SECRETARY OF LABOR,
Complainant,

v.

GULF STATES UTILITIES COMPANY,
Respondent.

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL- CIO,
LOCAL UNION 2286,

Authorized Employee Representative.

OSHRC Docket No. 82- 0867


DECISION

Before: BUCKLEY, Chairman; RADER and WALL, Commissioners. BY THE COMMISSION.

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(1), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration . It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. 659(c).

Gulf States Utilities Company ("Gulf States") is a public utility that supplies electricity in parts of southeastern Texas and southwestern Louisiana. On July 8, 1982, a Gulf States line crew was changing certain insulators for a Power line at a site near Vinton, Louisiana. On one pole supporting the power line some of the line-to-pole insulators had been damaged by vandalism. The Gulf States crew was replacing the damaged porcelain insulators with new epoxy ones, which are less susceptible to damage than porcelain. There were two other sets of insulators on the same pole, but the crew was not replacing these insulators because they were not damaged.

The crew consisted of five employees, including a foreman, a second-class lineman, and a third-class lineman. When the crew arrived at the worksite, they received a clearance order indicating that the power lines had been deenergized. The foreman then discussed with the crew the procedure by which they would ground the lines at the worksite. Even though the lines had been deenergized, it was necessary to ground them on both sides of the pole so that any voltage induced in a deenergized line by a parallel energized line would flow to ground at the worksite and not present a hazard to the employees working at the pole. The crew used grounding chains, first attached to a neutral or grounded line (or the ground) and thereafter attached to a conductor--the deenergized power lines. The crew used insulated tools to attach the grounding chains to the conductor.

After the damaged insulators had been replaced with new insulators, the crew proceeded to remove the grounding chains. They were to be removed in the reverse order of installation--the last conductor grounded would be the first ungrounded, and so forth. The crew was to use insulated tools to detach a grounding chain from a conductor. All of these procedures were discussed by the crew just prior to the start of work on the lines.

In previously grounding one conductor to another already-grounded one the crew had spliced two grounding chains together to form one long enough to make the connection. During the process of removing the grounding chains, the conductor end of this spliced chain was properly detached from the conductor with an insulated tool. As a result of an error, however, another grounding chain was removed out of order. Because of this error, the spliced chain was no longer attached to a grounded line and one of the linemen, who was holding the spliced chain in his lap while trying to unsplice it, was electrocuted by a flow of current induced in the no-longer-grounded line.

After the accident, the Secretary conducted an inspection and issued a citation to Gulf States. The citation alleged that, on or about July 8, 1982, Gulf States violated 29 C.F.R. 1926.954(e)(2) by failing to remove grounding cables in the reverse order of installation and by failing to use an insulated tool while uncoupling the two spliced grounding chains.[[1]] Section 1926.954(e)(2) appears in 29 C.F.R. Part 1926, Subpart V, which governs the "construction" of electric transmission and distribution lines and equipment. [[2]]

Gulf States argued to the judge and now argues to the Commission that the cited standard is inapplicable because the work its employees were performing on electric power lines was not "construction" but, rather, was maintenance work. Gulf States points out that the legislative history of Subpart V and Commission precedent indicate that maintenance work is not subject to Subpart V. Judge Sparks concluded that the standard was applicable because Gulf States' employees were engaged in "improvement" rather than maintenance of existing electric transmission and distribution lines and equipment. Review was directed on this issue.[[3]] We reverse Judge Sparks' decision and vacate the citation. We find that the work performed on the power lines was maintenance work and therefore not subject to Subpart V of Part 1926.

Section 1926.950(a)(1) states that Subpart V applies to construction and indicates that construction includes improvement. The preamble to the standard makes clear, however, that the drafters of Subpart V did not intend construction to cover maintenance work, see 37 Fed. Reg. 24882 (1972),[[4]] and the Commission has long upheld this position in its decisions. See Mississippi Power & Light Co., 79 OSAHRC 109/D12, 7 BNA OSHC 2036, 2038, 1980 CCH OSHD 24,146, p. 29,330 (No. 76-2044, 1979); Consumer Power Co., 77 OSAHRC 73/E8, 5 BNA OSHC 1423, 1425, 1977-78 CCH OSHD 21,786, p. 26,190 (No. 11107, 1977); Pacific Gas & Electric Co., 75 OSAHRC 40/B9, 2 BNA OSHC 1692, 1693, 1974-75 CCH OSHD 19,431, pp. 23,191-92 (No. 2821, 1975), aff'd mem., 554 F.2d 1070 (9th Cir. 1977).

The Secretary does not dispute that the standard is inapplicable to maintenance work; he takes issue only with Gulf States' characterization of the work as "maintenance" rather than "improvement." The question, then, is whether the work performed by Gulf States was improvement or maintenance.

In arguing that the work on the day of the alleged violation was "improvement," the Secretary first maintains that replacing damaged insulators is "improvement" per se. The Secretary asserts that because a damaged insulator [[4]] does not perform its function of insulating a conductor from its support structure, the work of installing a replacement insulator of even the same sort would "improve" the structure. Alternatively, the Secretary argues that the replacement of porcelain insulators with epoxy insulators upgraded the electric lines and thus was itself an "improvement."[[5]]

We disagree. The Secretary's first argument--that the replacement of damaged insulators with insulators of any type "improves" the lines--is so broad as to make every imaginable sort of maintenance an "improvement." To adopt it would give no effect to the Secretary's own rulemaking decision to exclude maintenance from Subpart V, a decision that the Secretary's review brief neither mentions nor acknowledges. Replacing damaged insulators is analogous to replacing spark plugs or light bulbs as they are damaged or wear out--tasks

that are plainly maintenance. The replacement of the damaged insulators here did not change the capacity or function of the power lines. Instead, the lines were simply maintained in the same condition they were before the insulators were damaged. This precisely fits the ordinary meaning of "maintenance" as "[t]he work of keeping something in proper condition." American Heritage Dictionary 787 (1976).

The Secretary's alternative argument--that the replacement of porcelain insulators with epoxy insulators is itself an "improvement"--also mischaracterize the nature of the work being done here. The tasks involved in installing replacement epoxy insulators were identical to those for installing replacement porcelain insulators. The insulation level remained the same with the installation of epoxy insulators. The epoxy insulators did not alter or improve the transmission line's current-carrying capacity, power-transfer capabilities, voltage rating or any other function.

That the epoxy insulators are more damage-resistant does not take the work of Gulf States' employees out of the category of maintenance. The porcelain insulators were not replaced because they were more susceptible to damage, but because they were actually damaged. They were not replaced as part of a systematic plan for upgrading the porcelain insulators. In fact on the pole in question the linemen replaced only the one insulator which had been damaged, making no change in two undamaged porcelain insulators on the same pole. Clearly the main purpose of the work was maintenance or upkeep, not improvement. To hold that the simple replacement of the damaged insulators in this case was improvement would have the practical effect of nullifying any exclusion in the standard for maintenance work.[[6]]

In conclusion, since the work performed in this case involved maintenance, and not construction, of electric transmission and distribution lines, section 1926.954(e)(2) does not apply. The citation is vacated.


FOR THE COMMISSION

RAY H. DARLING, JR.


DATED: November 20, 1985




FOOTNOTES:

[[1]] The cited standard states:

1926.954 Grounding for protection of employees.
(e) Attaching grounds. (1) When attaching grounds,the ground end shall be attached first, and the other end shall be attached and removed by means of insulated tools or other suitable devices.

(2) When removing grounds, the grounding device shall first be removed from the line or equipment using insulating tools or other suitable devices.

[[2]] Section 1926.950(a)(1) provides:

1926.950 General requirements.

(a) Application. The occupational safety and health standards contained in this Subpart V shall apply to the construction of electric transmission and distribution lines and equipment.

(1) As used in this Subpart V the term "construction" includes the erection of new electric transmission and distribution lines and equipment, and the alteration, conversion, and improvement of existing electric transmission and distribution lines and equipment.

[[3]] Review was directed on the issues of (1) whether the replacement of the insulators was maintenance or improvement; (2) whether the cited standard requires an insulated tool to uncouple spliced grounding chains after the chains
have been removed from the conductor; and (3) whether Gulf States -could have reasonably anticipated that one of its experienced employees would have removed grounding chains out of sequence, thus creating the hazard of electrocution that occurred here. Since we vacate the citation on the ground that the replacement of the insulators was clearly maintenance, and thus the cited standard is inapplicable, it is not necessary to reach the other issues directed for review.

Chairman Buckley would note the following: The record indicates that an insulated tool was used to remove the spliced grounding chain from the conductor, but not to unsplice the chains. Gulf States contended that the cited standard requires only that an insulated tool be used for detaching the chain from the conductor and that it does not cover any other task, including other handling of the chain. It argued that the purpose of detaching the grounding chain from a conductor is so that it can be handled without an insulating tool. Gulf States also contended that its safety procedures call for the grounding procedure required by 1926.954(e) and it could not have reasonably anticipated the employee error (removing the ground out of order) that made it unsafe for the decedent to handle the spliced cables. The judge found that Gulf States uniformly and effectively communicated and enforced its work rule requiring that grounding chains be removed in the inverse order of their placement.

[[4]] When the Secretary adopted Subpart V, he explained its applicability as follows:

Applicability. The proposed occupational safety and health standards contained in Subpart V are applicable to the construction of electric transmission and distribution lines and equipment. Some comments were received which recommended that the standards be extended to maintenance work. The comments go beyond the subject matter of this proceeding which is addressed to the erection of new electric transmission and distribution lines and equipment, and the alteration, conversion, and improvement of existing transmission and distribution lines and equipment.

[[5]] The Secretary also argues that because the crew had been changing poles and wires as well as insulators during the three or four months preceding the accident, the employees were engaged in work for construction and "improvement." We reject this argument. The Secretary's citation alleged that a violation of the cited standard occurred on or about July 8. 1982, at which time the crew was only replacing damaged insulators. The Secretary did not make any charge or present any evidence suggesting that this crew violated any safety standards during the conduct of work of a different nature and at other times. In the absence of evidence that the crew failed to abide by these regulations at other times and on other sites, we limit our inquiry into whether a violation occurred on or about the date set forth in the citation.

[[6]] The Secretary cites several Commission cases in support of his position, but the cases are clearly distinguishable All involved far more substantial alterations to the electric power transmission systems than is involved in this case. In Mississippi Power, a crew was replacing an entire utility pole with a new larger pole. In Pacific Gas, a crew was replacing a rotted wooden pole with a new one, transferring the power lines to the new pole, replacing two secondary conductors with a duplex conductor, and installing one new transformer in place of two old ones. This reduced the number of lines and transformers needed in the system. In the case before us, only broken porcelain insulators on one side of a pole were being replaced with epoxy insulators.