Docket No. 10345

MASSMAN CONSTRUCTION CO.

OSHRC Docket No. 10345

Occupational Safety and Health Review Commission

February 7, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Thomas M. Moore, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

This case presents the issue of whether Administrative Law Judge Paul E. Dixon properly affirmed a citation which alleged a violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). n1 We affirm the Judge's decision.

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n1 Section 5(a)(1) of the Act provides that "Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

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The citation concerns Respondent's method of moving a 32-foot aluminum scaffold board which was being used by employees who were stripping forms from the underside of a bridge. The scaffold board was laid across cross-braces [*2] on the underside of the bridge, and was located approximately 8 feet above two power lines. In order to move the board to a different location on the cross-braces, the employees maneuvered it around a beam which obstructed its movement by lowering one end at a time, shifting the board back and forth, and slipping the board underneath the beam. When this method of moving the scaffold board was attempted (a method properly characterized as "clumsy" by the Judge), the power lines were not deenergized or otherwise insulated, and the employees were not otherwise protected. Instead, there was an attempt to maintain a two-foot clearance from the energized line. The scaffold board fell onto the power lines, resulting in the electrocution of one employee and the injury of another.

In affirming the citation, the Judge rejected Respondent's arguments that the cited condition was not a recognized hazard, that feasible alternative methods were not established by the Secretary, and that the accident that resulted from the moving of the scaffold board was the result of unforeseeable employee conduct. He assessed the proposed penalty of $500.

On review, Respondent makes essentially the same [*3] contentions it urged before the Judge. Having examined the record in its entirety, we find that the Judge properly disposed of Respondent's arguments for the reasons he assigned, and correctly evaluated the evidence. He therefore correctly affirmed the citation and proposed penalty. Accordingly, we affirm his decision.

It is so ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The citation charging respondent with a violation of 29 U.S.C. § 654(a)(1) should be vacated because complainant has failed to establish that respondent's actions constituted a "recognized" hazard, an essential element in establishing a violation of the so-called general duty clause. National Realty and Construction Company, Inc. v. OSAHRC, 489 F.2d 1257 (D.C. Cir. 1973); 29 U.S.C. § 654(a)(1). n2 My colleague's reliance on the Judge's decision is clearly erroneous since a careful analysis of that decision reveals that the Judge never really addressed the issue of whether the cited condition was "recognized" as a hazard.

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n2 See footnote 1 of the lead opinion for the complete text of section 654(a)(1).

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The law is well-settled that in order to establish that a practice constitutes a "recognized" hazard, complainant must prove that respondent was actually aware that the practice was dangerous or was generally known to be hazardous by the industry involved. Brennan v. OSAHRC and Vy Lactos Laboratories, Inc., 494 F.2d 460 (8th Cir. 1974); National Realty and Construction Company, Inc. v. OSAHRC, supra; Secretary v. Pratt & Whitney Aircraft, 15 OSAHRC 189 (1975). In this case, neither fact was established.

All of the witnesses who expressed an opinion as to the safety of respondent's actions, with the sole exception of complainant's safety inspector, testified that respondent's procedure of moving the scaffold was not hazardous. n4 Included among those witnesses were an independent professional consulting engineer with 30 years of experience in electrical and mechanical engineering and a professional safety engineer. Additionally, complainant presented no evidence as to whether the practice in question was recognized as a hazard in the industry of which respondent is a part.

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n3 Although the safety inspector testified that he thought the procedure used by respondent was hazardous, he never discussed the issue of whether the procedure was "recognized" as a hazard.

n4 This procedure is described in detail in Judge Dixon's decision which is attached hereto as Appendix A.

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In Brennan v. OSAHRC and Hanovia Lamp Division, Canrad Precision Industries, 502 F.2d 946, 952-953 (3d Cir. 1974), the United States Court of Appeals for the Third Circuit stated:

"Since the general duty clause is so broad, the evidence to support a charge of violation should be specific and detailed."

Notwithstanding this wise and correct statement, Messrs. Barnako and Cleary apparently feel that, even if complainant fails to introduce any evidence that respondent was aware that the practice was dangerous or was recognized in respondent's industry as hazardous, a violation can be found if the Commission, in its infinite wisdom, deems the condition hazardous. Such a theory completely negates the statutory requirement that the hazard be [*6] a "recognized" one, a requirement inserted in the general duty clause so that an employer might know before engaging in certain operations what was required of it, rather than being informed after the operations by the bureaucrats in Washington that the procedure used was not permissible.

The facts of this case are similar to those in Cape and Vineyard Division of the New Bedford Gas and Edison Light Co. v. OSAHRC, 512 F.2d 1148 (1st Cir. 1975), where an employee was electrocuted while "stretch[ing] awkwardly" over an energized wire to pull a wire within 6 inches of the energized line. In that case, the Administrative Law Judge and a majority of the Commission affirmed a violation of 29 U.S.C. § 654(a)(2) for respondent's noncompliance with the occupational safety standard codified at 29 C.F.R. § 1910.132(a). n5

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n5 Although there is generally no requirement in establishing a violation of 29 U.S.C. § 654(a)(2) that complainant prove that the cited practice be a "recognized" hazard, due to the rather broad wording of the standard codified at § 1910.132(a), the Court in Cape & Vineyard likened the standard to a 29 U.S.C. § 654(a)(1) violation and required complainant to establish that a reasonably prudent man familiar with respondent's industry would know that the practice was hazardous. A similar conclusion was reached by the Second Circuit under a different safety standard in General Electric Co. v. SAHRC, 540 F.2d 67, 69 (2d Cir. 1976).

[*7]

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In reversing the Review Commission, the United States Court of Appeals for the First Circuit stated, in language remarkably applicable to the instant case, as follows:

"[I]t was not enough for the administrative judge to point out that the accident could have been prevented by covering the live wire and clamp with protective rubber; that fact alone does not establish that the need for further protection would have been recognized in the industry." 512 F.2d at 1152.

The Court went on to state:

"The administrative judge reasoned that a lineman's work on the pole inherently involved the possibility of error, slips, and unusual occurrences. While this statement seems sensible - indeed, on first impression it might even seem to a layman that Thayer's [the fatally injured employee] hazardous conduct might have been predictable - the judge's position is not supported in the record. No witness familiar with linework testified as to the likelihood of such error in Thayer's circumstances, and the judge did not allow the expert to express his opinion as to whether contact such as Thayer's was reasonably foreseeable." [*8] 512 F.2d at 1153 (footnote omitted).

The foregoing statements are clearly applicable to the instant case. Despite the testimony of respondent's witnesses that the procedure used to negotiate the scaffold board around the beam, a procedure that had been employed some 20 times previously, was in no way hazardous and that the accident was probably the sole result of one of the employees "not doing his job" as instructed, n6 my colleagues seem to conclude that there was a violation because there was a possibility of error and because such error did in fact occur. n7 Such a conclusion is clearly erroneous.

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n6 Complainant concedes in his review brief that "[i]t is not clear why the scaffold fell." If the complainant cannot establish this fact, it obviously cannot be said that respondent's procedures were inadequate. More importantly, it also cannot be established what the employer should have done to avoid citation. See Secretary v. Williams Enterprises, Inc., OSAHRC Locket No. 4533, September 8, 1976 (dissenting opinion).

n7 It is well-established that the fact that an accident occurs does not necessarily mean a violation of the Act has occurred. National Realty and Construction Company, Inc. v. OSAHRC, supra.

[*9]

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What is needed to find such a violation, as the Court stated in Cape & Vineyard, is testimony by someone familiar with respondent's industry that an employer in that industry should have foreseen the dangers inherent in respondent's procedure or, in the alternative, that respondent knew that the condition constituted a hazard. In this case, however, no such testimony was presented. The sole evidence introduced by complainant in this regard was the testimony of its safety inspector that he felt the procedure was hazardous, not that the procedure was a recognized hazard in respondent's industry or that respondent knew it was hazardous. Employers are not mind-readers and cannot be expected to observe positions formed in the minds of individual safety inspectors.

To find a violation of the general duty clause on the basis of the inadequate evidence present in this record is clearly a miscarriage of justice. Such a holding not only completely disregards the testimony of respondent's expert witnesses to the contrary, but is predicated upon evidence that does not in fact exist anywhere in the record. [*10]

As the United States Court of Appeals for the District of Columbia stated in National Realty, it is not the role of the Commission to serve as expert witnesses for the Secretary of Labor; the Secretary should call his own expert witnesses. 489 F.2d at 1267. Nevertheless, the Commission must serve as expert witnesses for him in order to find the existence of a recognized hazard in this case. Such action is clearly improper, and the affirmance of a violation based on such action is a travesty of justice.

APPENDIX A

STEPHEN G. REYNOLDS, Office of the Solicitor, U.S. Department of Labor, Appearing on behalf of Complainant

THOMAS M. MOORE, Appearing on behalf of Respondent

Hearing held January 28, 1975, Court of Appeals Courtroom, Federal Courthouse Building, 811 Grand Avenue, Kansas City, Missouri, Judge Paul E. Dixon presiding.

JURISDICTION

Paul E. Dixon, Judge:

This is an action under section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 651, et seq. (hereinafter referred to as the Act), contesting a citation for serious violation as a result of an inspection by the Department of Labor made on August 23, 1974, at a place of employment located [*11] at the North Paseo Bridge, Kansas City, Massouri, where respondent was engaged in work as a general contractor.

The original citation issued August 27, 1974, alleged violation of 29 CFR 1926.400(c)(1), in that:

"Employees working on the Paseo bridge in close proximity to a [sic] electric power line carrying 13,200 volts, were not protected against electric shock by deenergizing the circuit and grounding it or by guarding it by effective insulation or other means."

Immediate abatement was required, and a penalty was proposed in the amount of $500.00.

An amended citation for serious violation as a result of the same inspection of August 23, 1974, was issued on September 16, 1974, prior to respondent filing its notice of contest on October 8, 1974, alleging violation of section 5(a)(1) of Public Law 91-596, in that:

"The employer failed to furnish his employees working on the Paseo bridge employment and a place of employment which was free from recognized hazards that were causing or likely to cause death or serious physical harm to his employees, in that the employees working in close proximity to an electric power line carrying 13,200 volts, were not protected against electric [*12] shock by deenergizing the circuit and grounding it or by guarding it by effective insulation or other means."

Immediate abatement was required, and an amended proprosed penalty was issued September 16, 1974, in the amount of $500.00.

Section 5(a)(1) of Public Law 91-596, codified, and 29 USC section 654, Duties of Employers and Employees, states:

"(a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;"

Respondent filed its notice of contest on October 8, 1974, with complainant filing his complaint the 21st day of October, 1974, and respondent answering on the 23rd day of October, 1974, with the case coming to issue.

By motion of January 24, 1975, complainant moved to amend his complaint to correct the allegation referrable to the date of the alleged violation from August 23, 1974 (the date of the inspection), to the date of August 16, 1974, the date of the fatality.

The motion was granted, based upon voir dire examination of respondent's attorney that all discussions between respondent and complainant, [*13] along with respondent's correspondence, were referenced to a fatality date of August 16, 1973, the subject matter of the investigation by compliance officer Mitchell, and that therefore, the respondent was not mislead or prejudiced by the correction of an obvious ministerial error in the insertion of the date. (Secretary v. Hawkins Construction Co., 7 OSAHRC 763 (1974); Secretary v. W.B. Meredith II, Inc., 9 OSAHRC 245 (RC 1974); National Realty & Construction Co., Inc. v. OSAHRC, 489 F.2d 1257 (D.C. Cir., 1973); Commission rule 33(a)(3); Secretary v. J.L. Mabry Grading, Inc., 9 OSAHRC 98 (1974); and, Secretary v. Lovell Clay Products Co., 10 OSAHRC 237 (RC 1974), wherein the Mabry case is cited) It is felt that the quotation there is applicable here, that the complainant did not seek to "change the basic factual allegations of the citation" or to assert a different "legal basis of its case". Respondent at all times was aware of the material allegations contained in the citation and the amended citation, and there was at no time any controversey as to the date of the occurrence which was known to respondent and acknowledged by respondent, and which was the [*14] basis of the compliance officer's investigation.

Respondent further takes issue that the Occupational Safety and Health Act violates the First, Fifth, and/or Sixth Amendments to the Constitution of the United States.

These matters have been previously ruled on. Neither the Commission nor its Judges have jurisdiction to pass on the constitutionality of the Statute from which they derive their authority (Secretary v. Hawkins Construction Co., 2 OSAHRC 697 (1973); Beall Construction Co. v. OSAHRC, et al, 507 F.2d 1041 (8th Cir., 1974)), that the assessment of penalties under the provisions of the Occupational Safety and Health Act does not deprive employers of the constitutional rights of due process of law and trial by jury.

Respondent makes issue that the complainant's amendment condones and promotes the addition of new and different charges against respondent after a notice of contest has been filed. This argument fails, in that the evidence of record indicates that the notice of contest was only filed after the amended citation, which set forth the material allegations which were repeated in the complaint, with the exception of the erroneous entry of a date.

FINDINGS [*15] OF FACT

1. On August 16, 1974, four employees, Mr. James Lee Battles; Mr. Leonard Powell; Mr. George Garrett; and, Mr. Don Reynolds, were employed on the Pasco Bridge in the course of their employment with respondent.

2. Only Mr. Garrett and Mr. Reynolds were employed by respondent on the Paseo Bridge in the course of their employment with respondent on August 23, 1974.

3. Mr. Battles was fatally injured while in the employment of respondent on August 16, 1974, at the Paseo Bridge, and the cause of his death was cardiac arrest, resulting from high voltage external electric shock (T. 15-16).

4. Respondent admits that it is engaged in interstate commerce.

5. Mr. John Mitchell, compliance officer for Occupational Safety and Health Administration, conducted an investigation of the fatality on August 23, 1974, after having attempted to investigate on August 19, 1974, which was not completed because of weather conditions (T. 19-20).

6. On the 19th, and again on the 23rd of August, 1974, Mr. Mitchell introduced himself to Mr. McDougal, respondent's job superintendent on the Paseo Bridge project (T. 27-30).

7. Mr. Mitchell informed Mr. McDougal that the purpose of his presence [*16] at the jobsite was to investigate the fatality that had occurred on August 16, 1974 (T. 27).

8. The actual observation of the worksite was limited to the area of the fatality (T. 31-32).

9. Mr. Mitchell was accompanied by Mr. McDougal as these observations were made (T. 20-21; 31-32).

10. On August 16, 1974, the four employees of respondent, Mr. Reynolds; Mr. Battles; Mr. Powell; and, Mr. Garrett, were, in the course of their employment with respondent, performing repair and maintenance work on the underside of the Paseo Bridge, Kansas City, Missouri (T. 15; 41).

11. In the performance of their work, the four named employees used an aluminum scaffold board approximately 32 feet long (Exhibit G-1; T. 44-49).

12. Although the scaffold was not heavy, the ropes were used as a safety precaution to prevent the scaffold from becoming overbalanced. Compliance officer Mitchell testified that the hazard underlining the issuance of the citation was working with a clumsy object (the aluminum scaffold) in close proximity to a high voltage power line without taking proper precautions. (T. 39)

13. The source of the injury or danger to the employees was the energized power line (T. [*17] 39).

14. The power line itself does not become a hazard until somebody contacts it (T. 39).

15. Based upon the determination that a serious violation had been committed by respondent, Mr. Mitchell arrived at an unadjusted proposed penalty of $1,000.00 (T. 22).

16. Respondent was given a reduction of 20% for good faith because of an active safety program, a 10% reduction because it had fewer than 20 employees on the jobsite, and a 20% reduction because it had no prior history of violations of the Act (T. 22-23).

17. The final adjusted proposed penalty after the reductions was $500.00 (T. 23).

18. Mr. Reynolds had been a co-worker with Mr. Battles and Mr. Powell for five years (T. 40-41).

19. On August 16, 1974, he and the others were wrecking the deck forms on the Paseo Bridge from the underneath side (T. 41).

20. This was his first job he had worked with Mr. Garrett (T. 41), and the first day he had worked with Mr. Garrett (T. 66).

21. The four men were working from an aluminum scaffolding at the first abutment from the north end, referred to as pier no. 6 (T. 42).

22. The underside of the Bridge consisted of two beams on either side, the beams being approximately [*18] 7 or 8 feet high with "X-braces", which are referred to as stiffeners, that went from the bottom flange of one beam to the bottom flange of the other beam (T. 42).

23. A beam in turn rests on the column, the cap or the pier cap (T. 43).

24. The workmen were using an aluminum painter scaffolding approximately 32 feet long (T. 44).

25. After removing the 2' by 10' whalers, which support the deck plywood, the men built themselves a place to work by putting the whalers from the aluminum scaffold to the flange of the beam on both sides, and as they removed the plywood decking they covered the whalers with the plywood (T. 45).

26. The purpose of the aluminum scaffold is to help them get started, and is placed on the "X-brace" or the stiffeners (T. 45-46).

27. At the pier cap itself, there is a stiffener beam that crosses right above the pier cap. The "X-braces" run from either side in a bay. Approximately 25 feet separate either a stiffener or a brace. (Exhibit G-2; T. 46)

28. At the time of Mr. Battles' fatality, the men were in the process of moving the aluminum scaffold from the bay south of the cap to the next bay north of the cap (T. 50).

29. At this particular location, [*19] there was another stiffener beam that ran directly above the cap at the same level as the "X-braces", which would not allow the scaffold ti slide right on through (T. 50).

30. The men had to lower the north end in order to take it under a stiffener beam that runs across the cap, until the south end of the scaffolding would come down off of the "X-brace". When the scaffolding was sitting on the pier cap, they then had to bring it back, take the north end up to the "X-brace", and then bring the rest of the scaffolding on through (T. 50-51).

31. Mr. Garrett was at the north end of the first bay with a rope up over the stiffener beam, which was attached to the north end of the aluminum scaffold (T. 51-75).

32. Mr. Powell was on the pier cap running east and west and on the northeast part of the corner where they were working (T. 51), about 25 feet back or a full bay from Mr. Garrett (T. 51-52).

33. Mr. Reynolds was on the opposite side of the scaffolding from Mr. Powell, also on the north end of the stiffener beam (T. 52).

34. Mr. Battles was on the same side of the scaffolding as Mr. Powell, but he was on the south side of the stiffener beam on the pier cap (T. 52). There [*20] was approximately a 3-foot opening between the pier cap and the stiffener beam (T. 53).

35. In order to get to the north side of the pier, Mr. Reynolds ducked down and went across through the opening (T. 53).

36. The ropes to the scaffold were a safety precaution, because the scaffold was not heavy but it could be oberbalanced, and the ropes were used to make sure it didn't get away (T. 54).

37. The ropes were used every time it was moved, unless it slid straight through (T. 54).

38. Mr. Garrett was placed ahead to bring in the slack as the north end of the scaffolding moved in his direction, and was to hold the slack to keep it from coming back (T. 54).

39. Mr. Powell had his rope over the stiffener beam at the cap, and his job was to take up the slack on the rope that was fastened on the back end, which kept the scaffolding from either going down or backwards (T. 54). Mr. Powell's rope went over the stiffener beam and fastened to the south end of the aluminum scaffolding (T. 54).

40. Mr. Powell's job was to hold onto the rope to keep the south end of the scaffold from going down or sliding backwards (T. 55).

41. Before moving the scaffold, the men looked at the whole [*21] area and decided upon the best way to move it and where everybody was to work. They were aware of the wires, as they had to let down the plywood and whalers they had been working on. (T. 55; 88-89)

42. When they placed the scaffolding onto the pier cap they slid it back real easy, and everybody had their ropes tied on (T. 55).

43. The scaffold had to be slid to the south to get the north end started up through the "X-braces" on the north side of the pier cap.

44. After the scaffold had been slid to the south in a position to start sliding north to miss the stiffener beam, Mr. Reynolds checked the energized wire and stated: "We've got 2 feet of clearance, we missed the wire by 2 feet.", whereafter, the crew proceeded to slide the scaffold to the north (T. 56; 77-87).

45. The scaffold board was above the power line, when Mr. Reynolds stated: "We've missed it by 2 feet." (T. 56).

46. Approximately 6 feet of the scaffold was still to the south side of the power line (T. 57).

47. Mr. Battles and Mr. Reynolds were to move this scaffold by sliding it at the same angle through to the north side by hand (T. 57).

48. They made one pull to the north, obtained another hold on [*22] the scaffolding, and the back end of the scaffolding started falling because of overbalancing; the two men could not hold it and the south end hit the power line (T. 57-58).

49. Mr. Reynolds thought that the south end fell rather than the scaffold sliding back, with the fall being approximately 4 feet when it became wedged between the stiffener and the cap (T. 58).

50. The south end was heavier than the north and it did a tilt action and came back down (T. 58).

51. There was a big flash and Mr. Powell and Mr. Battles fell foward on the scaffolding. Mr. Reynolds pushed them back off the scaffolding where they had fallen to their knees.

52. Mr. Powell rolled toward the edge and was grabbed by his coveralls by Mr. Reynolds. Mr. Reynolds grabbed one of Mr. Battles' legs, but could not hold him and he went over (T. 59).

53. It was Mr. Reynolds' opinion that if all the men had done their job, as discussed, the south end of the scaffolding would not have come down had the slack been kept up and the rope fastened to the south end (T. 60).

54. When Mr. Reynolds handed Mr. Powell the rope, he did not specifically tell him not to touch the scaffolding. His only job was to hold [*23] the rope and take up slack. Mr. Reynolds did not actually see him come up and take hold of the scaffolding when he did, but apparently, he had too much of a load. (T. 60)

("He turned his rope loose to help us because he shouldn't have been touching the scaffolding." (T. 60))

55. It was a cloudy, rainy day (T. 61).

56. Mr. Reynolds was a working leadman having sometimes 10 or 15 men working for him, whose duties were to keep the men busy and get construction done (T. 62).

57. Mr. Garrett and Mr. Powell had worked for other leadmen, but Mr. Battles had always worked with Mr. Reynolds (T. 63).

58. Mr. Reynolds had worked with Mr. Powell and Mr. Battles for about five years, and on the Paseo Bridge project worked with Mr. Battles about every day (T. 63).

59. Mr. Reynolds, Mr. Battles and Mr. Powell had performed the same job that they were doing on August 16 many times prior to that date (T. 64).

60. Mr. Reynolds considered both Mr. Battles and Mr. Powell reliable co-workers who would not endanger him (T. 64-65).

61. The operation of moving the scaffold from bay to bay had been done many times on the project, and Mr. Reynolds felt that he, Mr. Battles and Mr. Powell knew [*24] what they were doing and what had to be done (T. 65).

62. Mr. Reynolds was of the opinion, from his observations of Mr. Garrett, that he was a reliable co-worker and would not endanger other people (T. 66). On bays where there were no stiffener beams, the scaffolding would just slide on through (T. 67).

63. It is only when they have to move from one side of a pier to the other that the ropes have to be utilized with the scaffold (T. 67).

64. They had successfully maneuvered over piers some 20 times up to August 16 (T. 67). Prior to removing the scaffold from the bay north of pier no. 6, the plywood and whalers were lowered by a rope from the south end to keep it away from the wire, in that Mr. Reynolds realized that there was a power line underneath where they were working (T. 70-71).

65. Mr. Reynolds was aware of the wire, and he and the others looked over moving the scaffolding in order that they would have room to move the scaffolding up through without hitting the wire (T. 71-72).

66. Their desire was to maintain the maximum possible distance away from the power line (T. 72).

67. The rope held by Mr. Powell was observed by Mr. Reynolds, and was not broken (T. 73). [*25]

68. Mr. Reynolds assigned the workmen to their respective positions for the scaffolding maneuvering (T. 74).

69. Mr. Powell was assigned to hold the rope at the south end, and Mr. Reynolds knew from his experience that Mr. Powell knew why he was holding the rope and what they were trying to do (T. 74).

70. It was his opinion that all the other workmen would do their jobs the way they were supposed to (T. 74-75).

71. This particular operation of the movement of the scaffold was the only time that the scaffold had been moved over the power line (T. 59-60). The first pull of Mr. Reynolds and Mr. Battles of the scaffold moved it approximately 3 or 4 feet north (T. 80).

72. They reached back and got another hold, and about this time the back end fell down (T. 80).

73. Mr. Reynolds observed the south end of the scaffolding dip inward (T. 81).

74. It was Mr. Reynolds' opinion that the scaffolding could have possibly gone down because of a rope being released that was tied to the back end (T. 81).

75. Further, that in his opinion, the scaffold contacted the power line because someone did not perform his job properly (T. 81-82). Prior to the occurrence, he had no idea that [*26] someone was not doing his job, Mr. Reynolds stating that he didn't really know what had happened. After thinking about it, he felt that Mr. Powell shouldn't have been near the scaffold.

76. Mr. Reynolds surmized that Mr. Powell, who was holding the rope for the south end, thought the north end was having too hard of time and came over to give a hand, forgetting that it was important to hold the rope (T. 82-83).

77. Mr. Reynolds testified that respondent has safety meetings approximately once a month on the job (T. 83).

78. These meetings require the attendance and signing of the participants, and the dangers of electric power lines are part of the topics (T. 84).

79. Through posters and the safety discussions, Mr. Reynolds knew that electricity was dangerous (T. 85).

80. Mr. Reynolds, as leadman, was responsible for enforcing safety rules on people working under him (T. 86).

81. He had never had occasion to discuss safety with the people under him, as they were all in construction a long time and good workers (T. 86).

82. When Mr. Reynolds commenced the work on the understructure of the Bridge, he was advised by his immediate supervisor, Mr. Jack Siler, that the line [*27] was energized or hot (T. 88-89).

83. Their work was performed over the energized lines for a period of an hour to an hour and-a-half, and the time to move the scaffold would have taken five or ten minutes, or maybe two hours at the most (T. 89).

84. The energized line was parallel with the cap, but cross to the Bridge (T. 90).

85. Mr. Siler was not with Mr. Reynolds at the particular time, having given instructions in the morning of what to do (T. 90). Mr. Siler gave Mr. Reynolds no specific warning or cautions about crossing the hot line that morning (T. 91).

86. Respondent's crew had been aware of the energized line for a year and-a-half or two years (T. 91-92).

87. The power line was approximately 8 feet lower than the pier cap from which they were working (T. 92).

88. Preparatory to pulling the scaffold over the butt, at least 6 feet of it was extending down on an angle past the fulcrum point (T. 92-93).

89. In Mr. Reynolds' work experience, he acknowledged that in working with ropes they do sometimes break (T. 93).

90. There were actually two power lines, with one directly below the power line that was contacted (T. 93).

91. These were the only ones that had [*28] to be crossed on the Paseo Bridge project (T. 94).

92. Mr. Raymond E. Tinsley was manager of Customer Service Center of the Kansas City Power & Light Co. In August 1974 (T. 94).

93. His duties require the maintenance of all the records of the calls that come in pertaining to connecting electrical service, disconnections, power outages, etc. (T. 95). As manager, he would call for power connections, power disconnections and power outages (T. 94).

94. With a request for blanketing of a power line, the request is sent to a district office where a sales representative would go out to see what the customer wanted blanketed. A cost estimate is made, the customer is notified, and then the work would be done. (T. 97)

95. For a power shutoff rather than blanketing, customers are contacted that would be affected by an outage, and sometimes Kansas Power & Light would have to refuse for normal daytime use (T. 97).

96. If an outage would be refused, the alternative of blanketing is available (T. 97).

97. In August of 1974, the hourly employees were all on strike (T. 98). The district offices for customer service were not open (T. 98).

98. Mr. Tinsley's office took all the calls [*29] during the strike for service (T. 98). All calls are recorded on a regular service order form (T. 99).

99. Under Subpoena, Mr. Tinsley brought all records for request of power shutoffs or blanketing at the Paseo Bridge location from February 1973 through September 1974 (T. 99; Exhibit G-5, four pages).

100. Government's Exhibit 5(2) shows a call received from Massman Construction Co. on August 16, 1974. It reflects that the power was off, the power line knocked down and injuries.

101. None of the records of Mr. Tinsley of Kansas Power & Light Co. indicated any request by respondent for a power outage or blanketing at the Paseo Bridge location (T. 106).

102. Mr. Tinsley identified the power line that was involved at the Paseo Bridge as a power line of Kansas City Power & Light (T. 109).

103. Mr. Tinsley could not be 100% sure that all requests for service called in were duly recorded because of the strike and inexperienced personnel working in the office at the time (T. 113-114).

104. It takes approximately two or three days to get an estimate of cost and to accomplish blanketing upon request (T. 114-115).

105. With a request for power shutoff, it can be done the same [*30] day or the following day, depending upon objections from customers (T. 117).

106. The strike of the hourly workers would not have affected the ability of Kansas City Power & Light to blanket or shutoff, with regard to the time span (T. 118).

107. Mr. Robert J. Massman, respondent's secretary among other jobs, is director of their safety program (T. 122).

108. On August 16, 1974, there were from 16 to 35 employees on the Paseo Bridge project. In September 1974 and October 1974, along with his attorney, Mr. Massman attended conferences with representatives of Occupational Safety and Health Administration. (T. 123)

109. At the conferences, a fatality occurring on August 16, 1974, was discussed (T. 125-126).

110. Mr. Massman was not aware of the power lines at the Paseo Bridge project, nor was he aware that a scaffolding board was being moved in the manner in which it was being moved with ropes (T. 126).

111. Based upon the investigation of the accident, Mr. Massman acknowledged that ropes were used because he was aware that the high voltage power lines presented a hazard and because of the desire to avoid the hazard (T. 129).

112. This was based on Mr. Reynolds' explanation [*31] of the procedures in moving the scaffold and his statement to respondent immediately following the fatality (T. 130).

113. Mr. Massman had no knowledge prior to the accident that there was going to be a scaffold moved over the power line (T. 130).

114. He had no idea how the scaffold was going to be moved over the power line prior to the accident (T. 131).

115. With respect to respondent's safety program, it is enforced on the jobsites by the project superintendent who has the option to delegate his authority to his intermediate foremen or supervisors (T. 131).

116. Mr. Robert R. Bayles, professional consultant specializing in electrical and mechanical engineering, and licensed in Oklahoma, Kansas, Missouri, Nebraska and Iowa, testified for respondent (T. 134-135).

117. Mr. Bayles conducted an investigation of the accident of August 16, 1974, at the Paseo Bridge, visiting the scene and studying it (T. 137).

118. He made a determination that the voltage to ground on the power line was 2,300 volts (T. 137-138). From visual observation, he had an opinion that the conductor was a no. 6 copper conductor (T. 138).

119. The span from pole to pole was approximately 110 feet [*32] (T. 138).

120. He testified that a power line is a potential hazard free-standing between poles (T. 138). He did not make a differentiation between "potential hazard" and actual hazard, as he felt that energized electrical conductors are known to be hazardous in and of themselves (T. 138).

121. The hazard is described as electrical shock, which can only occur when contact is made with an energized conductor or within a proximity that will permit an arc (T. 139).

122. The arcing distance for electrical energy varies with a multitude of things, the shape and nature of the two surfaces with the predictable arcing being less than an inch if the two surfaces were needle points, perhaps a quarter of an inch (T. 139).

123. In order for there to be danger, someone would have to be within an inch of the power line (T. 140).

124. The hazard of a power line can be eliminated by means of insulation and isolation; insulation meaning to enclose the conductor with some sort of material that will contain the energy within the conductor, and isolation the same procedure excepting that the conductor is encased in air or spaced so far from normal area where people may be it is isolated from [*33] contact (T. 140).

125. Referring to National Electrical Safety Code, formerly Handbook H-30, now American National Standards Institute Document No. C-2, paragraph 422(b), p. 295, 1973 Edition, Table 1(a): from "1 to 34,500 kilovolts, the employee should not get within a 2-foot stipulated clearance without jeopardizing his safety" (T. 141-142).

126. An aluminum scaffold is considered a conductor (T. 143).

127. An employee keeping an aluminum scaffold more than 2 feet away from a 2,300-volt power line would be considered to be working safely (T. 142).

128. He would be in no danger if he did not violate the 2-foot rule (T. 142). Based upon his observation at the jobsite, it was Mr. Bayles' opinion that insulating the power is not being practical or feasible in a short term interim measure (T. 144).

129. He described a split tube, which is an insulating conduit pipe which is laterally split and slipped over the conductor by a lineman (T. 144), and for a larger span a number of sections are butted end to end, and being fairly rigid with the amount of sag in a power line they wouldn't be touching the wires (T. 145). The impact of a falling object would probably violate [*34] the tubing at its joints anyway, and might even enduce a sense of false security (T. 145).

130. In a situation where a scaffold is actually breaking a power line insulated with a short split tube, Mr. Bayles did not think that there was a 100% certainty that the insulation would prevent shock (T. 145-146).

131. It was Mr. Bayles' opinion that moving an aluminum scaffold from one area to another, provided they maintained a 2-foot clearance on the 2,300-volt power line, was safe (T. 147).

132. The deenergizing of the line would also eliminate the shock hazard (T. 148).

133. Grounding of the line without deenergizing would blow all the protective devices, and the line would be dead (T. 148).

134. Mr. Bayles did not know the weight of the split rubber tube insulators (T. 148).

135. He did not know the particular breaking strength of the size and type of conductor involved (T. 148).

136. He could give no opinion as to whether or not a span of a 2,300-volt line underneath the Bridge could be insulated without breaking the line (T. 148), although the conductors are selected for physical strength anticipating iceload and they have a substantial amount of strength (T. 149). [*35]

137. Mr. Bayles did not know what type of electrical system was involved, a Delta system, in which one of the phases are grounded, or phase to phase (T. 151).

138. If it were phase to phase, the voltage would be higher (T. 151).

139. Mr. Bayles described insulating blankets as a rubberlike material, as opposed to insulation tubes (T. 151).

140. He did not know of his personal knowledge whether or not Kansas City Power & Light tapes the joints between insulation tubes when installed (T. 151-152).

141. Mr. Bayles thought the use of rubber gloves would provide the employees handling the aluminum scaffold with bare hands some protection from electrical shock (T. 153), if the gloves had been properly tested and had a voltage resistance ability in excess of the voltage condition of the line (T. 153).

142. When the aluminum metal scaffold comes in contact with the power line, it itself becomes energized, and electricity would be carried to wherever it could find a path to ground (T. 154).

143. Mr. Bayles noted that the arcing temperature was in the area of 1,500 degrees to 2,700 degrees and the melting point of aluminum is 1,300 degrees, and that there was a molted notch in [*36] the side of the scaffold (T. 156).

144. Copper in the conductor would be in the melting arcing, and he thought that there was an impact shock (T. 156-157), although examination of the scaffold showed a molted notch in the side of the scaffold (T. 156).

145. Mr. Bayles felt there was a possibility that if the scaffold was sliding toward the conductor, and it had been blanketed, the surrounding of the conductor would have precluded the scaffold from becoming energized (T. 157).

146. Mr. Bayles felt that it would be feasible to shroud the high tension line for a period of approximately an hour to an hour and-a-half for the scaffold to cross the span where the wire crossed the Bridge, and that it could be done (T. 159).

147. Mr. Ronald J. Blakley, safety engineer for Massman Construction Co. for over three years, with a B. S. Degree in Safety and Health and a background in construction work, administers and coordinates the accident prevention program for respondent (T. 159-161).

148. Respondent has an accident prevention booklet which is administered through the job superintendent from the time of the sign-up of the employee (T. 161).

149. Mr. Blakley, in conjunction with the [*37] insurance company, also tries to seek out potential hazards, along with being responsible for safety meetings and recording of frequency and severity rates (T. 162).

150. Respondent maintains a written safety manual which it requires its employees to read and sign (T. 162).

151. Mr. Reynolds, Mr. Powell, Mr. Garrett and Mr. Battles all read the manual (T. 162).

152. There are safety meetings on the jobsite once a month where safety talks are administered, and attendance of personnel is required, along with recordation of their attendance (T. 163).

153. Written material and safety talks on power lines were topics prior to the August 16, 1974, accident (T. 163). Mr. Blakley considers the power line a potential hazard if you get within a couple feet (T. 164).

154. Mr. Blakley did not investigate the accident of August 16, 1974 (T. 164).

155. He was present during the testimony of Mr. Reynolds as to how the scaffold is moved, and in his opinion as a safety engineer did not consider that moving the scaffold to a position within 2 feet of the power line was hazardous (T. 164).

156. He considered that the hazard involved was in contacting the line itself or getting within [*38] arcing distance (T. 164).

157. In his opinion, the procedure elected by the four employees in moving the scaffold was safe if each and every employee had done his job as he was supposed to (T. 165).

158. It was his opinion that 85% of all accidents were human error (T. 165).

159. Respondent's safety policy in working safely in the field is the ultimate responsibility of the superintendent (T. 166).

160. Mr. Blakley has been to the Paseo Bridge project several times and had observed the employees moving the scaffold with ropes (T. 167-168).

DISCUSSION

Section 5(a)(1) of the Act provides as follows:

"(a) Each employer --

Complainant alleges that the respondent failed to furnish its employees working on the Paseo Bridge employment and a place of employment which was free from recognized hazards that were causing or likely to cause death or serious physical harm . . . in that employees working in close proximity to an electric power line carrying 13,200 volts were [*39] not protected against electric shock by deenergizing the circuit and grounding it or by guarding it by effective insulation or other means.

In order to sustain a 5(a)(1) violation, the complainant must prove 1) that the employer failed to render its workplace free of a hazard which was 2) recognized and 3) causing or likely to cause death or serious physical harm.

A hazardous condition is not, by itself, sufficient to sustain a violation. Feasible measures to reduce the likelihood that the hazard would occur must be demonstrably established.

Section 5(a)(1) requires the elimination of preventable hazards. (National Realty & Construction Co., Inc. v. OSAHRC, 489 F.2d 1257 (D.C. Cir., 1973))

Actual knowledge of a hazard on the part of an employer satisfies the general duty clause requirements of recognition. (Secretary v. OSAHRC & VyLactos Laboratories, Inc., 494 F.2d 460 (8th Cir., 1974))

Recognized Hazard:

The hazard involved in respondent's operation was, as ably described by the compliance officer, the maneuvering of a clumsy object, itself a conductor, in close proximity to a high voltage power line without taking proper precautions.

Respondent argues that [*40] the only potential hazard was the electric power line, and that had the maneuvering been accomplished successfully, i.e., maintaining a 2-foot clearance from the energized line, the respondent is relieved of its responsibility and has fulfilled its duty under section 5(a). Such argument cannot be accepted.

The testimony amply demonstrated that respondent, by and through its appointed supervisory personnel, was knowledgeable of the hazards of power lines (T. 85).

Respondent, through its supervisory personnel, knew the existence of an energized power line running under a section of the Paseo Bridge and had possessed this knowledge for one and-a-half to two years (T. 88-89). Respondent's own expert witness made no distinction between a power line as a potential hazard or an actual hazard when coming in contact with a conductor (T. 138-139). He denominated an aluminum scaffold as a conductor. Mr. Blakley, respondent's safety engineer, considers a power line a potential hazard if you get within a couple feet. (T. 164)

The energized power line running underneath the Paseo Bridge was some 8 feet from and below the workstation of the employees at pier no. 6.

The hazard presented [*41] was the unwieldy manipulation of a 32-foot aluminum scaffold, which could be energized if it came in contact with said power line during the operation, which involved the tilting, slipping and sliding back and forth of this aluminum scaffold beneath the Bridge structure to clear a "cross-brace", wherein the employees were required to utilize ropes at each corner of this 32-foot scaffold to traverse a 25-foot bay, which distance in and of itself required that the scaffold be tilted and manipulated.

The evidence clearly shows that the operation by respondent's employees reached the outer and ultimate limit of safety with no precise instructions by Mr. Reynolds' immediate supervisor, having left them to their own devices, with a net result that at one part of the operation the end of the scaffold was within 2 feet of the energized line.

The hazard was not in and of itself the energized line, as argued by respondent. The hazard was in respondent's imprecise utilization by way of expediency of maneuvering the scaffold beneath the Bridge by the use of ropes attached to each of the four corners, and apparently, abandoning any idea of insulating the line for this brief operation.

Respondent [*42] describes this operation as perfectly safe, if it were performed as it should be by the affected employees, and presenting no danger. This Writer cannot agree. It is like comparing the maneuvering of the scaffolding with the delicate turn of a worm gear on a precision lathe. Too much was left to chance. It was a game of Russian roulette, which ended in the demise of one of respondent's employees and injury to another.

Patently, there was a staggering amount of evidence of lack of and abandonment of continuing diligence and proper management supervision. (Secretary v. Gerstner Electric, Inc., 10 OSAHRC 441 (RC 1974))

The scaffold was proceeding from bay to bay in removing the plywood and whalers from beneath the Bridge.

It would not be speculative, based upon the evidence of the leadman being assigned his duties each morning by the general foreman, to find that this removal of staging was a programmed operation so that at a given point of time, absent adverse weather conditions, it could be reasonably calculated as to when the scaffolding would have to be transported over the energized lines, and arrangements could well have been made in advance for deenergizing the line [*43] or shrouding the line.

Feasibility:

Again, while respondent's expert witness testified that slip insulators were not feasible as a short-term interim measure (T. 144), and that moving a scaffolf from one area to the other, provided they maintained a 2-foot clearance on the power line, was safe (T. 147). Such testimony must be rejected on the basis of his own additional testimony.

Mr. Bayles testified to various methods that could be employed that were feasible and would have protected the employees.

The deenergizing of the line would have eliminated the shock hazard (T. 148).

He described insulating blankets (T. 151). He described insulated gloves (T. 153). Mr. Bayles testified that it would be feasible to shroud the high tension line for a period of approximately an hour to an hour and-a-half for the scaffold to cross the span where the energized line crossed under the Bridge; and, that it could be done (T. 158-159).

Employee Misconduct or Idiosyncratic Conduct:

Respondent argues strenuously that because of the failure of one of the four employees to properly perform his task, the fatality occurred. This is primarily based upon surmizes and opinions made by [*44] the leadman following the occurrence, wherein he opined that a corner rope was released (T. 81) and one of the employees did not do his job properly (T. 81-82), resulting in the scaffold falling upon the power line.

This is in discrepancy from Mr. Reynolds' own description of the operation, commencing with sliding of the scaffold to the south in a position to start sliding north to miss the stiffener beam, where at that point in time he announced that they had 2 feet of clearance (T. 56).

At that point, approximately 6 feet of the scaffold was still to the south side of the power line (T. 57).

Contrary to the stated method of moving the scaffold (as designed by respondent's leadman) by the use of ropes, Mr. Reynolds describes his and Mr. Battles' actions as grabbing the scaffold by hand and sliding it at an angle to the north (T. 57).

To quote Mr. Reynolds:

"And we had made one pull to the north. We got another hold of the scaffolding and the back end of the scaffolding just started falling, you know, it was overbalanced. And it started going that way and we couldn't hold it, and it hit the power line. But it did fall and hit the power line." (T. 57-58) (Emphasis supplied) [*45]

Again, while describing Mr. Powell's duties in taking up slack in the rope, quoting Mr. Reynolds:

"And I didn't actually see him come and take ahold of the scaffolding when he did, but apparently we had too much of a load. He turned his rope loose to help us because he shouldn't have been touching the scaffolding." (T. 60) (Emphasis supplied)

It is felt that the complainant clearly established, by the preponderance of the substantial and credible evidence, that respondent's operation was a "recognized hazard" in the manipulation of the scaffold previously described in such near near proximity to an energized line.

The consequences of a mishap, a broken rope (T. 93), error of judgment, lack of balance, lack of proper insulating material which was readily available, as demonstrated by the testimony of Mr. Tinsley of Kansas City Power & Light, was to result in the death of an employee.

Despite the fact that the company was on strike at the time, the company could have provided an outage, and if this was refused by collateral customers could have made blanketing available within two to three days (T. 114-115).

In addition, complainant created, while not an absolute inference, [*46] a strong inference through the testimony of Mr. Tinsley of no request having been made by respondent for blanketing of the power line.

Respondent presented no evidence as to any such request, nor utilization of the other available feasible methods of protecting its employees, testified to by its own expert witness.

The consequences of the aluminum scaffold coming in contact with an energized line and the contact of employees with the scaffold can only produce or result in death or serious physical harm.

Respondent's supervisory personnel had knowledge of the operation, its manner of performance, and of the energized line (Secretary v. Floyd S. Pike Electrical Contractor, Inc., 15 OSAHRC 302 (RC 1975)). This knowledge is imputable to the respondent. A serious violation of section 5(a)(1) has been established.

The criteria for determining penalties have been often discussed (Secretary v. Nacirema Operating Co., Inc., 1 OSAHRC 33 (RC 1972)). The principal factor to be considered is the gravity of the offense among the four elements. Respondent had fewer than 20 employees on the jobsite. Here, there were four employees exposed to the risk of serious injury or death. [*47] This exposure, according to respondent's own witness, could last from minutes to one and-a-half to two hours. The precautions taken against injury were close to nil. An employee came to his demise and another was injured, due to respondent's callous desregard of its employees' safety, inadequate supervision and safety practices. A penalty of $500.00 is appropriate under the circumstances.

CONCLUSIONS OF LAW

1. The respondent was at all times material hereto engaged in a business affecting commerce within the meaning of section 3(5) of the Act.

2. Respondent at all times material hereto was subject to the requirements of the Act and the standards promulaged thereunder.

3. The Commission has jurisdiction of the parties and of the subject matter.

4. On August 16, 1974, an employee of respondent was electrocuted while performing an operation, with the knowledge of both the leadman and the leadman's immediate supervisor, in attempting to maneuver a 32-foot scaffold over an energized power line by means of rope attachments, which under the circumstances heretofore described was a recognized hazard as that term is defined under section 5(a)(1) of the Act.

5. The knowledge [*48] of respondent's supervisors of the hazardous condition is imputed to respondent.

6. Such recognized hazard was preventable by a variety of feasible measures which could have been but were not utilized by the respondent.

7. The hazard was such as to cause the death of one of respondent's employees and could have caused death or serious injuries to three other exposed employees.

8. Respondent was in violation of section 5(a)(1) of the Act. The violation was serious.

9. A penalty of $500.00 is assessed for the violation.

ORDER

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

1. The amended serious citation issued respondent on September 16, 1974, is affirmed; and,

2. A penalty of $500.00 is assessed.

Paul E. Dixon, Judge, OSAHRC

Date: September 4, 1975