SECRETARY OF LABOR,
Complainant,

v.

CLEVELAND CONSOLIDATED, INC.,
Respondent.

OSHRC Docket No. 84-0696

 

DECISION

Before: BUCKLEY, Chairman; WALL, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(j), 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).

In 1984, Cleveland Consolidated, Inc. was an electrical subcontractor at Vogtle Nuclear Power Plant under construction in Waynesboro, Georgia. The Secretary of Labor issued a citation alleging that during that work, Cleveland violated two construction safety standards. The Secretary proposed a combined penalty of $480. Administrative Law Judge James D. Burroughs found that Cleveland violated both standards, and he assessed the proposed penalty. Cleveland obtained discretionary review of the judge's decision. With respect to the first citation item, we affirm. For the second citation item, we conclude that the violation is, in part, de minimis. We further hold that, to the extent that the violation in part is greater than de minimis, it is duplicative of the first citation item. Therefore, we find only a single serious violation, and we assess a single penalty of $100.

 

I.

In item 1a of the citation, the Secretary alleged that Cleveland violated C.F.R 1926.400(c)(1). That standard provides:

1926.400(c)(1). General requirements.
*                                          *                                          *
(c) 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 de-energizing the circuit and grounding it or by guarding it by effective insulation or other means . . . .

The essential facts are not in dispute. On the evening of April 13, 1984, four Cleveland employees--William Stansell, Walter McCoy, George Sutton, and Jerry Gill--were assigned to replace a damaged electrical cable that was connected to a switchbox. Stansell was designated as working foreman for the crew. The switchbox was mounted on a wall in a corridor only 28 inches wide. Because electricity had been cut off to the cable being replaced, the electric lights in the building did not work. The crew therefore used portable swivel-head lanterns.

The switchbox was 28 to 30 inches high; its top was 39 inches above the floor. The switchbox consisted of two parts. The bottom part, of "load side," contained the electrical cable which was to be replaced. The top part, or "line side," had four conductors carrying at least 460 volts of electricity enclosed in a conduit, which entered the switchbox from a transformer outside of the building. The line side conduit and the load side cable were connected to the switchbox at the top and bottom parts, respectively, by uninsulated set screws, referred to as "lugs." The three lugs for the line side were approximately 13   inches above the three lugs for the load side. An unenergized bar was located below the line side lugs.

In preparation for the cable replacement, Stansell flipped the bar switch on the side of the switchbox to the "off" position, which de-energized the load side of the box. He then removed the fuses on the load side. The line side, including the three exposed lugs, remained energized. After the damaged cable was removed, Sutton started to attach the replacement cable to the load side lugs in the switchbox. Gill held the flashlight and handed tools to Sutton. Sutton sat in front of the switchbox on a metal bucket about 12 inches high. He did not use any insulation or other protection from electric shock. While Sutton was in the process of attaching the replacement cable to the lug furthest to the left on the load side of the switchbox, an explosion occurred at the switchbox. Sutton was sufficiently close to the switchbox so that his beard and clothes were set on fire.[[1]]

It is undisputed that the "line" side of the switchbox was neither de-energized nor guarded by "effective insulation or other means" within the meaning of section 1926.400(c)(1). The question we would ordinarily turn to, therefore, is whether a Cleveland employee was shown to have been in "such proximity to any part of an electrical power circuit that he may [have] contact[ed] [it] in the course of his work. . . . " Cleveland argues, however, that the word "proximity" in section 1926.00(c)(l) is so vague as to violate the due process requirement of the fifth amendment to the Constitution. Cleveland asserts that "proximity" does not connote a "prohibited spacial relationship" between the employee's location while working and an electrical power circuit. Since the word "proximity" is vague, Cleveland submits that reference must be made to the customary practices of a reasonably prudent electrical contractor to determine what proximity means when working near an energized power circuit.

The word "proximity" as it is used in section 1926.400(c)(1) is not specially defined in the electrical standards for construction work. See section 1926.405 (special definitions). Webster's Third New International Dictionary 1823 (1971) defines "proximity" as the "quality or state of being proximate, next, or very near . . . ." Thus, the dictionary definition of "proximity" does not connote a specific distance. That "proximity" is an imprecise word and is not specially defined in the electrical standards does not, however, mean that the standard is vague. In interpreting a standard and in determining whether it is vague, words are to be examined in context, not in isolation. See Tunnel Electric Construction Co., 80 OSAHRC 80/B7, 8 BNA OSHC 1961, 1963, 1980 CCH OSHD 24,706, p. 30,321 (No. 76-1803, 1980) (focus upon a single word in electrical standard ignores clear context of its use); 2A Sutherland Stat. Const. 46.05 (4th Ed. 1984)(statute should be construed as a whole; meaning of word or phrase to be determined from context). Thus, if a standard affords fair notice when read in its entirety, it does not matter that a single word viewed in isolation is imprecise.[[2]]

We agree with Judge Burroughs that section 1926.400(c)(1) is not vague because the context in which it uses the word "proximity" explains and narrows the word's meaning. The standard speaks not of an employee working in "proximity" to an electric power circuit, but "in such proximity to any part of an electric power circuit that he may contact [it] in the course of his work . . . ." The clear meaning and evident purpose of the standard is therefore that an employee shall not work so close to an energized power circuit that he may inadvertently contact it in the course of his work. Thus, the standard, when read in its entirety, prescribes a specific and ascertainable standard of conduct, for an employer can determine by objective means whether employees are within reach of, and therefore may contact, an energized power circuit while they work.

Cleveland presented evidence at the hearing that it was industry practice, in performing the repair at issue, not to de-energize the line portion of the switchbox or to otherwise follow the precautions outlined in section 1926.400(c)(1). However, we agree with Judge Burroughs that reference to industry practice or a "reasonably prudent employer" test is not warranted when the standard prescribes the expected standard or employer conduct in specific terms. Both the Commission and several courts of appeals have held that reference to industry practice or a "reasonable person" test is required only to cure a standard of vagueness.[[3]] Since section 1926.400(c)(1) is not vague, an industry custom or "reasonable person" test is not warranted.[[4]]

We therefore turn to whether Cleveland's employee was working in such proximity to energized parts that he may have contacted them in the course of his work. Cleveland's employee McCoy indicated that Sutton, when he was sitting on the bucket, was within arm's reach of the energized lugs in the switchbox. Also, Sutton's beard and clothes were set afire by the explosion at the switchbox. Thus, the record shows that Sutton was working in proximity to the energized lugs within the meaning of section 1926.400(c)(1).

We also find that the Secretary proved that the employer actually knew of the violative condition or could have known of it with the exercise of reasonable diligence. Sasser Electric & Manufacturing Co., 84 OSAHRC 37/C6, 11 BNA OSHC 2133, 2135, 1984 CCH OSHD 26,982, p. 34,684 (No. 82-178, 1984), aff'd, 12 BNA OSHC 1445 (4th Cir. 1985)(opinion designated as unpublished).[[5]] At the hearing, Cleveland stipulated that it was aware of the "physical conditions" that constituted the alleged violation. See Southwestern Acoustics & Specialty, Inc., 77 OSAHRC 25/E7, 5 BNA OSHC 1091, 1092, 1977-78 CCH OSHD 21,582, p. 25,896 (No. 12174, 1977) (record must show knowledge of physical conditions). Further, James Blount, Cleveland's project manager, indicated that the procedure followed by the workers on the day of the incident was Cleveland's normal procedure for performing that type of work. Stansell, the foreman in charge of the crew, had observed all the crew's members and knew exactly what physical conditions existed.

Cleveland asserts that the probability of an experienced electrician coming into contact with an energized part of the switchbox was extremely unlikely. Under the Act, a violation should be classified as de minimis when there is a technical noncompliance with a standard, but the departure bears such a negligible relationship to employee safety or health as to render inappropriate the assessment of a penalty or the entry of an abatement order. E.g., Keco Industries, Inc., 84 OSAHRC 7/A2, 11 BNA OSHC 1832, 1983-84 CCH OSHD 26,810 (No. 81-1976, 1984). However, the likelihood that Cleveland's employee Sutton would contact the energized power circuits of the switchbox was not so remote as to be de minimis. The switchbox was only 39 inches above the floor. The exposed, energized lugs in the switchbox were only 13  inches above the lugs on the load side of the box, to which Sutton was attaching the replacement cable. Further, the narrowness of the workplace and its darkness increased the likelihood that Sutton could have contacted the energized power circuit, which contained at least 460 volts of electricity. Accordingly, we agree with Judge Burroughs that the violation of section 1926.400(c)(1) was serious within the meaning of section 17(k) of the Act and not de minimis.

 

II.

The standard at 29 C.F.R. 1926.400(c)(2) provides:

1926.400 General requirements.
*                              *                              *
(c) Protection of employees.
*                              *                              *
(2) Before work is begun the employer shall ascertain by inquiry or direct observation, or by instruments, whether any part of an electric power circuit, exposed or concealed, is so located that the performance of the work may bring any person, tool, or machine into physical or electrical contact therewith. The employer shall post and maintain proper warning signs where such a circuit exists. He shall advise his employees of the location of such lines, the hazards involved and the protective measures to be taken.

Referring to the same cable-replacement job as the first citation item, the Secretary in citation item 1b alleges that Cleveland violated section 1926.400(c)(2) in that it did not "advise employees of the location of electric power circuits, the hazards involved, and protective measures to be taken. . ."

Cleveland does not contend that it advised its employees as required by section 1926.400(c)(2). Rather, it asserts that it was unnecessary to advise its employees as required by the standard, since the employees in Stansell's crew were experienced electricians who were aware of the dangers involved in performing the work of replacing the cable. However, section 1926.400(c)(2) contains no exception based upon the employee's experience.

We need not pass upon these matters further, however, for we conclude that any violation of section 1926.400(c)(2) is in part de minimis and in part duplicative of the violation we found above. Cleveland's employee McCoy, who had 36 years experience as an electrician, described the cable-replacement job as "routine." Further, both McCoy and Cleveland's project manager Blount indicated that the experienced electricians in Stansell's crew did not need to be told of the location of energized circuits and about the hazards involved, since the employees would know that information as a result of their experience and their training through a formal apprenticeship program. Based on this testimony, we conclude that Cleveland's failure to advise the employees in Stansell's crew of the location of energized circuits and of the hazards involved bore no more than a negligible relationship to the crew's safety and was therefore de minimis. Accordingly, we neither order abatement of this condition nor assess a penalty for it.

We also conclude that it would be duplicative of item 1a to affirm the remaining allegation of item 1b--that Cleveland failed to advise its employees of the "protective measures to be taken" within the meaning of section 1926.400(c)(2). We found above that Cleveland violated section 1926.400(c)(1) because an employee working in proximity to the exposed, energized lugs was not protected by effective insulation or other means. As a practical matter, however, the way by which Cleveland would meet section 1926.400(c)(1) is to instruct employees working in proximity to electric power circuits to de-energize the circuit or to use insulation or other protective measures. This would, of course, meet the requirement of section 1926.400(c)(2) that employees be advised of the "protective measures to be taken." In short, because the two citations items involve substantially the same violative conduct, we find only a single violation and assess a single penalty. See Alpha Poster Service, Inc., 76 OSAHRC 141/B8, 4 BNA OSHC 1883, 1884, 1976-77 CCH OSHD 21,354, p. 25,644 (No. 7869, 1976) (two items involving substantially the same violative conduct should merge into a single violation).

 

III.

We conclude that the penalty for the violation of section 1926.400(c)(1) should be $100. In assessing that amount, we rely upon the fact that there is no evidence that Cleveland had previously been cited for violations of the Act. Further, we consider it significant for penalty assessment purposes that Cleveland had a good faith belief, based upon industry practice, that its work procedures for replacing an electrical cable were safe.

Accordingly, citation item 1a is affirmed. Item 1b is modified to a de minimis notice. A single penalty of $100 is assessed.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: FEB 13, 1987


SECRETARY OF LABOR,
Complainant,

v.

CLEVELAND CONSOLIDATED, INC.,
Respondent.

OSHRC Docket No. 84-0696

APPEARANCES:
William Lawson, Esquire, and James L. Stine, Esquire,
Office of the Solicitor, U. S. Department of Labor,
Atlanta, Georgia, on behalf of complainant.

Ira J. Smotherman. Jr., Esquire, Stokes, Shapiro, Fussell
and Genberg, Atlanta, Georgia, on behalf of respondent.

 

DECISION AND ORDER

Burroughs, Judge: Cleveland Consolidated, Inc. ("CIeveland"), contests alleged serious violations of 29 C.F.R. 1926.400(c)(1) for failure to de-energize or otherwise guard an electric power circuit before allowing an employee to begin work near it and 29 C.F.R. 1926.400(c)(2) for failing to advise employees of the location of electric power circuits, the hazards involved, and the protective measures to be taken. The violations allegedly occurred on April 13, 1984, while four electricians were in the process of replacing a damaged cable in the RAD Waste Building at the Vogtle Nuclear Power Plant under construction at Waynesboro, Georgia.

Cleveland is an electrical and mechanical contractor. It has the primary electrical contract on the Vogtle Plant under construction by Georgia Power Company. On April 12, 1984, a cable which ran to the service or "load" center that provided electrical service to the RAD Waste Building was damaged when a worker dragged a welding lead over the cable. A temporary repair was completed and a decision made to replace the cable at the earliest occasion.

On April 13, 1984, four electricians, Walter McCoy, William Stansell, Jerry Gill, and George Sutton, were assigned to replace the cable after normal working hours on that date. Stansell was made foreman. The four electricians were to get the tools and materials together, de-energize the switch, remove the old cable, put in a new cable, terminate the wires and re-energize the switch. The repair was to be made after normal working hours since the cable had to be de- energized and there would be no lights or other power while they made the repair. The superintendent went over the job with the foreman and they decided what tools would be needed. The job was considered a routine operation.

The cable to be replaced was approximately 1 inches in diameter and ran from a switchbox to a load center approximately 40 feet away. The switchbox was mounted on the wall in a narrow corridor.  The top of the switchbox was 39 inches above the floor of the corridor. The box was approximately 28 inches in height. A safety switch was located on the right side of the switchbox. When the switch is pulled down, the electricity to the load cables is cut off. The box also contained three fuses. Four conductors enclosed in a conduit ran from a transformer outside the building into the top portion of the switchbox (referred to as the "line" side). The damaged cable ran from the bottom of the switchbox (referred to as the "load" side). The cables were connected to the switchbox at the top and bottom by set screws or "lugs."

On the evening of April 13, 1984, Stansell pulled down the switch on the switchbox to cut off the power to the "load" side, used his voltage tester to assure himself that the current had been cut off and then removed the fuses from the switchbox. This cut off all power to the load cables. Electrical current was still flowing into the top or "line" side of the switchbox. Once Stansell had assured himself that no electrical current was flowing to the "load" side, he and McCoy connected the far end of the new cable to the service center. When they finished this task, McCoy and Stansell returned to the switchbox to determine how Gill and Sutton were progressing with connecting the new cable to the switchbox.

As McCoy and Stansell approached the switchbox, they observed Sutton sitting on a small metal bucket in front of and facing the switchbox. Gill held a six-volt lantern and handed Sutton the necessary tools. Sutton was attaching the leads of the new cable to the bottom left lug in the switchbox. During this process, an explosion occurred.

 

ALLEGED VIOLATION OF 29 C.F.R. 1926.400(c)(1)

The Secretary contends that Cleveland violated 29 C.F.R. 1926.400(c)(1) for failure to de-energize or otherwise guard an electric power circuit before allowing an employee to work near it. The basic facts are undisputed. The top portion of the switchbox ("line" side) was live at the time Sutton was attaching the new cable to the bottom portion of the switchbox ("load" side). The "load" side had been de-energized. The Secretary argues that the "line" side should have been effectively insulated or de-energized prior to Sutton working on the "load" side. There was a distance of approximately 13 inches between the lugs for the "line" side and those for the "load" side.

The cited standard, 1926.400(c)(1),[[1/]] provides, in part, that "[n]o employer shall permit an employee to work in such proximity to any part of an electrical power circuit that he may contact the same in the course of his work unless the employee is protected against electric shock." (Underlining added.) The primary question involves whether Sutton, while working on the "load" side, was in such proximity to the "line" side that he might nave contacted the live power circuit "in the course of his work."

Cleveland argues that the standard uses the "term 'proximity' in a general way to describe a certain prohibited spacial relationship between an employee's work and an electrical power circuit." Since the word "proximity" does not connote specific measurements, it submits that reference must be made to the customary practices of a reasonably prudent electrical contractor to determine what proximity means when working near a live power circuit. Cleveland argues that "[t]he standard of care required in the absence of actual knowledge is that of a 'reasonably prudent [employer] familiar with the circumstances of the industry,'" citing Cape and Vineyard Division v. OSHRC, 512 F.2d 1148, 1152 (1st Cir. 1975); and B&B Insulation, Inc. v. OSHRC, 583 F.2d 1364, 1367 (5th Cir. 1978).

While the word "proximity"[[2/]] used by itself does not connote a specific spacial relationship between an employee's work and an electric power circuit, the use of the words "that he may contact. . .in the course of his work" assists in defining the meaning of "proximity" as used in the standard. The standard, as a whole, is clear that an employee is not to be permitted to work in such proximity to any part of an electrical power circuit that he may contact the same in the course of his work. A specific ascertainable standard of conduct is prescribed for an employer. The only question for determination is whether Sutton could contact the live part of the switchbox in the course of connecting the cable to the "load" side.

Compliance Officer James W. Deaver, Jr., measured a distance of 39 inches from the floor of the corridor to the top of the switchbox. Sutton was sitting on a small metal bucket approximately 12 inches high. He was facing the front of the switchbox while he was attaching the leads of the new cable to the bottom left lug in the switchbox. The distance between the lugs for the "line" side and those for the "load" side was approximately 13 inches. As Sutton faced the switchbox and worked from his seat on the metal bucket, the live part of the switchbox was easily within his working area. McCoy, who was at the site and observed Sutton as he worked, conceded that the energized portion of the switchbox was within reach or contact by Sutton (Tr. 22).

While the exact cause of the accident is unknown, Sutton was in such proximity to the live side of the switchbox that his beard and clothes were engulfed in flames (Tr. 84). While there is no evidence that Sutton made contact with the live parts of the switchbox, his work location was such that he easily could have made contact. He could have contacted the live parts in the course of his work on the "load" side. The violation has been established.

It is not necessary to resort to industry practice to determine the meaning of the word "proximity" as used in 1926.400(c)(1). The standard is clear that "proximity" is used to refer to those instances where the employee may make contact with an electric power circuit in the course of his work. If the employee can make contact with the power circuit in the course of his work, the employer must de-energize the circuit and ground it or guard it by effective insulation or other means. The standard does not describe the expected standard of employer conduct in nonspecific terms. The words "such proximity" must be read in context with the full wording of the standard. Cleveland focuses only on the word "proximity," which by itself does not prescribe an ascertainable standard of conduct.

Either actual or constructive knowledge of the violation must be established by the Secretary. See, e.g., Scheel Construction Inc., 76 OSAHRC 138/B6, 4 BNA OSHC 1825, 1976-77 CCH OSHD 21,263 (No. 8687, 1976), appeal dismissed, No. 77-1022, 8th Cir., February 10, 1977. Cleveland argues that the Secretary presented no evidence that Cleveland had knowledge of the hazard, either through its employees or its past experience with similar conditions. This argument is without merit. Cleveland was fully aware of all the conditions under which the four employees were to perform the job. The fact it deems the procedure followed in replacing the cable to be safe does not excuse it from complying with the standard.

The evidence establishes that Cleveland had insulating blankets at the site that would have insulated Sutton from the energized "line" side of the switchbox. This means of protection would have been simple and expedient.

 

ALLEGED VIOLATION OF 29 C.F.R. 1926.400(c)(2)

Cleveland was also cited for a violation of 29 C.F.R. 1926.400(c)(2),[[3/]] for failing to advise employees of the hazards involved and the protective measures to be taken while replacing the cable. The standard requires an employer to advise employees of the hazards involved and the protective measures to be taken when the employees' work may bring them or their tools into physical or electrical contact with any part of an electric power circuit, exposed or concealed.

Sutton was working on the "load" side while sitting on a bucket and facing the switchbox. He was in a position where he would contact an energized part in the course of his work. The superintendent went over the job with the foreman and decided what tools would be required to make the repair. McCoy could not recall any instructions as to what precautions should be taken (Tr. 36). The project manager, James R. Blount, did not know if safety precautions had been discussed prior to working on the switchbox (Tr. 98). The job was considered routine, and both McCoy and Blount were of the opinion that a craftsman working in a load center did not need to be instructed as to how to perform the job or as to what safety precautions needed to be taken. The fact the job was considered routine does not excuse Cleveland from complying with the standard. The standard does not excuse employers from compliance when experienced workers are performing work on live electric power circuits where the performance of the work might bring the employee into contact with the circuit.

The standard is specific in its requirements. There is no evidence that Cleveland complied with the provisions of the standard. Undoubtedly, Cleveland was of the opinion that work on a de-energized "load" side would not bring any employee into physical or electrical contact with the "line" side of the switchbox. Sutton was working within inches of the live circuit in a narrow corridor with the only light being from a six-volt lantern being held by Gill. While the chances of his contacting the live circuit may have been remote, the standard was promulgated to protect against the unexpected. The violation has been established.

 

NATURE OF VIOLATIONS

The Secretary alleges that the violations of 29 C.F.R. 1926.400(c)(1) and 400(c)(2) were serious within the meaning of section 17(k) of the Act.[[4/]] A violation is serious within the meaning of section 17(k) of the Act it there is (1) a substantial probability that death or serious physical harm could result from the violation, and (2) the employer knew or with the exercise of reasonable diligence could have known of the presence of the violation.

Cleveland had knowledge that the work was to be performed without de-energizing or otherwise protecting the employees from exposure to the "line" side of the switchbox. Under their normal procedure, such work was to be performed by de-energizing only the "load" side. Since Sutton was exposed to a possible shock of 460 volts, enough to electrocute him, the violations are deemed to be serious.

 

PENALTY DETERMINATION

The violations were combined for purposes of determining an appropriate penalty. While the Secretary proposes a penalty of $480, the Commission is the final arbiter of penalties in all contested cases. Secretary v. OSHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). Under section 17(j)[[5/]] of the Act, the Commission is required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith or the employer and the history of previous violations in determining the assessment of an appropriate penalty. The gravity of the offense is the principal factor to be considered. Nacirema Operating Co., Inc., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD 15,032 (No. 4, 1972).

The gravity of the violation must be considered serious since Sutton was working within inches of 460 volts of electricity while sitting on a metal bucket. The corridor was narrow and the work location was lighted with only a six-volt lantern. There is no evidence of previous citations and Cleveland's good faith was not questioned (Tr. 64). The company has over 2,000 employees (Tr. 64). A penalty of $460 is assessed for the violations.

 

FINDINGS OF FACT

1. Cleveland Consolidated, Inc. ("Cleveland"), is an electrical and mechanical contractor. At times pertinent to this action, it maintained a workplace at Vogtle Plant, River Road, Waynesboro, Georgia, a plant under construction for Georgia Power Company. Cleveland has the primary electrical contract on the Plant Vogtle Project (Tr. 71, 101).

2. On Friday, April 13, 1984, four electricians, Walter McCoy, William Stansell, Jerry Gill, and George Sutton, were assigned to replace a damaged cable which ran to the service or "load" center that provided electrical service to the RAD Waste Building (Tr. 7-8, 9, 10, 75, 109, 110). Stansell was the foreman for the job (Tr. 8, 109-110, 113).

3. Gill was an apprentice electrician. Sutton, McCoy and Stansell were journeymen wiremen (Tr. 7, 75). McCoy has 36 years' experience in the electrical industry (Tr. 7). Stansell has worked as a journeyman electrician for 33 years (Tr. 114).

4. The cable had been damaged on Thursday, April 12, 1984, when a worker dragged a welding load over it. A temporary repair was completed on Thursday and a decision made to replace the cable at the earliest occasion (Tr. 74).

5. The superintendent, went over the job with the foreman and decided what tools would be required to make the repair (Tr. 75, 86). The four employees were to get the tools and materials together, de-energize the switch, remove the old cable, put in a new cable, terminate the wires and re-energize the switch (Tr. 76). The job was a routine operation (Tr. 77).

6. The work was to be performed after normal working hours since the cable ran to the load center that provided electrical power for the building. The cable had to be de-energized for replacement. The cable furnished temporary power for the lights and other power equipment which were being used in the construction work (Tr. 7-8, 11-12, 74-75).

7. Four conductors enclosed in a conduit ran from a transformer mounted outside the building into the top portion of the switchbox (referred to as the "line" side) (Tr. 18-19, 77, 81). The cables carried at least 460 volts of electricity (Tr. 9).

8. The cable to be replaced was approximately 1 inches in diameter and ran from a switchbox to the load center, which was approximately 40 feet away. The switchbox was mounted on the wall in a narrow corridor, approximately one to two feet above the floor (Ex. 8; Tr. 10, 18, 25, 76).

9. The distance from the floor of the corridor to the top of the switchbox was 39 inches (Tr. 59). The corridor was 28 inches wide (Tr. 61).

10. The cable that was to be replaced ran from the bottom of the switchbox (referred to as the "load" side). The cables were connected to the switchbox at the top and bottom by set screws or "lugs." The distance between the lugs for the line side and those for the load side was approximately 13 inches (Tr. 59, 61, 76, 81).

11. A brake handle or safety switch was located on the right side of the switchbox. When the handle is pulled down, it cuts off the electricity flowing into the load cables. The switchbox contained three fuses. Removing the fuses from the switchbox prevented any power from flowing to the load cables (Tr. 14, 42). It is normal procedure to remove the fuses as an additional precaution in the event the switch is defective (Tr. 44). Electricity would still flow into the top portion of the switchbox (the "line" side) even though the handle is down and the fuses have been removed. Only the bottom part of the switchbox would be de-energized (Ex. 1; Tr. 14-15, 34, 40, 41).

12. After the damaged load cable was de-energized, Stansell and McCoy were to disconnect the side of the cable which ran into the service area of the building and connect the new cable. Sutton and Gill were assigned to disconnect the damaged load cable and connect the new cable to the switchbox (Tr. 13, 21).

13. Stansell threw the switch on the switchbox, used his voltage tester to verify that the current had been cut off, and took the fuses out of the switchbox. Electrical current was still flowing into the top or "line" side of the switchbox (Tr. 15, 43, 83). Stansell and McCoy then proceeded to the far end of the cable to disconnect it from the load center. They detached the old feeder cable and reattached the new cable (Tr. 13, 110, 111).

14. When the switch or safety handle was pulled down, the flow of electricity to the load cable was stopped and the lights in the RAD Waster Building were cut off. The electricians had available and used six-volt lanterns to furnish light to replace the cable (Tr. 15, 78).

15. The bar of the safety switch, once pulled down to the off position, helps prevent contact with the line side if one is working on the load side (Ex. 10, 11, A; Tr. 129-130).

16. After McCoy and Stansell had connected the far end of the new cable to the service center, they returned to the switchbox to determine how Gill and Sutton were progressing with their work. Since the switchbox was located close to the floor, Sutton sat upon a small metal bucket approximately 12 inches high while performing his job. Gill held and handed him necessary tools. Sutton was facing the front of the switchbox as he worked to replace the cable (Tr. 13, 19, 20, 21-22, 25, 38).

17. As McCoy and Stansell approached the switchbox, Sutton was attaching the leads of the new cable to the bottom left lug in the switchbox (Tr. 13-14, 22, 26, 44-45).

18. While Sutton was sitting on the metal bucket and attaching the new cable to the lugs, he was within arm's length of the energized circuit (Tr. 22).

19. During the time Sutton was inserting the new cable into the left lug, an explosion occurred. His beard and clothes were set on fire (Tr. 14, 84). The accident occurred around 7:00 p.m. (Tr. 82).

20. It is not the practice of Cleveland employees to de-energize the entire switchbox unless work is to be performed on the "line" side (Tr. 53-54, 78-79, 114-115, 118-119, 121).

21. The entire switchbox could have been de-energized by de-energizing the high voltage coming to the transformer (Tr. 29-30, 48-49). A bucket truck and hot stick were available at the site to assist in de-energizing the transformer (Tr. 30).

22. Cleveland has insulating blankets at the site that would have insulated Sutton from the energized "line" side of the switchbox (Tr. 31-32).

23. Plant Vogtle is one of the work sites participating in the OSHA voluntary protection program known as the Star Program (Tr. 65-66).

 

CONCLUSIONS OF LAW

1. Cleveland, at all time material hereto, was engaged in a business affecting commerce the meaning of section 3(5) of the Act.

2. Cleveland, at all times material hereto, was subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.

3. On April 13, 1984, an employee was permitted to work in such proximity to a live power circuit that he could have contacted the same in the course of his work. The live circuit was not de-energized and grounded, guarded by insulation or protected by other means. The work condition was in violation of 29 C.F.R. 1926.400(c)(1).

4. On April 13, 1984, the employees engaged in a cable repair were not specifically advised of the hazards involved and the protective measures to be taken to protect them from a live "line" side power circuit while replacing a cable on the "load" side of a switchbox. The work condition was in violation of 29 C.F.R. 1926.400(c)(2).

5. The violations of 29 C.F.R. 1926.400(c)(1) and 29 C.F.R. 1926.400(c)(2) were serious since the employee was working within inches of 460 volts of electricity.

6. A penalty of $480 is determined to be appropriate for the violations.

 

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is

ORDERED: That the serious citation and proposed penalty issued to Cleveland on June 18, 1984, are affirmed.

Dated this 11th day of February, 1985.

JAMES D. BURROUGHS
Judge


FOOTNOTES:

[[1]] There is no evidence that the explosion was the result of contact of Sutton with any energized parts of the switchbox. Cleveland's project manager Blount testified that there was no electric shock or burnt tool, and that the explosion was caused by a fault or short circuit in the line side of the switchbox. However, the cause of an accident, and particularly whether a violation of a standard caused an accident, is not necessarily relevant to whether an employer violated a regulation. See, e.g., Towne Construction Co., 86 OSAHRC ____, 12 BNA OSHC 2185, 2188 n.7, 1986 CCH OSHD 27,760, p. 36,310 n.7 (No. 83-1262, 1986) (relevant issue is not what caused an accident, but whether OSHA standard was violated), and cases cited. The circumstances of an accident may, however, provide probative evidence of whether a standard was violated. See generally Concrete Construction Corp., 76 OSAHRC 47/A2, 4 BNA OSHC 1133, 1135, 1975-76 CCH OSHD 20,610, p. 24,644 (No. 2490, 1976). We therefore mention the accident only in connection with what it shows about Sutton's proximity to the switchbox.

[[2]] Cf. Phelps Dodge Corp., 83 OSAHRC 29/A2, 11 BNA OSHC 1441, 1450, 1983-84 CCH OSHD 26,552, p. 33,927 (No. 80-3203, 1983) (dissenting opinion), aff'd, 725 F.2d 1237 (9th Cir. 1984):

[T]he meaning of words can be better judged from the context in which they appear than the abstract generalizations of a dictionary. It does not follow that a standard is ambiguous simply because a word in a standard is ambiguous. If, as here, the context and structure of the standard clearly indicate that a critical word was used in a particular sense, the standard is not ambiguous.

[[3]]See Research Cottrell, Inc., 81 OSAHRC 26/B13, 9 BNA OSHC 1489, 1497, 1981 CCH OSHD 25,284, p. 31,263 (No. 11756, 1981) (standard unequivocal; reasonable person test unnecessary); Faultless Division v. Secretary of Labor, 674 F.2d 1177, 1186-87 (7th Cir. 1982) (industry practice should not be considered; standard is sufficiently specific); A.E. Burgess Leather Co. v. OSHRC, 576 F.2d 948, 951 (1st Cir. 1978) (same).

These cases are consistent with B & B Insulation, Inc. v. OSHRC, 583 F.2d 1364 (5th Cir. 1978), and other decisions which are precedent in the Eleventh Circuit (formerly part of the Firth Circuit) where Cleveland is located. The B & B court held that when a standard fails to state the required protection in specific terms, the standard would be unenforceably vague unless it were read to require only those protective measures that the employer's industry would deem appropriate under the circumstances. Id. at 1367. However, that holding was limited to such vague standards, for the court pointed out that the Secretary could promulgate specifically-worded standards to impose requirements more stringent than those customarily followed in industry. Id. at 1371-72. We also note that the Fifth Circuit has held that other standards were sufficiently specific without the need for reference to industry practice. Deering Milliken, Inc. v. OSHRC, 630 F.2d 1094, 1103-05 (5th Cir. 1980) (any vagueness in air contaminant standard is dispelled by its history, legislative intent, and the Secretary's enforcement posture); Austin Commercial v. OSHRC, 610 F.2d 200, 201 (5th Cir. 1979) (plain words of materials-handling regulation give employer fair warning). Accordingly, because 1926.400(c)(1) is a specific standard, it is not necessary under B & B, and other decisions that are precedent in the Eleventh Circuit, to refer to industry practice.

[[4]] The Fifth Circuit has held that, even if a "reasonable person test" otherwise would be required to cure a standard of vagueness, the problem of fair notice does not exist where an employer has actual knowledge that its work practice is hazardous. Owens Corning Fiberglass Corp. v. Donovan, 659 F.2d 1285, 1288 (5th Cir. 1981). In response to that holding in Owens Corning, Cleveland argues that it lacked actual knowledge that its work procedures were hazardous, while the Secretary argues that Cleveland and had such actual knowledge. We find it unnecessary to decide this issue, since we find that the language of the standard provided fair notice of its requirements.

[[5]] This element of employer knowledge, which must be established in all cases which arise under the Act, is different from the actual knowledge issue which is discussed in Owen's Corning. See note 4 supra. Cleveland does not appear to argue that the Secretary failed to establish the element of employer knowledge, as discussed in Sasser and other cases. Cleveland's argument that it lacked actual knowledge that its work procedures were hazardous pertains to its vagueness argument. That argument may have been intended, however, to also encompass the broader issue of employer knowledge. We therefore discuss the matter here.


[[1/]] Section 1926.400(c)(1) provides:

(c) 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 de-energizing the circuit and grounding it or by guarding it by effective insulation or other means. In work areas where the exact location of underground electric power lines is unknown, workmen using jack-hammers, bars, or other hand tools which may contact a line shall be provided with insulated protective gloves.

[[2/]] The term "proximity" is defined by Webster's Third New International Dictionary as "the quality or state of being proximate, next or very near (as in time, place, relationship)."

[[3/]] Section 1926.400(c)(2) of 29 C.F.R. provides:

Before work is begun the employer shall ascertain by inquiry or direct observation, or by instruments, whether any part of an electric power circuit, exposed or concealed, is so located that the performance of the work may bring any person, tool, or machine into physical or electrical contact therewith. The employer shall post and maintain proper warning signs where such a circuit exists. He shall advise his employees of the location of such lines, the hazards, involved and the protective measures to be taken.

[[4/]] Section 17(k) states:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or 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 did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

[[5/]] Section 17(j) of the Act provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of the previous violations.