SECRETARY OF LABOR,

Complainant,

v.

PENNSYLVANIA POWER & LIGHT CO.,
Respondent.

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO,

LOCAL UNION NO. 1600,
Authorized Employee
Representative.

OSHRC Docket No. 79-5194

DECISION

Before:  ROWLAND, Chairman; CLEARY and COTTINE Commissioners.
BY THE COMMISSION:

A decision of Administrative Law Judge George O. Taylor, Jr. is before the Commission pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  In his decision, Judge Taylor affirmed one item in a citation.[[1/]] issued by the Secretary of Labor ("the Secretary") which alleged a serious violation of the Act due to noncompliance with 29 C.F.R. § 1926.955(a)(6)(ii). [[2/]] Commissioner Cottine directed review on the issues raised by Pennsylvania Power & Light Co. ("PP&L") in its petition for discretionary review, including PP&L's exceptions to:  (1) the judge's denial of its motion to reopen the record, and (2) his interpretation of the cited standard.  For the reasons that follow, we affirm the judge's conclusion that PP&L failed to comply with section 1926.955(a)(6)(ii).

I

On the morning of May 18, 1979, one of PP&L's crews went to install a new utility pole in order to raise the sagging lines between two existing poles located in a rural area of Pennsylvania.  The three members of the crew were Willard Hankee, the crew leader, and Louis Schwartz and Martin Gusick, two first-class linemen.  The crew drove a bucket truck and a digger line truck to the worksite.  Attached to the boom of the digger line truck was an auger for digging the hole for the pole.  The boom of the digger line truck functioned to lift the auger into position as well as to lift and set utility poles and install equipment on them.  Of the four lines supported by the two existing poles, only the top line was energized, and it conducted power at 7.2 kilovolts.

Two days earlier, Hankee had visited the site with Tom Glennon, the roving multi-crew foreman who was Hankee's immediate supervisor.  The record does not establish whether Glennon and Hankee agreed upon a specific work plan at that time or what safety instructions, if any, Glennon gave to Hankee.  However, while riding to the jobsite in one of the trucks on May 18, Hankee had a conversation with Schwartz to the effect that, if the truck could not be positioned correctly to do the job, they would have to "tag out" the energized line, i.e., using a fiberglass stick and an insulated hook attached to a rope, pull the sagging line out from its existing position and to the side opposite where the digger line truck was and then tie the line down.  Schwartz testified that he expected to be able to pull the energized line about 15 feet away from where the pole was to be placed so that the digger line truck's boom could not reach it.

Upon the crew's arrival at the worksite, Schwartz parked the digger line truck on an incline with its back end facing the drooping lines, thus positioning it to dig a hole for the new pole.  Then, Schwartz and Gusick went over to the bucket truck to obtain the equipment necessary for pulling the overhead lines away from the digger truck.  When they left to go to the bucket truck, the boom on the digger line truck was "stored" in its cradle above the truck's cab, and Hankee, the crew leader, was behind the line truck talking to the owner of the land where the pole was to be placed.  When the two linemen had obtained the necessary equipment and were ready to return to use it on the lines, they heard the property owner calling to them that their "buddy was down."  Schwartz and Gusick went over and saw that Hankee was lying on the ground with one foot on the operating stand at the rear of the truck, with an arc of electricity passing from his foot to the ground.  The boom on the truck had been rotated so that it was extended out over the rear of the truck and was resting on top of the overhead energized line.  The truck was not grounded or barricaded.   Hankee died as a result of the accident.  No malfunction was found in the boom or the controls that operated it.

PP&L defended against this item in the citation by contending primarily that:  the cited standard is unenforceably vague; PP&L neither knew nor should have known of the allegedly violative conduct; the cited activity was the result of unpreventable employee misconduct because PP&L had done all that it could to prevent the cited conduct.  PP&L asserted that one of its work rules implemented the requirements of section 1926.955(a)(6)(ii) because its rule was patterned after other standards promulgated under the Act that are in the same subpart as the cited standard.   The Secretary maintained that PP&L was required to take precautions when its lifting equipment was utilized within reaching distance of energized lines under what the Secretary considered to be the proper interpretation of the term "near" in the cited standard.  The Secretary argued that PP&L's workrule, incorporating the clearance distances of other standards, was inadequate to comply with the more stringent requirements of the cited standard.

II

In his decision on the merits, Judge Taylor concluded that PP&L failed to comply with the cited standard because the truck was not grounded or barricaded, and the boom, which touched the line, was being utilized "near" an energized line within the meaning of the standard.  Judge Taylor rejected PP&L's argument that the cited standard is unenforceably vague, citing Wisconsin Electric Power Co., 76 OSAHRC 134/B2, 4 BNA OSHC 1783, 1976-77 CCH OSHD ¶ 21,234 (No. 5209, 1976), aff'd, 567 F.2d 735 (7th Cir. 1977), in which the Commission expressly upheld the standard against a vagueness challenge.  He further concluded that Hankee's knowledge of the cited conduct was imputable to PP&L because PP&L did not establish that it had done everything reasonably possible to avoid a violation.  More particularly, the judge determined that PP&L failed to prove that Hankee's conduct was unpreventable because it had not established a work rule that effectively implemented the requirements of section 1926.955 (a) (6) (ii), citing generally Floyd S. Pike Electrical Contractor, Inc., 78 OSAHRC 50/E1, 6 BNA OSHC 1675, 1978 CCH OSHD ¶ 22,805 (No. 3069, 1978).  The judge observed that PP&L's work rule, like 29 C.F.R. § 1926.952(c)(2), [[3/]] did not require grounding until within 2 feet of a conductor energized at 7.2 kilovolts.  The judge deferred to the Secretary's interpretation of section 1926.955(a)(6)(ii), requiring the grounding of a truck before its boom is moved from the cradle position if the boom could reach an energized line in any way.  He concluded that the Secretary's interpretation was not plainly erroneous or inconsistent with OSHA regulations and was "far more reasonable" than PP&L's.  The judge stated that the reasonableness of the Secretary's interpretation was demonstrated in Floyd S. Pike, supra, in which the employer implemented section 1926.955(a)(6)(ii) with a work rule that was consistent with the Secretary's interpretation of that standard in the instant case.  After concluding that the penalty of $560 proposed by the Secretary was excessive, Judge Taylor assessed a penalty of $250 based on PP&L's good faith as evidenced by its "excellent overall safety program."

Soon after receiving a copy of the judge's decision, which had not yet been filed with the Commission, PP&L filed a motion, as well as a supporting memorandum, for the judge to reconsider that portion of his decision concerning his interpretation of the cited standard and to reopen the record to permit PP&L to introduce evidence concerning the application of another utility company for a variance from section 1926.955(a)(6)(ii).  That evidence, copies of which were attached to the supporting memorandum filed with the judge, consisted of these documents:  (1) an application from Wisconsin Electric Power Co., through its counsel, for an order granting a variance from section 1926.955(a)(6)(ii) and a memorandum in support thereof directed to the Assistant Secretary of Labor for Occupational Safety and Health, United States Department of Labor, in which Wisconsin Electric asserted that its employees would be best protected by permitting them to alternatively or jointly insulate, isolate, ground, or barricade electric line trucks, in accordance with section 1926.952(c)(2), because grounding or barricading alone, as required by section 1926.955(a)(6)(ii), does not always adequately protect the line crew; (2) a letter in response, dated October 17, 1978, from James J. Concannon, the Director of the Occupational Safety and Health Administration's Office of Variance Determination, in which he agreed with the company that barricading alone, one of the alternatives under section 1926.955(a)(6)(ii), would not provide adequate protection.   He then stated that "it appears that if there is compliance with 1926.952(c) there is also compliance with 1926.955(a)(6)(ii) and a variance is unnecessary."

PP&L argued that those documents, particularly the quoted statement by Concannon, support its position as to when a truck with a boom near an energized line should be grounded under section 1926.955(a)(6)(ii).  PP&L stated that it was not until after the judge had issued his decision that it had learned of the two letters from its trade association.  PP&L gave no reason why it could not have obtained the letters earlier.  Nevertheless, it asserted that reopening of the record was warranted because:  (1) the judge had deferred to an interpretation of the standard by the Secretary that had been superseded by the interpretation in the Concannon letter; (2) the inconsistency in the Secretary's interpretations of the cited standard corroborated PP&L's contention that the standard is unenforceably vague; and (3) the judge's sua sponte reliance on Floyd S. Pike's work rule had denied PP&L due process because it filled the evidentiary void on the question of the reasonableness of the Secretary's interpretation of the standard without giving PP&L the opportunity to rebut that contention.

After reconsidering his interpretation of the cited standard, Judge Taylor issued a brief decision in which he stated his adherence to his decision on the merits and denied PP&L's "untimely" motion to reopen the record because PP&L had failed to establish that the letters were not available to it at the time of the hearing, citing generally Seattle Crescent Container Service, 79 OSAHRC 91/A2, 7 BNA OSHC 1895, 1979 CCH OSHD ¶ 24,002 (No. 15242, 1979).  Moreover, the judge concluded that, because PP&L did not learn of the Concannon letter until after his decision, the letter could not have affected PP&L's failure to modify its work rule.  He also noted that, after having learned of the Secretary's interpretation of the cited standard at the hearing, PP&L did not move for a continuance.  Furthermore, the judge stated that, although the court's decision in Wisconsin Electric Power Co. v. OSHRC, 567 F.2d 735 (7th Cir. 1977), did not define the term "near," it did put PP&L on notice that the requirements of section 1926.952 (c)(2) were considered to be more lenient than the provisions of section 1926.955 (a)(6)(ii), and that its work rule on grounding was therefore inadequate. The judge also noted that his conclusion that the Secretary's interpretation was far more reasonable than PP&L's was based on the evidence of record, not on the work rule set forth in Floyd S. Pike, supra, a published decision of the Commission.

III

A

PP&L argues on review that, given the record in this case and particularly Judge Taylor's "surprise" reliance on the Floyd S. Pike work rule, the judge abused his discretion in denying its motion to reopen the record to allow introduction of Wisconsin Electric Power Co.'s application for a variance and the Concannon letter.  In addition to the arguments it made before the judge, PP&L asserts that the instant case is distinguishable from Seattle Crescent Container Service, supra, because PP&L's motion to reopen is not the result of a lack of diligence in failing to introduce rebuttal evidence at the hearing.  PP&L's position is that prior to the judge's decision relying on the Floyd S. Pike work rule there was nothing to rebut.

The Secretary contends on review that the judge acted properly in denying the motion because of the need to end this litigation and PP&L's failure to establish that there was any substantial justification for reopening the record or that reopening of the record would materially enhance a decision on the merits.  The Secretary particularly notes that the letters were written at least 20 months before the hearing in this case and were thus "available" to PP&L long before the hearing.  The Secretary asserts, as did Judge Taylor in his order denying PP&L's motion, that the judge did not base his decision on the Floyd S. Pike work rule, but rather he only referred to it as an example of implementation of the Secretary's interpretation of the cited standard.

(1)

In Wisconsin Electric Power Co., supra, the employer was issued a citation for failure to comply with section 1926.955(a)(6)(ii) in that it failed to bond a line truck to an effective ground or to consider the truck energized and barricade it.   Wisconsin Electric argued that the standard cited was inapplicable and that it had complied with the applicable standard--section 1926.952(c)(2) (see note 3 supra) --in that it had installed an insulated barrier between the mechanical equipment and the energized line.  In its decision, the Commission concluded that, based on the language in the introductory sentence comprising section 1926.955(a)(1), note 1 supra, compliance with section 1926.952(c)(2) does not abrogate the duty to comply with section 1926.955(a)(6)(ii).  The Commission noted that those two standards impose cumulative requirements, for section 1926.952(c)(2) specifies four alternative measures, one of which must be taken when mechanical equipment not certified for the specific voltage is operated within a particular distances of an energized line, while the more restrictive provisions of section 1926.955(a)(6)(ii) require that when overhead lines and lifting equipment are involved, only two alternative measures--grounding or barricading--are permitted.

The Court of Appeals for the Seventh Circuit affirmed the Commission after agreeing with the Secretary that when lifting equipment is used to work on or with overhead lines it is likely to become energized and more stringent protective requirements are warranted.  Wisconsin Electric Power Co. v. OSHRC, supra.  Neither the Commission's decision nor the court's decision discussed the meaning of the term "near" in section 1926.955(a)(6)(ii) because the factor of distance was not in issue.  Following the court's decision, Wisconsin Electric submitted an application for an order granting a variance and supporting memorandum to the Assistant Secretary of Labor for Occupational Safety and Health.  That application and memorandum as well as the Secretary's response are the documents that PP&L continues to seek to introduce into the record in the instant case.

(2)

In our decision in Chesapeake Operating Co., 82 OSAHRC 36/C9, 10 BNA OSHC 1790, 1982 CCH OSHD ¶ 26,142 (No. 78-1353, 1982), we noted that motions to reopen the record to introduce additional evidence are not specifically covered by the Federal Rules of Civil Procedure.  We further noted in that decision that Professor Moore provides some guidance for ruling on such motions in 6A Moore's Federal Practice ¶ 59.04 [13] at pp. 59-33, 59-34, 59-37 (2d ed. 1982) where he states (footnotes omitted):

In passing on the motion, the time when the motion is made, the character of the additional testimony, and the effect of granting the motion are pertinent factors for consideration.

A [trial] court, then, should consider a motion to reopen to take additional testimony in light of all the surrounding circumstances and grant or deny it in the interest of fairness and substantial justice.

In the instant case, we conclude that Judge Taylor did not abuse his discretion in denying PP&L's motion to reopen the record.  The judge properly weighed the factors mentioned in the above quote from Moore's Federal Practice in making his ruling.  However, we believe that the interests of fairness, substantial justice, and adjudicative efficiency would be best served by our considering the Concannon letter now rather than promoting the continued uncertainty as to the meaning of the letter that would result if we awaited a case in which the letter was admitted into evidence.   See Chesapeake Operating Co., supra.

We note that Mr. Concannon's letter responds to a specific request by Wisconsin Electric Power Co., through its counsel, that the Secretary grant it a variance from section 1926.955(a)(6)(ii) so that its employees would have the flexibility of insulating or isolating electric line trucks used near energized lines as an alternative or in addition to grounding or barricading.  The only statement in the Concannon letter that arguably supports PP&L's position in the instant case is the declaration that "it appears that if there is compliance with 1926.952(c) there is also compliance with 1926.955(a)(6)(ii) and a variance is unnecessary."  Assuming Concannon's letter is the equivalent of an order granting a variance, we would not find it dispositive in this case.  As we noted in Bethlehem Steel Corp., 81 OSAHRC 86/A2, 9 BNA OSHC 2177, 1981 CCH OSHD ¶ 25,645 (No. 77-617, 1981), petition denied, 688 F.2d 818 (3d Cir. June 17, 1982), a variance applies to the specific employer and situation for which it is granted and is not binding on the Secretary or the Commission in other cases.   Because Wisconsin Electric sought a variance only insofar as particular methods of preventing electric shock were concerned, Concannon's statement quoted above must be read in the narrow context of the variance request and not extended to issues not raised by Wisconsin Electric, such as the distance from an energized line at which a line truck must be grounded or barricaded.  Furthermore, Concannon provided no authority or reasons for his general statement other than noting his agreement with Wisconsin Electric's argument that barricading alone does not provide sufficient safety.  We note that neither Wisconsin Electric's variance application and memorandum nor Concannon's letter mention the Commission decision in Wisconsin Electric Power Co., supra, or the Seventh Circuit's decision affirming it.  Thus, Concannon apparently did not consider the rationale of those decisions in responding to the variance application.  Finally, PP&L could not have relied to its detriment on Concannon's letter at the time of the inspection because PP&L was not aware of the letter's contents until after the judge's decision was originally filed in the instant case.  See Bethlehem Steel Corp., 81 OSAHRC 108/A2, 10 BNA OSHC 1264, 1982 CCH OSHD ¶ 25,839 (No. 16067, 1981).[[4/]]

B

(1)

PP&L contends on review that the judge erred in concluding that it had knowledge of the violative conduct because, in the instant case, the Secretary had not met his burden of proving that the cited employer could have foreseen its supervisor's allegedly violative conduct, citing Capital Electric Line Builders of Kansas, Inc. v. Marshall, 678 F.2d 128 (10th Cir. 1982), among other cases.  In H.E. Wiese, Inc., 82 OSAHRC 18/A2, 10 BNA OSHC 1499, 1982 CCH OSHD ¶ 25,985 (Nos. 78-204 & 78-205, 1982), appeal filed, No. 82-4202 (5th Cir. May 28, 1982), the Commission reiterated its view that, when a violation is committed by an employer's supervisory employee, the actions and knowledge of that employee are imputed to the employer unless the employer rebuts by demonstrating that the supervisor's conduct was unpreventable.  We adhere to that view.

(2)

PP&L argues that the judge erred in concluding that it had not established that Hankee's conduct was unpreventable.  It reiterates its contention before the judge that its work rule, which was patterned after section 1926.952(c)(2), see note 3 supra, and requires grounding of electric line trucks when used within 2 feet of a conductor energized at 2.1 to 12 kilovolts, effectively implemented the requirement in section 1926.955(a)(6)(ii) that such lifting equipment be grounded or barricaded when used "near" an energized line.

On review, the Secretary expands upon his arguments before the judge that his interpretation of "near" in section 1926.955(a)(6)(ii) to mean within reaching distance of an energized line is the more reasonable definition.  According to the Secretary, his interpretation of "near" is more practical and more likely to prevent accidental electrocution than PP&L's because an employee is more likely to ground or barricade the line truck before moving the boom than to partially move the boom and then stop and ground or barricade when the boom is 2 feet from the line.  The Secretary also argues that PP&L's interpretation of "near" was implicitly rejected by the Commission in Wisconsin Electric Power Co., supra, and by the United States Court of Appeals for the Seventh Circuit in Wisconsin Electric Power Co. v. OSHRC, supra, when they concluded that the provisions of section 1926.955(a)(6)(ii) are more restrictive than those of section 1926.952(c)(2), and, in being particularly applicable to work on or with overhead lines, section 1926.955(a)(6)(ii) must be complied with in addition to other standards in Subpart V.  The Secretary contends that because OSHA chose to use the term "near" in the cited standard it therefore meant something different than the specific minimum working distances set forth in some of the other standards under Subpart V.

We agree with the Secretary's arguments and conclude that the word "near" in section 1926.955(a)(6)(ii) does not refer to the clearance distances listed elsewhere in Subpart V.  Because we interpret section 1926.955(a)(6)(ii) to require grounding or barricading at a distance from the particular energized line in this case that is greater than the two feet permitted under PP&L's work rule, we conclude, as did Judge Taylor, that PP&L failed to establish that it had a work rule that effectively implemented the requirements of the cited standard and therefore failed to prove that the violation was the result of unpreventable employee misconduct. [[5/]]   See Wisconsin Electric Power Co., 4 BNA OSHC at 1786, 1976-77 CCH OSHD at p. 25,532. [[6/]] We also agree with the judge in rejecting PP&L's argument that the cited standard is unenforceably vague.

We therefore affirm the citation item alleging a serious violation for noncompliance with section 1926.955(a)(6)(ii).  Based on the considerations set forth in section 17(j) of the Act, 29 U.S.C. § 666(i), we conclude that the penalty of $250 assessed by the judge is appropriate and affirm that assessment.

IT IS SO ORDERED.
FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  APR 8 1983


The Administrative Law Judge decision in this matter is unavailable in this format.   To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).



FOOTNOTES:

[[1/]] The other item in the citation, which the judge vacated, is not before the Commission on review.

[[2/]] The relevant provisions of § 1926.955(a) read as follows:

Subpart V--Power Transmission and Distribution
§ 1926.955 Overhead lines.

(a) Overhead lines.  (1) When working on or with overhead lines the provisions of paragraph (a)(2) through (8) of this section shall be complied with in addition to other applicable provisions of this subpart.
(6) ***

(ii) Lifting equipment shall be bonded to an effective ground or it shall be considered energized and barricaded when utilized near energized equipment or lines.

[[3/]] The standard provides:

Subpart V --Power Transmission and Distribution

§1926.952 Mechanical equipment.
(c) Derrick trucks, cranes and other lifting equipment.

(2) With the exception of equipment certified for work on the proper voltage, mechanical equipment shall not be operated closer to any energized line or equipment than the clearances set forth in § 1926.950(c) unless:

(i) An insulated barrier is installed between the energized part and the mechanical equipment, or
(ii) The mechanical equipment is grounded, or

(iii) The mechanical equipment is insulated, or
(iv) The mechanical equipment is considered as energized.

Table V-1, which is set forth in 29 C.F.R. § 1926.950(c) under Subpart V, lists voltage ranges and corresponding minimum working distances.  For the range applicable in the instant case -- 2.1 to 15 kilovolts -- the minimum working distance allowed is 2 feet.

[[4/]] Commissioner Cleary finds that this case is distinguishable from Chesapeake Operating Co., supra, in which he concluded that a letter, offered by the cited employer after the conclusion of the hearing, gave credence to the argument that the maritime industry was not aware that the cited standard applied to cargo stored on deck.   10 BNA OSHC at 1793, 1982 CCH OSHD at
p. 32,916.  Commissioner Cleary vacated that citation on the basis that the cited employer lacked sufficient notice of the requirements of the standard.  With regard to the instant case, § 1926.955(a)(6)(ii) was held to apply in Wisconsin Electric to the exclusion of § 1926.952(c)(2) long before the citation in this case was issued.  He concludes there was no absence of notice in this case.

[[5/]] PP&L also argues that Hankee's conduct was unforeseeable because contact between the boom and the energized wire would not have occurred had the work been performed as planned in advance by the crew.  PP&L's argument is rejected.   The Act places final responsibility for compliance with its requirements on the employer.  Having failed to implement and enforce an appropriate workrule, the employer cannot evade its liability by shifting to its employees the responsibility for assuring safe working procedures. See Stuttgart Machine Works, Inc., 81 OSAHRC 14/A2, 9 BNA OSHC 1366, 1981 CCH OSHD ¶ 25,216 (No. 77-3021, 1981); Brown & Root, Inc., 80 OSAHRC 97/A2, 8 BNA OSHC 2140, 1980 CCH OSHD ¶ 24,853 (No. 76-1296, 1980); Iowa Southern Utilities Co., 77 OSAHRC 32/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD ¶ 21,612 (No. 9295, 1977).  Furthermore, the evidence regarding the crew's work plan does not establish that Hankee planned to wait until after the energized line was pulled away before the boom was moved from its cradle.  In fact, PP&L's Assistant Safety Director at the time of the fatality and "chairman of the accident investigating report" testified that the work plan did not specify at what point in time the boom was to be moved into position.

[[6/]] Prior to the occurrence of the alleged violation in this case, the Commission had found that an employer's work rule effectively implemented the requirements of § 1926.955(a)(6)(ii).  Floyd S. Pike, supra.  That decision gave employers notice of the type of conduct necessary to comply with the standard, and the judge properly relied on Floyd S. Pike to support his disposition.