L.E. MYERS COMPANY
OSHRC Docket No. 2532
Occupational Safety and Health Review Commission
April 8, 1975
[*1]
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: MORAN
OPINION:
MORAN, CHAIRMAN: A decision of Review Commission Judge Sidney J. Goldstein, dated November 14, 1973, is before this Commission for review pursuant to 29 U.S.C. § 661(i). The issue upon which review was directed is whether the court below incorrectly vacated that part of the citation alleging failure to comply with the occupational safety and health standard codified at 29 C.F.R. § 1926.951(d)(2). n1 We find that the disposition was correct.
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n1 The court below also vacated that part of the citation relating to 29 C.F.R. § § 1926.950(c)(1) and (c)(2)(i) because of the employee's unexpected reckless act. We affirm that decision. See Secretary v. Standard Glass Company, Inc., 1 OSAHRC 594 (1972); Secretary v. Ira Holiday Logging Company, Inc., 2 OSAHRC 1415 (1973); National Realty and Construction Company, Inc. v. OSAHRC, 489 F. 2d 1257 (D.C Cir. 1973); REA Express, Inc. v. Brennan, 495 F. 2d 822 (2d Cir. 1974).
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29 C.F.R. § 1926.951(d)(2) [*2] provides that:
[a]ll live-line tools shall be visually inspected before use each day. Tools to be used shall be wiped clean and if any hazardous defects are indicated such tools shall be removed from service.
The citation and complaint charged a failure to comply therewith, in the respondent
. . . permitted an employee to approach closer than 2 feet to a 4.8 kv (y system) energized jumper conductor with a live-line hot-line tool having a hazardous defect in that the hook on the working end of the hot tool was not operating properly.
For there to be a violation of this standard, complainant must allege and prove at least one of the following charges: that the live-line tool was not inspected before use each day; that the tool was not wiped clean; or that there was a failure to remove a tool containing a hazardous defect.
It is evident, however, that both the citation and complaint n2 lack any other allegation specifying in what manner respondent failed to comply with this standard. There is no charge that the hot tool was not "inspected before use each day," or that there was a failure to "wipe . . . [it] clean . . . ."
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n2 The complaint merely reiterated the description in the citation, and did not "state with particularity . . . [t]he . . . circumstances of each such alleged violation" as required by 29 C.F.R. § 2200.33(a)(2)(ii).
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During the trial, however, complainant introduced evidence indicating that this hot tool was dirty and that there had been a failure to inspect it each day. Respondent objected to the introduction of this evidence, claiming surprise because it had no previous knowledge that these specific issues would be litigated.
Irrespective of this lack of notice, complainant has asserted that since the citation referred to 29 C.F.R. § 1926.951(d)(2), the particularity requirements set forth in 29 U.S.C. § 658(a) have been met. The court below correctly rejected this construction of the Act.
§ 658(a) provides that:
[e]ach citation . . . shall describe with particularity the nature of the violation, including a reference to the . . . regulation . . . alleged[ly] . . . violated.
Due process under the Occupational Safety and Health Act of 1970 n3 requires that [*4] an employer be informed of the specific acts with which he has been charged. Secretary v. Ernest F. Donley's Son, Inc. (dissenting opinion), 2 OSAHRC 1094 (1973).
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n3 84 Stat. 1590, 29 U.S.C. § 651 et seq.
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Absent this information, employers are denied an adequate opportunity to prepare a specific defense, nor can there be set a standard of reference for evidence to be offered at the hearing. Secretary v. Universal Maintenance and Repair Corporation (dissenting opinion), 2 OSAHRC 359 (1973).
This Commission stated in Secretary v. J.L. Mabry Grading, Inc., 9 OSAHRC 98 (1974), that the "particularity" requirements of § 658(a) would be satisfied if the Respondent was appraised of the subject facts so that it could take proper corrective action and/or file a notice of contest or otherwise defend itself in this matter. n4
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n4 For other discussions about the "particularity" requirement of 29 U.S.C. § 658(a), see Secretary v. J. A. Walder, Inc., 2 OSAHRC 881 (1973); Secretary v. Union Camp Corporation, 5 OSAHRC 514 (1973); Secretary v. Moser Lumber Company, 4 OSAHRC 265 (1973); Secretary v. Raymond Hendrix, d/b/a Alsea Lumber Co., 2 OSAHRC 1228 (1973); Secretary v. Alder Creek Lumber Co., 10 OSAHRC 469 (1974); Secretary v. York Metal Finishing Company (dissenting opinion), 7 OSAHRC 845 (1974).
[*5]
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Absent such specificity, employers are denied the opportunity to raise affirmative defenses, or to present any meaningful case in rebuttal. It is evident that this is the case here.
For those reasons, we conclude that the court below correctly vacated that part of the citation relating to 29 C.F.R. § 1926.951(d)(2).
CONCURBY: VAN NAMEE
CONCUR:
VAN NAMEE, COMMISSIONER, concurring: I concur in the Chairman's disposition basically for the reasons stated by him. Unfortunately, I cannot subscribe to his opinion because he insists on using his dissenting opinions in a number of cases as precedential authority for his opinion in this case. I concur therefore with the specific caveat that my agreement as to disposition is not intended to mean that the rules established by our case precedents are in anyway overruled.
As for the disposition, the Secretary's only allegation prior to the hearing was that Respondent violated the cited standard because its tool had a hazardous defect, to wit, a missing or broken spring. Respondent was not given notice at any time prior to the hearing that any other issue whether of [*6] fact or law would be raised.
Nevertheless, at the hearing, the Secretary attempted to introduce evidence to show that Respondent was in violation of the Act for entirely different reasons. The new theory was that Respondent did not inspect or clean the tool. Respondent objected, and the hearing judge quite properly sustained the objection. Although the judge characterized his decision on lack of particularity grounds, it is quite evident what he determined was that Respondent did not have prior notice as to the new charges and it would be unfair to make him defend against them. I agree.
As to his disposition of the hazardous defect allegation, the judge weighed the evidence of both parties and his decision to vacate is supported by the record.
DISSENTBY: CLEARY
DISSENT:
CLEARY, COMMISSIONER, dissenting: I must dissent.
The majorityrelies upon an asserted failure of the citation and complaint to describe with particularity the alleged failure to comply with the standard at 29 CFR § 1926.951(d)(2) in order to vacate that portion of the citation.
The standard, set out in the lead opinion requires that all live line tools (1) be inspected daily; (2) be wiped clean; and (3) removed [*7] from service if any hazardous defects are indicated.
One of the respondent's work crews was installing an auto booster on a 4800 volt "y" distribution line. An experienced lineman employed by the respondent was electrocuted while attaching a booster atop a pole.
Before the electrocution, the employee was using a "hot stick," a fiber-glass insulated tool used on "live-line" work that was intended to allow him to work safely at a distance from the high voltage wires. The "hot stick" that he was using had a broken spring. The broken spring permitted the hook at the working end to move uncontrolled when the operator was using it. At the time of the fatality, the employee was not wearing insulating gloves, although the company had a rule requiring their use.
An investigation by a compliance officer of the Occupational Safety and Health Act followed. A citation for a serious violation of the Act was issued to the company as a result of the investigation. The citation alleged non-compliance with the construction standards published at 29 CFR § § 1926.950(c)(1), 1926.950(c)(2)(i), and 1926.951(d)(2), and specified the following:
The employer permitted an employee to approach closer [*8] than 2 feet to a 4.8 kv (y system) energized jumper conductor with a live-line hot-line tool having a hazardous defect in that the hook on the working end of the hot tool was not operating properly.
Concerning section 1926.951(d)(2), the Judge noted that the company had objected to testimony in relation to the section because the complaint, which restated the citation, contained no specific description of the alleged violation. He considered the objection well taken, reasoning that the citation lacked the specificity required by section 9(a) of the Act. That provision expressly requires that each citation be in writing and describe with particularity the nature of the violation. The Judge noted that the description of the alleged violation did not mention that the company "failed to inspect visually all hot-line tools before use each day" and that "tools to be used were not wiped clean; or that tools with hazardous defects were not removed from service."
In my view there was adequate notice of whether the "hot stick" with the broken spring was a "live-line" tool with a "hazardous defect" within the meaning of the standard." The notice requirements of section 9(a) of [*9] the Act are not to be strictly read, but rather read reasonably as requiring fair rather than perfect notice. National Realty & Constr. Co. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973). Section 9(a) does not require pleading the evidence. Moreover, the citation and complaint refer to the use of a live line tool with a hazardous defect and stated in unambiguous language what constituted that defect. This alleged violation could hardly have been described with more "particularity."
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n5 I find merit, however, in the company's argument concerning a lack of notice of any failure to inspect and clean tools on a daily basis. Also, there was no consent to try these issues.
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The Judge vacated the citation, holding that the broken spring on the tool was an inconvenience rather than a hazard. The majority accepts, without question, the Judge's conclusion that the danger of working on a live line with a "hot stick" having a broken spring was a "nuisance but not a hazard."
The purpose of the "hot stick" is to [*10] allow a lineman to manipulate the tap on the wire without having to touch the energized line. The hook permits the lineman to tighten or loosen the tap without actually having to touch it. A spring on the hook is designed to maintain the hook on a plane, provided the lineman grasps the stick in an appropriate manner. Because the stick is insulated, the lineman is protected so long as his hands are on the tool. But a broken spring on a stick lessens control over the tool, and makes it difficult to use the hook.
The compliance officer, who was qualified as an expert in the field of electricity and electrical safety, testified that when this happens there is the possibility that the lineman will become irritated, forget himself, and start sliding his hands up the stick. The compliance officer was a lineman with 27 years' experience, qualified by the Judge as an electrical safety expert. I would assign greater weight to his testimony than has either the Judge or the majority. Moreover, another witness, qualified as an expert in the use of "hot sticks," testified that a broken spring on a "hot stick" is hazardous.
The situation would seem particularly hazardous when [*11] the employee using the stick is not wearing insulating gloves. In short, I would conclude that there is preponderant evidence that a "hot stick" with a broken spring is a hazardous defect requiring its removal from service. Contrary to the Judge's holding, the hazard resulting from the defect was reasonably foreseeable, and was preventable if the standard were followed. Preventability is the keystone of the Act. Brennan v. O.S.H.R.C. & Underhill Corp., Nos. 74-1568 & 74-1579 (2d Cir., March 10, 1975). The company's failure to remove the tool from service is a violation of section 1926.951(d)(2).
[The Judge's decision referred to herein follows]
GOLDSTEIN, JUDGE: This matter arises under Section 10(c) of the Occupational Safety and Health Act of 1970 and involves the application of Section 5(a)(2) of that law and Sections 1926.950(c)(1), 1926.950(c)(2)(i), and 1926.951(d)(2) of the Regulations promulgated thereunder. After an inspection of an electrical construction work-site of the L.E. Myers Company by a representative of the Secretary of Labor, the Occupational Safety and Health Administration issued to it a Citation for alleged Serious Violation of the Act and Regulations. [*12] The Administration also served upon the Company a Notice of Proposed Penalty in the amount of $600. In response the Respondent filed a Notice of Contest with respect to the charges and the proposed penalty. Thereupon the Secretary of Labor filed a Complaint with this Commission to affirm the Citation for Serious Violation and Proposed Penalty, and the Respondent submitted an Answer, denying the allegations therein. A hearing on these pleadings was held in Flint, Michigan, on July 19 and 20, 1973.
The alleged violation is described in the Citation in the following terms:
The employer permitted an employee to approach closer than 2 feet to a 4.8 kv (y system) energized jumper conductor with a live-line hot-line tool having a hazardous defect in that the hook on the working end of the hot tool was not operating properly.
in violation of the aforementioned Regulations which provide as follows:
1926.950(c)(1) -- No employee shall be permitted to approach or take any conductive object without an approved insulating handle closer to exposed energized parts than shown in Table V-1, . . .
1926.950(c)(2)(i) -- The minimum working distance and minimum clear hot stick distances [*13] stated in Table V-1 shall not be violated. The minimum clear hot stick distance is that for the use of live-line tools held by linemen when performing live-line work.
1926.951(d)(2) -- All live-line tools shall be visually inspected before use each day. Tools to be used shall be wiped clean and if any hazardous defects are indicated such tools shall be removed from service.
Table V-1 in the Regulation establishes a minimum working and clear hot stick distance of 2 feet for the voltage range involved in this proceeding.
The record in this case establishes that the Respondent is engaged in the construction of electrical utilities and employs a number of small work teams throughout the country. One of its work crews was assigned the task of tapping new boosters to a 4800 volt distribution line in Argentine Township, Michigan.
Bruce J. Houston, an experienced, stable, safety minded, journeyman lineman was assigned among others to the Argentine job. Without the protection of available rubber glovers, and contrary to company safety rules, Mr. Houston climbed a pole to attach a booster. He carried with him a "hot stick," a fiberglass tool allowing the operator to work safely and [*14] at a distance from high voltage wires. This hot stick had a broken spring which permitted its hook to flop around.
While working atop the pole, Mr. Houston was electrocuted. There were no witnesses to this mishap. Fellow workers theorized that Mr. Houston was having difficulty with the unstable hot stick hook and sought to hold the tap steady with his hand. They believed he apparently forgot that he was not wearing rubber gloves and that the wires were energized when he contacted the high voltage.
A Compliance Officer for the Occupational Safety and Health Administration investigated the fatal accident. After talking with crew members, he concluded there was a violation of the regulations promulgated under the Act in that one of Respondent's employees was permitted to approach within 2 feet of high voltage lines with a defective hot stick. In the Compliance Officer's opinion a lineman utilizing a hot stick with a broken spring could become irritated with its instability and in frustration reach up and hold the energized tap steady with his hand. Other witnesses at the hearing agreed that a lineman could in fact become angry with a wobbly hook at the end of a hot [*15] stick, but in the main the testimony was to the effect that at most the broken spring and resultant unstable hook of the hot stick would be a nuisance -- but not a hazard -- to any lineman.
Other testimony was to the effect that the deceased was an experienced and safety minded lineman who also acted as a foreman. No one was able to understand why he ascended the pole without rubber gloves in violation of familiar company safety rules. Members of the crew were aware of the broken spring at the end of the hot stick but used it nevertheless. Tools were not inspected daily.
The record also discloses that the Respondent conducted an extensive safety program on a regular basis. It employed specialists in the safety area who visited field personnel and published and distributed pamphlets and letters to this objective. The Respondent also conducted formal meetings at which safety was the primary topic. In fact the deceased attended this type of session a few days prior to the accident. At this meeting safety rules were reviewed and a check list of Occupational Safety and Health Administration items was distributed. In general it appears the Respondent was vitally interested in [*16] the safety of its personnel.
From the foregoing evidence, this case presents a situation wherein an experienced and careful journeyman lineman violated company safety rules by climbing a pole without rubber gloves and by working with a hot stick less than 2 feet from high voltage wires. Because the hot stick had a broken spring, the Complainant urges that the Citation should be affirmed, inasmuch as this situation could cause a man to forget himself and to slide his hand up the stick and actually touch the energized wires. On the other hand the Respondent argues that there was no hazardous defect in the hot line tool in question, and that the Company should not be held responsible for the unforeseeable acts of the lineman.
The Occupational Safety and Health Review Commission in the very recent case of Secretary of Labor v. Arizona Public Service Company, There also an electrician crew was on a roof of a transformer for the purpose of placing coils in the transformer. One of the crew members climbed onto the steel framework to reposition the gin pole. This individual was an experienced journeyman electrician [*17] and knew that the arresters were energized. Nevertheless, he climbed onto the top of the framework, contacted an arrester, and was killed. The Respondent published a safety handbook which among other things specified safe distances for approaching live lines. The Commission concurred in the Judge's disposition of the case on this point and held the Respondent could not reasonably be held to have been on notice that its instructions and rules would be ignored.
The main difference between the current matter and the Arizona Public Service Company case is that the hot stick furnished by the L. E. Myers Company to the deceased had a broken spring. However, the evidence established that the broken spring was more an inconvenience than a hazard. Therefore on the authority of the Arizona Public Service case, it is concluded that the Respondent did not violate Regulations found at 29 CFR 1926.950(c)(1) and 1926.950(c)(2)(i).
There remains for disposal the alleged violation of Section 1926.951(d)(2) of the Regulations. Counsel for the respondent objected to testimony in relation to this Section of the regulations for the reason that the Complaint contained no specific description [*18] of the alleged violation. This position is well taken for it is provided in Section 9(a) of the Act that:
. . . Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated. . . .
The description of the alleged violation in the instant case does not mention that the Respondent failed to inspect visually all hot-line tools before use each day; that the tools to be used were not wiped clean; or that tools with hazardous defects were not removed from service. Inasmuch as the Citation in this regard was not in compliance with the statute, this particular provision cannot be enforced.
On the basis of the foregoing record, I find:
(1) That a Citation was issued against the Respondent on March 7, 1973, charging a serious violation of the Standards found at 29 CFR 1926.950(c)(1); 1926.950(c)(2)(i); and 1926.951(d)(2);
(2) That the evidence failed to establish that the Respondent violated the first two aforementioned Standards.
(3) That the Citation failed to describe with particularity the alleged violation with respect to the [*19] third aforementioned Standard.
It is therefore concluded that the Respondent did not violate Section 5(a)(2) of the Act by violating the Occupational Safety and Health Standards as alleged in the Citation for Serious Violation.
Based upon the foregoing findings of fact and conclusions of law it is here ORDERED that the Citation for Serious Violation and the proposed penalty therefor be VACATED.