WESTERN MASSACHUSETTS ELECTRIC CO.

OSHRC Docket No. 76-1174

Occupational Safety and Health Review Commission

June 5, 1981

[*1]

Before: CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor, USDOL

F. Lee Griffith, III, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). A decision of Administrative Law Judge David J. Knight is before the Review Commission pursuant to section 12(j) of the Act, 29 U.S.C. 661(i). In his decision, the judge found the Respondent, Western Massachusetts Electric Co. ("WMECO" or "the company"), in violation of section 5(a)(1) of the Act, 29 U.S.C. 654(a)(1), n1 for having reenergized an electrical transmission line in such a dangerous manner that its employees were exposed to the threat of explosions and electrocution. The judge assessed an $800 penalty. Commissioner Cleary granted WMECO's petition for review of the judge's decision. For the reasons set forth below, we affirm the judge's decision.

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n1 Section 5(a)(1) provides that:

Sec. 5(a) Each employer -

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

[*2]

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On January 28, 1976, WMECO, an electric utility company, was engaged in repair operations on electrical transmission line 27-5-13 inside the "vault" room of the Massachusetts Mutual Life Insurance Co. ("Mutual") building in Springfield, Mass. Line 27-5-13 carries current from WMECO's East Springfield substation, 5 miles away, into the vault room where "switchgear" equipment owned by Mutual distributes the current throughout the building. As a result of flooding, the switchgear and line 27-5-13 had been damaged on that morning. Mutual engaged the Collins Electric Co. ("Collins") to perform the repair work on the switchgear. However, WMECO was responsible for certain operational and testing procedures associated with the repair work, and a WMECO employee, St. Sauveur, went to the Mutual worksite for this purpose.

In order that the repairs could be performed, line 27-5-13 was "isolated" so that no current flowed through it. This isolation process took place at WMECO's East Springfield substation. Line 27-5-13 could be isolated at the substation by opening either or both of two circuit breakers: (1) [*3] an oil circuit breaker ("OCB") and (2) a cable disconnect switch ("CDS"). Initially both were opened, but the OCB was then immediately reclosed so that power would continue to flow through line 35-5-13, n2 which served other WMECO customers. The CDS is located between the OCB and Mutual and, therefore, so long as it was open, no power would flow on line 27-5-13 to Mutual. In order that no one would accidentally restore power to the 13,800 volt line, the CDS handle was tagged and the line was grounded. This tag was issued in the name of WMECO's Supervisor of Underground Transmission Lines, Joyce. The process of isolating the line and issuing a tag is called the "clearance". According to Section C, Article XXI of WMECO's Safety Regulations, Joyce was obligated to follow certain procedures before the clearance could be cancelled and the tag removed.

Article XXI - Cancelling the Clearance

When work has been completed, the person to whom the clearance has been issued will make sure that all men working under the protection of his clearance are clear and will remain clear of the equipment involved. He will then remove or supervise the removal of all his workman's grounds and call [*4] the Dispatch Center Operator stating:

* * *

(e) That the equipment is ready for normal service as far as his work is concerned. . . .

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n2 Line 27-5-13 is located on a bifurcated circuit with line 35-5-13. The OCB is common to both lines 27-5-13 and 35-5-13.

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All field operations, including the Mutual job, were co-ordinated through WMECO's dispatch center in West Springfield. At about 3:20 p.m. on January 28, the dispatcher, Smith, received a call from a Collins' foreman, McCarron, at the worksite. n3 As Collins would soon be done with its repair work, McCarron asked that Smith dispatch an area operator, Dowd, to the vault to help arrange testing procedures. They also agreed to have a second area operator, Holloway, go to the East Springfield substation where, upon receiving instructions from Smith, he was to remove the tag from the CDS and the grounds on the 27-5-13 line and then close the CDS. While the area operators were in route to their destinations, Smith contacted Joyce, who was not at Mutual. Joyce [*5] agreed to the cancellation of the clearance and the removal of the tag and grounds, although he clearly did not know if St. Sauveur was still in the vault. The transcript of the Joyce-Smith conversation demonstrates that both men anticipated Smith would order Holloway to close the CDS and, after hearing from Dowd and McCarron that no workers were in the vault, Smith himself would close the OCB by pressing a button at the dispatch center. n4 Smith then contacted Holloway at the substation and ordered him to first check and ensure that the OCB was open and then to remove the tag and grounds and close the CDS. Five minutes later, Holloway called back and reported that the OCB was closed. Smith, who was obviously surprised by the discovery, asserts that he told Holloway to "Hold it," indicating that he did not want Holloway to proceed further. n5

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n3 All calls into the dispatch center are routinely recorded. A transcript of the relevant conversations of that afternoon was provided.

n4 Smith, throughout the afternoon, mistakenly believed that the OCB was open.

n5 The entire transcript of this conversation reads as follows:

Smith: Dispatch, Smith.

Holloway: Howard, this is Clarence.

Smith: Yup.

Holloway: The 27-5-13 -- that is closed because we have two feeders on there.

Smith: You've got it closed?

Holloway: According to what the indication is here.

Smith: How could it be closed with grounds on it?

Holloway: There's two feeders on it.

Smith: What feeders?

Holloway: There's the 35-5 coming off the same, isn't there?

Smith: Oh, geez, that's right too. Yup, okay, well, all right.

Holloway: Okay?

Smith: Yup, that's the only one.

Holloway: Yup, right, so (telephone line goes dead)

[*6]

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However, unknown to Smith, Holloway did not hear these cautioning words, as the phone had already gone dead. Holloway then proceeded to remove the tag and grounds and to close the CDS. At the same time, a "flash" (small explosion) occurred in one corner of the vault. The surge of power through the line melted a metal ground inside the vault, causing fragments to fly off and fatally injure a Collins workman. Dowd and St. Sauveur were standing 20-25 feet from the injured Collins employee.

The Secretary of Labor's ("Secretary") compliance officer, Battles, testified that only the person to whom a clearance was issued should cancel the clearance, and then only after that person had ascertained that all people had cleared the area containing the equipment that was to be energized. In Battle's opinion, the intent of the tagging system required that the tag remain in place until the area was clear. The Secretary's expert witness on industry tagging and switching procedures, Tooze, offered similar testimony. He stated that it was industry practice to require the person obtaining the clearance to determine [*7] that people were clear of the line before authorizing removal of the tag and grounds. Tooze stated that the purpose of the tag was to assure that "nobody can touch that line," and that "[t]he removal of the tags means that line can now be operated."

WMECO's expert witness Dannattell, an executive with the Potomac Electric Power Company, testified that Joyce was not obligated to remove the tag personally and that, in his opinion, Joyce fulfilled his responsibilities in the situation. Dannattell further testified that the procedure followed by Smith and Joyce was "basically very logical and good," and presented no hazard to employees provided that the OCB remained open.

WMECO's General Supervisor of Operations, Webler, testified that under Article XXI of the company's safety regulations, Joyce bore the responsibility for assuring that all the employees in the vault were through working and were clear of the line before cancelling the clearance. He stated that the actions of Smith and Joyce did not conform to Article XXI, and that both were issued disciplinary notices following the incident for failing to comply with that safety rule. However, Webler also agreed with Dannattell [*8] that the procedure Smith and Joyce followed was basically safe. He stated: "This [the Smith-Joyce plan] is not following our procedures to the letter of the law, but it still was not an unsafe procedure."

II

The Secretary, in his complaint, alleged that WMECO had violated section 5(a)(1) of the Act by removing the protective tag and grounds without properly checking to insure that its employees were clear of the line. In affirming the violation, the judge found that Joyce had agreed to the cancellation of the clearance although both he and Smith knew that at least one WMECO employee was inside the vault at Mutual. He determined that this plan for premature cancellation of the clearance was both contrary to Article XXI of the company's safety regulations and a recognized hazard within the industry. In view of the fact that both Smith and Joyce had readily agreed to the plan and that Webler had testified that he considered the plan to be safe, the judge found that the plan was standard procedure within WMECO. As "standard procedure," he determined that this course of action was or should have been known to WMECO. Further, he concluded that had WMECO simply enforced its own safety [*9] regulation, it could have avoided the hazard. Moreover, he found that premature reenergization could result in an explosion which would expose WMECO's employees to the threat of death or serious physical harm. He rejected WMECO's argument that the premature reenergization of the line resulted from unpreventable employee misconduct on the basis of his finding that the Smith-Joyce plan was standard operating procedure. Finally, he rejected WMECO's claim that the citation had been improperly amended by the complaint. Instead, he ruled that the complaint had merely particularized the allegations of the citation. n6

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n6 The relevant language of the citation and complaint are quoted at notes 18 and 19, infra.

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On review, WMECO vigorously contends that the judge erred in finding that the Smith-Joyce plan was standard procedure within the company and that WMECO therefore condoned the procedure. In support of this argument, WMECO points out that the Smith-Joyce plan failed to conform to Article XXI of its safety regulations, [*10] and that the judge's finding ignores the fact that Smith and Joyce were disciplined after the accident for violating the company's established safety procedures.

WMECO next contends, contrary to its first argument, that a violation cannot be predicated on the procedure followed by Smith and Joyce because that procedure did in fact comply with Article XXI and did not expose its employees to a hazard. WMECO points out that Article XXI requires that the person who obtains the clearance assure that employees are clear before the clearance is removed, but does not specify precisely how this is to be done. WMECO asserts that Article XXI did not preclude Joyce's cancellation of the clearance under circumstances in which subsequent safety precautions were to be followed that would assure that the workers would be clear of the vault before the line was reenergized. According to the company, "the plan for re-energizing Mass. Mutual was well thought out, had built-in safeguards, and would have been performed under the most controlled situation, with step-by-step telephone communications, so that the manner in which Joyce cancelled the clearance created no hazard to WMECO employees." WMECO [*11] asserts that the accident resulted not from premature cancellation of the clearance by Joyce, but from misconduct by Holloway: "At no time would Mass. Mutual have been energized [under the Smith-Joyce plan] with personnel in the switchroom if Holloway had not disobeyed a standard instruction at the unfortuitous moment when the phone went dead."

WMECO further argues that, even if the Smith-Joyce plan failed to conform to Article XXI, the actions of Smith and Joyce cannot be imputed to the company because they were not supervisors. Even if they were supervisors, WMECO argues, their violation of a company work rule is not imputable to their employer absent a showing by the Secretary that their misconduct was attributable to an inadequate safety program. On this point, WMECO relies on National Realty and Contruction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973) ("National Realty").

Finally, WMECO argues that the citation was improperly amended by the complaint and that therefore the complaint "is a nullity and cannot support an action by the Secretary." n7

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n7 WMECO also argues that the Act is unconstitutional under Article III of, and the 5th Amendment to, the U.S. Constitution, and that 5(a)(1) of the Act is unconstitutionally vague.

The Commission does not have the authority to resolve constitutional attacks on the Act. Buckeye Indus., Inc. v. OSHRC, 587 F.2d 231 (5th Cir. 1979); Chromalloy Am. Corp., 79 OSAHRC 55/D11, 7 BNA OSHC 1547, 1979 CCH OSHD P23,707 (No. 77-2788, 1979). However, the Supreme Court has considered and rejected WMECO's Article III argument that the Act represents an unconstitutional delegation of judicial authority to an administrative agency. Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977). The remaining constitutional issues raised by WMECO have not been resolved by the Supreme Court.

[*12]

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The Secretary argues that he met his burden of proving WMECO's violation of section 5(a)(1). According to the Secretary, the evidence establishes that it is a hazard recognized both by the utility industry and by WMECO itself to release a clearance before all employees working under the protection of the clearance are known to be clear. In the Secretary's view, WMECO's attempt to shift the blame for the accident to the assertedly unforeseeable actions of Holloway is improper. The Secretary points out that the relevant inquiry is not the foreseeability of an incident as it actually occurred, but only the general foreseeability that an incident will result from allegedly violative conduct. The Secretary contends that the foreseeability of the general hazard is demonstrated by WMECO's own safety regulation, which indicates the need to guard against unanticipated human error by assuring that a line remains protected until the holder of the clearance determines that employees are clear of the line.

The Secretary further contends that WMECO knew or should have known of the failure of Smith and Joyce to [*13] follow Article XXI. First, the Secretary argues that the judge correctly found that the Smith-Joyce plan was standard procedure within the company and that the company therefore knew of and, in effect, approved the procedure. Even if this were not so, however, the Secretary contends that the actions of Smith and Joyce should be imputed to the company because they were supervisors. Moreover, the Secretary argues, such imputation is proper because WMECO made no showing that it had trained and supervised Smith and Joyce in a manner that would prevent their failure to comply with Article XXI.

III

A

In order to establish a section 5(a)(1) violation, the Secretary must show that an employer failed to render its workplace free from a hazard that is recognized, the occurrence of an incident was reasonably foreseeable, and the likely consequence in the event of an incident was death or serious physical harm to its employees. Bomac Drilling, Division of TRG Drilling Corp., 81 OSAHRC, 9 BNA OSHC 1681, 1691, 1981 CCH OSHD P25,363 at p. 31,547 (No. 76-450, 1981). The Secretary must also demonstrate that there were feasible means available to abate the hazard. Id.; National Realty, [*14] 489 F.2d at 1268.

A recognized hazard is a condition or practice in the workplace that is known to be hazardous either by the industry in general or by the employer in particular. Beaird-Poulan, A Division of Emerson Electric Co., supra; see Continental Oil Co. v. OSHRC, 630 F.2d 446, 448 (6th Cir. 1980), cert. denied, 101 S.Ct. 1481 (March 2, 1981); Empire Detroit Steel Division, Detroit Steel Corp. v. OSHRC, 579 F.2d 378, 383 (6th Cir. 1978). Furthermore, it is the hazard, not a specific incident that resulted in injury, which is relevant in determining the existence of the recognized hazard. See Brennan v. OSHRC (Vy Lactos Laboratories, Inc.), 494 F.2d 460 (8th Cir. 1974); Boeing Co., Wichita Division, 77 OSAHRC 188/D13, 5 BNA OSHC 2014, 1977-78 CCH OSHD P22,266 (No. 12879, 1977).

In this case, the hazards are electrocution and explosions caused by reenergization of the line before employees are clear. The premature removal of the protective tag and grounds from a deenergized power line subjects employees working on the deenergized line to the dangers of electrocution and explosions should the line be reenergized before they are clear [*15] of the area. The record establishes that both WMECO and the electric utility industry recognized the hazard from premature reenergization of the line and the need to take precautions against this hazard. n8 WMECO's recognition of the hazard is reflected in Article XXI of the company's safety regulations, which reguires the person who obtained the clearance to tag and ground the deenergized line to "make sure that all men working under the protection of the clearance are clear and will remain clear" before cancelling the clearance. Accordingly, the Secretary has established the existence of a recognized hazard in WMECO's workplace.

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n8 We reject WMECO's assertion that the Secretary's evidence on industry practice is irrelevant because it is not expressly directed at industry practice under emergency conditions. The evidence that Article XXI paralleled the safety practices commonly employed in the electric utility industry is relevant both to industry recognition of the hazard of premature cancellation of a clearance and to whether there exists a feasible means to eliminate the hazard. The presence of an emergency situation would not affect recognition of the hazard, but could affect the feasibility of a means of abatement. However, WMECO presented no evidence and does not argue that the situation at the Mutual worksite was of such an emergency nature that the procedure outlined in Article XXI could not have been followed. To the contrary, one of WMECO's arguments is that Joyce and Smith did in fact comply with Article XXI. Moreover, even if the industry did not recognize the hazard, the fact that WMECO recognized the hazard is sufficient to show recognition within the meaning of 5(a)(1). See Brennan v. OSHRC (Vy Lactos Laboratories, Inc.), supra.

[*16]

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B

An employer's duty under section 5(a)(1) is to free its workplace of recognized hazards that are likely to cause death or serious harm. When elimination of a particular hazard requires employees to follow certain procedures, the employer must take the steps necessary to assure that employees in fact follow those procedures. n9 An employer is not a guarantor of its employees' conduct and cannot be expected to guard against conduct that is so idiosyncratic or implausible that a reasonable safety program would not guard against it. National Realty, 489 F.2d at 1266. But the employer has the duty to take all feasible steps to eliminate hazardous conduct from its workplace. General Dynamics Corp., Quincy Shipbuilding Division v. OSHRC, 599 F.2d 453, 458 (1st Cir. 1979) ("General Dynamics"); National Realty, 489 F.2d at 1266-67; Beaird-Poulan, A Division of Emerson Electric Co., 7 BNA OSHC at 1230, 1979 CCH OSHD at 28,460-61; see Brennan v. Butler Lime and Cement Co., 520 F.2d 1011, 1017 (7th Cir. 1975).

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n9 In this case, the Secretary contends that WMECO should have eliminated or materially reduced the hazard of electrocution and explosions by implementing a procedure whereby a clearance would not be cancelled until employees were clear of the line. Because WMECO had its own safety rule directed at this objective, the feasibility of this means of abatement is established. The question becomes whether WMECO adequately implemented its safety rule.

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In cases arising under section 5(a)(2) of the Act, n10 which requires that employers comply with specific standards, the Commission has implemented these principles by recognizing the affirmative defense of unpreventable employee misconduct. An employer may raise this defense in situations where employee conduct has resulted in noncompliance with a standard. In order to establish the defense, the employer must demonstrate that it has established a work rule designed to prevent the violation, had adequately communicated the work rule to its employees, had taken steps to discover violations of the rule, and had effectively enforced the rule [*18] in the event of infractions. Jensen Construction Co., 79 OSAHRC 49/D3, 7 BNA OSHC 1477, 1979 CCH OSHD P23,664 (No. 76-1538, 1979).

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n10 Section 5(a)(2), 29 U.S.C. 654(a)(2), provides:

Sec. 5.(a) Each employer --

* * *

(2) shall comply with occupational safety and health standards promulgated under this Act.

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The nature of an employer's duty to prevent hazardous conduct is the same whether the case arises under section 5(a)(1) or 5(a)(2). The elements of an effective safety program do not depend on the section of the Act that is allegedly violated. There is, however, one important difference between cases arising under the two sections. Under section 5(a)(2), when employee conduct has resulted in noncompliance with a standard, it is the employer's burden to plead and prove as an affirmative defense that it could not prevent the employee's misconduct. Under section 5(a)(1), however, the burden is on the Secretary to prove that the cited employer breached its duty to render the workplace free of a hazard. [*19] National Realty, 489 F.2d at 1265. n11 In rebuttal, an employer may defend on the basis that it took all necessary precautions to prevent the occurrence of the violation. General Dynamics, 599 F.2d at 458. n12 See also Brown & Root, Inc., 80 OSAHRC, 8 BNA OSHC 2140, 1980 CCH OSHD P24,853 (No. 76-1296, 1980). Moreover,

when the employer's defense is that the hazard occurred as a result of unauthorized and idiosyncratic behavior by its employees, the issue of an employer's training and supervision of its employees automatically arises as part of the employer's showing that it took all feasible steps to avoid the occurrence of the hazard.

General Dynamics, 599 F.2d at 459. Elements of the employer's affirmative defense of unpreventable employee misconduct in section 5(a)(2) cases are equally relevant to the employer's rebuttal in a section 5(a)(1) case.

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n11 This distinction between the burden of proof in 5(a)(1) and 5(a)(2) cases is not new. We have previously held that evidence which would be relevant to the affirmative defense of "greater hazard" under 5(a)(2) is properly treated as rebuttal evidence to the Secretary's case when a violation of 5(a)(1) is at issue. Royal Logging Co., 79 OSAHRC 84/A2, 7 BNA OSHC 1744, 1979 CCH OSHD P23,914 (No. 15169, 1979), aff'd, Nos. 79-7622 and 79-7628 (9th Cir. May 18, 1981).

n12 General Dynamics involved the handling of heavy steel plates in a shipbuilding operation. The plates were supported in a vertical position by braces, or "monuments," on a bulkhead while the plates were welded to the bulkhead. The violation involved the employer's failure to eliminate the hazard presented by the instability of the vertical steel plates before they were securely welded to the bulkhead. The employer attempted to defend by showing that its use of monuments was adequate to eliminate the hazard. The court concluded, however, that the employer's defense was insufficient because the employer had failed to properly instruct its employees regarding the point in the welding process at which the monuments could be removed safely.

This case is similar to General Dynamics. Both cases involve situations in which the elimination of a recognized hazard reguires that employees be trained adequately in the procedures necessary to eliminate the hazard. Accordingly, the court's analysis in General Dynamics is directly applicable to this case.

[*20]

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Applying these principles to this case, we conclude that WMECO failed to render its workplace free of the hazards of explosions and electrocution that could result from premature cancellation of a clearance. Although WMECO had a work rule, Article XXI of its safety regulations, intended to prevent premature cancellation, it did not adequately implement that rule. The judge found that it was standard procedure within the company to prematurely cancel a clearance, as Smith and Joyce did on this occasion. While it may be somewhat of an overstatement to say that the Smith-Joyce plan was "standard procedure" within the company, it is clear that it was at least considered an acceptable procedure. Smith, who testified extensively, never indicated that he considered his actions to be contrary to company policy. Moreover, Joyce did not hesitate to cancel the clearance at a time when both he and Smith knew that the employees at Mutual were not yet clear of the vault. Furthermore, although WMECO's General Supervisor of Operations, Webler, testified that Smith's and Joyce's actions deviated from Article XXI, [*21] he also testified that the procedure they followed was essentially safe. When employees Lelieve that strict compliance with a safety rule is unnecessary, they are not likely to follow that rule or to insist that others follow the rule. General Dynamics, 599 F.2d at 459. The fact that three WMECO employees in positions of responsibility thought that deviation from Article XXI was acceptable conduct is persuasive evidence that a requirement to comply with the rule was not effectively communicated and enforced by the company.

It is true, of course, that after the incident involved in this case some effort was made to enforce the rule by the issuance of disciplinary notices to Smith and Joyce. But that evidence sheds no light on whether the company took any steps to enforce its work rule prior to the alleged violation. An effective safety program cannot wait until an accident has occurred to enforce a work rule designed to prevent that type of accident. "One purpose of the Act is to prevent the first accident." Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864, 870 (10th Cir. 1975).

WMECO maintains that it did not know of Smith's and Joyce's failure to [*22] follow Article XXI because neither Smith nor Joyce were supervisors. Even if they were supervisors, WMECO contends that a supervisor's actions are not imputable to an employer absent a showing by the Secretary that the misconduct was attributable to an inadequate safety program. n13

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n13 The United States Courts of Appeals for the Fourth and Tenth Circuits have adopted this position. Mountain States Tel. and Tel. Co. v. OSHRC, 623 F.2d 155 (10th Cir. 1980); Ocean Elec. Corp. v. Secretary of Labor, 594 F.2d 396 (4th Cir. 1979). While, naturally, the Commission gives due deference to the views of the circuits, unless reversed by the Supreme Court we are not bound to acquiesce in the views of those courts of appeals that conflict with the views of the Commission. See S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), pet. for review filed, No. 79-2358 (5th Cir. June 7, 1979). Having carefully considered the holdings and supporting rationale of the two courts, we respectfully decline to follow their rulings.

[*23]

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This argument is inapposite. It is true that in order to prove a serious violation of the Act the Secretary must show that the employer either knew or could, with reasonable diligence, have known of the violation. Section 17(k) of the Act, 29 U.S.C. 666(j). However, because the company failed to adequately implement its safety rule, the company could have known that some deviations from the rule would occur. See Danco Construction Co. v. OSHRC, 586 F.2d 1243 (8th Cir. 1978). Our conclusion that WMECO inadequately implemented its work rule and therefore failed to render its workplace free of the hazard necessarily carries with it the finding that WMECO could have, with reasonable diligence, known of the violation. n14

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n14 Nevertheless, whether Smith and Joyce were supervisors is marginally relevant because employers have a heightened duty to see that supervisors work safely. That a supervisor feels free to breach a company safety policy is strong evidence that implementation of that policy is lax. National Realty, 489 F.2d at 1267 n. 38. Regarding Joyce, his title was that of Supervisor of Underground Transmission Lines. Although the title of an employee is not controlling in determining supervisory status, it is instructive. Further, the tag on the CDS was issued in Joyce's name as the official responsible for the safety of WMECO's employees working on the line. As to Smith, by virtue of his position as the Dispatch Operator, he exercised substantial authority in safety matters. Both Article XXIX of WMECO's Safety Regulations and industry custom demonstrate that the Dispatch Operator is responsible for the rigid enforcement of the safety rules in all field operations. We conclude that both Smith and Joyce were supervisors. See Mercer Well Serv. Inc., 77 OSAHRC 178/C6, 5 BNA OSHC 1893, 1977-78 CCH OSHD P22,210 (No. 76-2337, 1977); Iowa S. Utils. Co., 77 OSAHRC 32/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD P21,612 (No. 9295, 1977).

[*24]

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C

Having concluded that WMECO failed to render its workplace free of the recognized hazard of electrocution and explosions resulting from premature reenergization of the line, we must determine whether the hazard was likely to cause death or serious harm to WMECO's employeee. A hazard is likely to cause death or serious harm if an incident is reasonably foreseeable and the likely result of an incident would be death or serious harm. Bomac Drilling, supra. n15

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n15 Commissioner Cleary believes that it is inappropriate to inguire into whether an incident is reasonably foreseeable in determining whether an employer violated 5(a)(1). Bomac Drilling, supra (Cleary, concurring). He notes that the United States Court of Appeals for the Second Circuit has also stated that reasonable foreseeability is an improper inquiry under 5(a)(1). Pratt & Whitney Aircraft v. Secretary of Labor, 9 BNA OSHC 1554, 1557, 1981 CCH OSHD P25,329 at p. 31,412-13 (2d Cir. April 20, 1981). However, the discussion in this subpart is consistent with the precedent established by the Commission majority in Bomac Drilling, supra, and Commissioner Cleary agrees to follow that precedent for the purpose of deciding this case.

[*25]

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WMECO contends that the Smith-Joyce plan was as safe as strict compliance with Article XXI would have been. The company argues that, under the procedure that Smith intended to follow, there was no foreseeable possibility that the CDS would be closed until Smith had determined that the workers were clear of the vault at Mutual. According to WMECO, the incident that occurred resulted from Holloway's purportedly unforeseeable failure to obey instructions coupled with the telephone malfunctioning at an unfortuitous moment.

A number of human and mechanical errors led to the incident in this case, including Smith's mistaken belief that the OCB was open, the failure of the telephone during the conversation between Smith and Holloway, and the misunderstanding between Smith and Holloway as to what Smith meant before the telephone failed. However, the issue is not whether the precise sequence of events that resulted in this particular incident was foreseeable. The critical point is that human and mechanical errors in general are foreseeable, even if their precise nature is not. n16 Indeed, it is to guard [*26] against such errors that physical means of protection rather than reliance on human behavior are generally preferred. n17 The record demonstrates that, once tags and grounds are removed from a line before employees are clear of the line, it is reasonably foreseeable that the line will be energized prematurely, thereby endangering the employees. Despite WMECO's attempt to characterize Holloway's closing of the CDS as unforeseeable, the fact remains that Holloway, who was presumably familiar with the clearance procedure of Article XXI, could reasonably have believed that closing the CDS posed no danger to other employees regardless of any other instructions he had received. Accordingly, we conclude that the occurrence of an incident under the Smith-Joyce plan was reasonably foreseeable.

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n16 The possibility for human error is illustrated by the conversation between Smith and Holloway, quoted at note 5 supra. Smith's remarks immediately before the telephone failed demonstrate that instructions are not always given clearly and unambiguously and can be easily misunderstood.

n17 The Commission has consistently recognized the superior effectiveness of physical means of protection as compared to reliance on human conduct. See, e.g., Akron Brick & Block Co., 76 OSAHRC 2/E2, 3 BNA OSHC 1876, 1975-76 CCH OSHD P20,302 (No. 4859, 1976). See also St. Joe Minerals Corp. v. OSHRC, No. 79-1873 (8th Cir. May 6, 1981), slip opinion at 8-9.

[*27]

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We also conclude that the likely result of an incident would have been death or serious physical harm. The record shows that an explosion occurring during reenergization could have been so "earthshaking" as to endanger any person who was in the vault when power was restored. The fatal accident that did occur is further evidence of the potential for death or serious harm from an explosion. Moreover, it also was possible for a person to be electrocuted when the power was restored prematurely.

IV

Finally, we reject WMECO's argument that the citation should be vacated because the Secretary improperly amended the citation n18 in his complaint. n19 Although the complaint added the allegation that the protective tags were removed prematurely, it did not change the essential thrust of the citation that the violation involved premature reenergization of the line before employees were clear of the area. Furthermore, although the Secretary did not state his reasons for seeking the amendment, as is required by Commission Rule 33(a)(3), n20 his failure to do so did not prejudice WMECO because WMECO had notice [*28] of the change well in advance of the hearing n21 and had ample opportunity to prepare to defend against the amended charge. In the absence of prejudice to WMECO, the Secretary's noncompliance with Rule 33(a)(3) does not justify dismissal of the Secretary's case. See P.A.F. Equipment Co., 79 OSAHRC 18/A2, 7 BNA OSHC 1209, 1979 CCH OSHD P23,421 (No. 14315, 1979), Aff'd, No. 79-1398 (10th Cir. Dec. 2, 1980); Schiavone Construction Co., 77 OSAHRC 78/A2, 5 BNA OSHC 1385, 1977-78 CCH OSHD P21,815 (No. 12767, 1977); ASARCO, Inc., El Paso Division, 80 OSAHRC, 8 BNA OSHC 2156, 1980 CCH OSHD P24,838 (No. 79-6850, 1980).

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n18 The citation stated that:

(line 27-5-13) was energized before all employees were clear of the area by the designated employee, and the circuit mechanically activated in a hazardous sequence, after the protective grounding electrodes were removed.

n19 The complaint stated that:

protective tags and protective grounds were removed from electric switching devices without properly checking to insure that employees for whose protection the tags and grounds had been installed were clear of the tagged and grounded lines (#27-5-13); in that the #27-5-13, 13,800 volt feeder was energized before all employees were clear of the area, and before they were reported clear; in that the circuit was mechanically activated in a hazardous sequence; and in that switching instructions were given which could have led to energizing of the 27-5-3 line prior to all employees being clear.

n20 Rule 33(a)(3), 29 C.F.R. 2200.33(a)(3), provides:

2200.33 Employer contests.

(a) Complaint.

* * *

(3) Where the Secretary seeks in his complaint to amend his citation or proposed penalty, he shall set forth the reasons for amendment and shall state with particularity the change sought.

n21 We also note that, while WMECO claims that it did not properly understand the nature of the complaint until the Secretary's counsel made his opening statement at the hearing, WMECO did not request a continuance.

[*29]

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As to the penalty, the Secretary had proposed and the judge assessed an $800 penalty. We find that the gravity of the violation was high as the workers were threatened with the danger of explosions and electrocution. We accord little weight to WMECO's good faith. Although it had received safety awards, it also had failed to enforce its own safety rule. Accordingly, we conclude that a penalty of $800 is appropriate under sections 17(b) and (j) of the Act, 29 U.S.C. 666(b) and (i).

The judge's decision is affirmed. SO ORDERED.