Docket No. 76-5007

UNITED STATES STEEL CORPORATION

OSHRC Docket No. 76-5007

Occupational Safety and Health Review Commission

March 31, 1981

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Phillip J. Sheene, United States Steel Corp., for the employer

Charles A. Maniccia, President, Local 219 - United Steelworkers of America, for the employees

OPINION:

DECISION

BY THE COMMISSION:

This case arises under the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). A decision of Administrative Law Judge Henry K. Osterman is before the Commission for review pursuant to section 12(j) of the Act, 29 U.S.C. § 661(i). The judge vacated a citation issued by the Secretary of Labor ("the Secretary") alleging that United States Steel Corporation ("USS" or "the company") violated section 5(a)(1) n1 of the Act by permitting employees to work near a high voltage electrical line which was neither deenergized nor isolated from the employees by barriers. We affirm the judge's decision.

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n1 29 U.S.C. § 654(a)(1). This section provides that "[e]ach 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[.]"

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Because of problems, such as electrical flashovers at insulators and falling power lines, caused by bird droppings on the electrical installations at the Edgar Thomson Works in Braddock, Pennsylvania, USS hired the J.C. Ehrlich Company ("Ehrich") to apply a chemical repellant to certain electrical installations. Application of the repellant to two installations, the No. 2 power station and the No. 2 frequency changer, n2 was scheduled for October 5, 1976.

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n2 The frequency changer alters the frequency of an electrical signal. In this case, the frequency of the No. 1 HZ line was changed from 25 Hz (cycles per second) to 60 Hz.

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On the morning of October 5th, USS completed a complex procedure by which certain electrical lines at these two installations were deenergized. However, because the 44,000-volt line known as the No. 1 HZ line passing through the No. 2 frequency changer served seven other USS plants, this line was not deenergized. [*3] Moreover, some other electrical equipment in or around these two installations was not deenergized. Accordingly, USS assigned a lineman, Steve Jurella, and a wireman electrician, Dalton Pack, to guide and oversee the safety of two teams of Ehrlich employees who would apply the repellant. Jurella was assigned to guide one team on the No. 2 frequency changer. Before the work began, Jurella tagged and grounded deenergized lines and marked as hazardous some energized lines upon or around the No. 2 frequency changer.

The No. 2 frequency changer was one of two frequency changers located on the 117-foot level of a tall, open metal-work structure near the No. 2 power station. It could be reached from the power station by a walkway ("the access walkway") which, where it joined the structure at the 117-foot level, branched to the right and left ("the branch walkways") to go around the outside of the two frequency changers which were located toward the center of the structure. The branch walkway which went around the No. 2 frequency changer ended on the far side of the structure -- the side opposite the side on which the access walkway joined the structure -- where the No. 1 HZ line entered [*4] the No. 2 frequency changer.

Because the No. 1 HZ line was located at the level of the walkway at this point, the segment of the branch walkway which was located on this far side of the structure was divided from the remainder of the branch walkway by a gate. This gate was customarily bolted or wired shut, but not locked. On October 5th, Jurella opened the gate and, with an Ehrlich employee, entered the area where the No. 1 HZ line was located. Jurella contacted the line and was electrocuted. The Ehrlich employee received electrical burns.

The parties did not dispute that working in close proximity to energized high voltage electrical power lines is a hazard n3 which the company recognized n4 and which is likely to cause death or serious physical harm. USS also did not dispute that it neither deenergized the high voltage line involved in this case nor isolated the employees from contact with it by using a barrier -- locking the gate on the branch walkway around the frequency changer. However, the company disputed that either of these measures was feasible n5 and contended that it had taken other measures against the hazard which would have prevented the accident but for [*5] unpreventable misconduct by Jurella. n6

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n3 To establish a violation of section 5(a)(1) of the Act, the Secretary must prove (1) that the employer failed to render its workplace "free" of a hazard which was (2) "recognized" and (3) causing or likely to cause death or serious physical harm to its employees. National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1265 (D.C. Cir. 1973); Beaird-Poulan, A Div. of Emerson Elec. Co., 79 OSAHRC 21/D11, 7 BNA OSHC 1225, 1228, 1979 CCH OSHD P23,793 at p. 28,459 (No. 12600, 1979). The record must also show that there were feasible steps the employer could have taken to avoid the citation, National Realty & Constr. Co. v. OSHRC, supra at 1268, and that an incident was reasonably foreseeable. Pratt & Whitney Aircraft, 80 OSAHRC 38/A2, 8 BNA OSHC 1329, 1980 CCH OSHD P24,447 (No. 13591, 1980), pet. for review filed, No. 80-4102 (2nd Cir. June 24, 1980).

n4 Although the company does not dispute that it was aware of the general hazard presented by working in close proximity to energized high voltage power lines, USS contends that because the Secretary did not show that USS knew of any hazard inherent in its practices followed before the accident, the Secretary has not established a recognized hazard. Specifically, USS contends that Jurella's actions on October 5th were unpreventable in view of the instructions given to him before he began his work and that the hazard existed only because of Jurella's actions. This argument is relevant to whether the worksite was "free" of the recognized hazard. Brown & Root, Inc., 80 OSAHRC , 8 BNA OSHC 2140, 1980 CCH OSHD P24,853 (No. 76-1296, 1980). See note 6 infra and accompanying text.

n5 See note 3 supra.

n6 Because an employer may use any method that renders its workplace free of the hazard and is not limited to those methods suggested by the Secretary as feasible steps by which the citation could have been avoided, see note 3 supra, the employer may defend against a § 5(a)(1) citation by establishing that an equally effective alternative form of abatement was being used. Brown & Root, Inc., supra note 4.

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In support of this contention, USS presented the testimony of Glenn Gillette, Jurella's foreman, concerning instructions given to Jurella before he began his work on October 5th. According to Gillette's testimony, he personally told Jurella which lines were deenergized, which lines were still energized, how and where to perform the work, and what areas to avoid. Gillette specifically stated that he told Jurella that the "No. 2 frequency changer was cleared from the 60-cycle side through to the No. 1 HZ line disconnects, and that the No. 1 HZ line was energized." Gillette also stated that he gave Jurella "specific instructions as to how to proceed when he got to the area of the No. [1] HZ line disconnect[s]." Jurella was told that "he should not go out on the platform level, but to [work] beneath the platform level, that it would be possible to climb into the substructure under the walking platform and go around the corner in that substructure." Jurella was also told to get in touch with Gillette at that time so that "we could decide at that time" what to do.

Gillette further testified that he had [*7] supervised Jurella for several years. According to Thomas Ferguson, the company's general foreman in charge of electrical work, Jurella became a qualified "standard rate" lineman in 1975, after starting in 1973 as a "starting rate" lineman and becoming an "intermediate rate" lineman in 1974. As a qualified lineman, Jurella was authorized to enter restricted areas including locked areas limited to authorized personnel and, according to Gillette, Jurella was qualified to do the work to which he was assigned at the time of the accident. Gillette testified that he personally had contacted Jurella every day about some aspect of safety in the limeman's work and also saw Jurella each day as he performed his work. Gillette further testified that each lineman is personally observed doing a job twice a month.

According to testimony given by Pack and Ferguson, USS had a safety program for lineman which included written rules and meetings to discuss the rules. According to Pack, Jurella had attended these meetings.

Judge Osterman vacated the citation on USS's evidence. He found that before October 5th the gate on the branch walkway had been bolted or wired shut but that whether the gate [*8] was fastened shut on October 5th was not shown. He also found that Paul Loeper, the Ehrlich crew leader with Jurella on October 5th, thought that Jurella had opened it. Relying on Gillette's testimony, the judge found that Jurella was told that the No. 1 HZ line was still energized and that he should not work on the walkway where this line was located. The judge also found that USS had "an effective and ongoing safety program which included safety meetings" which Jurella had attended and that Jurella was trained and experienced. n7 Because "[t]here is no evidence that [USS] had advance notice of any inherently dangerous practice which Jurella may have followed, nor was it foreseeable that Jurella would disregard the obvious danger of going out on to the platform where the accident occurred," Judge Osterman concluded that USS had taken reasonable measures to prevent employee contact with the No. 1 HZ line.

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n7 By relying on Gillette's testimony in making these findings, the judge indicated that he found Gillette's testimony credible.

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III

The Secretary argues that Gillette did not adequate instruct Jurella before the accident. In the Secretary's view, Gillette's instruction about the energized No. 1 HZ line was ambiguous because Gillette told Jurella that the frequency changer where the line was located was "cleared" or deenergized. In support, the Secretary points to certain portions of the testimony which the Secretary argues show that Jurella was given confusing instructions which he misunderstood. The Secretary contends that Gillette should have had a thorough discussion of the conditions with Jurella rather than a "last minute" briefing and that after the discussion Gillette should have made some attempt to assure that Jurella understood the instructions. Accordingly, the Secretary argues that USS could have foreseen that Jurella might work near the energized line and should therefore either have deenergized the line or locked the gate on the walkway.

USS argues that the Commission should affirm the judge because he properly concluded that Jurella's actions were unforeseeable and unpreventable. USS contends that the factual findings that underlie this conclusion are supported by [*10] evidence that should not be reweighed. The company contends that Judge Osterman relied on Gillette's credibility in finding that he instructed Jurella not to work on the walkway where the No. 1 HZ line was located and that the line was energized. The company asserts that there is no adequate basis for overturning the credibility finding. n8

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n8 USS also argues that the Secretary's petition for discretionary review was improperly filed because the Secretary failed to serve USS with a copy and, by failing to serve USS, the Secretary deprived the company of an opportunity to file a statement in opposition pursuant to Commission Rule 91(e), 29 C.F.R. § 2200.91(e), and because the Secretary did not file his petition with the judge, within 20 days after the judge mailed his decision, pursuant to the requirements of Commission Rule 91(b)(1), 29 C.F.R. § 2200.91(b)(1).

Commissioner Cleary granted the Secretary's petition for review, and in doing so he specifically directed the parties to consider the following issues:

(1) Whether the administrative law judge erred in vacating the alleged violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., on the ground that Respondent's safety supervisor, whose conduct forms the basis for the alleged violation, acted in an unforeseeable, idiosyncratic manner; and

(2) Whether the administrative law judge erred in concluding that the employees of J.C. Ehrlich Company were not also the employees of Respondent at the time of the alleged violations.

Commission Rule 92(d), 29 C.F.R. § 2200.92(d), provides that a Commission member may direct a case for review on his own motion on any issue that "could be raised by a party. . . ." Accordingly, notwithstanding any possible noncompliance with our rules governing petitions for discretionary review, the issues stated in the direction for review are properly before the Commission.

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Because the abatement method upon which USS contends it relied consists of a requirement that Jurella follow certain instructions, USS must establish that the instructions were adequate to prevent exposure to the hazard, that the instructions were adequately communicated to Jurella, and that adequate steps were taken to assure that Jurella followed the instructions. See Brown & Root, Inc., 80 OSAHRC , 8 BNA OSHC 2140, 1980 CCH OSHD P24,853 (No. 76-1296, 1980). Gillette's testimony shows that such instructions were adequate communicated to Jurella and that it was reasonable for Gillette to expect that Jurella understood and would follow the instructions in view of his experience and training. Judge Osterman's related factual findings which are based on this testimony indicate that he found this testimony to be credible. We have stated that "[i]t is the policy of the Commission to ordinarily accept an administrative law judge's evaluation of the credibility of witnesses, . . . for it is the judge who has lived with the case, heard the witnesses, and observed their demeanor." C. Kaufman, [*12] Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1297, 1977-78 CCH OSHD P22,481 at p. 27,099 (No. 14249, 1978). The Secretary has not demonstrated why we should overturn Judge Osterman's evaluation of Gillette's credibility and our review of the record indicates there is no basis for doing so. Accordingly, we accept the judge's factual findings.

We reject the Secretary's arguments that the instructions were neither adequately communicated nor effectively enforced. The credible testimony clearly demonstrates that Jurella was unambiguously told that the No. 1 HZ line was energized and that he should not work upon the walkway where the line was located. Gillette reasonably concluded that these instructions were sufficient warning to Jurella about the hazard in view of Jurella's experience and training. In his brief, the Secretary agrees that USS had an effective overall safety program. Since, as the judge found, there was no evidence that Jurella had in the past failed to follow the company's safety rules, Gillette could reasonably consider that Jurella would follow the instructions given on this occasion. See Texland Drilling Corp., 80 OSAHRC , 9 BNA OSHC 1023, 1980 CCH OSHD [*13] P24,954 (No. 76-5307, 1980). Accordingly, we conclude that USS used an abatement method equally as effective as the two suggested by the Secretary, n9 and because USS thereby established that its workplace was "free" of the recognized hazard, we affirm the judge in vacating the citation for alleged violation of section 5(a)(1) of the Act. SO ORDERED.

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n9 The Secretary contends that deenergization and locking the gate were feasible measures. In view of our basis for vacating the citation, we do not have occasion to reach these issues, see note 6 supra, nor those involving reasonable foreseeability.

The Secretary further argues, as he argued to Judge Osterman, that the Ehrlich employees present at the time of the accident were employees of USS within the meaning of the Act. However, Ehrlich's employees were only exposed to the energized line because of Jurella's failure to follow instructions. Because we conclude that Jurella's actions were unpreventable, USS cannot be held responsible for the exposure of the Ehrlich employees even if they are also considered to be employees of USS. Therefore, we do not have occasion to reach this issue.

The Secretary also argues that Gillette's instruction to work from the substructure, even if followed, would not have prevented work in proximity to the energized No. 1 HZ line because the substructure was only about six feet below the walkway where the energized line was located and the Ehrlich employees were using brushes mounted on handles slightly more than six feet long. However, Gillette's testimony was that USS did not intend that the chemical repellant would be applied in the area of the energized No. 1 HZ line. The Secretary elicited no evidence to show that if the work had been performed on the substructure as planned, chemical repellant was to be applied near or upon the walkway or anywhere in the area of the No. 1 HZ line. Accordingly, we reject the Secretary's argument.

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CONCURBY: CLEARY

CONCUR:

CLEARY, Commissioner, concurring:

I would affirm Judge Osterman's decision for the reasons he assigned.