Docket No. 76-2044

MISSISSIPPI POWER AND LIGHT COMPANY

OSHRC Docket No. 76-2044

Occupational Safety and Health Review Commission

December 31, 1979

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

George D. Palmer, Assoc. Reg. Sol., USDOL

E. Grady Jolly and Micheal Farrell, for the employer

OPINION:

DECISION

BY THE COMMISSION:

Mississippi Power and Light Company (Mississippi Power) was charged with violating the general duty clause, n1 § 5(a)(1) of the Occupational Safety and Health Act, n2 for exposing its employees to the hazard of electrical shock while attempting to move a live, ungrounded electrical power line. The citation was vacated by Administrative Law Judge Alan M. Wienman and the Secretary of Labor petitioned for review of the case. We conclude that citation to the general duty clause was inappropriate because of the applicability of specific standards to the cited condition and that amendment to the applicable standards at this time would be improper under Rule 15(b) of the Federal Rules of Civil Procedure. Accordingly, we affirm the judge's vacation of the citation.

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n1 29 U.S.C. § 654(a)(1). This section provides as follows:

Each employer 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.

n2 Id. § § 651-678.

[*2]

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On April 8, 1976, Mississippi Power sent a three-man crew, consisting of two linemen and an equipment operator, to a site near Crenshaw, Mississippi, to replace a 30-foot utility pole supporting an 8,000 volt power line with a new 35-foot pole. After setting the new pole in the ground, senior lineman Richard Williamson and journeyman lineman Zane Culpepper discussed how to transfer the line. They agreed that Williamson would deenergize the line and signal Culpepper, who would then wrap a cable hoist around the pole and put a guy grip on the existing guy to stabilize the pole, so the wire could be transferred to the new pole. Williamson walked down the line to a pole on which a switch was located, opened the switch, and, by means of a hand signal, indicated to Culpepper that the line was deenergized. Williamson then realized that the line was controlled by a clamp on the pole rather than the switch he had opened, and that the line was therefore still live. As he started to signal Culpepper again to warn him of this, he saw Culpepper fall. Although the record does not definitely establish the [*3] cause of Culpepper's death, we infer that he was electrocuted as a result of contacting the line that Williamson had unsuccessfully attempted to deenergize.

Mississippi Power has a safety rule requiring employees working on existing power lines to "ground it or glove it." Under this rule, even if a line is deenergized, it must be grounded or employees must wear rubber insulated gloves while working on it. The rule is contained in Mississippi Power's safety manual, which states:

All existing primary and secondary lines are to be considered hot unless properly grounded. If not properly grounded they shall be worked with rubber gloves.

Additionally, Mississippi Power displays safety posters, which Williamson testified he sees "nearly every day," reading:

Ground it or consider it hot. Opening a switch is not enough. Go all the way!

The safety manual provides the following explanation for the rule:

Accidents can occur when working on lines that are not grounded by:

(a) Contact with other energized wires, or through backfeed from banked transformer secondaries.

(b) Induced voltages built up in the dead lines as a result of being parallel to other lines carrying current.

(c) [*4] Induced voltages built up in the dead line as a result of a heavy surge on a paralleling line, or from lightning.

In this instance, Williamson and Culpepper decided not to comply with the rule while moving the line from one pole to the other. Williamson explained that the weather was clear so that there was no possibility of lightning, they could see both ends of the line, and they could see that there were no nearby lines that could cause the line to become energized. They therefore decided that if the line was deenergized, it was safe to work on it without grounding it or wearing rubber gloves. Williamson also testified that he and Culpepper had agreed not to follow the rule on some previous occasions.

At the time of the accident the crew's supervisor, Jim Pilgrim, was not at the worksite. He was stationed at Mississippi Power's office in Marks, Mississippi. Although the crew met with him every morning before going to their worksite, he visited them on the job only "from time to time."

Shortly after Culpepper's fatal accident, a Department of Labor compliance officer inspected the worksite. Following the inspection a citation alleging a general duty clause violation and [*5] proposing a penalty of $600 was issued to Mississippi Power. The citation charged:

Failure to furnish to each employee a place of employment which is free from recognized hazards that are likely to cause death or serious physical harm to employees, in that employees working on an eight kilovolt electrical distribution line on a rural road approximately five miles west of Crenshaw, Mississippi were exposed to the hazard of electrical shock while attempting to move the distribution line which had not been proved to be deenergized or grounded.

After a hearing on the citation, Judge Alan M. Wienman found that Williamson, the senior lineman, was not a supervisor and thus his knowledge of the alleged violative condition could not be imputed to Mississippi Power. The judge also noted that the Secretary did not suggest any alternative theories for holding that Mississippi Power should have known that Williamson's crew had a history of ignoring safety procedures. Additionally, according to the judge, it was not contended that Mississippi Power had reason to believe prior to the accident that its safety policy was not effectively communicated to the line crews. The judge also stated that [*6] no pleadings or testimony suggested feasible corrective measures. Accordingly, Judge Wienman vacated the citation.

In his petition for review of the judge's decision, the Secretary moved that the citation be amended pursuant to Federal Rule of Civil Procedure 15(b) to add in the alternative an allegation that Mississippi Power had violated the standards set out at 29 C.F.R. § § 1926.954(a) and 1926.950(c). n3 On review, the Secretary's primary argument is that Mississippi Power failed to comply with these standards and the citation and complaint should be amended to allege violation of them.

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n3 29 C.F.R. § 1926.954(a) states the following:

Grounding for protection of employees.

(a) General. All conductors and equipment shall be treated as energized until tested or otherwise determined to be deenergized or until grounded.

29 C.F.R. § 1926.950(c) provides the following:

General requirements.

* * *

(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 energized part (gloves or gloves with sleeves rated for the voltage involved 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), as during live-line bare-hand work.

(2)(i) The minimum working distance and minimum clear hot stick distances stated in Table V-1 shall not be violated. The minimum clear hot stick distance is that for the use of live-line tools held by linemen when performing live-line work.

(ii) Conductor support tools, such as link sticks, strain carriers, and insulator cradles, may be used: Provided, That the clear insulation is at least as long as the insulator string or the minimum distance specified in Table V-1 for the operating voltage.

TABLE V-1
ALTERNATING CURRENT	MINIMUM DISTANCES
Voltage range	Minimum working
(phase to phase)	and clear hot
kilovo't	stick distance
2.1 to 15	2 ft. 0 in.
15.1 to 35	2 ft. 4 in.
35.1 to 45	2 ft. 6 in.
46.1 to 72.5	3 ft. 0 in.
72.6 to 121	3 ft. 4 in.
138 to 145	3 ft. 6 in.
161 to 169	3 ft. 8 in.
230 to 242	5 ft. 0 in.
345 to 362	7 ft. 0 in.
500 to 552	11 ft. 0 in.
700 to 765	15 ft. 0 in.

[*7]

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We agree with the Secretary that the standards contained in 29 C.F.R. Part 1926, Subpart V, which concern power transmission and distribution, are applicable to the work being performed by Mississippi Power's employees here. Section 1926.950(a) specifies that the standards in Subpart V apply to construction of electric transmission and distribution lines and equipment. The term "construction" as used in subpart V is defined in § 1926.950(a)(1) to include:

the erection of new electric transmission and distribution lines and equipment, and the alteration, conversion, and improvement of existing electric transmission and distribution lines and equipment.

The work in question here - replacement of an old 30-foot pole with a new 35-foot pole - constitutes improvement of existing electric transmission and distribution lines and equipment. Subpart V standards previously have been applied to similar tasks in Kansas Power & Light Co., 77 OSAHRC 39/A2, 5 BNA OSHC 1202, 1977-78 CCH OSHD P21,696 (No. 11015, 1977) (installation of lightning arrestors on pole), and in Iowa Southern Utilities Co., 77 OSAHRC [*8] 32/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD P21,612 (No. 9295, 1977) (removal of middle phase of power line), although the question of the applicability of the standards was not raised in those cases. In Pacific Gas & Electric Co., 75 OSAHRC 40/B9, 2 BNA OSHC 1692, 1974-75 CCH OSHD P19,431 (No. 2821, 1975), aff'd, 554 F.2d 1070 (9th Cir., 1977), the Commission specifically held subpart V standards to apply, since the work being performed - transferring three primary conductors from a rotted pole to a new pole, replacing two secondary conductors by a duplex conductor and installing one new transformer in the place of two old ones - constituted improvement of existing equipment. The employees here were performing similar improvement by replacing an old pole with a new one and transferring the line to the new pole. We believe this is improvement work and is covered by subpart V. Cf., United Telephone Co. of the Carolinas, 76 OSAHRC 110/B14, 4 BNA OSHC 1644, 1976-77 CCH OSHD P21,043 (No. 4210, 1976) (moving telephone line from old pole to new pole held construction work). See generally Consumers Power Co., 77 OSAHRC 73/E8, 5 BNA OSHC 1423, 1977-78 CCH OSHD P21,786 (No. [*9] 11107, 1977) (trimming trees near power line held not construction). We also note that neither party contends that subpart V is inapplicable. To the extent that Pacific Gas may be read to suggest that improvement of existing equipment occurs only when such equipment is replaced by technically more advanced equipment, we consider such an interpretation to be too restrictive and disapprove it.

III

The Secretary contends that Mississippi Power violated § § 1926.950(e) and 954(a) by not treating the line as energized (i.e., working it with rubber gloves), grounding the line, or testing the line to determine if it was deenergized. Mississippi Power agrees that Culpepper and Williamson did not test the line, ground it, or use gloves while working on it. Mississippi Power contends, however, that it complied with the "otherwise determined to be deenergized" requirement of § 954(a). The Company points out that § 950(d) contains instructions on the methods that must be employed when lines are deenergized, and contends that these are the standards that are applicable to the specific situation here.

Subsection 950(d) contains different requirements for deenergizing lines, depending [*10] on whether or not the means of disconnecting the line from the source of electrical energy is visibly open or visibly locked out. Subsection (d)(1) applies when the means of disconnecting is not visibly open or visibly locked out and provides as follows:

(d) Deenergizing lines and equipment. (1) When deenergizing lines and equipment operated in excess of 600 volts, and the means of disconnecting from electric energy is not visibly open or visibly locked out, the provisions of subdivisions (i) through (vii) of this subparagraph shall be complied with:

(i) The particular section of line or equipment to be deenergized shall be clearly identified, and it shall be isolated from all sources of voltage.

(ii) Notification and assurance from the designated employee shall be obtained that:

(a) All switches and disconnectors through which electric energy may be supplied to the particular section of line or equipment to be worked have been deenergized;

(b) All switches and disconnectors are plainly tagged indicating that men are at work;

(iii) After all designated switches and [*11] disconnectors have been opened, rendered inoperable, and tagged, visual inspection or tests shall be conducted to insure that equipment or lines have been deenergized.

(iv) Protective grounds shall be applied on the disconnected lines or equipment to be worked on.

(v) Guards or barriers shall be erected as necessary to adjacent energized lines.

(vi) When more than one independent crew requires the same line or equipment to be deenergized, a prominent tag for each such independent crew shall be placed on the line or equipment by the designated employee in charge.

(vii) Upon completion of work on deenergized lines or equipment, each designated employee in charge shall determine that all employees in his crew are clear, that protective grounds installed by his crew have been removed, and he shall report to the designated authority that all tags protecting his crew may be removed.

Subsection 950(d)(2) applies when the disconnecting means is visibly open or visibly locked out, and reads as follows:

(2) When a crew work on a line or equipment can clearly see that the means of disconnecting from electric energy are visibly open or visibly locked-out, the provisions of subdivisions [*12] (i), and (ii) of this subparagraph shall apply:

(i) Guards or barriers shall be erected as necessary to adjacent energized lines.

(ii) Upon completion of work on deenergized lines or equipment, each designated employee in charge shall determine that all employees in his crew are clear, that protective grounds installed by his crew have been removed, and he shall report to the designated authority that all this protecting his crew may be removed.

It is evident that § § 950(a)(1) and (d)(2) contain certain requirements that are identical. Compare § 950(d)(1)(v) with § 950(d)(2)(i) and § 950(d)(1)(vii) with § 950(d)(2)(ii). Subsection (d)(1), however, contains a number of additional requirements, including that the lines or equipment being worked on be grounded. These additional requirements do not appear in § 950(d)(2). Thus, if § 950(d)(2) applies, there is no requirement that the line be grounded as well as deenergized. n4

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n4 Both subsections contain requirements that, after the work is completed, protective grounds that have been installed be removed. See § 950(d)(1)(vii) and § 950(d)(2)(ii). Arguably, this could imply that grounds must be used in both situations. We cannot, however, imply such a requirement under § 950(d)(2). If the Secretary had intended to impose a mandatory grounding requirement under § 950(d)(2), it is reasonable to infer that he would have included a specific requirement to that effect, as he did with the other requirements that are common to the two subsections. Moreover, the Secretary obviously intended to impose different requirements for the two situations for he explicitly distinguished between the two situations and specified different requirements for them. Therefore, we conclude that the reference to protective grounds in § 950(d)(2)(ii) contemplates that there will be situations where grounds will be installed voluntarily and provides for their removal in such instances, not that it imposes a mandatory grounding requirement in situations where § 950(d)(2) applies.

[*13]

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In distinguishing between lines that are visibly open and those that are not, the standards obviously contemplate that there will be situations where a visual examination alone of a line will provide sufficient evidence that it is deenergized. Therefore, the provision in § 954(a) that permits a line to be "otherwise determined to be deenergized" can be satisfied in such instances by a visual inspection. It follows that if the line in question is of the type contemplated by § 950(d)(2), then Mississippi Power did not violate § 954(a) solely because it failed to test the line, ground it, or work it with rubber gloves, because the company may have otherwise determined the line to be deenergized.

Mississippi Power contends that the line is the type contemplated by § 950(d)(2), but there are a number of issues concerning application of § 950(d)(2) which cannot be resolved on the basis of the present record. Of primary importance is whether the line was one that could be determined to be deenergized on the basis of a visual examination. Williamson testified that, after he threw the switch and signalled [*14] to Culpepper, he immediately recognized that the line was controlled by the clamp, and that he had made a mistake. He also testified that, if he had looked at it closely, it would have been obvious which disconnect controlled that particular line. This tends to suggest that the line was of the type contemplated by § 950(d)(2), such that a visual inspection alone would reveal that the line was deenergized. On the other hand, Williamson did in fact activate the wrong disconnect, so it may be that the situation was not as obvious as Williamson's testimony indicates. This is a crucial question that would have arisen had the proper standards been cited, but that was not relevant and was not tried under the § 5(a)(1) charge.

Amendment of pleadings pursuant to Rule 15(b) n6 of the Federal Rules of Civil Procedure is required when an unpleaded charge has been tried with the express or implied consent of the parties. Southwestern Bell Telephone Co., 78 OSAHRC 100/D8, 6 BNA OSHC 2130, 1978 CCH OSHD P23,187 (No. 14761, 1978). When a party opposing amendment introduces evidence relevant to an unpleaded charge or fails to object to the introduction of such evidence, then that party [*15] Additionally, if an amendment would change only the legal theory from that alleged in the pleadings, then consent to the amendment will be implied when the party opposing amendment has not objected to the introduction of evidence relevant to the unpleaded charge, provided that it is not prejudiced by the amendment. McLean-Behm Steel Erectors, Inc., 78 OSAHRC 93/A9, 6 BNA OSHC 2081, 1978 CCH OSHD P23,139 (No. 15582, 1978), rev'd, F.2d , No. 79-1073 (5th Cir. Dec. 17, 1979).

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n6 Rule 15(b) provides, in pertinent part:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. . .

The Federal Rules of Civil Procedure apply to our proceedings in the absence of a specific Commission rule governing the situation. 29 C.F.R. § 2200.2(b).

n7 In this case, Mississippi Power did not expressly consent to the amendment the Secretary seeks. Thus, the question is whether the company impliedly consented.

[*16]

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The Secretary contends that the standards to which he seeks to amend require that all power lines must be treated as energized unless first tested or grounded. Thus, the Secretary argues that amendment to those standards is proper because the issues to be tried under the standards are the same as those that were tried under the section 5(a)(1) charge. In essence, the Secretary is arguing that the amendment would change only the legal theory of the case, with the factual issues remaining the same as those tried under the section 5(a)(1) charge.

We do not agree. As discussed above, the Subpart V standards do not unequivocally require that all lines be treated as energized unless tested or grounded; no such requirement exists for lines that are visibly open or visibly locked-out. Because the parties did not recognize during the hearing that whether the line was visibly open or visibly locked-out was an issue in the case, and did not present evidence relevant to whether the line was of this type, they did not impliedly consent to try a violation for failure to comply with the Subpart V standards. n8 [*17] Moreover, because Mississippi Power did not have the opportunity to present evidence relevant to this issue, an amendment at this stage of the proceedings would be prejudicial. Accordingly, Mississippi Power did not impliedly consent to try a violation of the Act for failure to comply with the standard at 29 C.F.R. § § 1926.954(a) and 1926.950(c), and we deny the Secretary's motion to amend. Bill C. Carroll Co., supra; McLean-Behm Steel Erectors, Inc., supra. n9

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n8 Other issues concerning the meaning of "visual examination" were not tried under the § 5(a)(1) charge but would be relevant if § 950(d)(2) were in issue. Section 950(d)(2) refers to the ability of the crew to determine if the line is visibly open or visibly locked out. This could be interpreted to mean that all members of a crew must observe the line to see that it is open or locked out. Hence, the fact that Culpepper, as well as Williamson, did not observe the clamp may be relevant to determining whether § 950(d)(2) was violated. Moreover since Williamson did not correctly determine the line to be deenergized, in deciding whether § 950(d)(2) was violated, we must consider whether § 950(d)(2) imposes a requirement that the determination that the line is deenergized must be correct. Although these issues are largely legal in nature, the parties should have had an opportunity at the hearing to present any evidence they considered relevant to the issues. However, whether Mississippi Power violated § 950(d)(2) due to Culpepper's failure to observe the clamp and Williamson's failure to locate the proper disconnect was not alleged, nor were any such issues tried by the parties.

n9 Commissioner Barnako agrees that the parties did not impliedly consent to try a violation of the subpart V standards, and that the Secretary's motion to amend should therefore be denied. In McLean-Behm Steel Erectors, supra (dissenting opinion) he stated that he would find implied consent to an amendment only if the parties squarely recognized the unpleaded charge was an issue in the trial. In the instant case, the possible application of specific standards was never mentioned during the hearing, and the conduct of the hearing demonstrates that the parties intended to try only the pleaded § 5(a)(1) charge. Since the parties did not squarely recognize an unpleaded issue was being tried, Commissioner Barnako concludes that there was no implied consent to try a violation of the Act for failure to comply with the standards at 29 C.F.R. § § 1926.954(a) and 1926.950(c). See The Rogers Manufacturing Co., 79 OSAHRC , 7 BNA OSHC 1623, 1979 CCH OSHD P23,800 (No. 76-0896, 1979) (dissenting opinion); McLean-Behm Steel Erectors, supra (dissenting opinion).

[*18]

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We also conclude that the citation must be vacated insofar as it alleges a violation of section 5(a)(1). It is well established that a citation alleging a violation of section 5(a)(1) is 'nappropriate when a specific standard applies to the facts. Claude Neon Federal Co., 77 OSAHRC 104/A2, 5 BNA OSHC 1546, 1977-78 CCH OSHD P21,887 (No. 13810, 1977), and cases cited therein. This rule is necessary to effectuate the Congressional intent that the specific standards promulgated under the Act should be the primary means of achieving the Act's objectives. Brisk Waterproofing Co., 73 OSAHRC 30/E1, 1 BNA OSHC 1263, 1973-74 CCH OSHD P16,345 (No. 1046, 1973).

Accordingly, the Secretary's motion to amend is denied and the citation for violation of section 5(a)(1) is vacated.

CONCURBY: CLEARY

CONCUR:

CLEARY, Chairman, concurring:

I concur in the disposition of this case.