SAVANNAH IRON AND FENCE CORPORATION
OSHRC Docket No. 1299
Occupational Safety and Health Review Commission
July 11, 1974
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with Chairman Moran's order directing review of a decision by Judge John Patton. Judge Patton concluded that Respondent had committed a serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") by violating the safety standard published at 29 C.F.R. 1926.400(g). A civil penalty of $550 was assessed.
We have reviewed the entire record. For the reasons stated hereinafter we adopt the Judge's decision only to the extent it is consistent herewith.
The relevant facts follow. Respondent is engaged in structural and miscellaneous steel fabrication work. It had contracted to perform alterations on an American monorail handling system in a plant operated by Great Dane Trailers, Inc. (Great Dane). The system included a monorail crane and two bridge cranes. Each crane received electrical power through its own bus bars (bus). Electrical power was supplied to the individual buses through separate disconnect switches and separate fuse boxes. The disconnects [*2] and fuse boxes were all located at a single control panel. Thus each of the cranes could be individually energized or deenergized.
During the night of July 12-13, 1972, the monorail crane could not be energized through its own disconnect; some of its bus bars had been temporarily removed. McCuen Electrical Company (McCuen) was performing electrical work in the plant, and it energized the remainder of the monorail crane bus by electrically connecting it with jumper wires to a bridge crane bus.
On the morning of July 13 Respondent's foreman, Youngblood, was informed by McCuen that the monorail bus was energized. Youngblood was also informed that each crane was supplied through a separate disconnect, but he was not informed of the jumper wires. Respondent had to perform work on the monorail, and Youngblood asked McCuen's electrician to cut the power. The electrician did that by removing the bridge crane's fuses and by throwing its disconnect. The switch was not rendered inoperative nor was it tagged with a warning. The electrician returned and informed Youngblood that the switch had been thrown. The foreman did not ask the electrician whether the switch had been rendered [*3] inoperative, and he did not ask whether a warning tag had been placed thereon. Youngblood did not personally check the disconnect.
On the afternoon of July 13 Great Dane's plant engineer being unaware of the jumper wires informed Youngblood that he was going to energize the bridge crane. He went to the control panel, replaced the fuses, and threw the disconnect. At the time two of Respondent's employees were working on the monorail in close proximity to its bus bars. One was electrocuted when the Great Dane's engineer re-energized the bridge crane circuit. The engineer stated that the disconnect had not been locked out or tagged.
On these facts Complainant cited Respondent for a serious violation of 29 C.F.R. 1926.400(g) which provides:
Lockout and tagging of circuits. (1) Equipment or circuits that are de-energized shall be rendered inoperative and have tags attached at all points where such equipment or circuits can be energized.
(2) Controls that are to be deactivated during the course of work on energized or de-energized equipment or circuits shall be tagged.
(3) Tags shall be placed to identify plainly the equipment or circuit being worked on.
In reaching [*4] his decision Judge Patton noted that the standard includes the term "lockout" in its title but uses the term "inoperative" in its body. He concluded, therefore, that the standard does not require the lockout of de-energized circuits. n1 Because bus bars had been removed from the monorail crane circuit he concluded that it had been rendered inoperative. And he concluded further that Respondent could not have known even through the exercise of reasonable diligence that McCuen had re-energized the circuit with jumper wires. On the other hand, he found that Respondent had failed to tag the circuit, and he affirmed on this basis. He made no finding on the question of whether Respondent knew or with the exercise of reasonable diligence could have known of the failure to tag. n2
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n1 The Judge's decision was not directed for review on his interpretation of the word "inoperative." We are not, however, inclined to accept his interpretation. It does not appear to "effectuate congressional objectives" Brennan v. Occupational Safety and Health Rev. Com'n. (Gerosa, Inc.), 491 F.2d 1340, 1343 (2d Cir., February 11, 1974). See also: A.H. Phillips Co. v. Walling, 324 U.S. 490 (1945); Reliable Coal Corp. v. Morton, 478 F.2d 257 (4th Cir. 1973); Wirtz v. TiTi Peat Humus Co., 373 F.2d 209 (4th Cir. 1967); St. Mary's Sewer P. Co. v. Director of U.S. Bureau of Mines, 262 F.2d 378 (3rd Cir. 1959). As the Court said in the last cited case "[i]t is so obvious as to be beyond dispute that in construing safety or remedial legislation narrow or limited construction is to be eschewed. Rather, in this field liberal construction in light of the prime purpose of the legislation is to be employed" 262 F.2d at 381. Liberally construed the term "inoperative" could mean lockout by a positive means such as a key operated lock used to hold a switch in the off position. Since Respondent's principal defense relates to another issue as discussed infra we need not resolve the interpretative issue.
n2 Under section 17(k) an employer cannot be found in serious violation unless it knew or with the exercise of reasonable diligence could have known of the presence of the violation.
[*5]
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Both at trial and on review Respondent argues that it was not an electrical contractor, it did not know of the jumper wires, n3 and it had no control over the electrical contractor or the crane circuits. Thus, the thrust of Respondent's case is to shift the responsibility for compliance with the cited standard to McCuen and Great Dane. But under section 5(a)(2) each employer has as to his employees the duty of complying with standards. And as Judge Patton observed the duty cannot be shifted on grounds of the kind urged by this Respondent.
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n3 The question is not whether Respondent knew or could have known of the existence of the jumper wires. Rather it is whether Respondent knew or could have known of the presence of the violation, i.e., the failure to tag out and the failure to render the circuit inoperative. See note 2.
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Respondent's emloyees were exposed to the hazard. There is no question that the consequences of an injury would [*6] be death or serious physical harm nor is there any question regarding the failure to tag. n4 Finally, the failure and therefore "the presence of the violation" n5 could have been discovered had Respondent exercised a modicum of diligence.
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n4 Respondent has not raised the issue of whether a failure to tag will likely result in death or serious physical harm. Clearly, a tag conveys nothing more than a warning. The warning might be enough to persuade an individual not to operate a switch, but it will not prevent such operation. Prevention is the office of a lockout. If a lockout is employed it would not seem that the failure to tag would likely result in death or serious physical harm.
n5 See note 2.
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Respondent knew that the monorail circuit was energized because McCuen had informed it to this effect. The power was cut at Respondent's request, but Respondent made no request that McCuen lockout and tag the disconnect. When informed that the power had been cut Respondent could have discovered the absence [*7] of compliance merely by asking McCuen whether the disconnect had been locked out and tagged. The question was not asked. Finally, Respondent made no attempt to inspect the disconnect in person to see if it had been locked out and tagged. Clearly, Respondent made no effort whatsoever to discover the presence of an easily discoverable violation. Respondent cannot be heard to say that it exercised reasonable diligence within the meaning of section 17(k).
Accordingly, the decision of the Judge is affirmed to the extent that it is consistent herewith, and it is so ORDERED.
DISSENTBY: MORAN
DISSENT:
MORAN, CHAIRMAN, dissenting: I have had to read the preceding opinion several times in an attempt to determine exactly what the Commission is concluding that this respondent did wrong -- or at least to learn what it thinks respondent should have done that was not done. Unfortunately, I can't be sure.
It seems that the offense was not simply a failure to place tags on electrical switches, which is why the Judge found the existence of a violation. He ruled:
By failing to tag such switches as required by the Act, respondent violated section 5(a)(2) of the Act and standard 29 CFR 1926.400(g). [*8]
Footnote 4 of the Commission's decision seems to pooh-pooh a failure-to-tag:
. . . a tag conveys nothing more than a warning. The warning might be enough to persuade an individual not to operate a switch, but it will not prevent such operation.
The Commission blithely states that "[r]espondent's employees were exposed to the hazard." One might well ask "what hazard?" Surely, not the failure-to-tag. Could the hazard be the employees' proximity to the bus bars? The connection of jumper wires by the McCuen Electrical Company? That company's failure to disconnect them? The failure of communication between respondent's foreman who told McCuen's electrician to "kill" the power and the latter who shut it off but didn't "kill" it? The re-energizing of the circuit by an engineer employed by Great Dane Trailers, Inc.? Or could it be a combination of all of these?
It appears to me that the remedial purposes of this law are lost unless an offending employer is told exactly what he did wrong so that he and employers similarly situated can avoid such conduct in the future. In this respect, this opinion has failed.
There is a hint that the Commission believes that this respondent's offense [*9] was that an (unidentified) electrical circuit was not "locked out." That requirement, of course, as the Judge has pointed out and as anyone who takes the trouble to read the words of the standard at issue can plainly see, is not mentioned in the body of the standard at all.
Although it purports in footnote 1 to see no need to interpret "inoperative" to mean "lockout" (but seeing no problem in doing so in the interests of a "liberal" judicial philosophy), the Commission opinion goes on to find fauit with the fact that respondent did not personally check to see if the "disconnect" had been " locked out and tagged" [emphasis mine].
The incredible conclusion of this opinion is that "[r]espondent made no effort whatsoever to discover the presence of an easily discoverable violation." Could it be possible that we have in this case a violation which is easily discovered but impossible to specify?
It should be noted that respondent was not the electrical contractor. What should it have been looking for? A tag? A lock-out device? Jump cables? An employee near the machinery? Poor advice or guidance or improper activity from Great Dane Trailers, Inc., or the McCuen Electrical [*10] Company?
Since the Commission finds it impossible to state just what constituted the "violation," I would conclude that the requirements for a serious violation under 29 U.S.C. § 666(j) are missing:
. . . the employer did not, and could not with exercise of reasonable diligence know of the presence of the violation.
[The Judge's decision referred to herein follows]
PATTON, JUDGE, OSAHRC: This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter called the Act) contesting a citation issued by James D. Hodgson, Secretary of Labor, hereinafter called complainant against Savannah Iron and Fence Corporation, hereinafter called respondent, under the authority vested in complainant by section 9(a) of said Act. The citation alleged that respondent violated Occupational Safety and Health Standard 29 CFR 1926.400(g) by failing to lock-out and tag disconnect switches to electrical conductors for equipment on which employees were working.
It was further alleged that respondent violated standard 29 CFR 1926.451(d)(10) by failing to provide guardrails, midrails and toe boards on two tubular welded frame scaffolds [*11] which were in excess of ten feet high.
It was alleged that respondent violated standard 29 CFR 1926.353(e)(2) by failing to protect employees performing welding, cutting, or heating operations by use of suitable eye protection equipment.
It was alleged that respondent violated standard 29 CFR 1926.550(a)(14)(i) by failing to provide a fire extinguisher in or near the cab of a telescoping boom hoist.
Only violation of standard 29 CFR 1926.400(g) was contested. Hearing was held before John S. Patton, the undersigned Judge on October 17, 1972, in Savannah, Georgia. Mr. Ellis V. Cruse and Mr. George D. Palmer appeared as counsel for complainant. Mr. Leamon R. Holliday, attorney, represented respondent at said hearing.
LAW AND ISSUES OF THE CASE
Standard 29 CFR 1926.400(g) is as follows:
(1) Equipment or circuits that are deenergized shall be rendered inoperative and have tags attached at all points where such equipment or circuits can be energized.
(2) Controls that are to be deactivated during the course of work on energized or deenergized equipment or circuits shall be tagged.
(3) Tags shall be placed to identify plainly the equipment or circuits being worked on. [*12]
Standard 29 CFR 1926.451(d)(10) is as follows:
(10) Guardrails, not less than 2 X 4 inches or the equivalent, and approximately 42 inches high, with a midrail, of 1- X 6-inch lumber or equivalent, and toeboards, shall be installed at all open sides and ends on all scaffolds more than 6 feet above the ground or floor. Toeboards shall be a minimum of 4 inches in height. Wire mesh shall be installed in accordance with paragraph (a)(6) of this section.
Standard 29 CFR 1926.353(e)(2) is as follows:
(2) Employees performing any type of welding, cutting, or heating shall be protected by suitable eye protective equipment in accordance with the requirements of Subpart E of this part.
Standard 29 CFR 1926.550(a)(14)(i) is as follows:
(i) An accessible fire extinguisher of 5BC rating, or higher, shall be available at all operator stations or cabs of equipment.
As above stated, only the alleged violation of 29 CFR 1926.400(g) is contested. It is necessary to ascertain whether there were circuits being energized which were not rendered inoperative and which were not tagged and if so, what would be an appropriate penalty.
EVIDENCE IN THE CASE
It is admitted in respondent's answer [*13] that respondent is a corporation having a place of business and doing business among other places at Savannah, Georgia, where it has been and is engaged in handling erection and installation of structural and industrial steel and iron. It is admitted that respondent is and at all times relevant to this cause has been engaged in a business affecting commerce within the meaning of the Act and that the Occupational Safety and Health Review Commission has jurisdiction of this cause.
It was testified by Mr. Robert Bertz, Plant Industrial Engineer of Great Dane Trailers Inc., that respondent was on July 14, 1972, engaged in work for the Great Dane Trailer, Inc., at its place of business in Savannah, Georgia. The respondent was engaged in re-routing the Great Dane Trailer, Inc., American Mono-rail handling system (TR 5). It was testified that Great Dane Trailers, Inc., had two bridge cranes and one mono-rail crane, all of which are used for lifting of a trailer into a body shell after the body is assembled or to take the body out, connect it onto the American mono-rail and transfer it to a storage area where it is in process storage for the main assembly line (TR 6, 41). It was stated [*14] that the bridge cranes are cranes which can be turned in either direction whereas the mono-rail crane can only be turned in one direction. They are separate parts of the total system and are electrically powered. Each of the cranes have separate electrical disconnects (TR 41).
It was understood that new production was to start on July 13, 1972, and the respondent's workers were instructed to install the bridge crane in the subassembly area. The preceding night, electricians from McCuen Electrical Company were instructed to get the mono-rail system energized so it could be used the following morning (TR 7, 8). Fuses were put in place and the system was energized (TR 8, 9). The production employees did not appear the following day and Mr. Richard J. Youngblood, foreman and ironworker for the respondent requested a Mr. Kenny to close off the electrical power so the employees could work on the system. Mr. Kenny agreed but said he would energize the circuit for the bridge crane and move it down to check the clearances. He told Mr. Youngblood that the cranes were on different disconnects and whereupon, Mr. Youngblood said "O.K., go ahead" (TR 8, 9). Mr. Youngblood thought [*15] that the current would not flow to the mono-rail system because they were on three separate circuits. There are three disconnects that deactivate the entire system. Mr. Youngblood did not know that a jumper consisting of a wire had been connected between one of the bridge cranes and the mono-rail crane and that because of jumpers the various cranes were all energized by electricity (TR 9, 10, 13). Without the jumper, there was a small gap too small for electricity to pass over between the mono-rail crane and the bridge crane (TR 13). Mr. Kenneth Schie, an electrician with McCuen Corporation, testified that he connected the mono-rail with a set of jumpers from the bridge circuit which was part of the mono-rail system to make a temporary connection to make it hot so they could use it on Thursday morning (TR 17). There are four bus bars which run through the mono-rail system and which carry electricity. He stated the bus bars run through the entire system which is over 100 feet in all. There are 110 volts to the ground running through the bus bars. Any two of them would constitute 220 volts (TR 18, 19, 20). Mr. Schie testified that he had been told the mono-rail system [*16] would be in use the next morning and this was his reason for energizing it. He stated he told Mr. Youngblood it was not and Mr. Youngblood ask him to cut the current off. He stated that in compliance with this request he went to the switch box, turned the switch off and then pulled the fuses. This was on the bridge circuit. This was the box that controls the current through the jumper cable to the mono-rail system at that time. Mr. Youngblood did not ask him to lock the switch and this was not done (TR 20, 21, 22, 44). He further testified that it was not tagged. It was testified that it was not company policy to do either. The witness stated he did nothing himself to prevent someone closing the switch without warning (TR 23). There are three fuse boxes, one for each bridge train and one for the mono-rail. Throwing the switch controls of the mono-rail would not have energized the circuits under the situation existing on said date (TR 25, 26). He thought that Mr. Youngblood had knowledge of the system (TR 27). The jumper cables were still installed on July 13 between the bridge and the mono-rail system. There was no other way the current could have reached the mono-rail [*17] system. Bus bars are not insulated (TR 28). The three fuse boxes are marked, one being marked bridge crane No. 1 Station, one marked bridge crane sub-assembly and one marked mono-rail.
It was not the practice to put locks and tags on circuits when they were deenergized (TR 27, 57). A Mr. Evans and Mr. Dubose, two of respondent's employees were working on the mono-rail on Thursday, July 13, 1972, (TR 45). It was necessary in performing this work to touch and at times to lean on the bus bars (TR 56). Mr. Bertz closed the switch to the bridge crane and when he did so Mr. Evans was electrocuted (TR 45, 48). Mr. Youngblood heard a man on a scaffold yell and called out for someone to kill the power (TR 45). Mr. Youngblood was about 50 to 60 feet from the switch. People were working on the bus bars and were out of sight of someone pulling the switch and it was impossible for anyone pulling the switch without stepping out and looking to know that there was someone working on the bus bars where Mr. Evans was working (TR 46). Mr. Youngblood testified that when he came to work on July 13, 1972, he did not know what the electricians had done the night before (TR 51). He did [*18] not, himself, know how to cut off the power and relied on the McCuen employees to do so. The respondent does not do any electrical work and its employees are not trained electricians (TR 51).
Mr. Clarence E. McCain, Compliance Officer, for the complainant, testified that when he made his inspection on July 14, 1972, employees were working on the mono-rail system in very close proximity to the bus bars and the switches were still neither locked nor tagged (TR 56, 57). The switches were locked and tagged later in the day before he left (TR 57). He testified that employees would, at times, have to lean over the bus bars to accomplish a weld or accomplish a fastening (TR 56). He testified that tagging and locking was important because the key is supposed to be carried by the individuals who are in charge of the work being done and he has knowledge of the people who are working and where. He stated that such an individual would not release the key until the employees were in a safe place. He stated the purpose of the tagging was to notify people who knew how to read and write that a hazardous condition existed and they were not to turn the switch on. The lock out would [*19] take care of the situation if a person could not read (TR 69).
EVALUATION OF THE EVIDENCE
Only the alleged violation of standard 29 CFR 1926.400(g) is contested and, therefore, only the alleged violation of said standard must be here discussed.
It is the position of the respondent in this case that the primary responsibility for matters relating to electrical current rested in another company, that the respondent did not employ trained electricians and that the respondent's foreman did not have knowledge that the mono-rail crane had been energized at the time respondent's employees were working on said crane. It is therefore, insisted that the respondent should not be held responsible for any alleged violation in this regard and that if the respondent is in violation of the Act, it is not a serious violation as defined by the Act and regulations. This Judge is of the opinion that the facts are substantially as insisted by the respondent but is further of the opinion that such facts do not exonerate the respondent from a violation of the Act. It must be noted that even if the facts established that the respondent was not primarily responsible for the unfortunate fatality which [*20] occurred, the respondent would still be in violation of the Act if the respondent permitted its employees to work under working conditions forbidden by the Act and the regulations promulgated thereunder.
It will be noted that section 1926.400(g) provides as follows:
(g) Lockout and tagging of circuits:
(1) Equipment or circuits that are deenergized shall be rendered inoperative and have tags attached at all points where such equipment or circuits can be energized.
The title of said subsection contains the words lock out, however, it will be noted that the body of said subsection does not contain the word lock out but merely states that "equipment or circuits that are deenergized shall be rendered inoperative . . ." (Emphasis supplied). The directive in said subsection as to what an employer is required to do is that an employer is required to render it "inoperative." It may well be argued that if the equipment or circuits were rendered inoperative by some means other than lock outs, the standard was not violated. The testimony of Mr. Youngblood, as well as other witnesses, establishes that in the absence of a jumper, electric current could not have been transferred [*21] to the mono-rail. Unknown to the respondent's supervisor and the respondent's other employees, a jumper had been attached and the current in the mono-rail was activated. It may well be argued that in the absence of the jumper the mono-rail had been rendered inoperative insofar as being energized was concerned.
Mr. Youngblood had been advised by Mr. Bertz that the mono-rail on which the employees worked had a different disconnect whereupon Mr. Youngblood consented for the bridge crane to be energized notwithstanding the fact that work would be performed on the mono-rail. Mr. Kenneth Schie, an electrician with McCuen Electric Company, connected the mono-rail with a set of jumpers from the bridge circuits because he understood that employees would be using the mono-rail system the next day. The mono-rail system was not used by the Great Dane Trailer company on Thursday as was thought it would be. Mr. Youngblood testified that it was not until after the accident that he found there were jumper cables between the bridge crane and the mono-rail. He discovered this fact the day after the accident.
There is no indication in the evidence that Mr. Youngblood should have known [*22] that the jumper had been connected as he had been assured by Mr. Bertz, Plant Industrial Engineer for Great Dane Trailers, that the mono-rail system was deactivated and there was no reason for him to suspect that McCuen Electric Company would have reactivated it. It therefore appears that the respondent had rendered the mono-rail system inoperative as required by section 1926.400(g)(1) and was not responsible for the deactivation. It further appears that the respondent should not have been expected, by the exercise of reasonable prudence, to have ascertained the fact that it was reactivated. Said subsection does not require that the company "lock out" the equipment or circuit, because while the word lock out appears in the title of the subsection, nowhere in the subsection itself is there a directive to use the lock out method to render the equipment or circuits inoperative.
It will further be noted, however, that section 1926.400(g) provides "and have tags attached at all points where such equipment or circuits can be energized . . . (3) Tags shall be placed to identify plainly the equipment or circuits being worked on."
It is undisputed in the evidence that this requirement [*23] was not complied with. No tags were placed at the points where the equipment or circuits could be energized and it was testified that tagging was never done on said job. The placing of tags at the points where the equipment could be energized advising as to which equipment was being worked on could have prevented the accident. Even if it be held that the person pulling the switch had no knowledge of the fact that jumpers had been installed and, therefore, the accident would still have happened had the switch been tagged, such fact would not exonerate the respondent from a violation of the standard. Electricity is an extremely dangerous thing for people to work with or around. The evidence establishes that employees working on the mono-rail would be expected in the normal performance of their jobs to lean on the bus bars. If the bus bars were energized, it was almost a certainty that anyone touching the bars would be electrocuted. The evidence established that from the point at which the switch would be pulled, it would be necessary to walk several steps in order to see anyone working at the location at which the deceased employee was working. The tagging of the switch would [*24] inform any person about to pull the switch that the mono-rail was being worked on. Failure to tag the switch removed a very real safeguard which could be expected to prevent a fatality from occurring. Whether the absence of tagging in the particular instance in question was a contributing factor to the electrocution of the employee or not there certainly could be instances in which the tagging on the switch could make the difference in life and death for an employee. This is of course, not a damage suit in which the issues of proximate cause arises. The law required a switch to be tagged reflecting where employees were working. It is admitted that this law was not complied with.
An employer cannot transfer his responsibility to see that employees are working under conditions required by the standard by placing the primary responsibility upon another employer. The contract relationship between Great Dane and respondent does not, in any way affect the respondent's obligation to see that its employees were working in compliance with the standard. The defense that the respondent was not versed in the field of electricity is not, in the opinion of this Judge, sufficient [*25] to exonerate the respondent from responsibility. The law required the equipment to be tagged. This could well be understood by any layman in the electrical field. The fact that the full consequences resulting from a violation of the law may not have been thoroughly understood by the respondent, does not in any way excuse the respondent from failure to comply with the law. It therefore would appear that the respondent has violated standard 1926.400(g) and the citation must be sustained.
It is further the respondent's position that the violation should not have been held to be a serious violation and that a penalty in the amount of $550.00 should not have been assessed. In the opinion of this Judge, the danger of electrocution from pulling a switch when employees are working on any of the cranes was a very real and constant danger. This danger would have been practically eliminated or at least greatly mitigated by a practice of constantly tagging the switch, advising on said tag, where employees were working. The consequences of an accident of this kind were almost certain to be fatal for the employee affected. Under these circumstances, it would appear that the proposed [*26] penalty of $550.00 is proper.
FINDINGS OF FACT
1. Respondent is and at all times relevant to this cause has been a corporation having a place of business and doing business among other places in Savannah, Georgia, where it was at all times relevant hereto engaged in the handling erection and installation of structural and industrial steel and iron. Respondent is and at all times hereinafter mentioned has been engaged in a business affecting commerce within the meaning of the Act.
2. On or about July 14, 1972, respondent was working on a mono-rail crane at the place of business in Savannah, Georgia, of Great Dane Trailers, Inc.
3. Three cranes were used which were separately energized by separate switches and in the absence of a jumper wire, electricity could not be transmitted from one of the bridge cranes to the mono-rail crane.
4. On July 14, 1972, a jumper cable had been affixed between one of the bridge cranes and the mono-rail crane, on which employees of the respondent were working.
5. When, on said date, the switch was pulled, energizing said bridge crane, said jumper transmitted electricity to the mono-rail crane on which respondent's employees were working, and [*27] an employee of respondent named Evans was electrocuted.
6. Neither Mr. Youngblood, the respondent's top supervisor on said job, nor any other employee of the respondent had knowledge of the fact that said jumper had been affixed and that pulling the switch for the bridge crane would energize the mono-rail crane. The mono-rail crane was, prior to said accident, deenergized, but prior to said accident was re-energized when an employee of McCuen affixed said cable prior to said accident.
7. The respondent could not, by the exercise of reasonable safety and prudence, have known that the jumper cable had been affixed.
8. The switches had not been locked out at the time of said accident.
9. Neither at the time of said accident or at any other times prior to said accident had said switches been tagged, with notification of the point at which employees were working.
10. Respondent failed to provide guardrails, midrails and toe boards on two tubular welded frame scaffolds which were in excess of ten feet high. Said violation is a non-serious violation.
11. Respondent failed to protect employees performing welding, cutting or heating operations by suitable eye protection [*28] equipment. Said violation is a non-serious violation.
12. Respondent failed to provide fire extinguishers near or in the cab of a telescoping boom hoist. Said violation was a non-serious violation.
CONCLUSIONS OF LAW
1. Respondent is within the jurisdiction of the Occupational Safety and Health Act and the jurisdiction of the Occupational Safety and Health Review Commission.
2. Standard 1926.400(g) does not require electric switches to be locked out if they are otherwise deenergized.
3. Said standard does require electric switches to be tagged notifying any person viewing said switches of the points at which employees are at work.
4. By failing to tag said switches as required by the Act, respondent violated section 5(a)(2) of the Act and standard 29 CFR 1926.400(g).
5. Said violation is a serious violation as defined by the Act.
6. Respondent violated standards 29 CFR 1926.451(d)(1), 29 CFR 1926.353(e)(2) and 29 CFR 1926.550(a)(14)(i).
ORDER
It is therefore ordered that the citation alleging violation of section 5(a)(2) of the Occupational Safety and Health Act and standard 1926.400(g) be and hereby is sustained.
The abatement date as set forth in the [*29] citation is sustained.
The respondent be and hereby is assessed a penalty in the amount of $550.00 for said violation.
The citation alleging violation of standard 1926.451(d)(10) is sustained.
A penalty in the amount of $55.00 is assessed for violation of standard 1926.451(d)(10).
The citation alleging violation of standard 1926.353(e)(2) is sustained. No penalty is assessed for said violation.
The citation alleging violation of standard 1926.550(a)(14)(i) is sustained. No penalty is assessed for said violation.
The abatement dates in each of said citations are sustained.