order to serve the objectives of the Act. If an employer fails to do so, he is liable for a civil penalty.
This duty of the employer, however, does not override his right to the protections of constitutional due process. These protections include the right to be given fair warning of the requirements which an employer must observe in order to be in compliance with the government's regulations. Whenever the government attempts to regulate private conduct, the law must give a person of ordinary intelligence fair notice of the type of conduct which is forbidden. n1 The occupational safety and health standard in the case at bar does not meet this test.
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n1 Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972)
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The requirement that an employer protect his employees by deenergizing, grounding or insulating an electrical power circuit, "or other means" clearly fails to provide the guidance necessary to constitute proper notice to the respondent as to what he is required to do. It also does not tell him that using plywood as insulation is not what is meant by "other means."
The Commission has held that "Employers are entitled to rely on the standard's clear language, uncolored by additional and subjective criteria," n2 that "where that is impossible a violation cannot be upheld," n3 and that "when the language of a standard is open to different interpretations, it is unenforceably vague." n4
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n2 Secretary v. California Stevedoring,
n3 Secretary v. Tilo Co., Inc.,
n4 Secretary v. Moser Lumber Company,
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In my opinion, the affected employee protected himself from electric shock in this case by "other means": he stood on a piece of wood while performing the work. Counsel for complainant, however, does not approve of this "other means." He suggests different "other means" which the Secretary of Labor did not enumerate in the standard. By affirming the Judge's decision, the Commission has upheld this after-the-fact interpretation of the regulation and has permitted subjective requirements to be injected into it in contravention of due process of law as well as our decision in California Stevedoring, supra.
A person should not be subjected to penalties of any kind for failure to comply with a rule so vague and ambiguous that it prohibits nothing and requires only "protection . . . by other means." No degree of judicial interpretation can give this standard sufficient clarity to render it enforceable.
At the hearing, a representative of complainant suggested that protective tools or an insulating blanket should have been used as protection against electric shock when the power line was cut. This reasoning is now urged upon us by complainant in his brief, which states that "to perform a splice the proper equipment required for such a task should have been rubber boots, rubber gloves, or protective blankets." If complainant believes that such precautions should be mandatory to insure employee safety, he has the power to promulgate such a requirement. He has not done so in this case and yet he is here seeking to impose liability upon the respondent under a regulation which gives no such guidance.
Neither this respondent, nor anyone else could look to the standard and ascertain what was required other than the fact that protection had to be provided. Respondent could not know from reading this standard that the specific methods listed in the complainant's brief constituted the proper procedures to be followed in order to avoid a citation for noncompliance when protection was provided by "other means" than those enumerated in the standard.
Judge Cardozo, while invalidating civil liability under the Lever Act of 1917, noted "A prohibition so indefinite as to be unintelligible is not a prohibition by which conduct can be governed. It is not a rule at all; it is merely exhortation and entreaty." n5
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n5 Standard Chemicals & Metals Corp. v. Waugh Chemical Corp., 231 N.Y. 51, 131 N.E. 566, 567 (1921).
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The same principle is applicable in this case.
In addition, the Act's purpose of reducing workplace hazards cannot be achieved if the Secretary of Labor tells employers to use "other means" when he really intends for them to use "rubber boots, rubber gloves, or protective blankets." Broad general phrases may save time for the writers of standards and space for their publishers, but they do not tell either employees or employers what must be done to avoid workplace hazards. They have no place under this Act or under the Constitution of the United States.
[The Judge's decision referred to herein follows]
RIEHL, JUDGE, OSAHRC: This is a proceeding under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter referred to as "the Act") to review a citation issued by the Secretary of Labor (hereinafter referred to as "Complainant") pursuant to Section 9(a) and the proposed assessment of penalties issued pursuant to Section 10(a) of the Act. The undersigned Judge was assigned the case and it was heard on Wednesday, June 7, 1972, in Langdon, North Dakota.
On February 25, 1972, pursuant to Section 9(a) of the Act, the Complainant issued to the Respondent a citation (for non-serious violation), herein after referred to as "citations," charging the Respondent with violations of Sections 5(a)(2) and 8(c)(1) and of one Occupational Safety and Health standard and four regulations duly promulgated pursuant to Section 6 and 8, respectively (citation).
On February 25, 1972, pursuant to Section 10(a) of the Act, Complainant mailed the Respondent a notification of proposed penalty for the violations charged in the citation. The Respondent served notice of intention to contest the citation and proposed penalties by letter dated March 6, 1972, on the Department of Labor.
This cause referred to the Occupational Safety and Health Review Commission for hearing pursuant to Section 10(a) of the Act, and the undersigned was appointed and the within case was assigned to him for hearing.
DISCUSSION
The facts in this case are virtually undisputed. It was stipulated between the parties at the hearing that an underground electrical cable owned by the Otter Tail Power Company consisting of a 220 volt line was severed during a construction project; that it was spliced by an employee of Tyee Construction Company while energized, and that the splicing was done without rubber gloves, rubber boots or protective blankets (Tr. 5, lines 4-14). Mr. Washek, the individual actually performing the work (and the only individual directly performing this splice work), testified that the line was indeed energized (Tr. 7, lines 1, 11-13), and that the only tools that he used were his own hand tools, and they were not insulated (Tr. 8, lines 1, 7-16). Mr. Washek also testified that the ground upon which he worked was damp (Tr. 9, lines 1, 4-6), and that he wore his regular workboots rather than insulated boots (Tr. 13, lines 1, 5-9), and that all he had for protection was a piece of plywood thrown on the ground.
The investigating compliance officer testified the plywood was not an adequate or proper insulator. All witnesses called at the hearing, i.e., the investigating compliance officer, Gary Washek, and Respondent's witness, Mr. Szabo, agreed that it was not a good safety practice to work wires live, and that the best method was to de-energize the circuits or use proper protective equipment, and that 110 or 220 volts, either one, could seriously injure or kill an individual (Tr. 14, 15, 18, 19, 36, 37). Mr. Washek testified that there was no safety equipment even made available to him at the time the splice was performed (Tr. 16). Furthermore, there was no reason given why the power company could not have been asked to de-energize the circuit, for there was more than adequate time to do so. There was a six-seven hour lapse from the time the line was broken until the time the splice was performed (Tr. 8, 9), and it takes only one half hour to get the power company to perform a disconnect (Tr. 12). A permanent disconnect, to prevent such future incidents, was installed five-six days after this incident (Tr. 37), which was sometime prior to the date upon which Tyee received the citation, for the incident occurred on October 26, 1971, and a citation was issued on February 1, 1972. The fact that this was a serious violation was established by all parties, including Respondent's own witness, Mr. Szabo (see reference above to the fact that an individual can be killed by such voltage).
The applicable Standard in evidence reads: (1518.400(c)), in pertinent part, "Protection of employees: (1) 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." (emphasis added) The total substantial and credible evidence establishes that this Standard was not met by the Respondent.
Section 1518.400(b) reads: "Applicability. These regulations apply only to electrical installations used on the job site, both temporary and permanent. For power distribution in transmission lines, see Subpart V of this part." At the time the citation was issued, Subpart V of Part 1518 was not yet promulgated. However, the Secretary contends and we concur that the lines involved herein the instant case qualifies as an "electrical installation used on the job site," and that the only power distribution lines reserved for Subpart V are those under the exclusive control of electric utilities. While the power line involved was owned by the Otter Tail Electric Utility Company, it was being rented by the Worerfel Construction Company (Tr. 36, lines 8-21); and, furthermore, at the time the splice was performed by the Respondent, Tyee Construction Company, the line was obviously not under the exclusive control of the power company, for they were not the ones performing the splice.
We hold that Tyee cannot avail itself of that exception. We feel that this is made even clearer by the recently promulgated Standard -- 1910.308(c)(2)(v) -- which is part of the general electrical standards, where it says, "Not covered. The provisions of this subpart do not cover: Installations under the exclusive control of electric utilities for the purpose of communication metering or for the generation, control, transformation, transmission, and distribution of electric energy, located in buildings used exclusively by the utilities for such purposes or located outdoors on property owned or leased by the utilities or on public highways, streets, roads, etc., or outdoors by established rights on private property."
Testimony at one point said, ". . . this being a utility line we had no jurisdiction over how it is installed . . ." (Tr. 39, lines 7-8). Respondent also read into the record some language from the North Dakota Industrial Safety Code, but this is irrelevant, for what is at issue here is what is required by the standard promulgated under the Occupational Safety and Health Act, and not by the State of North Dakota.
FINDINGS OF FACT
1. Respondent Tyee Construction Company is a corporation, with a place of business located at Langdon, North Dakota, where it is, and at all times hereinafter mentioned was, engaged in construction (Complaint and Answer).
2. On October 22, 1971, at the Number 3 sprint site, an underground electric cable was severed while a digging process was taking place. This underground cable was the property of the Otter Tail Power Company and was energized by 220 volts. This severed line was spliced by an employee of the Tyee Company while so energized.
3. The Tyee employee who did the splicing did so without rubber gloves, rubber boots or protective blankets (Tr. 5).
4. At the time the aforesaid splicing of the energized line was made there were present at the scene a general superintendent and a safety man observing the man working on the line (Tr. 5).
5. Gary Washek, inside wireman for the Tyee Company, was the Tyee employee who completed the splice of the energized wire (Tr. 7).
6. Mr. Washek completed the splice by using a kleins wire, or pliers, two ten-inch crescents, pocket knife or electrician's knife (Tr. 7). Also, a Simpson Meter was used for identifying the neutrals. There were two three-wire circuits (Tr. 8). Mr. Washek used his own hand tools except for the meter.
7. The hand tools used by Mr. Washek in completing the splice were not insulated (Tr. 8).
8. The only other material used in the making of this splice was a split bolt and tape (Tr. 8).
9. The severed line was broken some time before 10 o'clock or in the late part of the morning and spliced approximately 5:30 to 8:30 P.M. in the evening.
10. The time the splice was made by wireman Washek, the ground was damp and Ted Whited, his foreman and safety man, was there throughout the completion of the splice (Tr. 9).
11. Although it would have taken only one-half hour to get the power company to perform a disconnect and de-energize the wire, this was not done by the Tyee Company or its agents (Tr. 12).
12. The wireman performing the splice worked in his regular workboots and threw a piece of plywood on the ground as he spliced (Tr. 13). It was physically possible for him to receive a shock of 220 volts and be suddenly electrocuted (Tr. 14, 18).
13. The Tyee Construction Company did not have available an insulated blanket for the wireman's use at the time of the splice (Tr. 16).
14. The splicing of the wire at the time in question by employee Washek under supervision of the Tyee Company supervisor was a violation of Standard 1518.400(c) and is a serious violation.
15. The situation of improper splicing has been abated by the Tyee Company and they have provided disconnects for future similar problems (Tr. 21), and a 20% discount for good faith is proper under the circumstances.
16. The maximum discount of 10% (for size of the company) of the unadjusted penalty of $1,000 was proper under the circumstances and total evidence.
17. The maximum discount of 20% because of history was proper under the circumstances and total evidence.
18. The evidence supports the finding of $500 penalty after total adjustment is proper under the circumstances.
19. The severed line repaired by wireman Washek was "an electrical installation used on the job."
20. The spliced powerline in question was put in at the request of the general contractor on the Government property to provide temporary lighting which is security lighting and safety lighting. The general contractor (Worerfel Co.) paid the power company a fee for power and the light itself (Tr. 31).
21. At the time of the splicing of the wire in question, the line was not under the exclusive control of the power company and the splice was being performed by the Tyee Company, at the request of the Worerfel Company who rented the line (Tr. 36). A person coming in contact with 110 or 220 volts can be killed by such contact (Tr. 36). The safest practice from a standpoint of absolute safety in wire splicing is always to turn off the line and thereby to deenergize it (Tr. 37).
22. "Disconnects" were installed approximately five or six days after the accident and the hazardous situation is thereby abated in that regard (Tr. 37).
23. The Respondent, through its employees, worked on the lines in question continuously, because they were of a temporary service installed by the power company for security lighting during the evening and they were in the constant areas of work (Tr. 38). The Tyee Construction Company cut the line in question (Tr. 40) and also repaired it by splicing.
CONCLUSIONS OF LAW
1. At all times herein mentioned, the Respondent's employer was and still is, an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and of the subject matter herein.
2. At all times in question, the Tyee Construction Company, Respondent, while working at the construction project at Langdon, North Dakota, and elsewhere including, at all times relevant to this matter, employed approximately five employees at safeguard facilities site number 3, Langdon, North Dakota.
3. The Act, in Section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. Section 651 et seq. ) hereinafter referred to as the Act, and the Occupational Safety and Health standards promulgated thereunder (29 CFR 1926) have been violated. Regulation 29 CFR 1518 was originally adopted as Occupational Safety and Health standards under Section 6(a) of the Act and 29 CFR 1910.12. The citation, notification of proposed penalty, and notice of contest were properly served by and upon the respective parties hereto, in conforming with the provisions of Section 10 of the Act.
4. On October 22, 1971, Respondent's employees were permitted to work in the proximity of energized circuits without such circuits being deenergized and grounded and without such circuits being effectively guarded by insulation or other means, in violation of 29 CFR 1518.400(c).
5. The violation alleged in the preceding paragraph is a serious violation within the meaning of Section 17(k) of the Act, in that there was a substantial probability that death or serious physical harm could result from said violation, and the Respondent knew, or with the exercise of reasonable dilligence should have known, of the presence of the violation alleged in previous preceding paragraph.
6. Respondent's violation of the general duty clause 5(a)(2) of the Act constituted a serious violation within the meaning of Section 17(k) as the violation was such that there was a substantial probability that death or serious physical harm could result from working in proximity to severed, energized cables and supported by evidence in the file; also the proposed penalty is reasonable after having given due consideration to the size of the Respondent's business, the gravity of the violations, the presence or absence of good faith of the Respondent, and its history.
DECISION
Based on the foregoing findings of fact, conclusions of law, and the entire record; having given due consideration to the size of the Respondent's business, the gravity of the violations, the presence or absence of good faith of the Respondent, and its history, and good cause appearing therefore, it is ORDERED that:
1. The citation issued for serious violation be, and the same, is hereby affirmed.
2. The penalty in the sum of $500 proposed by the Complainant for the citation referred to in "1" above be, and the same, is hereby affirmed.