MARION STEPHENS d/b/a CHAPMAN & STEPHENS COMPANY

OSHRC Docket No. 13535

Occupational Safety and Health Review Commission

May 6, 1977

[*1]

Before BARNAKO, Chairman; and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Reg. Sol., USDOL

Kenneth R. Morefield, for the employer

OPINION:

DECISION

CLEARY, Commissioner:

On February 2, 1976, Administrative Law Judge John S. Patton issued a decision holding respondent, Marion Stephens d/b/a Chapman & Stephens Co., in serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter cited as "the Act"], for failure to comply with the safety standards published at 29 CFR 1910.132(a) n1 and 29 CFR 1926.28(a). n2 A penalty of $400 was assessed.

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n1 1910.132 General requirements.

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

Although the complaint cites to 1910.132 generally it is clear from the proceedings that the Secretary intended to cite 1910.132(a).

n2 1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

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Respondent timely filed a petition for discretionary review. Pursuant to section 12(j) of the Act, I granted the petition directing review on the following issues: n3

(1) Whether the standards at 29 CFR 1926.28(a) and 1910.132(a) apply to respondent, a citrus harvester?

(2) Whether a violation of section 5(a)(1) of the Act cannot be affirmed if the above standards do not apply?

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n3 Commissioner Moran directed review without specifying any issues.

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For the reasons given below, we find that the cited standards are not applicable to the facts of this case and that a violation of section 5(a)(1) of the Act has been established.

Chapman & Stephens Co. is a partnership engaged in citrus growing in Lake Placid, Florida. One of the pieces of equipment used to irrigate respondent's grove is a device known as a "rainbird riser." The device consists of a 20-foot long, 1-1/2 inch galvanized steel pipe with a plastic sprinkler mounted on top. [*3] It weighs about 50 pounds. The pipe extends into the air, and is set into the ground in a concrete base called a monument.

Respondent's property is crossed by several electric power lines. These power lines are normally 30 feet from the ground and carry 7200 volts of electricity. One wire, however, was only 20-25 feet from the ground. Marion Stephens IV, vice-president of M.E. Stephens, III, Inc. , n4 and chief supervisor at the grove, was aware of this low-hanging line. On at least three occasions on April 30, 1975, Stephens warned Alfred Love, a supervisor under him, and Robert Maxcy, another employee, to be careful when passing under the line with a ladder truck, and to lower the ladder to avoid contact with the line.

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n4 M.E. Stephens, III, Inc. is one of the two entities comprising the partnership, Chapman & Stephens Co.

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The line was approximately 10-1/2 feet away from a "rainbird riser." During the afternoon of April 30, Stephens noticed that the riser was bent, and, in the presence of Maxcy and Love, [*4] attempted to pull it out for repair. The pipe was rusted, however, and he was unable to remove it. Maxcy, a much larger man, told Stephens to let him remove the pipe. Maxcy pulled the riser out of the ground, but he was unable to control the motion of the pipe, which came in contact with the line. As a result, Maxcy was electrocuted; Love was rendered unconscious; and Stephens was knocked to the ground.

None of the men wore insulated gloves, nor was any attempt made to deenergize the low power line. Moreover, at the time of the accident the ground near the riser was wet. n5 At the hearing, Stephens testified that respondent's only rule when working near power lines is to "be cautious." He also admitted that the accident was a result of careless error, and that although they knew the line was there, "all three of us were not thinking about the wire."

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n5 According to the compliance officer, the wet ground increased the danger of electrocution.

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As a result of the accident, respondent was cited for violating section [*5] 5(a)(1) of the Act by allowing employees to work near a power line "without providing and requiring the use of insulating gloves or other protective means." In the complaint, the citation was amended to allege in the alternative a violation of section 5(a)(2) of the Act for failure to comply with the safety standards published at 29 CFR 1910.132(a) and 1926.28(a). A penalty of $600 was proposed for the alleged violation.

In his decision, Judge Patton found that both 1910.132(a) and 1926.28(a) were applicable to respondent and, accordingly, vacated the section 5(a)(1) allegation. Reviewing the evidence, the Judge found that respondent had failed to comply with both of the cited standards. He concluded that the accident was the result of respondent's negligence and that the existence of the hazard was readily apparent. Judge Patton took official notice of the fact that although insulated gloves may not have prevented the accident, the use of the gloves might have prevented the fatality. Finally, he held that the violation was "serious" as attested by the fact that there was a fatality. Because of respondent's otherwise excellent safety record, the Judge reduced the penalty [*6] to $400.

On review, both parties argue that neither 1910.132(a) nor 1926.28(a) are applicable to respondent under the facts of this case. We agree.

Respondent, as a citrus grower, is subject to the safety standards for agriculture published at 29 CFR Part 1928. By 1928.21(a) n6 certain enumerated standards from Part 1910 are expressly made applicable to agricultural operations. The standard at 1910.132(a) is not among the listed standards. Moreover, 1910.21(b) specifically states that:

Except to the extent specified in paragraph (a) of this section, the standards contained in Subpart B through S of Part 1910 of this title do not apply to agricultural operations.

Section 1910.132, included in Subpart I of Part 1910, is, therefore, inapplicable to agricultural operations and to the facts of this case.

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n6 1928.21 Applicable standards in 29 CFR Part 1910.

(a) The following standards in Part 1910 of this Chapter shall apply to agricultural operations:

(1) Temporary labor camps - 1910.142;

(2) Storage and handling of anhydrous ammonia - 1910.111(a) and (b);

(3) Pulpwood logging - 1910.266;

(4) Slow-moving vehicles - 1910.145

[*7]

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Similarly, we find 1926.28(a) inapplicable. The removal of the riser was necessary for the maintenance of respondent's irrigation system. As such it was integrally related to respondent's business of growing citrus fruits. Accordingly, the removal of the pipe constituted agricultural work not subject to the requirement of 1926.28(a), a construction standard. n7

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n7 In so holding we express no opinion as to the applicability, under the proper circumstances, of construction standards to agricultural operations.

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Having found these standards inapplicable, and finding no other standard applicable to the facts of this case, we hold that the cited hazard is subject to section 5(a)(1) of the Act, the "general duty" clause. Whirlpool Corp., No. 9224 (March 25, 1977).

As stated, respondent was cited for violating section 5(a)(1) by allowing its employees to work near a power line "without providing and requiring the use of insulating [*8] gloves or other protective means."

In order to establish a violation of section 5(a)(1) the Secretary 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.

National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1265 (D.C. Cir. 1973); Cormier Well Service, 4 BNA OSHC 1085, 1975-76 CCH OSHD para. 20,583 (No. 8123, 1976). The Secretary must also demonstrate that there were feasible steps that the employer could have taken to avoid citation. National Realty & Constr. Co., Inc. v. O.S.H.R.C., supra at 1268; Cormier Well Service, supra.

Respondent makes several arguments in defense of its position that it did not violate section 5(a)(1). First, respondent argues that Maxcy was negligent in pulling out the riser without according due caution to the overhead power line. The negligence, respondent argues, violated both section 5(b) n8 of the Act, and respondent's instructions to be cautious when working near power lines. Moreover, respondent contends that because Stephens never gave Maxcy a direct order to remove the pipe, [*9] Maxcy's actions were unforeseeable. Second, it is contended that the hazard was not recognized in that there is no record of citrus harvesters ever having been electrocuted by overhead power lines.

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n8 Section 5(b) of the Act states:

Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.

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Respondent's arguments concerning the employee's asserted negligence are without merit. Stephens himself attempted to remove the riser without the use of any protective measures. Stephens' inability to remove the riser prompted Maxcy to exercise his greater physical strength to accomplish the task in the same manner attempted by his supervisor. We attach no importance to the fact that Maxcy's actions were not the result of a direct order from Stephens. When questioned on the events leading to the accident Stephens testified as follows:

Q. Who asked him to pull it out of the ground?

A. It [*10] was his job. I did.

Q. You asked him to?

A. I tried to pull it out of the ground. I didn't say, "Pull it out of the ground." I did not give him a direct order. It was his job. I tried to pull it out of the ground. I stepped back and he pulled it out of the ground.

Respondent's "safety policy" of merely warning employees to "be cautions" while working near the power lines was insufficient to free the workplace of the hazard. Regarding the insufficiency of verbal warnings, Stephens testified as follows:

Q. Is it clear to you now that simply warning an employee of a hazard may not be enough of a protection?

A. Yes sir, possibly.

Q. Because you, yourself, forgot.

A. The situation -- you tell them and tell them and tell them, but sometimes I guess that doesn't do any good.

Q. And sometimes you forget yourself?

A. Possibly.

Q. I'm sorry?

A. Yes.

Thus, as admitted by Stephens, respondent's safety instructions were not sufficient to free the workplace of the hazard.

We are likewise not persuaded that the lack of any recorded instance of a citrus worker being electrocuted by a power line rendered the hazard unrecognized. Industry recognition of a hazard is not [*11] necessary to establish a violation of section 5(a)(1). An employer's actual knowledge of a hazard is sufficient to render that hazard "recognized" within the meaning of the Act. Brennan v. O.S.H.R.C. and Vy Lactos Laboratories, 494 F.2d 460, 464 (8th Cir. 1974); S.S.C. Corp., 4 BNA OSHC 1334, 1976-77 CCH OSHD para. 20,814 (No. 5288, 1976).

Respondent's own recognition of the hazard posed by the power line was clearly established. As previously stated, on at least three occasions on the day in question Stephens warned his employees to avoid contact with the power line. Further, Stephens was aware of the hazard posed by touching a galvanized pipe to a power line. In this regard, Stephens testified as follows on cross-examination:

Q. Was it your company policy -- have you warned employees not to take a galvanized pipe and touch it against a high tension wire or let it touch a wire?

A. Yes, of course. You know what would happen if this happened. They knew this and they'd been warned about this.

As demonstrated by the accident which occurred, the hazard of working in proximity to a high voltage power line without protection was likely to cause death or serious physical [*12] harm.

Finally, the Secretary suggested several methods by which respondent could have freed the workplace of hazard. In addition to using insulated gloves, at the hearing the Secretary pursued the possibility of deenergizing the power line. Testimony of Stephens and his father, Marion Stephens, III, established that such a precautionary step had never been taken or even attempted. Respondent argues that the use of insulated gloves and deenergization of the lines were infeasible.

Although the Secretary did not state with certainty that the use of insulated gloves would have prevented injury, we agree with the Judge that their use my have prevented the fatality. The use of insulated gloves was clearly feasible. Indeed, after the inspection respondent obtained insulated gloves and now requires their use when employees work near power lines.

Although respondent contends that it would not have been feasible to ask the power company to deenergize its power lines, respondent never attempted to take such a step. Respondent, in its brief, does not contend that the power company would refuse, but that it "would frown on that because of other customers using the lines." This argument [*13] is clearly speculative. An attempt to have the line deenergized was feasible and, if accomplished, would have freed the workplace of the hazard.

Testimony at the hearing also indicated another method which could have reduced the hazard of electrocution. Stephens testified that after the accident he cut five feet off the pipe to reduce its height and, therefore, its proximity to the power line. Stephens testified that the pipe could have been shortened before the accident.

Any of these precautions could have reduced or eliminated the hazard posed to employees working on the riser. Respondent, having undertaken none of these protective means, failed to render its workplace free of a recognized hazard likely to cause death or serious physical harm, and accordingly is in violation of section 5(a)(1) of the Act.

Regarding the penalty, we find that Judge Patton properly considered respondent's size, good faith and safety history, as well as the gravity of the violation as required by section 17(j) of the Act in assessing a penalty of $400.

Accordingly, it is ORDERED that the citation for serious violation of section 5(a)(1) of the Act be affirmed and a penalty of $400 be assessed. [*14] The Judge's decision finding respondent in serious violation of 29 CFR 1926.28(a) and 1910.132(a) is vacated.