OCEAN ELECTRIC CORPORATION

OSHRC Docket No. 5811

Occupational Safety and Health Review Commission

November 21, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Marshall P. Harris, Regional Solictior, USDOL

Harry H. Mansbach, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

The issue in this case is whether Respondent (Ocean Electric) should be absolved of responsibility for a violation of a safety standard committed by its supervisory employee. Judge Ben D. Worcester held that the actions and knowledge of the supervisor must be imputed to his employer, and thus found Ocean Electric in violation. We have reviewed the record. For the reasons which follows, we affirm.

The case was submitted on stipulated facts. Ocean Electric contracted to install a new electrical switch gear unit beside a series of existing units. Although the existing units were energized, the energized parts were enclosed in cabinets. On the day in question, a new unit was to be set in place on a concrete slab by means of a crane.

A crew of three men was assigned to perform this work. The foreman, Watson, was a highly experienced journeyman electrician. The others were Burger, a journeyman electrician, and Kephart, an apprentice. Prior to the start of the work, the site was inspected by Ocean [*2] Electric's superintendent, who instructed the crew in the plan of work they were to follow. Because all the energized equipment was enclosed, and the new unit was not to be energized at that time, the superintendent determined that insulating gloves and blankets were not necessary.

Before the new unit was set in place, Watson noticed a bus bar protruding from the base of the adjacent unit. He decided to remove it before proceeding further. Other bus bars inside the unit were energized, and access to the inside could be obtained through an unlocked door on the cabinet. In order to determine how to remove the protruding bus bar, Watson opened and closed the door two or three times. The bus bar was ultimately removed, but he left the door open. As the new unit was being lowered, Kephart was between the adjacent unit and the concrete slab. As the new unit came to rest on the slab, the cables holding it became slack. At Watson's orders, the three workers grabbed the cables to prevent them from entering the open door of the adjacent unit. As Kephart held the cables with one hand, his other hand came into contact with an energized bus bar, resulting in his electrocution.

Prior [*3] to this incident, Watson had a "perfect safety record." His action in leaving the door open was "accidental, not intentional, and purely a human error." All three employees were experienced and well acquainted with the danger of contacting an energized bus bar. Ocean Electric had hired an independent firm to train its employees in safety practices.

On these facts, Ocean Electric was cited for a violation of 29 C.F.R. 1926.957(a)(3). n1 Ocean Electric admits that the requirements of the standard were breached. It claims, however, that Watson's action in leaving the door open was totally unforeseeable, contrary to his training and instructions. It could have done nothing more to prevent the violation, and it should therefore not be held responsible. Complainant argues, and the Judge held, that because Watson was a supervisory employee, his actions and knowledge should be imputed to Ocean Electric, and that the violation in therefore established.

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n1 This standard states:

Extraordinary caution shall be exercised in the handling of bus bars, tower steel, materials, and equipment in the vicinity of energized facilities. The requirements set forth in 1926.950(c) shall be complied with.

The referenced standard, 29 C.F.R. 1926.950(c) specifies minimum distances that must be maintained from energized parts at various voltages in the absence of insulating equipment or barricades.

[*4]

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A corporate employer can, of course, only act and acquire knowledge through its agents. Thus, in the ordinary case, the actions and knowledge of supervisory employees are imputed to their employer and the employer is responsible for violations they create or of which they have actual or constructive knowledge. Pecosteel-Arizona, 15 OSAHRC 141 (1975); Southern Soya Corporation of Leesville, 5 OSAHRC 309 (1973).

Ocean Electric contends, however, that there should be an exception to this rule when the employer has done everything reasonably possible to assure compliance, but a supervisor nevertheless creates a violation which was unforeseeable and therefore unpreventable. There is merit in this contention. To hold employers to the absolute duty of guaranteeing compliance at all times by its supervisory personnel would be to impose a duty which is not achievable, a result not intended by Congress. Secretary of Labor v. OSHRC (Alsea Lumber Company), 511 F.2d 1139 (8th Cir., 1975); National Realty & Construction Co., Inc. v. OSHRC 489 F.2d 1257 (D.C. Cir., 1973). Such a holding would [*5] also not tend to promote the achievement of safer workplaces. If employers are told that they are liable for violations regardless of the degree of their efforts to comply, it can only tend to discourage such efforts. A rule which encourages diligence rather than renders it irrelevant is to be preferred. In our judgment, an employer who would otherwise be found in violation due to the actions and knowledge of a supervisor should be permitted to defend on the basis that it took all necessary precautions to prevent the occurrence of the violation. n2

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n2 We have previously recognized a similar defense when a violation was created by non-supervisory personnel. Murphy Pacific Marine Salvage Co., 15 OSAHRC 1 (1975). Where supervisory personnel are concerned, however, the defense will be more difficult to establish. As the Court noted in National Realty & Construction, supra,

Because the behavior of supervisory personnel sets an example at the workplace, an employer has - if anything - a heightened duty to ensure the proper conduct of such personnel. Second, the fact that a foreman would feel free to breach a company safety policy is strong evidence that implementation of the policy was lax. 489 F.2d at 1267, n. 38 (emphasis in original).

See: Engineers Construction, Inc., Docket 3551 (September 29, 1975).

[*6]

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We will not, however, permit the defense to be used as a pretext for employers to shift their responsibility for compliance onto their supervisory employees. We will require a showing by the employer that the supervisory employee with knowledge of the violation was himself adequately supervised with regard to safety matters. Elements in such a showing may include the degree to which the employer demonstrates a genuine commitment to safety, the manner in which this commitment is communicated to employees, the effort exerted in actually attempting to discover violations committed by supervisory employees, n3 and any disciplinary measures taken when violations have been discovered. See Brennan v. Butler Lime and Cement Co., No. 74-1963 (7th Cir., Sept. 5, 1975).

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n3 An employee can commit a large number of safety violations and still have a "perfect safety record" if his employer makes no effort to discover and correct such violations, and the employee is fortunate enough not to be involved in accidents.

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Turning to the facts of this case, we find the evidence falls short of establishing that the violation could not have been prevented. Obviously, one of the principal hazards in electrical work is the possibility that an employee will contact an energized conductor and sustain a severe shock. Just as obviously employers in Ocen Electric's position must exert particularly diligent efforts to guard against the hazard. Here the record shows that Ocean Electric hired an outside firm to train its employees in safety practices. But the record fails to reveal whether and to what extent the outside firm did in fact train Ocean Electric's employees. Thus, we do not know whether regular safety meetings were held and employees required to attend and discuss particular safety problems. Compare: Clearwater Power Company, 7 OSAHRC 707 (ALJ 1974). We do not know whether specific safety instructions were given and whether specific rules were established and enforced. Compare: Engineers Construction, Inc., supra, n.2

Ocean Electric argues that, in removing the bus bar without having been instructed to so [*8] so, Watson disobeyed the superintendent's instructions in a totally unforeseeable manner. We reject this characterization of Watson's action. When the work was in progress, Watson was Ocean Electric's highest ranking employee on the site. On necessity, he was invested with the discretion to take appropriate steps should unforeseen circumstances arise. Thus, the fact he did something he was not specifically instructed to do is not unforeseeable disobedience. n4 Because supervisors will often be required to exercise their judgment in determining how work is to be accomplished, it cannot be said that safety violations they commit in doing so are unforseeable if effective measures to train them in safety, including compliance with Complainant's standards, are not taken.

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n4 The stipulation of facts states that the bus bar was removed in order that the new unit could be set down close to the existing one. Thus, it was removed in furtherance of the work the crew was assigned to perform. There is nothing in the record to indicate that the superintendent's silence regarding the bus bar should have been interpreted by Watson as an instruction not to remove it. If anything, the superintendent's silence indicates that he may not have thoroughly inspected the site before work began.

[*9]

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Finally, Ocean Electric argues that "An employer is not liable for failure to foresee every incident before it occurs and to take extraordinary precautions required" citing Katy Engineering Company, 10 OSAHRC 714 (ALJ 1974). We agree with the statement but note the cited case is easily distinguished on its facts. The fact is that in this case Ocean Electric knew of the energized units and consciously relied on their doors being kept closed. In the circumstances we think the accident and the violation were preventable. The incident that occurred was reasonably foreseeable and might have been avoided. n5

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n5 Commissioner Cleary agrees with this disposition, but adds that he would impute the actions and knowledge of supervisory personnel to their employers. In this, he shares the views of Judge Worcester. He would note that a corporation can only act through its agents, and that to absolve such an employer would be to hold that they (through those agents) may act without responsibility under the Act. He also notes that the controlling Commission precedent, Floyd Pike, Inc., No. 3069 (January 30, 1975) has still not been expressly overruled. But see Engineers Construction, Inc., No. 3551 (September 29, 1975). Commissioner Cleary would distinguish both National Realty and Alsea Lumber. National Realty concerned a foreman who was not acting in a supervisory capacity; Alsea Lumber did not concern supervisors, but disobedient, unknow conduct by employees.

[*10]

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We turn now to the assessment of an appropriate penalty. The violation was of high gravity, as three employees were exposed to the possibility of electrocution, albeit for only a short time. Respondent is a moderately large employer, with 275 employees. It has no prior history under the Act, and we have no reason to doubt its good faith. Under the circumstances, the proposed penalty of $700 is appropriate.

Accordingly, the citation for serious violation of 29 C.F.R. 1926.957(a)(3) and the proposed penalty are affirmed. It is so ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

After reading the foregoing opinion two questions come immediately to mind:

(1) What did this employer do wrong? and

(2) What changes must be made so that this wrongdoing is not repeated?

At first glance the answer to question number one appears to be that respondent's supervisor who (the opinion states) was "a highly experienced journeyman electrician" was not "adequately supervised with regard to safety matters." Further examination of the decision fails to reveal just what type of supervision my colleagues recommend [*11] for highly experienced journeymen electricians. Perhaps they are mandating a new job classification: Superior Highly Experienced Journeyman Electrician.

They do seem to be mandating some unspecified type of "training" over and above that possessed by a highly experienced journeyman electrician. For example, they state:

"Here the record shows that Ocean Electric hired an outside firm to train its employees in safety practices. But the record fails to reveal whether and to what extent the outside firm did in fact train Ocean Electric's employees. n6 Thus, we do not know whether regular safety meetings were held and employees required to attend and discuss particular safety problems."

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n6 Note here how they shift the burden of proof from the complainant to the employer. More on that later.

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And they also find fault with other aspects of the respondent's safety training:

"We do not know whether specific safety instructions were given and whether specific rules were established and enforced."

They forget to [*12] say just what "specific safety instructions" and "specific rules" they have in mind.

Then, in a final reference to "safety training," they state:

"Because supervisors will often be required to exercise their judgment in determining how work is to be accomplished, it cannot be said that safety violations they commit in doing so are unforeseeable if effective measures to train them in safety, including compliance with complainant's standards, are not taken." [emphasis mine.]

So you see, it's not enough to place your confidence in a highly experienced journeyman electrician or to have employees trained in safety as respondent did in this case. n7 That training must be "effective" - or, in other words, if an accident happens - ergo - the safety training is ineffective and a violation is established.

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n7 The parties stipulated that respondent's employees were trained in safety practices by Fleet-Safety, Inc. (this job was being performed for the U.S. Navy) and that the one person on the job who was not a regular employee (he had been assigned to the work by the union) was trained by the Joint Apprenticeship Committee of the Tidewater Electrical Industry, "which Committee was sponsored by the union and the electrical contractors."

[*13]

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Now one might be inclined to conclude from reading the foregoing that this respondent was tried for violating the Act because of an inadequate safety training program. Not so! Strange as it may seem the offense charged was failure of the employer "to provide a barricade, a barrier, or insulating equipment."

I quote the full text of the "description of alleged violation" exactly as it appeared on the citation:

"On November 8, 1973 at Oceana Naval Air Station, the employer failed to provide a barricade, a barrier, or insulating equipment that would prevent accidental contact by employees with conductors energized by high voltage electricity."

Consequently, what we have here is a charge that an employer failed to provide some physical equipment but a conviction based - not on the charge - but on a concept never mentioned in the pleadings or at the trial: failure of the employer to have a safety training program for its employees which satisfies the unstated criteria of the two members who make up the majority in this case.

Having discussed what the employer did wrong, we now turn to the next question [*14] - what changes must be made so that this wrongdoing is not repeated? Unfortunately the majority decision doesn't say, despite the fact that they consistently maintain (in other cases) that the Act is "remedial" - not criminal. What "remedy" do they prescribe in this case? How is the employer to abate the "violation" which has been sustained in this case?

I submit that it is impossible to do so.

As the majority opinion correctly notes, this case "was submitted on stipulated facts." One of these was as follows:

"The parties agree that the accident was caused solely by human error . . . [emphasis supplied]"

There just is no conceivable way under the sun to devise a safety program which will prevent accidents "caused solely by human error." If there was, you can be sure that it would have been enacted years ago as a compulsory requirement for every person in this country. Thousands upon thousands of people are killed each year - at work, at home, and on the highway - because of human error. If my colleagues have a safety training program that will cure human error, then I think they ought to come forward and specify it so this appalling accident toll can be eliminated.

Nevertheless, [*15] it is my view that the majority's ambiguous pontificating on abstract concepts of "safety training" cannot disguise the fact that this accident was unpreventable - nor that they have convicted an employer for violating something he was not charged with - and had no opportunity to defend against.

We have here a total and complete rejection of the Court's statement in the National Realty case, supra, that:

"Obviously an employer cannot be penalized for failing to correct a condition which the citation did not fairly characterize."

We also have another case - like that one - where two Commission members have put forth their own theory of the case despite the ruling in National Realty that

"Only by requiring the Secretary, at the hearing, to formulate and defend his own theory of what a cited defendant could have done can the Commission and the courts assure even-handed enforcement . . . ." [emphasis supplied by the court.]

And, by prescribing their concepts of unspecified "safety training," Mr. Barnako and Mr. Cleary have done what their two predecessors did, despite the observation of the court in National Realty:

"In short, the Commissioners attempted [*16] to serve as expert witnesses for the Secretary. This is not their role. The Secretary should have called his own expert or experts at the hearing."

The ultimate thrust of the majority opinion in this case is to transpose this Act into a criminal-law setting under which each employer will be subject to penalty each time any type of safety infraction occurs at the cited employer's workplace. This is contrary to the legislative intent, the wording of the statute, and every court decision which has considered the subject.

During the law's early development stages this Commission began to be cognizant of the congressional intent not to make employers absolute guarantors that their employees would always observe the Secretary of Labor's regulations. Thus, in Secretary v. Standard Glass Company, Inc., 1 OSAHRC 594, 596 (1972), we stated that:

"[a]n isolated brief violation of a standard by an employee which is unknown to the employer and is contary to both the employer's instructions and a company work rule which . . . has uniformly [been] enforced does not necessarily constitute a violation . . . of the Act . . . ."

It is evident even at this early stage that employer "knowledge" [*17] was recognized as an important aspect in an "isolated incident" type of situation.

As the law developed, greater emphasis was directed at the establishment of employer "knowledge" as an essential element of proof. In Secretary v. Arnold Hansen, d/b/a Hansen Brothers Logging, 1 OSAHRC 869, 872 (1972), the Commission vacated an alleged violation because of an "isolated incident" on the basis that the record failed to indicate that "respondent's owner knew or reasonably should have known that the deceased employee would disobey . . . instructions." Subsequent cases further emphasized this "knowledge" requirement. See, e.g., Secretary v. Mountain States Telephone & Telegraph Company, 2 OSAHRC 168, 170-171 (1973); Secretary v. Republic Creosoting Co., Division of Reilly Tar & Chemical Corp., 2 OSAHRC 400 (1973); n8 Secretary v. Ira Holliday Logging Co., Inc., 2 OSAHRC 1415 (1973).

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n8 Affirmed in Brennan v. OSAHRC, 501 F.2d 1196 (7th Cir. 1974).

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Some of our cases speak of exculpating the employer [*18] if what is alleged to be an infraction is the result of an "isolated incident" while others speak of the requirement that there must be evidence of "employer knowldge" that an offense has been committed as charged.

Nevertheless, knowledge of the existence of a violation, either actual or constructive, is an essential element of any violation of the Act, and the complainant has the burden of establishing that the respondent knew or reasonably could be presumed to know of the existence of the condition or practice upon which the violation is based. n9 However, the Commission has modified this principle somewhat by treating certain fact situations as "isolated incidents" then holding that the respondent has the burden of establishing that the occurrence was isolated. See Secretary v. Murphy Pacific Marine Salvage Company, 15 OSAHRC 1 (1975); n10 Secretary v. Mississippi Valley Erection Company of Tennessee, 5 OSAHRC 483, 486 (1973).

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n9 See Brennan v. OSAHRC, 511 F.2d 1139 (9th Cir. 1975).

n10 I concurred in this decision, and though I fully recognize that important policy considerations militate in favor of continuity and predictability in the law. I believe it is an erroneous position and should be reversed. As the Supreme Court stated in Boys Markets, Inc. v. Retail Clerk's Union, Local 770, 398 U.S. 235, 241 (1970), "'[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collission with a directive more embracing in its scope, intrinsically sounder, and verified by experience.'" Accordingly, I believe that development of the Act has shown that examination of factual situations concerning "isolated incidents" should no longer be made according to our past practices.

[*19]

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In my opinion, the Commission has placed two different labels on what is really just one legal question and, as a result, has arrived at two inconsistent positions. I would resolve this inconsistency by holding that in all cases the complainant must establish that the employer had actual or constructive knowledge of the alleged violation. This is the position that has been adopted by the appellate courts. Quoting again what the court stated in the National Realty case, supra:

". . . the Secretary must be constrained to specify the particular steps a cited employer should have taken to avoid citation, and to demonstrate the feasibility and likely utility of those measures." n11

The emphasis on the Secretary's burden of establishing constructive "knowledge" in an "isolated incident" situation was also the position taken by the United States Court of Appeals for the Ninth Circuit in Brennan v. OSAHRC, supra, 511 F.2d at 1143. n12

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n11 This case involved an alleged violation of 29 U.S.C. 654(a)(1), not (a)(2) as is the case here. For the reasons I stated in Secretary v. Floyd S. Pike Electrical Contractor, Inc., 15 OSAHRC 302, 307 n. 9 (1975), I believe the law is equally applicable to 654(a)(2) situations.

n12 This decision and my separate opinion in Secretary v. Cam Industries, Inc., 7 OSAHRC 30, 36-38 (1974) explain why knowledge is an element of both nonserious and serious violations of the Act.

[*20]

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I therefore submit that my colleagues are making the same mistake his Commission has made in many prior decisions. The matter should be resolved by holding that the burden of establishing that the employer knew or should have foreseen the possibility of a hazardous condition is on the complainant. He should be required to prove actual knowledge or that the employer's actions, including its safety program, somehow fell short of its responsibility to exercise reasonable diligence in ascertaining the presence of the violative act and, therefore, that the respondent could have prevented it. See Cape and Vineyard Division of the New Bedford Gas and Edison Light Company, 512 F.2d 1148 (1st Cir. 1975).

Examining the record of this case in this light, it is evident that complainant failed to establish the requisite employer knowledge.

Judge Worcester, in the decision below, proceeded on the theory of respondent superior. Although none of the members of the Commission appear to accept that theory, the Judge's decision in this case is worth considering. Its full and complete text follows:

This [*21] proceeding arises pursuant to a notice of contest filed by the Respondent, Ocean Electric Corporation, under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq.) hereinafter clled the Act. On November 21, 1973, a citation was issued alleging that the Respondent had violated Section 5(a)(2) of the Act and 29 CFR 1926.957(a)(3) at a power substation on the United States Naval Station at Virginia Beach, Virginia, on November 8, 1973. When an apprentice electrician was ordered by his foreman to reach into an 8 inch space separating two switch gear units he touched an energized bar and was electrocuted. The parties submitted the matter on a stipulation of facts, memoranda of law and oral argument in Washington, D.C., on June 18, 1973.

Ocean's project superintendent explained the work plan to the foreman on the morning of November 8, 1973, after inspecting the job site and then departed. The plan was to lower the new unit by means of a crane to a location adjacent to an existing energized unit. During the lowering procedure the foreman noticed that an unenergized "bus bar" was protruding from [*22] the base of the energized unit. He opened an unlocked door on the unit to remove this bar. As long as this door was closed it served as a barrier between other energized bus bars inside the unit and anyone working near it. The foreman neglected to close the door after he had removed the protruding bar. He proceeded to the front of the new unit which was being lowered into position about 8 inches from the existing unit. The apprentice and a journeyman electrician were standing at the rear of the new unit. The apprentice was nearest to the open door. As the unit came to rest on a concrete slab the cables from the crane boom became slack. The foreman grasped the cable from the front and ordered his two helpers to grasp the other end so that the cables would not come into contact with the energized switch box. The apprentice in complying with this order inadvertently touched an energized bus bar and was fatally injured.

The Respondent is charged with failure to protect its employees from accidential contact with conductors energized by high voltage electricity which is required by 29 CFR 1910.957(a)(3). This section makes it mandatory to meet the specifications for compliance [*23] set forth in 29 CFR 1910.950(c) which provides in part:

"(c) Clearances

The provisions of subparagraph (1) or (2) of this paragraph shall be observed.

(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, unless:

(i) The employee is insulated or guarded from the energised part (gloves or gloves with sleeves rated for the voltage incolved shall be considered insulation of the employee from the energized part), or

(ii) The energized part is insulated or guarded from him and any other conductive object at a different potential, or

(iii) The employee is isolated, insulated or guarded from any other conductive object(s) ad during live-line bare-hand work."

The parties agreed that the accident was caused by what was called "human error" and that the Respondent could not have anticipated the actual course of events. This was the basis of Ocean's assertion in the brief and at oral argument that the citation should be vacated. The Respondent contends that the act of the Foreman in leaving a door open is not something that the supervisor could have expected the foreman [*24] to do, that it was an isolated incident, and that the burden is on the Secretary to show that the apprentice was ordered to reach into the open door. n1

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n1 Transcript of argument page 15.

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Neither case law nor common sense support this contention. The doctrine of respondeat superior is applicable here. If it were not, the Act would be made meaningless. The only employers who could be cited would be those who perform labor along with their apprentices such as small masonry contractors who have one or two laborers with them. Every employer having supervisory personnel above the level of foreman could avoid compliance with the standard by having supervisors remain away from the job site. This contention is without merit. An employer is responsible for the acts of a foreman performed in the course of his employment.

When an employee endangers himself by doing something which is foolhardy and contrary to the principles of common sense as was the case in Secretary v. Southern Special Products, OSHRC Docket [*25] No. 1515 (1973) the employer is not responsible unless there was inadequate supervision. Where an employer had no knowledge of the acts of an employee who was violating a standard and could not by reasonable diligence have known about it as where the act was committed out of the presence of any supervisor, there was no violation. There was no violation where a foreman with 17 years experience who had been trained in safety and furnished with the necessary equipment failed to take necessary precautions without the knowledge of the employer. Secretary v. Phillips Petroleum Co., OSHRC Docket No. [*26] 3947 (1974).

In the case at bar the Respondent's foreman, contrary to established procedures, failed to insulate an energized unit after he had opened a door which exposed the energized parts and neglected to close it so as to provide a barrier against contact. He then, in the course of his supervision of installation of a switch box, ordered an apprentice electrician to place himself in a position where there was danger of contact with an energized bus bar in order to grasp a cable. The employee was electrocuted as the natural and probable result of the Respondent's failure, through its foreman, to comply with the safety precautions the standards require. The employee disobeyed no orders. He followed his foreman's instructions. Ocean Electric as the foreman's employer is accountable for the foreman's violation of the standard the same as it would be in an action for civil damages if the foreman, in the course of his employment, had negligently struck and killed a pedestrian while driving his employer's motor vehicle.

It may be conceded that tort law is distinguishable from an action to enforce the provisions of the Occupational Safety and Health Act, but it is well settled [*27]

Upon consideration of the record as a whole the following findings and conclusions are made.

Findings of Fact

1. Ocean Electric Corporation is an electrical contractor with its principal office in Norfolk, Virginia. It has approximately 275 employees.

2. Ocean Electric is engaged in an activity involving the acquisition of materials and equipment from sources outside the Commonwealth of Virginia.

3. On November 8, 1973, Ocean Electric's foreman, Jack Watson, was supervising a journeyman electrician, Marcel Burger, and an apprentice electrician, Jerry Kephart, pursuant to instructions from Ocean Electric's supervisor, J. W. Kistler, who was not present, at the Naval Air Station at Virginia Beach, Virginia. As the senior supervisory official of Ocean Electric present Watson was in charge [*28] of the installation of a switch gear unit.

4. As the new unit was lowered in place adjacent to an existing unit which was energized, the crane cables became slack. Although knowing that the only barrier between energized bus bars in the existing unit and persons working close to it was a door that he had opened and left open and that the apprentice, Kephart, was not wearing protective gloves and the he was not insulated against the energized bars, ordered Kephart to reach into the 8 inch space between the units to grasp the slack cable. The subsequent electrocution of Kephart was the logical and probable result of Watson's failure to exercise ordinary care in supervising the task he had been assigned.

Conclusions of Law

1. Ocean Electric Corporation is an employer as defined in the Occupational Safety and Health Act of 1970 and is subject to the jurisdiction of the Occupational Safety and Health Review Commission.

2. The act of an employer's supervisor performed in the fulfillment of his duties on a job site where there was no supervisory official of a higher echelon of authority present is the act of employer. When such supervising employee present at the job site violates [*29] a standard promulgated by the Secretary of Labor as authorized by the Occupational Safety and Health Act of 1970, the employer has violated the Act.

3. Ocean Electric Corporation violated 29 CFR 1910.957(a)(3) at the United States Naval Air Station, Virginia Beach, Virginia, on November 8, 1973, as alleged in the complaint.

4. The proposed penalty of $700.00 is appropriate when considered in light of the provisions of 29 U.S.C. 666(i).

Order

It is therefore hereby ORDERED that citation be affirmed and that a penalty of $700.00 be assessed.