MARTIN PAINTING AND COATING COMPANY

OSHRC Docket No. 15923

Occupational Safety and Health Review Commission

October 7, 1977

[*1]

Before: CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Associate Regional Solicitor, U.S. Department of Labor

R. Larry Schneider, for the employer

OPINION:

DECISION

BY THE COMMISSION, A decision of Review Commission Judge Robert N. Burchmore, dated May 17, 1976, is before this Commission for review pursuant to 29 U.S.C. 661(i). That decision vacated a citation for a serious violation of the safety standard codified at 29 C.F.R. 1926. 400(c)(1) n1 on the basis that the evidence failed to establish that the respondent possessed the requisite knowledge of the alleged violation. On review, the complainant takes exception to this finding. For the reasons set forth below, the Judge's decision is reversed and the citation is affirmed.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 That standard provides, in pertinent part, as follows:

No employer shall permit an employee to work in such proximity to any part of an electric power circuit that he may contact the same in the course of his work unless the employee is protected against electric shock by deenergizing the circuit and grounding it or by guarding it by effective insulation or other means.

[*2]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The respondent is a painting contractor which contracted with the Jeffrey Mining and Machinery Company to paint a water tower and tank on Jeffrey's premises. High voltage power lines terminated 40 feet above ground near the northeast leg of the tower. One of respondent's employees was electrocuted when he contacted these lines. There were no witnesses to the accident, since the deceased, Glenn Stonerock, was not within view of Bill Pickel, n2 the only other painter on the job. No supervisor was at the site. Stonerock had apparently been working from a boatswain chair at the northeast leg. He was lying on the lines when he was found by a Jeffrey employee, but the evidence indicates that the boarswain chair was 1 to 2 feet from the high voltage lines at that time.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 This employee is referred to as Bill Pickrell in the Judge's decision, but the transcript indicates that his last name is Pickel.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Jeffrey's maintenance superintendent, [*3] Daniel Hansen, had discussed the electrical hazard with respondent's president before work was commenced and indicated that it would be necessary to turn off the power before any work was done in the vicinity of the northeast leg. He was not contacted, however, about deenergizing the lines before the fatal accident occurred.

The respondent's field supervisor, James Martin, testified that he had pointed out the lines to Stonerock and had told him they were "just like a red stick of dynamite in [his] pocket." Stonerock was also told that his supervisor was considering use of a "cherry-picker" to paint in the area near the power lines. n3 Stonerock was not told to stay any specific distance away from the lines. Martin indicated, however, that he did not think Stonerock would be painting in the area, since plans were to wait until Saturday (2 days after the accident) when the power could be turned off. Stonerock and Pickel had not been informed about waiting until Saturday and were not told to stay out of the area of the power lines. Although Pickel was told to check with Jeffrey's about whether the power was off, Martin did not instruct Stonerock or request Pickel to do so.

- [*4] - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 This discussion was held on Tuesday; the accident occurred on Thursday, 2 days later. The supervisor had not been back to the site since Tuesday.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The respondent conducts periodic safety meetings at least once per year, and its employees had been told to stay at least 10 feet away from lines. If power lines could not be deenergized before working near them, they were to be insulated with a rubber blanket. Although the employees were shown a safety notice which indicated that they should stay 12 feet away from power lines, this occurred after the instant accident. Respondent may also have posted a sticker with the same admonition, but it was not established when it was posted or whether it was probable that employees would see it.

Judge Burchmore found that employee training and instruction was reasonable and adequate to promote safety and that Stonerock had acted contrary to instructions in the absence of his supervisor. The citation was vacated because the Judge found that the respondent "is not reasonably chargeable [*5] with knowledge of the violation which the employee committed." n4

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 In reaching this conclusion, Judge Burchmore relied on the prior Commission decision in Ira Holliday Logging Co., Inc., 73 OSAHRC 16/A2, 1 BNA OSHC 1200, 1971-73 CCH OSHD para. 15,688 (No. 237, 1973), appeal dismissed, No. 73-2170, 9th Cir., November 29, 1973. In that case, an employee was killed when he prematurely removed the binders on a load of logs before the logs were supported by an unloading machine. Holliday is distinguishable from the case before us because the Holliday employee had been specifically told to refrain from unfastening the binders prematurely and the Holliday supervisor had previously surveyed the unloading operation and had observed no safety infractions.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The complainant contends that the respondent did no more than warn its employees of the hazard and gave no instructions as to safe working distances or on how to avoid the hazard. The complainant stresses that plans to deenergize and plaint on the following Saturday [*6] were not communicated to the employees affected by the hazard. The complainant also argues that an employer is obligated to specifically instruct its employees about safe working procedures when the employer has actual knowledge of the existence of a hazard to which employees will be exposed in the course of their work. He further submits that this requirement is particularly imperative where constant supervision is absent.

A divided Commission has held that the burden is upon the complainant to establish that an employer knew, or with the exercise of reasonable diligence should have known, of the existence of conditions or practices upon which an alleged violation is based. In other words, either actual or constructive knowledge is an element of any violation of the Act. n5 See, e.g., Scheel Construction, Inc., 76 OSAHRC 138/B6, 4 BNA OSHC 1825, 1976-77 CCH OSHD para. 21,263 (No. 8687, 1976), appeal dismissed, No. 77-1022, 8th Cir., February 10, 1977. An employer's failure to give adequate safety instructions to its employees reflects a failure to exercise reasonable diligence. Enfield's Tree Service, Inc., 77 OSAHRC 32/B2, 5 BNA OSHC 1142, 1977-78 [*7] CCH OSHD para. 21,607 (No. 9118, 1977). As the Commission has previously stated, "specific safety instructions and workrules concerning hazards peculiar to the job being performed are the essential foundations of an adequate safety program." Iowa Southern Utilities Co., 77 OSAHRC 32/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD para. 21,612 (No. 9295, 1977). These instructions must be communicated effectively to employees and uniformly enforced. Enfield's Tree Service, Inc., supra.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 The Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., 84 Stat. 1590.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In Enfield's Tree Service, the Commission agreed with the Judge below that employees working close to energized lines required more specific and appropriate safety instructions than those received at general safety meetings. Similarly, in this case, Stonerock was not adequately instructed. He was not told not to work near the northeast leg, was not told that the work would be done on Saturday, and was not specifically instructed [*8] as to minimum safe clearance. Although he was informed two days before the accident that a "cherry-picker" might be used, none was provided and nothing further was said. Although Pickel was told to check with Jeffrey's about deenergizing the lines, Stonerock was not. Indeed Stonerock could well have believed that he had to paint close to the lines in order to perform his job. Under these circumstances, the respondent failed to exercise reasonable diligence. The respondent therefore possessed the requisite constructive knowledge of the violation.

A violation is serious "if there is an substantial probability that death or serious physical harm could result from" a violative condition or practice. 29 U.S.C. 666(j). The Commission finds the violation to be serious in this case because of the danger of electrocution.

The complainant proposed a penalty of $550. After considering the entire record in conjunction with the statutory criteria in 29 U.S.C. 661(i), the Commission finds that a $400 penalty is appropriate. Although the gravity of the violation was high, the respondent illustrated a high degree of good faith by its cooperation with the complainant's inspector during [*9] the investigation. Furthermore, respondent is a relatively small company and had no significant history of past violations.

Accordingly, the citation for a serious violation of 29 C.F.R. 1926.400(c)(1) is affirmed and a penalty of $400 is assessed for the violation.