SECRETARY OF LABOR,

Complainant,

v.

NATIONAL STEEL AND SHIPBUILDING
COMPANY,

Respondent.

JOHN McGINLEY, Union Health and Safety
Representative, National Steel and
Shipbuilding Company,

Authorized Employee
Representative.

OSHRC Docket No. 86-1376

ORDER

The Secretary's notice of withdrawal of citation is construed as a motion to withdraw the citation and is granted.  This order is issued pursuant to a delegation of authority to the Executive Secretary.  41 Fed. Reg. 37173 (1976), amended at 44 Fed. Reg. 7255 (1979).

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary
DATED:  January 7, 1988


SECRETARY OF LABOR,

Complainant,

v.

NATIONAL STEEL AND SHIPBUILDING CO.

Respondent.

JOHN McGINLEY, UNION HEALTH AND
SAFETY REPRESENTATIVE, NATIONAL
STEEL AND SHIPBUILDING COMPANY,

Authorized Representative.

OSHRC Docket
No. 86-1376

NOTICE OF WITHDRAWAL OF CITATION

Comes now the Secretary of Labor, by and through counsel, and withdraws the citation issued to respondent on September 8, 1986 in the above referenced case.

Respectfully submitted,

GEORGE R. SALEM
Solicitor of Labor

CYNTHIA L. ATTWOOD
Associate Solicitor for
Occupational Safety and Health

DANIEL J. MICK
Counsel for Regional Trial
Litigation

ANTONY F. GIL
Attorney for the Secretary

of Labor


CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Notice of Withdrawal of Citation was mailed postage prepaid on this 2nd day of November, 1987 to:

Robert A. White
National Steel and Shipbuilding Co.

John B. McGinley
Union Health and Safety Representative

National Steel and Shipbuilding Company

Judge R. M. Child
OSHRC

ANTONY F. GIL
Attorney


SECRETARY OF LABOR,

Complainant,

v.

NATIONAL STEEL AND SHIPBUILDING
COMPANY,

Respondent,

JOHN McGINLEY, Union Health and
Safety Representative, National Steel
and Shipbuilding Company,

Authorized Employee
Representative.

OSHRC DOCKET NO. 86-1376

DECISION AND ORDER

Child, Judge

APPEARANCES:

For the Complainant:
Leroy Smith, Esq., Los Angeles, California

For the Respondent:
Robert A. White, Esq., San Diego, California

For the Authorized Employee Representative:
John McGinley, San Diego, California

Statement of the Case

This matter is before the Occupational Safety and Health Review Commission (the Commission) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., (the Act).  Complainant seeks affirmance of Citation No. 01, issued to respondent September 8, 1986, charging one item of serious violation of section 5(a)(2) of the Act and of the penalty which was proposed thereon in the sum of $400.00.

The matter came on regularly for hearing at San Diego, California, on the 25th day of March 1987.  Each of the parties has submitted Post Hearing Briefs in support of its position and the complainant has submitted Proposed Findings of Fact and Conclusions of Law.  To the extent said proposed Findings and Conclusions are consistent with those entered herein, they are accepted; to the extent they are not so consistent, they are rejected.  Jurisdiction of the subject matter herein has been admitted and is not an issue, nor is jurisdiction of the parties.

The Issues:

Issues raised by the citation and the pleadings to be here determined are:

A.  Was the respondent in violation of the standard at 29 C.F.R. 1915.181(b) as alleged in the citation?[[1/]]

B.  Was the violation, if any, the result of unforeseeable employee misconduct?

C.  If the respondent was in violation of the standard, was the violation serious?

D.  What, if any, penalty would be appropriate?

Statement of Facts

Respondent is a corporation engaged in the business of ship-building and ship repair in San Diego, California.  The incident giving rise to the present proceedings took place aboard and during the construction of a commercial oil tanker which is referred to in the citation and throughout the proceedings as "Hull 438."

Sometime previous to August 7, 1986, a "salt box" had been placed on the deck of Hull 438.  The sole purpose of a salt box is to create an artificial electrical load for testing of the power output of the ship's diesel power generators.  Its installation on the vessel is temporary and it is removed after completion of generator testing.

The salt box in question consisted of a large metal tank, approximately 20 feet long, and 10 feet wide.  The metal tank is approximately 5 feet high with a metal cage or screen continuing above the sides of the tank and covering the top.  (Tr. 246-247; Exhibits R-11, 12, 13, 14, 16) The tank portion of the salt box is filled with a mixture of salt water and fresh water.  Nine large metal blades are suspended from an I-Beam running above the water tank.  The metal blades are arranged in three groups of three, and each blade is approximately 5 feet by 4 feet and 1/2 inch thick.  (Tr. 112)  The blades can be raised or lowered into the water by means of an electric motor operated from a control panel attached to the outside front of the salt box.   The blades are set inside tracks or guides to insure proper alignment. (Tr. 112; Exhibit R-15)

A wooden ladder is attached to the front of the salt box to the right of and giving access to a door in the screen.  The bottom of the screened door is approximately 5 feet above deck level, and just above a weather cover extending over the control panel.  (Tr. 45, 186; Exhibits R-11, 12, 16, 17)  The screened door is equipped with a hasp which could accommodate a padlock.  (Exhibit R-18) Inside the screened door there is a walkway or landing along the length of the tank between one screened side and the metal blades. The walkway is approximately 15 inches wide.  (Tr. 341)

Basically, the use of the salt box simulates the electrical demand that will be placed on the generators during actual operation of the vessel.  The salt box is connected to the generators through the main circuit board of the vessel, which in turn is connected to the generators.  In the present case, the salt box had been hooked to the main circuit board of the vessel in such a way that it was continually energized even when the generators were not functioning and could not be deenergized without cutting off all shore power being fed to the ship. (Tr. 64, 65, 138)

The salt boxes used by respondent were built by its repair division.  Employees in the repair division would at times utilize salt boxes while repairing vessels and at such times the salt box leads are connected to the generator circuit breaker.  (Tr. 104,108)  The repair division hooked the salt boxes up with a disconnect and if there were no disconnect provided, they would place one in the circuit. Thus the salt box would be disconnected when it wasn't actually being used in a test. (Tr. 110)

For unexplained reasons the new construction division did not utilize the method followed by the repair division of respondent in connecting up the salt boxes.  As recently as 1984, however, this had not been the case. (Tr. 108,109)

Mr. Joel Grace, respondent's Electrical Test Production Foreman who had supervised the installation of the salt box on Hull 438 and was responsible for testing the generators by use of the device, telephoned Mr. Roy Moffett, respondent's foreman in charge of the department having responsibility for maintenance, repair, and storage of the salt box, and asked that he have someone come over to Hull 438 to meet him and advise him as to what was required to repair the salt box.  One of the sets of blades had jumped track and could not be lowered or raised.  Mr. Grace told Mr. Moffett to have the man meet him at the aft gangway of the ship. (Tr. 220, 261, 262)

Mr. Moffett, in turn, asked Mr. Keith Morris, an electrical technician and leadman in his department, to send a couple of men over to see Mr. Grace and check on the salt box.  (Tr. 220, 221)

Mr. Morris selected Mr. Tom Tweedie, an electrical technician in that department with nine years work experience with the respondent.  Morris told Tweedie, "I got a job for you over on Hull 438.   The salt box is messed up.  I think the blade has jumped the track."   (Tr. 114)  Morris instructed Tweedie to take a prybar and if the blade had jumped the track to stand on one end of the blade and pry the other end into place.   Morris also told Tweedie to take Guy Ochletree, an electrician, with him and to hurry because Grace was waiting for them and would show them the "jobsite."   (Tr. 114, 115, 116, 128)

At no time during the aforesaid conversations did anyone mention whether the salt box was energized.  Grace knew the salt box to be energized.  Moffett, Morris, Ochletree and apparently Tweedie, all of whom worked in the repair-maintenance division, assumed the salt box to be deenergized.  Mr. Tweedie previously had installed and disconnected salt boxes in repair operations on six or eight occasions.  (Tr. 113, 114)  Moffett testified that he would assume a salt box with an imbalance to be disconnected in order to prevent overheating damage to or destruction of the generator caused by unbalanced phase loads.  (Tr. 225,226,230)   At the time Moffett instructed Morris to send the men to Hull 438 he was not aware that the salt box could not be disconnected; unlike the situations commonly confronting personnel in "repair division" prior to this time. (Tr. 227)

Mr. Tweedie and Mr. Ocheltree left their department and proceeded directly to the gangway of Hull 438.  They apparently missed Mr. Grace, or went to the forward gangway of the ship, as opposed to the aft gangway where Mr. Grace was waiting, and went aboard the vessel.  After ascertaining the location of the salt box, they went directly to it.  (Tr. 38-45)

Although the facts are in dispute as to what happened thereafter, it is undisputed that Mr. Tweedie climbed the ladder to the salt box, opened the unlocked door providing access to the interior of the salt box and came in fatal contact with an energized circuit therein.

Discussion

Issue A:

Was the respondent in violation of the standard at 29 C.F.R. 1915.181(b) as alleged in the citation?

To prove a violation of section 5(a)(2) of the Act, the complainant must prove by a preponderance of the evidence an employer's noncompliance with an applicable standard and employee exposure to the hazard created by the violative condition.  Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD 23,135 (No. 16057, 1978).

Complainant argues that the method of hooking up the salt box without the benefit of a disconnect provision so that it was at all times energized while shore power was serving the vessel under construction, which fact was known to construction test foreman Grace, coupled with the failure to padlock the door providing access to the interior of the salt box and the failure to inform "repair" personnel of the energized status of the salt box created a situation which permitted employees to work on an electrical circuit before that circuit was deenergized.

Respondent, on the other hand, argues that to construe the word "permit" so as to make it equivalent to "fail to prevent" would be an unfair application of the standard; and that in any event Mr. Tweedie's failure to comply with respondent's electrical safety rules, given his experience and job tenure, made it unforeseeable that he would begin work on a live circuit.

Respondent's safety rules provide that an employee shall not commence work on an electrical circuit (1) without proper authorization from supervising personnel, (2) without prior testing with a voltage meter, and (3) that a system be locked out or tagged out when work is to be performed on it.  (Respondent's Post Trial Brief p.8 and references to Respondent's Exhibit 10 referred to thereat)

Here, respondent's electrical test production foreman knew that the main switchboard had been bypassed and that there was no facility for disconnecting the salt box which was constantly energized so long as shore power served the vessel, but did not so inform the supervisory personnel he requested send assistance.  Access to the salt box and its constantly energized parts could have been prevented by the mere expedient of putting a padlock on the entrance door.  Under these circumstances of invitation to a hazardous arena the respondent knowingly permitted "repair division" employees to work on an electrical circuit which was energized.

Respondent here is charged with the knowledge and actions of its supervisory personnel in the performance of their respective duties and responsibilities.  Thus respondent is charged with the repair division's supervisory personnel instructing and thereby permitting its employees to work on a supposedly deenergized salt box at the request of construction division's supervisory personnel who knew, but did not communicate, that the salt box was energized and could not readily be deenergized.  Although neither division supervisor's knowledge or action was known to the other, the respondent is charged with both.

That the hazard was foreseeable is amply demonstrated by the security provisions of screen and door equipped with hasp for padlock.   By omitting the ounce of prevention in the form of a padlock, the respondent permitted access to the interior of the salt box by employees sent there for the purpose of working therein.  It is not foreseeable that employees would pass through a locked door.  It is foreseeable that employees sent to assist in solving a mechanical problem inside the salt box would pass through a lockable, but unlocked door.   Indeed, the corrective work to be performed, i.e., realignment of a metal plate by standing on one side and using a prybar on the other suggests that the repair work was more mechanical than electrical.  If the employee sent from the repair division to do the work had been other than an electrician, the result would have doubtless been the same.

Before permitting that work to be done, the circuit (salt box) should have been deenergized.  Only respondent's Electrical Test Production Foreman knew the salt box to be energized and only he knew what steps were necessary to deenergize it.  His silence and failure to padlock the door to the box permitted employees to work therein before it was deenergized.  His actions are attributable to the respondent.

Issue B:

Was the violation, if any, the result of unforeseeable employee misconduct?

To establish the defense of unpreventable employee misconduct the respondent has the burden of proving that the employee's action constituting non-compliance with a standard was a departure from a uniformly and effectively enforced work rule.  See Daniel Construction Company, OSAHRC Docket No. 16265 (1982), 10 BNA OSHC 1549; Daniel International Corp., Wansley Project, 81 OSAHRC 71/D6, 9 BNA OSHC 2027, 2031, 1981 CCH OSHD 25,813 pp. 32,265-266 (No. 76-181, 1981)

Respondent cites Howard P. Foley Company, 5 BNA OSHC 1501 (OSAHRC Docket No. 13244).  In Foley the Commission describes this defense as follows:

In general, an employer is only responsible for violations it has the ability to prevent.  If an employer has a safety program which would normally be adequate to prevent a violation of a particular standard, then a violation which occurs in spite of its program is unpreventable, and the employer is not responsible.  Elements of an effective safety program include work rules designed to prevent violations, adequate communication of the rules to employees, methods of discovering whether violations occur, and enforcement of the rules if violations are discovered.
(cases deleted) (Emphasis added)

Here an employee suffered a fatal accident which might have been avoided if he had availed himself of a voltage meter and tested the circuit prior to entry.  But failure to check as recommended by the work rule is not the gravamen of the alleged violation.   The respondent is charged with permitting an employee to work on an electrical circuit without first deenergizing the circuit. Respondent's own work rule requires that . . . " a system be 'locked out' or 'tagged out' when work is to be done on it."  (Exhibit R-10) (Emphasis added)  These procedures presuppose an act of deenergizing.  Subparagraph (c) of the standard here under consideration provides for deenergizing as follows:

29 C.F.R. 1915.181 Electrical circuits and distribution boards.

(c) Deenergizing the circuit shall be accomplished by opening the circuit breaker, opening the switch, or removing the fuse, whichever method is appropriate.  The circuit breaker, switch, or fuse location shall be tagged to indicate that an employee is working on the circuit.  Such tags shall not be removed nor the circuit energized until it (sic) definitely determined that the work on the circuit has been completed.

The salt box on Hull 438 was installed in such manner that it could not be deenergized on board the vessel as contemplated by the foregoing standard.  Neither Mr. Tweedie nor his supervisors knew this.  The respondent's Electrical Test Production Foreman who requested assistance regarding the salt box did know of the by-pass arrangement requiring total power shut-down not merely deenergization of a system.

Respondent offered no testimony that it had a rule, enforced or otherwise, requiring system wiring standardization which would permit system deenergization.  Neither did respondent offer testimony that it had a rule, enforced or otherwise, requiring system deenergization in a described manner.  (Tr. 161)  Had the respondent established a uniform procedure or had it required that each division supervisory personnel be acquainted with methodology employed by other related divisions, situation could have been avoided.

Since respondent had provided no means of deenergizing the salt box on board the vessel, it cannot now stand on a claim that an employee violated a non-existent rule that he/she do so in order to "lock out" or "tag out" that unavailable act.

The employee's failure to check at the point where the work was being done may have cost him his life, but it did not cause the violation of which respondent is charged, to-wit:  permitting that work to be done without first deenergizing the circuit.  Indeed there was no "circuit" which the employee could have deenergized.  To make the situation safe it would have required a total shutdown of power to the vessel.  Of the personnel material to this inquiry only the Electrical Test Production Foreman had knowledge of this unorthodox connection and he failed to communicate the fact.

Respondent has failed to make out the defense of unpreventable employee misconduct.

Issue C:

If the respondent was in violation of the standard, was the violation serious?

Section 17(k) of the Act provides that a violation is deemed to be serious ". . . if there is a substantial probability that death or serious physical harm could result from a condition which exists, . . . ".

While energized, the salt box carried 440 volts of electrical power.  That such power could kill or maim is amply demonstrated from the outcome of this case.

The violation of the standard was serious.

Issue D:

What, if any, penalty would be appropriate?

There was evidence that the respondent considered the statutory requirements in arriving at the proposed penalty which is appropriate in this case.  (Tr. 164-169)

Now, having observed the demeanor of the witnesses and having weighed the credibility thereof, there are here entered the following:

Findings of Fact

1.  Respondent is, and at all times material hereto was, a corporation with an office and place of business at 28th Street and Harbor Drive, San Diego, California 92138; and at all times material hereto was engaged in shipbuilding and repair.

2.  Respondent at all times material hereto was engaged in a business affecting interstate commerce in that respondent was engaged in handling goods or materials which had been moved in interstate commerce and was an employer employing its employees at the aforesaid workplace in said business.

3.  Facts set forth under Statement of Facts herein above are here incorporated by reference as though specifically set forth at this point.

4.  By energizing the salt box in question without the benefit of a system circuit or disconnect provision on Hull 438 and failing to notify repair and maintenance division personnel of that fact or of the fact that the salt box was energized even though there was no padlock on the door giving access to the interior thereof, respondent permitted its employees to work therein and was thereby in violation of the standard at 29 C.F.R. 1915.181(b).

5.  Employees of the repair and maintenance division equipped, instructed and sent to assist in correcting a mechanical problem in the salt box in question were exposed to the hazard of electrical shock and electrocution by coming in contact with live components of this constantly energized, though not functioning, salt box.

6.  There is no evidence that respondent had a uniform and effectively enforced work rule:

(a) Requiring on board wiring of systems in a uniform manner providing disconnect methods which could benefit from "lockout" or "tag out" procedures.

(b) Providing communication between divisions to advise of installations which were unorthodox or varying from the norm.

(c) Requiring one division to warn other divisions of hazards they would be exposed to in regard to energized "circuits" when invited to enter another division's work area.

(d) Requiring workmen from the repair and maintenance division to shut down all power to Hull 438, or any other vessel, before commencing work on what they reasonably could assume to be a deenergized salt box.

7.  Respondent's safety manual contained a provision that an employee shall not commence work on an electrical circuit without prior testing with a voltage meter, but its safety manual was not required reading (Tr. 32, 102, 215), voltage meters were not required equipment for electricians sent to work on jobs (Tr. 35, 39, 40, 95-99), there is no evidence that any employee has ever been disciplined for failing to carry or use a voltage tester.  (Tr. 141)

8.  The violation referred to herein was serious 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.

9.  The proposed penalty of $400.00 is appropriate and reflects due consideration of the size of the business of the respondent, the gravity of the violation alleged, the good faith of the respondent and the history of prior violations, if any, as required by section 17(j) of the Act.

Conclusions of Law

1.  Jurisdiction of the subject matter of this proceeding is conferred upon the Commission by section 10(c) of the Act and the Commission has jurisdiction of the parties hereto.

2.  The standard at 29 CFR 1915.181(b) applies to the job-site and work activity for which respondent was here cited.

3.  The respondent was in serious violation of the standard at 29 C.F.R. 1915.181(b) as alleged in the citation issued and the complaint filed herein.

4.  Item 1 of serious Citation No. 01, issued to respondent September 8, 1986, should be affirmed.

5.  A penalty of $400.00 should be assessed for the violation here found.

ORDER

Item 1 of serious Citation No. 01, issued to respondent September 8, 1986, is AFFIRMED and a penalty of $400.00 is ASSESSED.

R. M. Child
Judge, OSHRC
Dated:  July 29, 1987


FOOTNOTES:

[[1/]] The citation and standard read:

Citation
29 CFR 1915.181(b):  Electrical circuits were not deenergized and checked before employees were permitted to work on the circuits:

LOCATION:  On or before 08/07/86 at the aft port side of the deck house on hull #438, employees were permitted to work on a salt box which was neither checked for an energized circuit nor deenergized to preclude accidental contact with live parts.

Standard
1915.181  Electrical circuits and distribution boards.

(b) Before an employee is permitted to work on an electrical circuit, except when the circuit must remain energized for testing and adjusting, the circuit shall be deenergized and checked at the point at which the work is to be done to insure that it is actually deenergized.  When testing or adjusting an energized circuit, a rubber mat, duck board, or other suitable insulation shall be used underfoot where an insulated deck does not exist.