SAWNEE ELECTRIC MEMBERSHIP CORPORATION
OSHRC Docket No. 10277
Occupational Safety and Health Review Commission
February 23, 1977
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Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor
Warner S. Currie and Walter Lambeth, for the employer
OPINION:
DECISION
BY THE COMMISSION: A decision of Review Commission Judge Paul L. Brady, dated August 11, 1975, is before this Commission for review pursuant to 29 U.S.C. § 661(i).
Having examined the record in its entirety, the Commission finds that the Judge properly decided the case and adopts his decision which is attached hereto as Appendix A. n1 Accordingly, the Judge's decision is hereby affirmed.
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n1 Chairman Barnako does not agree to this attachment.
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CONCURBY: BARNAKO
CONCUR:
BARNAKO, Chairman, Concurring:
Review was directed on the issue of whether the Judge erred in vacating an item alleging the Respondent failed to comply with the occupational safety standard § 1926.21(b)(2), which provides:
"The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations [*2] applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury."
The Judge vacated on the ground that Respondent instructed its employees on safety matters and regulations as required by the standard. Complainant takes exception to that holding, contending that though Respondent provided safety instructions they were inadequate. According to Complainant, Respondent's instruction program was ineffective for a variety of reasons, e.g., he argues Respondent was not careful enough or systematic enough in insuring that its employees were adequately trained, that it relied too heavily on on-the-job training, and that it did not include a testing program to evaluate whether the employees understood their instructions.
The thrust of Complainant's argument is not that Respondent failed to instruct as the standard requires but rather that Respondent failed to determine whether its employees learned their instructions. In my view, an employer on reading this standard could not know that the Secretary would require employee testing whether by written examination in the classroom or oral examination in the field.
The standard merely requires [*3] that employees be instructed in the recognition and avoidance of unsafe conditions in their work environment and as to the applicable regulations. It is clear on the record that Respondent complied as determined by the Judge. Accordingly, I concur in the disposition, but I do agree with my dissenting colleague that Commissioner Moran errs by not addressing Complainant's exceptions.
DISSENTBY: CLEARY
DISSENT:
CLEARY, Commissioner, DISSENTING:
I respectfully dissent. First of all, the lead opinion fails to rule upon the Secretary's exceptions to the Administrative Law Judge's decision and related arguments of the parties, something plainly required under 5 U.S.C. § 557 when the Commission exercises its discretion to review an Administrative Law Judge's decision.
The issues on review concern an alleged violation of 29 CFR § 1926.21(b)(2). Section 1926.21(b)(2) states:
1926.21 Safety training and education.
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(b) Employer responsibility
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(2) The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.
I turn to the [*4] facts and the parties' arguments. n2
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n2 At the hearing, nine alleged willful serious violations of specific standards and one alleged willful serious violation of the general duty clause were in issue. All were vacated by the Administrative Law Judge. Three pages of the Judge's decision were devoted to the alleged violation of 29 CFR § 1926.21(b)(2), the only item before us on review. That part of the decision was adopted by the majority. The other parts of the Judge's decision do not constitute binding precedent on us. See Leone Construction Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976), petition for review withdrawn, No. 76-4070, 2d Cir., May 17, 1976.
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Respondent, Sawnee Electric Membership Corporation, is an electric power cooperative association providing electric power to seven counties in the state of Georgia. On August 27, 1974, a "hotline" crew was transferring an existing single phase 7200 volt energized line to a new pole using an insulated "bucket truck." [*5] Insulating line hoses several feet in length were placed around the energized wire. After the energized line had been transferred to the new pole, one of respondent's employees was electrocuted while installing a cross arm.
In considering whether respondent violated the cited standard, the Administrative Law Judge found that monthly safety lectures, sponsored and conducted by the Georgia Electric Membership Corporation and the Georgia Department of Education, were provided for employees. In addition, some on-the-job instruction was given. The Judge also noted that one foreman had not attended safety school in several years and that two apprentice linemen had not been furnished copies of respondent's safety manual. The Judge held that "the facts do not support the allegation that respondent failed to instruct its employees as specified in the standard." The Secretary petitioned for review, excepting to the Judge's holding.
The Secretary argues that the "safety instruction received by respondent's employees is clearly inadequate." n3 I agree. The duty to "instruct" in my opinion is a duty to instruct adequately or reasonably if the express objective of the standard of controlling [*6] or eliminating safety hazards is to be met. Adequate instruction clearly requires that employees learn about hazardous conditions and understand the reasons for safety warnings. See Ames Crane & Rental Service, Inc. v. Dunlop, 532 F.2d 123, 125 (8th Cir. 1976). I disagree with the implication in the concurring opinion that the extent of employees' learning or understanding can be separated from their employer's duty to instruct.
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n3 On review, the Secretary fails to indicate whether he considers the alleged violation to be willful and serious as alleged before the Judge. After considering the evidence I would conclude that the violation was not willful.
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An analysis of the safety training given to several employees shows that "each" was not properly trained. Evidence establishes that Foreman Stephens, who had the duty of issuing safety instructions to employees, had not been to safety school in several years. Stephens' testimony also reveals that he was unfamiliar with occupational safety and health standards. [*7] n5
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n5 Stephens testified as follows:
Q. Now, how many, if you know -- maybe you don't -- but if you know, how many inches or feet can an electrical arc go on a 7200 Volt line?
A. I would be afraid to say. It wouldn't be many inches.
Q. It wouldn't?
A. I mean, you could get close to it, very close to it, but I don't know.
Q. Are you familiar with the ANSI standards?
A. No.
Q. The OSHA standards?
A. Unh-unh. I don't know how many inches it would arc.
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A major failure of respondent's instructions lies in its failure to issue safety instructions to all of its employees. Respondent's safety manual provides:
Foremen shall fully understand the safety rules of this manual and comply with them. They shall also make certain that each employee receives these safety rules and [that they] are understood by the workmen under their supervision.
Respondent concedes that two employees had not received the manual, and that one of them had not even read it.
Finally, I am persuaded by the Secretary's argument that [*8] employees were given some safety instructions while performing a job, rather than being trained in advance to avoid hazards and prevent accidents. This is illustrated by apprentice lineman Collett's testimony as follows:
Q. Okay. When you were first employed, were you given any special kinds of instruction in safety by anyone?
A. Yes. I mean, where we go to a job I would. They would tell me to watch this and watch that.
Q. On a job?
A. A foreman, if he seen [sic] I was doing something that might be dangerous, he would point it out and tell me the reason for it.
This indicates that respondent failed to apprise each employees of applicable safety rules before an employee was exposed to occupational hazards on the job. Clearly, on the facts of this case the elimination of injury, the express goal of the standard, cannot be achieved in this manner. n6
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n6 Respondent argues that the standard is unenforceably vague. I would reject this contention on the authority of Brennan v. OSHRC, 505 F.2d 869 (10th Cir. 1974) and McLean Trucking Co. v. OSHRC, 503 F.2d 8 (4th Cir. 1974) and cases cited therein. In addition, respondent argues that it should have been able to obtain the compliance officer's notes and memoranda under the Freedom of Information Act, 5 U.S.C. § 522. Since the records are those of the Department of Labor, the contention is misdirected.
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