MORRISON-KNUDSEN AND ASSOCIATES

OSHRC Docket No. 76-1992

Occupational Safety and Health Review Commission

October 31, 1980

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Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Kenneth Hellman, U.S. Department of Labor

A. J. Schlanger, Morrison-Knudsen Co., Inc., for the employer

Harold Gordon, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of administrative Law Judge William E. Brennan is before the Commission pursuant to section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   Judge Brennan denied an attempt by the Secretary of Labor ("the Secretary") to use the complaint to amend the citation issued to Morrison-Knudsen and Associates ("Respondent").   The amendment, among other things, would have added an allegation of willful violation of the Act. n1 Because he denied the motion to amend, the judge did not reach the question of whether the Secretary established that Respondent's failure to comply with 29 C.F.R. § §   1926.800(1)(1) and .402(a)(8) n2 constituted a willful violation. Chairman Cleary granted the Secretary's petition for discretionary review to determine:

1.   Whether the Administrative Law Judge erred by failing to grant the Secretary's motion to amend [*2]   Citation No. 4 from the original "serious" characterization of the alleged violation to allege one "serious" and one "willful" violation, and to amend the penalties proposed for these alleged violations accordingly; and

2.   Whether Respondent willfully failed to comply with the standard at 29 C.F.R. §   1926.402(a)(8).

We reverse the judge's denial of the Secretary's motion to amend. We further find that the record supports the Secretary's allegation of willfulness.

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n1 Section 17(a) of the Act, 29 U.S.C. §   666(a), states:

Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of not more than $10,000 for each violation.

n2 29 C.F.R. §   1926.800(1)(1) provides:

§   1926.800 Tunnels and Shafts

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(1) Electrical equipment. (1) Electrical equipment shall conform to the requirements of Subpart K of this part.

29 C.F.R. §   1926.402(a)(8) provides:

Subpart K - Electrical

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§   1926.402 Equipment installation and maintenance.

(a) Flexible cable and cords

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(8) Cable passing through work areas shall be covered or elevated to protect it from damage which would create a hazard to employees.

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I.

Respondent was the prime contractor on a construction project involving two parallel, connected subway tunnels in the District of Columbia.   Its principal officials at the work-site were the Project Manager, Gunn; the General Electrical Superintendent, Bloom; the Safety Superintendent, MacInnis; and the Electrical Superintendent, Shanks.   A subcontractor, Tunnel Electric Company, was responsible for installing and maintaining the temporary electric lighting and power which illuminated the work areas and propelled some of the equipment.   However, Respondent's officials established the number of electricians on the job and the amount of permissible overtime.   In addition, Shanks gave Tunnel Electric Company's foreman, Hughes, daily instructions regarding work assignments for the electricians.

At some time prior to the violation under review, the workplace was apparently in compliance with the cited standard, section 1926.402(a)(8).   Thus, the power for the electric lighting was supplied through a 480 volt cable which was elevated and suspended from hooks along the tunnel walls.   Bloom was aware of [*4]   the requirements of section 1926.402(a)(8) when the project began.   Furthermore, Respondent's own corporate safety manual contained a provision virtually identical to the standard. n3 Nevertheless, one of Respondent's tasks was to line the tunnel walls with concrete and this concrete-pouring operation could not be accomplished if the elevated cable obstructed access to the wall.

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n3 Respondent's safety manual provided at section 1518.402(a)(8) that "Cable passing through work areas shall be covered or elevated, protected from damage which would create a hazard to employees." This, as Judge Brennan noted, is almost a verbatim recitation of the Occupational Safety and Health Administration ("OSHA") standard at 29 C.F.R. §   1926.402(a)(8).   See note 2 supra. It is also noteworthy that this OSHA standard was formerly numbered 29 C.F.R. §   1518.402(a)(8) until the regulations in 29 C.F.R. Chapter XIII (Bureau of Labor Standards) were transferred to 29 C.F.R. Chapter XVII (OSHA) and redesignated.   See 36 F.R. 25232 (Dec. 30, 1971).

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Initially, when pouring concrete in the outbound tunnel, Respondent had solved this problem by routing the elevated cable up the inbound tunnel, passing it through a "cross-adit" (a cross-over point connecting the tunnels), and feeding it back down the outbound tunnel to the area where the concrete-pouring was taking place.   By "back-feeding" in this manner, Respondent kept the cable elevated without impeding the progress of the work.   Yet, when it came time to install concrete in the inbound tunnel, Respondent decided not to use the back-feeding technique.   Instead, Shanks directed Hughes to place the 480 volt cable on the "invert," the floor of the tunnel. When Hughes objected that this would be unsafe, n4 Shanks informed him that there was not enough time to do the job another way.   Consequently, the cable was dropped along the invert as the concrete-pouring proceeded down the inbound tunnel at a rate of approximately 200 feet each day.   Respondent apparently intended to re-hang the cable as the concrete pouring was completed.   Indeed, MacInnis warned Shanks that the cable should be elevated and, in turn, Shanks told Hughes that the cable should be elevated. The   [*6]   electricians, though, could not keep pace with the advance of the concrete-pouring, along with their other assignments.   At the same time, Respondent began to exceed its $30 million contract for the project.   It therefore refused to authorize most overtime for the electricians or to hire additional help.   Shanks so often assured Hughes that the electrical problems would be corrected when they had "free time" that, according to Hughes, this promise became a running joke between them, provoking laughter by Shanks.

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n4 The concrete-pouring operation used heavy equipment, such as mobile scaffolds for installing reinforcing bar and finishing cement and a radius car for laying concrete. Thus, the potential for damage to the cable and the resultant hazard to employees were apparent.

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Prompted by a worker's confidential complaint, an OSHA compliance officer inspected Respondent's worksite.   Although there was subsequently a dispute as to how long the 480 volt cable lay on the invert, n5 it is uncontroverted that, at the time [*7]   of the inspection, some 3000 feet of the energized cable were mired in water, spilled concrete, mud and debris.   The cable had been physically damaged; its insulation was broken and its conductors exposed.   Furthermore, it was looped around an air line and, in some places, in contact with -- even lying on top of -- the metal tracks in the inbound tunnel. The compliance officer also found approximately 75 feet of an energized 7200 volt electrical cable lying in mud and debris on the invert of the outbound tunnel at a cross-adit within three feet of the track on which heavy equipment was moving.   The compliance officer determined that a hazard existed because contact with an energized, damaged conductor would result in a short circuit or fault and could energize the rails or anything metal in the vicinity.   Moreover, anyone passing by at the moment of contact could be burned or struck by flying material as a result of an explosion or short bursts of fire.   No employee injuries were ever attributed to the alleged hazard although, in the course of trying to free a section of the 480 volt cable (which had become embedded in hardened, spilled concrete on the invert), an electrician struck [*8]   the cable with a pick-axe, causing smoke, gases and sparks in the immediate vicinity for approximately one minute before the cable shorted out.

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n5 The OSHA compliance officer testified at the hearing that Shanks, MacInnis and Hughes had told him during the inspection the cable had been down for some six weeks.   Shanks testified that it had been down only fourteen working days.

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II.

As a result of the inspection, Respondent was issued a citation that alleged a serious violation of the Act for failure to comply with the standard at 29 C.F.R. §   1926.402(a)(8) in that the 480 volt cable and the 7200 volt cable were neither elevated nor covered to protect them from damage which would create a hazard to employees.   The proposed penalty for this alleged violation, which made reference to both cables, was $1,000.00.   Respondent gave timely notice of contest.

Approximately eleven weeks following the issuance of the citation, the Secretary filed a complaint which in pertinent part rephrased the description of the violation [*9]   involving the two cables, added an allegation that the violation regarding the 480 volt cable was willful, and revised the proposed penalty to recommend $1,000.00 for the 7200 volt cable and $5,000.00 for the 480 volt cable. n6 Respondent objected to the Secretary's attempted amendment of the citation both in its answer and at the outset of the hearing.   Judge Brennan reserved his ruling regarding what he deemed to be the Secretary's motion to amend, pending presentation of evidence and argument in the briefs of both parties.   The hearing began five months after the filing of the complaint, convened for two days of the Secretary's case, recessed for two months because of scheduling difficulties, then reconvened for three days while the Secretary concluded his case and Respondent presented its case.   In his subsequent decision, Judge Brennan affirmed the citation (incorporating both cables) as issued and assessed the $1,000.00 penalty proposed originally.   The judge denied the Secretary's motion to amend the citation in order to treat each of the cables as a discrete violation of the cited standard and to charge that the violation regarding the 480 volt cable was "willful".   He reasoned [*10]   that such an amendment would significantly change both the legal theory of the case and the legal burdens of the parties, to the prejudice of Respondent.   He also denied the Secretary's attempt to revise the proposed penalty, on the ground that the wording of the amendment ". . . defies accurate analysis . . . [and is] vague and unclear." As a result, although the issue was fully explored at the hearing, the judge failed to consider whether the elements of a willful violation had been proved concerning the 480 volt cable. Nevertheless, on the merits, Judge Brennan ruled that the "creditable" evidence of record conclusively established a violation of the cited standard as to both the 480 volt cable and the 7200 volt cable.

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n6 The relevant paragraphs in the Secretary's complaint provide as follows:

XI

(a) The aforesaid inspection of respondent's worksite further revealed that on or about February 24, 1976, the respondent violated the standards at 29 C.F.R. 1926.800(1)(1) and 29 C.F.R. 1926.402(a)(8) in that electrical cable passing through work areas was not covered or elevated to protect it from damage which would create a hazard to employees in that:

(1) the 7200 volt energized Mine Power Feeder Cable in the outbound tunnel at the cross adit of Shaft 4 was on the floor or invert of the tunnel.

(2) The 480 volt Interloc Armor Cable used for lighting service was on the floor or invert of the inbound tunnel between shafts 2 (132 + 80) and 4 (164 + 50) for approximately 3000 linear feet.

(b) The citation alleged in paragraph XI(a) differs from that alleged in the Secretary's Citation No. 4 for Serious Violation of April 1, 1976, in that:

(1) Locations of alleged violations are given in more specifit detail.

(2) The standard allegedly violated is applied to respondent by 29 C.F.R. 1926.800(1)(1).

The above statements are made pursuant to Commission Rule of Procedure 29 C.F.R. 2200.33(a)(2) and are necessary to allege both the factual and legal charges with greater specificity than the citation.

XVIII

(a) The violation alleged in paragraph XI(a)(2), supra, was a willful violation within the meaning of Section 17(a) of the Act.

(b) The nature of the violation alleged in paragraph XI(a)(2), supra, differs from that alleged in the Secretary's Citation No. 4 for serious violation of April 1, 1976, in that it has been changed from serious to willful, as indicated in paragraph XVIII, supra. The above amendment is made pursuant to Commission Rule of Procedure 29 C.F.R. 2200.33(a)(3) and is necessary to accurately reflect the proper nature of the alleged violation as revealed by further investigation.

XXI

(a) For the violations alleged in paragraphs VI(a), VII(a), VIII(a), IX(a), X(a), XI(a)(1) and (2), XII(a), XIII(a) and XIV, supra, penalties of $0, $85.00, $60.00, $1,000.00, $1,000.00, $1,000.00, $5,000.00, $320.00, $0 and $500.00, respectively, totalling $8,965.00, are proposed.   The penalties were proposed after due consideration was given to respondent's good faith, size, history of previous violations, and the gravity of each violation and are appropriate within the meaning of Section 17(j) of the Act.

(b) The penalties proposed in paragraph XXI(a) differ from those proposed in the Secretary's Notification of Proposed Penalty of April 1, 1976 in that the proposed penalties for the violations alleged in paragraphs XI(a)(1) and (2), supra, and XIII(a), supra, have been amended from $1,000.00 and $200.00, respectively, to $1,000.00, $5,000.00 and $0, respectively.

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III.

On review, the Secretary argues that the judge should have permitted the amendment and found a willful violation based upon "the overwhelming evidence of record." On the question of the amendment, the Secretary notes that enforcement of the Act would be impaired if the Secretary were bound by narrow construction of citations drafted by non-legal personnel.   The Secretary states that an administrative law judge may permit amendment of both the charge and the proposed penalty where there is no surprise or prejudice to the respondent.   The Secretary asserts that the amendment came at the earliest possible involvement of counsel -- the June 18, 1976 filing of the complaint -- and that the hearing for the case did not take place until five months later.   Furthermore, the Secretary insists that Respondent never specifically challenged the amendment from serious to willful until the opening of the hearing and that, due to the two month hiatus in the hearing, Respondent was afforded ample time both to prepare its own case and to rebut the Secretary's.

Respondent, in contrast, commends Judge Brennan's   [*12]   determination that the Secretary's amendment would prejudice Respondent by significantly changing the legal theory of the case and the respective burdens of the parties.   Respondent also points out that Paragraph XVIII of the Secretary's complaint alleges that the amendment was the result of "further investigation." n7 Since, in Respondent's view, the Secretary failed to prove that further investigation had revealed new information necessitating the amendment, Respondent suggests that the amendment's purpose was to penalize it for having contested the original citation.   Finally, Respondent charges that the Secretary apparently failed to honor the OSHA Field Operations Manual's amendment procedures because there was no showing that the amendment was authorized by the Regional Director or the Assistant Regional Director.

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n7 See note 6 supra.

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On the issue of willfulness, the Secretary contends that Respondent acted in a manner indicating both plain indifference to the Act's requirements and reckless disregard for [*13]   employee safety.   He argues that a conscious, intentional, deliberate, voluntary decision is properly described as willful, regardless of venial motive.   The Secretary also urges a willfulness finding where the employer, though not consciously violating the Act, acted in reckless disregard of a known hazard. The Secretary then presents the facts in the record, which he believes establish that the violation involving the 480 volt cable was willful.

Finally, the Secretary charges that Respondent's asserted reliance upon the efficacy of the ground fault circuit interrupter system in the cable as adequate assurance of employee safety is "a fiction created by an interested witness in anticipation of litigation." According to the Secretary, even if the 480 volt cable was equipped with such a device, it was not sufficient to protect against the hazards presented here.   In any event, the Secretary argues, an employer's private determination that a condition is not hazardous, in the presence of a violation, will not negate a finding of willfulness.

Respondent first cites Frank Irey v. OSHRC and Secretary of Labor, 519 F.2d 1200 (3rd Cir. 1974), in arguing that "willfulness connotes   [*14]   defiance or such reckless disregard of consequences as to be equivalent to a knowing, conscious, and deliberate flaunting of the Act. . . .   [M]ore than merely voluntary action or omission -- it involves an element of obstinate refusal to comply." Respondent then points to the formulation in Graven Brothers & Co., 76 OSAHRC 40/A5, 4 BNA OSHC 1045, 1975-1976 CCH OHSD P20,544 (No. 2538, 1976), and Quillian Pipe Co., Inc., 77 OSAHRC 33/D12, 5 BNA OSHC 1151, 1977-78 CCH OSHD P21,627 (Nos. 10803 and 10804, 1977), that willfulness connotes an act done voluntarily which either intentionally disregards a standard's requirements or demonstrates a plain indifference to the Act.   Respondent asserts that, under either of the above tests, the Secretary failed to carry the burden of proof by a preponderance of the evidence on the issue of willfulness.

Respondent further insists that no evidence was adduced to show that its representatives knew of the standard.   At most, the record shows that the subcontractor's foreman did not think that it was safe to place the cable on the ground and that he communicated this to Respondent's electrical superintendents.

Finally, Respondent points to the [*15]   Commission's rejection of a willfulness characterization in Quillian Pipe Co., Inc., supra, where the Commission apparently relied upon a finding that the employer believed that it was in compliance with the cited standard.   Respondent here asserts that it, too, "believed and still does believe that it was in compliance with the standards cited . . . ." In support of this contention, Respondent argues that the 480 volt cable was "covered" within the meaning of section 1926.402(a)(8) and that the ground fault circuit interrupter negated the exposure of Respondent's employees to the hazard associated with the 480 volt cable. We interpret this argument as raising a recognized defense to a willful charge, i.e., an employer's good faith effort at compliance. n8 Wright & Lopez, 80 OSAHRC    , 8 BNA OSHC 1261, 1980 CCH OSHD P24,419 (No. 76-3743, 1980), appeals docketed, No. 80-1569 (D.C. Cir. May 27, 1980) (Respondent), No. 80-1704 (D.C. Cir. June 25, 1980) (Secretary); Williams Enterprises, Inc., 79 OSAHRC 24/A2, 4 BNA OSHC 1663, 1976-1977 CCH OSHD P21,071 (No. 4533, 1976), aff'd, No. 79-1599 (D.C. Cir. June 9, 1980).

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n8 Our consideration, infra, of Respondent's arguments that it believed both that the cable was "covered" and also that the ground fault circuit interrupter afforded adequate protection against cable damage which would create a hazard to employees is strictly limited to assessing their relevance to the possible defense against the willfulness allegation, based on good faith effort at compliance.   Respondent makes several additional arguments in opposition to the allegation of willfulness. It challenges the existence of the violation, denies that any of its employees were exposed or had access to the hazard, and asserts that the Secretary failed to establish feasible alternative measures for compliance.   However, Judge Brennan rejected all of these arguments in the course of finding that Respondent failed to comply with the cited standard as to both the 480 volt cable and the 7200 volt cable and we have not directed review on the issue of whether the Act was violated.   Thus, this issue is not before us.   Accordingly, we do not consider those arguments of Respondent that go to the merits of the violation.

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IV.

In P.A.F. Equipment Co., 79 OSAHRC 18/A2, 7 BNA OSHC 1209, 1979 CCH OSHD P23,421 (No. 14315, 1979), appeal docketed, No. 79-1398 (10th Cir. May 7, 1979), we reversed a judge's ruling denying the Secretary's motion, made in his complaint, to amend a citation in order to allege a willful rather than a serious violation and to amend the proposed penalty from $700.00 to $5,600.00.   We noted that the Commission has consistently approved pre-hearing amendments where there is no showing by the party objecting to the amendment that it would be prejudiced in the preparation or presentation of its case.   We observed that amendment well before the hearing will rarely result in prejudice.   We also rejected the employer's contention that the amendment resulted in an impermissible change in the cause of action.

Our decision in P.A.F. Equipment Co. compels reversal of the judge's determination in the case now before us. n9 Here, the violation alleged in the complaint was based on the same facts and on a failure to comply with the same standard as the violation alleged in the citation.   Even though the amendment   [*18]   created two alleged violations out of one, the legal theory of the case remained unchanged by the amendment.   Accordingly, under P.A.F. Equipment Co., the amendment is permissible unless the record establishes prejudice to Respondent.   The amendment came at the earliest involvement of counsel -- the filing of the complaint -- and was made five full months prior to the hearing.   Thus, Respondent cannot claim surprise.   See Miller Brewing Co., 80 OSAHRC    , 7 BNA OSHC 2155, 1980 CCH OSHD P24,168 (No. 78-3216, 1980).   Furthermore, due to the lengthy interval between hearings, Respondent had the additional advantage of being able to consider most of the Secretary's case for two months prior to presenting its defense to the willful characterization. There is no evidence that Respondent was in any way hindered in the preparation or presentation of its case.   No prejudice to Respondent is apparent and none was proved.

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n9 It should be note that Judge Brennan made his ruling in this case prior to our decision in P.A.F. Equipment Co.

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The judge also rejected the Secretary's amendment of the proposed penalty on the ground that it is vague and unclear.   We disagree.   While the penalty provisions of the complaint are not expressed as clearly as they might have been, the judge's characterization that they defy accurate analysis is overstated.   We read the Secretary's amendment here to charge a "serious" violation of the Act and propose a $100.00 penalty as to the 7200 volt cable and to charge a "willful" violation of the Act and propose a $5000.00 penalty as to the 480 volt cable. In the complaint, n10 Paragraph XI(a)(1) refers to the 7200 volt cable while XI(a)(2) refers to the 480 volt cable. Paragraph XVIII(b) states that the classification of the violation alleged in Paragraph XI(a)(2) was changed from serious to willful. Paragraph XXI, which amends the Secretary's proposed penalties, twice refers to ". . . violations alleged in paragraph . . . XI(a)(1) and (2) [emphasis added]." had the Secretary intended to treat these two discrete sub-items as a single violation for penalty purposes, he would have referred to XI(a) -- not to XI(a)(1) and (2) -- as he did with respect [*20]   to all of the other alleged violations listed in Paragraph XXI (e.g., "For the violations alleged in paragraphs VI(a), VII(a), VIII(a), IX(a), . . . ."). n11

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n10 See note 6 supra.

n11 On review, Respondent raises two other objections to the amendment.   First, it charges that the Secretary failed to honor the OSHA Field Operations Manual's (F.O.M.) amendment procedures, since there was no showing that the amendment was authorized by the Regional Director or the Assistant Regional Director.   Second, it intimates that the Secretary's amendment and enhanced proposed penalty were in retaliation for filing the notice of contest.   With respect to the F.O.M., it is well settled that the manual is merely directory and serves only as an internal administrative guide for OSHA.   It does not have the force of law and is not binding on either the Secretary or the Commission.   P.A.F. Equipment Co., supra; FMC Corporation, 77 OSAHRC 153/D4, 5 BNA OSHC 1707, 1977-1978 CCH OSHD P22,060 (No. 13155, 1977).   As to the matter of retaliation, we find that Respondent's claim is unsupported by the record.

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Accordingly, we reverse the judge's ruling on the motion and grant the Secretary's amendment of the citation to charge a separate, willful violation of the Act for failure to comply with the cited standard regarding the 480 volt cable and to propose a $5,000.00 penalty for this violation.

V.

The remaining substantive issue is whether Respondent's failure to comply with the cited standard with respect to the 480 volt cable was proved by the Secretary to be willful. A willful violation is action taken knowledgeable by one subject to the statutory provisions of the Act in disregard of the action's legality.   Stone & Webster Engineering Corp., 83 OSAHRC    , 8 BNA OSHC 1753, 1980 CCH OSHD P24,646 (No. 15314, 1980), appeal withdrawn, No. 80-1605 (1st Cir. Sept. 25, 1980); Intercounty Construction Co. v. OSHRC, 522 F.2d 777 (4th Cir. 1975), cert. denied, 423 U.S. 1072 (1976). It is conduct that results from a conscious, intentional or voluntary decision.   A showing of malicious intent is unnecessary.   Kent Nowlin Construction Inc., 77 OSAHRC 22/A2, 5 BNA OSHC 1051, 1977-78 CCH [*22]   OSHD P21,550 (No. 9483 et al., 1977), aff'd in part and rev'd in part, 593 F.2d 368 (10th Cir. 1979). Furthermore, the Commission has found conduct to be willful when marked by a careless disregard of a standard or of employee safety.   National Steel & Shipbuilding Co., 78 OSAHRC 48/A2, 6 BNA OSHC 1680, 1978 CCH OSHD P22,808 (Nos. 11011 & 11769, 1978), aff'd, 607 F.2d 311 (9th Cir. 1979); Constructora Maza, Inc., 78 OSAHRC 6/E2, 6 BNA OSHC 1309, 1977-78 CCH OSHD P22,487 (Nos. 13680 & 14509, 1978).

We find that the evidence establishes a willful violation of the Act as to the 480 volt cable. Bloom's admission that he knew of the specific requirements of the cited standard, coupled with Respondent's virtual adoption of the standard in its safety manual, leads us to conclude that Respondent had actual knowledge of its obligation under the Act.   Despite the warning by Hughes and in disregard of the requirements of the Act, Respondent consciously, intentionally, deliberately and voluntarily chose to violate the standard by removing the cable from its elevated position and dropping it on the invert where it could be -- and was -- damaged. Such conduct manifests [*23]   an intentional disregard of or at least a plain indifference to the Act's requirements.   See Cedar Construction Co., 77 OSAHRC 63/A2, 5 BNA OSHC 1611, 1977-78 CCH OSHD P21,772 (No. 10929, 1977), aff'd, 587 F.2d 1303 (D.C. Cir. 1978); Quillian Pipe Co., Inc., supra.

Moreover, Respondent had actual knowledge of the hazard created by its noncompliance.   Bloom had observed similar 480 volt cables damaged on other projects and admitted that "damage to cable is an inherent part of tunnel operations." Gunn, MacInnis and Shanks all admitted having been aware prior to the inspection that the 480 volt cable lay on the invert. MacInnis told Shanks several times that the cable should be re-hung clear of the working area so that it would not be damaged; he testified at the hearing that Shanks had agreed to do so.   Hughes protested to Shanks that it was unsafe to lay electric cable in water where men were working.   Shanks acknowledged at the hearing that there could be a hazard to employees if the ground fault circuit interrupter system were not working properly on the cable. n12 Nevertheless, Respondent failed to correct the condition it recognized as hazardous.   Indeed,   [*24]   Shanks would neither authorize overtime for this purpose, permit non-emergency repairs during regular working hours (since this would have necessitated a suspension of other work in the darkened tunnel), nor hire additional electricians.

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n12 A ground fault circuit interrupter system in a cable senses a leak of current to ground and then shuts off the flow of power in the conductors.

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In addition, Respondent knew that there was a feasible alternative method of dealing with the cable that would permit the concrete-pouring to be accomplished, the hazard to be mitigated, and the standard to be honored.   That alternative method was back-feeding the cable through the adjacent tunnel. At the very least, the dropped cable could have been promptly re-hung as the concrete-pouring progressed down the tunnel in 200-foot daily increments. n13 Yet, Respondent made no apparent effort to correct the dangerous condition and continued to drop additional cable on the invert -- for at least fourteen working days and perhaps for as long [*25]   as six weeks -- until prompted to act by the arrival of the compliance officer.   Only then were additional electricians hired.   The record strongly suggests that Respondent's unwillingness either to hire more electricians or to permit overtime in order to repair and re-hang the cable was motivated by cost at the expense of safety.   Indeed, Judge Brennan specifically noted that the extent of the electrical deficiencies detected on the project was largely attributable to Respondent's opposition to overtime pay for the electricians. Respondent's prolonged toleration of the continuing electrical hazard is properly characterized as a careless disregard of employee safety and thus a willful violation of the Act. n14 See Constructora Maza, Inc., supra.

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n13 The judge determined that back-feeding and re-hanging constituted feasible measures which were available to Respondent to avoid the violative conditions.

n14 In arguing against a finding of willfulness here, Respondent cites Frank Irey v. OSHRC and Sec. of Labor, 519 F.2d 1200 (3rd Cir. 1974), for the proposition that "willfulness connotes defiance or such reckless disregard of consequences as to be equivalent to a knowing, conscious, and deliberate flaunting of the Act. . . .   [M]ore than merely voluntary action or omission -- it involves an element of obstinate refusal to comply." Under this test, Respondent asserts that the Secretary failed to carry his burden of proof on the issue of willfulness. The Commission, however, has consistently rejected the Irey test. E. g., Tri-City Construction Co., 80 OSAHRC    , 8 BNA OSHC 1567, 1980 CCH OSHD P24,557 (No. 77-3668, 1980).

In any event, we note that the Third Circuit discussed its Irey decision in Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160 (3rd Cir. 1980). The court observed that a conflict concerning the definition of the term "willful" has developed because of "several courts of appeals reading into our Irey definition a requirement that the employer act with 'bad purpose.' Read in this fashion, Irey has not been followed by some circuits." Id. at 1167 (footnote omitted).   The court, however, concluded that "there is little, if any, difference between our [willfulness] approach and that taken by . . . other courts." Id. See also, Universal Auto Radiator Manufacturing Co. v. Marshall and OSAHRC, No. 79-2557 (3rd Cir. September, 15, 1980).

  [*26]  

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When an employer makes a good faith effort at compliance, the Commission has not found a violation to be willful. Wright & Lopez, supra; Williams Enterprises, Inc., supra. Respondent raises two arguments designed to suggest its good faith effort at compliance.   See note 8 supra. First, Respondent asserts its belief that, although the 480 volt cable was not elevated, it was covered.   See note 2 supra. The cable consisted of copper conductors, insulated by a layer of cross-link polyethylene, and three bare ground wires, all wrapped successively in cable tape, then in corrugated steel interlocking "armor" and, finally, in a polyvinyl chloride jacket.   In Respondent's view, the protective layers around the wiring constitute a "cover" within the meaning of the standard.

The question of whether the cable was "covered" was a subject of considerable controversy at the hearing.   Respondent argued that the standard is unconstitutionally vague because it fails to define the word "covered." Alternatively, in the absence of a specific definition within the standards, Respondent referred   [*27]   to the National Electrical Code as well as to standards promulgated by the Insulated Power Cable Engineering Association to support its claim that its cable was "covered." Both of these arguments were rejected by Judge Brennan, who characterized Respondent's interpretation of the standard as a "tortured and patently unrealistic argument."

We conclude that the record does not establish that Respondent had a good faith belief that it was in compliance with the standard because the conductors had a protective covering.   Whatever characteristics may be implied by "covered", the standard by its clear terms requires that the covering be sufficient to protect the cable from damage.   Tunnel Electric Constr. Co., 80 OSAHRC    , 8 BNA OSHC 1961, 1980 CCH OSHD P24,706 (No. 76-1803, 1980).   Here, the fact that the cable was damaged on the floor of the tunnel confirms that the covering was not sufficient to protect from damage.   Consequently, we concur with the judge that the record conclusively establishes that the cable was not covered in a manner that met the standard's requirements.   We therefore adopt his conclusion on this issue.   See Gulf Oil Co., 77 OSAHRC 216/B10,   [*28]   6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 19281, 1977).   Under the circumstances, there was no reasonable basis for Respondent to conclude that the cable was in compliance with the standard.   See Brown and Root, Inc., 79 OSAHRC 20/A2, 7 BNA OSHC 1215, 1979 CCH OSHD P23,435 (No. 13685, 1979).

As a second argument in support of its claim of good faith effort at compliance, Respondent implies that the ground fault circuit interrupter device in the 480 volt cable afforded adequate protection to employees against electrical shock hazards. We accept Judge Brennan's finding that the record establishes either the lack of any such device in the cable or its inoperative condition.   The record also indicates that a ground fault circuit interrupter does not actually prevent short circuits, although it limits their duration.   Consequently, this device does not assure protection against electrocution.   Indeed, Respondent's electrical superintendent acknowledged that the ground fault circuit interrupter might fail and expose employees to a hazard. Furthermore, in light of Respondent's expressed intention -- though never carried into practice -- of re-hanging the cable, Respondent cannot [*29]   convincingly claim that it failed to do so in the mistaken belief that its employees were safe while working in the narrow confines of a tunnel, close to an energized, damaged 480 volt electrical cable and in the presence of damaging agents such as mobile scaffolds, a radius car and other heavy equipment.   Under these circumstances, we reject Respondent's argument that the ground fault circuit interrupter constitutes compelling evidence of Respondent's good faith effort at compliance.

VI.

Having determined that the judge should have permitted the Secretary to charge two discrete violations of the cited standard and that the Secretary established Respondent's willfulness regarding the violation involving the 480 volt cable, we must consider the appropriateness of the amended proposed penalties in the amount of $5,000.00 for the 480 volt cable violations and $1,000.00 for the 7200 volt cable violation. n15 Judge Brennan noted that Respondent is a large contractor with over 100 employees working on several different sites on the subway construction project in Washington, D.C.   The contract at this particular site was for $30 million.   Respondent had received four previous citations [*30]   in connection with its work at this site and additional citations at other sites in the Washington, D.C. area.   These citations and the conditions which the compliance officer found at this site belie Respondent's reportedly exemplary written safety program.   As to gravity, the following elements must be considered: (1) the number of employees subjected to the hazard, (2) the duration of exposure, (3) the precautions taken against injury, and (4) the degree of probability that an injury would occur.   Turner Co., 76 OSAHRC 108/A2, 4 BNA OSHC 1554, 1976-1977 CCH OSHD P21,023 (No. 3635, 1976), rev'd on other grounds, 561 F.2d 82 (7th Cir. 1977). Here, the estimates of the number of employees subjected to the hazard ranged from four to twenty-five.   The duration of the exposure was from fourteen working days to six weeks.   Respondent apparently took no precautions regarding the dropped cable until the arrival of the compliance officer.   In the context of the presence in the tunnel of numerous damaging agents, the number of incidents of cable damage attets to the probability that an injury would occur.   We consider the gravity of the violation involving the 480 volt cable as well [*31]   as the gravity of the violation involving the 7200 volt cable to be relatively high.   We therefore conclude that the proposed penalties are reasonable and appropriate in light of the record and the statutory penalty criteria set forth at section 17(j) of the Act, 29 U.S.C. §   666(i).

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n15 Penalties are assessed by the Commission.   Penalties recommended by the Secretary are merely advisory.   29 U.S.C. §   661(i); Long Mfg. Co., 554 F.2d 903 (8th Cir. 1977).

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Accordingly, we reverse the judge's denial of the Secretary's motion to amend the original citation, affirm the citation for a willful violation of the Act with respect to the 480 volt cable, and assess penalties in the amount of $5,000.00 and $1,000.00 for the violations involving the 480 volt cable and the 7200 volt cable, respectively.   SO ORDERED.