OSHRC Docket No. 77-2096

Occupational Safety and Health Review Commission

June 30, 1982


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


Office of the Solicitor, USDOL

Henry C. Mahlman, Associate Regional Solicitor, U.S. Department of Labor

Sam E. Haddon, for the employer




One employee of Respondent, Little Beaver Creek Ranches, Inc. ("Little Beaver"), was killed and three other employees were injured when a piece of irrigation pipe came in contact with an energized power line. The Secretary of Labor ("Secretary") issued a citation n1 alleging that Little Beaver had violated section 5(a)(1), 29 U.S.C. 654(a)(1), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). n2 A penalty of $540 was proposed. Administrative Law Judge James A. Cronin, Jr., vacated the citation on the basis that Little Beaver had implemented an adequate safety program with respect to the handling of irrigation pipe in the vicinity of power lines. For the reasons that follow, we reverse Judge Cronin's decision and conclude that Little Beaver committed a violation of section 5(a)(1) of the Act.

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n1 The citation alleged that irrigation water pipes were not stored and handled at a safe distance from power transmission lines, insulated rubber gloves were not provided, and a protective insulated boot was not placed over power transmission lines nor were the power transmission lines deenergized.

n2 Section 5(a)(1) of the Act states: "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."


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Little Beaver engages in cattle ranching and farming near Frenchtown, Montana. On the morning the incident occurred, Little Beaver's foreman, Curtis Kaiser, and four high-school-aged summer employees were moving irrigation pipe. The employees were working near the south edge of a hayfield, which was separated by a 4 1/2-foot-high wire fence from the north side of an interstate highway right-of-way. A 7,200 volt power distribution line owned by Missoula Electric Cooperative ran along the right-of-way. The poles for the three-phase power line were located 8 feet from the fence. An 8-foot-long crossarm was mounted on each pole, and each end of the crossarm supported an energized line. A third line ran along the center of the poles. The line nearest the hayfield was 4 feet laterally from the fence and 24 feet above the ground; the center phase line was 8 feet laterally from the fence and 26 feet above the ground. The power line was located on flat land and was in plain view from the hayfield.

Little Beaver's employees were disconnecting sections of irrigation pipe and were loading the pipe onto [*3] a trailer so that the pipe could be moved to another hayfield. Each section of pipe was approximately 30 feet long and weighed about 30 pounds. The pipe in the hayfield was laid out in two directions -- the "main line" ran parallel to the power line, and several "hand lines," placed at intervals about 60 feet apart, ran perpendicular to the power line. The hand lines ended about 30 feet from the fence. n3 In lifting the pipe onto the trailer, the employees lifted the pipe about 3 1/2 to 4 feet off the ground.

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n3 In picking up the hand line segments, the truck pulling the trailer came between the end of the hand line and the fence. Little Beaver's foreman, Kaiser, testified that the truck came within 15 to 20 feet of the fence, while one of the high-school-aged employees, Pat Whelan, testified that the truck came within 5 to 10 feet of the fence.

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Work began at 8:00 a.m. Foreman Kaiser supervised the work until 9:45 a.m., when he left the field to return to the ranch in order to receive instructions concerning the [*4] operation of a new tractor backhoe. Kaiser instructed the boys to continue moving the main line and to proceed to pick up and move the hand line. Three of the boys -- Robert DeWald, Guy Neusse, and Patrick Whelan -- had been working for Little Beaver for about a month. During that time, they had moved several hundred irrigation pipes, including some in the same hayfield. The fourth employee, Marvin Fowler, had done this work the preceding summer. Although Fowler did not have any job title, foreman Kaiser testified that Fowler "was directly under me" and that "if I wanted any particular thing done I would go to him." Pat Whelan also testified that he considered Fowler to be in charge when foreman Kaiser was not present.

The incident occurred sometime prior to 11:27 a.m., the time when the Missoula County sheriff was notified of the electrocution. Patrick Whelan, the only one of the boys to testify, did not recall what happened. His last recollection before the incident was loading pipe onto the trailer. Occupational Safety and Health Administration compliance officer Frank Bruno, however, related his conversation with Robert DeWald. DeWald told Bruno that, prior to the incident, [*5] Marvin Fowler and DeWald were loading a length of irrigation pipe when they found a gopher inside. They proceeded to shake the gopher out and load the pipe onto the trailer. After loading three more lengths of pipe, Fowler discovered another gopher in one of the pipes on the trailer. Fowler and Whelan took the pipe off the trailer, and they raised one end of the pipe to shake out the gopher. The pipe contacted the power line.

After the incident, the boys were found in the hayfield about 10 feet from the fence. Marvin Fowler died as a result of the contact of the pipe with the power line. Pat Whelan, who was in serious condition, burned his knees and a foot. Guy Neusse was seriously burned and lost "a couple of fingers." Bob DeWald received a slight burn on his thumb.

Respondent's foreman Kaiser testified that the boys were instructed numerous times to stay away from all power lines and "to have nothing to do with power." Kaiser assumed that he gave this instruction on the day of the incident, but he did not recall giving it. The boys were also instructed not to stand the irrigation pipe on end, since "there was no reason for it" and "[t]hat's not the proper way to handle [*6] them." Kaiser stated that the boys appeared to understand his instructions regarding the handling of pipe, and he did not see or know of any violation of his instructions. Whelan also testified that he and the other boys were instructed on more than one occasion not to lift pipe on end around power lines.

Finding animals in irrigation pipes was a common occurrence. Kaiser testified that the normal procedure for removing animals was to remove the plugs on the end of the sections of pipe and then to flush water through the pipe. This was the most practical method since it also removed dirt and foreign matter from the pipe. Kaiser had never seen any other procedure used to remove animals. According to Kaiser, the boys were instructed in the normal procedure and always followed the instructions. Whelan also testified that he had always used the flushing method to remove animals from irrigation pipe.

The power line that ran along the right-of-way was under the control of the Missoula Electric Cooperative ("Cooperative") and served 200 to 230 customers. About 200 miles of the Cooperative's 1200 miles of power lines were in the vicinity of irrigated fields. Norman Walker, assistant [*7] engineer for the Cooperative, stated that it was against Cooperative policy for its customers to place protective boots over power lines or to do any work on the lines. The Cooperative had company workers and equipment available to deenergize power lines when necessary. Normally a power line would be deenergized before a boot was placed on the line. However, in an emergency a boot could be installed "hot."

Walker testified that the Cooperative allowed a line to be shut off for a house move or for bridge construction. However, he was not aware of any instance when deenergization of power lines was requested by a customer for purposes of moving irrigation pipe. Walker did not know whether such a request would be granted by the Cooperative. Walker emphasized that it was the Cooperative's policy to keep power on for its customers without interruption or "with the very slightest interruption we can tolerate." Walker noted that an interruption of electrical service would cause customers' irrigation pumps to stop, and the customers would have to restart their pumps when service was restored.

Walker testified that three accidents had occurred in the area in the last five years that [*8] involved contact of irrigation pipe with power lines. One of these accidents involved an animal stuck in the irrigation pipe. Walker did not have personal knowledge of these accidents; he learned about them through safety meetings and in newspaper accounts.


Judge Cronin concluded that the Secretary established a prima facie violation of section 5(a)(1) of the Act. The judge found that recognition of the hazard of electrical shock resulting from contact with an energized 7,200 volt power line by an irrigation pipe was proved by Little Beaver's instructions to its employees not to stand lengths of pipe on end, particularly when in the vicinity of energized power lines, and by the water-flushing method used by Little Beaver to remove animals from the pipe. The death of Marvin Fowler and the serious injuries sustained by two other employees established that the hazard was likely to cause death or serious physical harm to employees. The judge also found that it was feasible to eliminate the hazard by prohibiting employees from standing pipe on end within contact distance of a power line.

The judge further concluded that the worksite was not free of hazards because Little Beaver's [*9] employees had struck an electric power line while placing a section of irrigation pipe on end. He also found that the Secretary established a prima facie showing of employer knowledge. The judge imputed to Little Beaver the knowledge of Fowler, whom the judge found to be a supervisory employee. Fowler was found to have knowledge of the violative condition based upon his participation in raising the pipe on end to remove the gopher.

The judge, however, concluded that Little Beaver's instructions and workrules concerning the cited hazard rebutted the Secretary's prima facie showing of employer knowledge. The judge pointed to Little Beaver's instructions to its employees not to raise pipes on end in the vicinity of power lines and to follow the flushing procedure for removing animals. The judge found it significant that there was no evidence that the boys had deviated from the employer's instructions prior to the incident. The judge also relied upon Whelan's testimony that he understood foreman Kaiser's instructions not to raise irrigation pipe in the vicinity of power lines.

Judge Cronin found that the young ages of Little Beaver's workers did not necessitate additional instruction. [*10] The judge pointed out that the work involved was a simple operation that had been performed by the employees hundreds of times previously. Further, the judge found it significant that there was no evidence that the employees because of their youth did not understand the employer's instructions or failed to appreciate the hazard involved.

The judge also concluded that the Secretary had failed to prove that it was feasible to eliminate the hazard by deenergizing the power line or insulating the line with a boot. He pointed out that the power line was in the exclusive control of the Cooperative and that it was the Cooperative's policy not to disrupt customer service by deenergizing a distribution line or by insulating a "hot" line with a boot. The judge concluded that a request to the Cooperative to interrupt power service would be a useless act.


The Secretary contends that Little Beaver's safety training and supervision were inadequate and that therefore Little Beaver should be found in violation of section 5(a)(1). The Secretary maintains that Little Beaver's general instructions to its employees "not to have anything to do with" power lines and not to turn pipes on end [*11] were insufficient to protect Little Beaver's employees from the cited electrical hazard. The Secretary also argues that Little Beaver's communication and enforcement of its safety rules were deficient. The Secretary asserts that the participation of Little Beaver's supervisor Fowler in the upending of irrigation pipe on the morning of the accident is strong evidence that Little Beaver's implementation of its safety policy was lax. The Secretary further contends that the judge erred in concluding that, despite the young ages of Little Beaver's employees, additional safety instructions to the employees were not necessary.

Even assuming that Little Beaver's safety program was adequate, the Secretary contends that a section 5(a)(1) violations should be found based on Little Beaver's failure to deenergize of insulate the power line. According to the Secretary, the feasibility of deenergizing the power line was established by the Cooperative's history of honoring requests from private parties to deenergize lines under certain circumstances, such as bridge construction or a house move, and by testimony that the Cooperative had the necessary equipment and trained employees available [*12] to deenergize the line. The Secretary further maintains that deenergization or insulation of the power line should not be found to be infeasible since Little Beaver never asked the Cooperative to deenergize or insulate the line.

With respect to the adequacy of its safety program, Little Beaver argues that Judge Cronin's findings and conclusions are supported by a preponderance of the evidence and that in consequence his rulings should not be disturbed by the Commission. Citing Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474 (1951), and Accu-Namics, Inc. v. OSHRC, 515 F.2d 828 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976), Little Beaver asserts that the Commission has no authority to substitute its interpretation of the evidence for that of the judge. As for its failure to deenergize or insulate the power line, Little Beaver contends that the burden was on the Secretary to prove that this was a feasible means of abatement and that the Secretary did not carry his burden. n4

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n4 Little Beaver also maintains that the Secretary's petition for review failed to plainly and concisely indicate the issues on review and to properly cite the record, which Little Beaver asserts is required by the Commission Rules of Procedure. Little Beaver refers to former Commission Rule 91a(c), 29 C.F.R. 2200.91a(c) (1977), which was in effect when this case was directed for review. It states, in pertinent part:

(c) Each issue [in the petition for discretionary review] shall be separately numbered and plainly and concisely stated, and shall be supported by citations to the record when assignments of error are based on the record, and by citations to statutes, regulations, or principal authorities relied upon.

Little Beaver contends that, because the Secretary's petition did not comply with this requirement, Little Beaver was "left to guess . . . the basis upon which review is sought."

This contention is groundless. The Commission has held that, notwithstanding any possible noncompliance with its rules governing petitions for discretionary review, the issues stated in the direction for review are properly before the Commission. United States Steel Corp., 81 OSAHRC 28/C2, 9 BNA OSHC 1641, 1981 CCH OSHD P25,282 (No. 76-5007, 1981). Further, we find that the Secretary's petition for review was sufficient to place Little Beaver on notice of the basis upon which review was sought.


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Section 8(a) n5 of the Administrative Procedure Act provides that an agency's review of the decisions of its administrative law judges may extend to all issues squarely raised by the record as a whole. Therefore, the Commission's review authority includes the authority to decide all issues it could have decided as the initial decision maker. The Commission is not limited to the role of a reviewing court that must sustain factual findings of administrative agencies if such findings are supported by substantial evidence. The ultimate responsibility for decision is placed in the Commissioners to discharge the function of administering the Act. Accu-Namics, Inc. v. OSHRC, supra; Stevens Equipment Co., 73 OSAHRC 17/A2, 1 BNA OSHC 1227, 1971-73 CCH OSHD P15,691 (No. 1060, 1973). Accordingly, Little Beaver's argument that we may not disturb the judge's disposition in this case is without merit.

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n5 Section 8(a) of the APA, 5 U.S.C. 557(b), provides in pertinent part:

When the agency did not preside at the reception of the evidence, the presiding employee . . . shall initially decide the case unless the agency requires, either in specific cases or by general rule, the entire record to be certified to it for decision. When the presiding employee makes an initial decision, that decision then becomes the decision of the agency without further proceedings, unless there is an appeal to, or review on motion of, the agency within time provided by rule. On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues or by rule.

(emphasis added)


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In order to establish a section 5(a)(1) violation, the Secretary must prove: (1) the employer failed to render its workplace free of a hazard, (2) the hazard was recognized either by the cited employer or generally within the employer's industry, (3) the hazard was causing or was likely to cause death or serious physical harm, and (4) there was a feasible means by which the employer could have eliminated or materially reduced the hazard. Baroid Division of NL Industries, Inc. v. OSHRC, 660 F.2d 439 (10th Cir. 1981); St. Joe Mineral Corp. v. OSHRC, 647 F.2d 840 (9th Cir. 1981); National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973); Whirlpool Corp., 79 OSAHRC 32/A14, 7 BNA OSHC 1356, 1979 CCH OSHD P23,552 (No. 9224, 1979), rev'd on other grounds, 645 F.2d 1096 (D.C. Cir. 1981); see United States Steel Corp. No. 77-1796 (June 30, 1982).

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 [*15] Co., 79 OSAHRC 21/D11, 7 BNA OSHC 1225, 1979 CCH OSHD P23,493 (No. 12600, 1979); see Continenetal Oil Co. v. OSHRC, 630 F.2d 446, 448 (6th Cir. 1980), cert. denied, 101 S. Ct. 1481 (1981). In this case, the judge correctly determined that contacting an energized 7,200 volt power line with a length of irrigation pipe is a hazard likely to cause death or serious physical harm and that Little Beaver recognized this electrical hazard. The judge also correctly concluded that Little Beaver's employees were exposed to this hazard and that it was feasible to protect against this hazard by prohibiting employees from raising a pipe on end within contact distance of a power line.

We disagree, however, with Judge Cronin's conclusion that Little Beaver should not be found in violation of section 5(a)(1) because its safety program was adequate with respect to the handling of irrigation pipe in the vicinity of power lines. We find that several factors, in combination, lead to the conclusion that Little Beaver's safety program was inadequate. n6 Therefore, we hold that Little Beaver failed to render its worksite free of the cited hazard.

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n6 When elimination of a particular hazard requires employees to follow certain procedures, the employer must take the steps necessary to assure that employees follow those procedures. General Dynamics Corp., Quincy Shipbuilding Div. v. OSHRC, 599 F.2d 453, 458 (1st Cir. 1979); National Realty & Constr. Co., supra; Western Massachusetts Elec. Co., 81 OSAHRC 63/B13, 9 BNA OSHC 1940, 1981 CCH OSHD P25,470 (No. 76-1174, 1981). An employer's safety program is adequate if it includes workrules designed to prevent the violation at issue, those rules are effectively communicated to employees, the employer takes steps to discover violations, and the employer effectively enforces the rules when violations are discovered. Western Massachusetts Elec. Co., supra.

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First, the judge underestimated the significance of the young age of the employees in his evaluation of Little Beaver's safety program. While the judge correctly pointed out that the work of moving pipe was routine, apparently he did not consider that high-school-aged employees may not appreciate [*17] the danger of workplace hazards such as power lines and may be prone to disregard safety rules. Certainly, more explicit and frequent safety instruction are necessary for employees of such age and experience than for older and more experienced employees. Danco Construction Co., 77 OSAHRC 189/B1, 5 BNA OSHC 2043, 1977-78 CCH OSHD P22,280 (No. 12847, 1977), aff'd, 586 F.2d 1243 (8th Cir. 1978) ("Danco"). n7

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n7 In Danco, the Commission rejected the employer's defense of unpreventable employee misconduct and found the employer in violation of the standard at 29 C.F.R. 1926.550(a)(15)(i) (operation of crane within 10 feet of energized power line prohibited). The Commission in Danco found it significant that two employees who were approximately 18 years old had not been given specific safety instructions concerning electrical hazards. The Eighth Circuit, in affirming the Commission's decision, found that there was substantial evidence supporting the Commission's conclusion that the employer could have prevented the violation. The court pointed out that "[t]he company left unsupervised a young, inexperienced, and largely untrained crew working in close proximity to a dangerous power source." 586 F.2d at 1247.

The judge distinguished Danco from this case on the basis that the work involved in this case was not complex. However, the work performed by the youthful work crew in Danco, the unloading of steel pipe from a truck and stacking the pipe on skids, also was not complex in nature.


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Moreover, Little Beaver's instructions to employees to "stay away from power lines" and to have "nothing to do with power" were insufficient to apprise the employees of the required conduct. Specific safety instructions and workrules concerning hazards peculiar to the job being performed are the essential foundations of an adequate safety program. Iowa Southern Utilities Co., 77 OSAHRC 32/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD P21,612 (No. 9295, 1977). In this case the employees were not told how far to keep the irrigation pipe away from power lines, nor were they informed of the magnitude of the danger of contacting pipe with the power lines. While one employee, Pat Whelan, testified that he understood his foreman's safety instructions, there is no evidence that Whelan or the other employees who were exposed to the hazard were told of the rationale underlying Little Beaver's safety rules or were informed about the severity of the electrocution hazard. As the Commission reiterated in New England Telephone & Telegraph Co., 80 OSAHRC 54/A2, 8 BNA OSHC 1478, 1490, 1980 CCH OSHD P24,523 at p. [*19] 30,000 (No. 76-3010, 1980), "Rules are more likely to be observed if their rationale is understood and it is made clear that they are not just arbitrary pronouncements but are grounded in practical reasons of safety." See also Martin Painting & Coating Co., 77 OSAHRC 181/E8, 5 BNA OSHC 1946, 1977 CCH OSHD P22,239 (No. 15923, 1977), aff'd, 629 F.2d 437 (6th Cir. 1980), Cert. denied, 449 U.S. 1062 (1980).

Finally, the participation of two employees, including Fowler, the employee in charge at the time, n8 in the lifting of irrigation pipe near the power lines indicates that Little Beaver's implementation of its safety program was inadequate. It is significant that more than one employee felt free to disregard the workrule. Moreover, while safety instructions were given at some time, Little Beaver's foreman Kaiser was uncertain whether safety instructions prohibiting the lifting of pipe near power lines were given on the day of the incident. We therefore conclude that Little Beaver's safety instructions were not sufficiently communicated to employees so that the employees could be expected to follow the rules and perform their work safely. See Danco [*20] Construction Co., supra; Chapman & Stephens Co., 77 OSAHRC 77/A2, 5 BNA OSHC 1395, 1977-78 CCH OSHD P21,802 (No. 13535, 1977). n9

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n8 Judge Cronin's finding that Fowler was a supervisory employee for purposes of the Act was not challenged by either party on review. As the Court of Appeals for the District of Columbia Circuit noted in National Realty & Constr. Co., supra at 1267 n. 38, the fact that a supervisor feels free to breach a company safety policy is strong evidence that implementation of that policy is lax.

n9 We reject Little Beaver's argument that the three cases it cited in support of the judge's decision are persuasive in this case. One of the cases it cited, Norman Franzen d/b/a Norm's Trailer Sales, 74 OSAHRC 38/C13, 2 BNA OSHC 3066, 1973-74 CCH OSHD P17,798 (No. 3710, 1974), is an unreviewed administrative law judge's decision and, thus, lacks precedential value and is not binding on the Commission. Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976). Another administrative law judge's decision on which Respondent relied, Martin Painting & Coating Co., 77 OSAHRC 181/E8, 1976-77 CCH OSHD P20,808 (No. 15923, 1976), was subsequently reversed by the Commission, and the Commission's decision was affirmed by the court of appeals. 5 BNA OSHC 1946, 1977-78 CCH OSHD P22,239 (1977), aff'd, 629 F.2d 437 (6th Cir. 1980), cert. denied, 449 U.S. 1062 (1980). The final case cited by Respondent, Norman R. Bratcher Co., 73 OSAHRC 7/C2, 1 BNA OSHC 1152, 1971-73 CCH OSHD P15,501 (No. 83, 1973), is dissimilar from the present case in that in Bratcher a painting contractor's employees' use of an aluminum ladder near a power line some distance from the building to be painted was held to be an unforeseen occurrence and hence not a violation of 5(a)(1); in this case Respondent knew that its employees were moving pipes near the power line.


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Although we conclude that Little Beaver's safety program was inadequate, we agree with Little Beaver's argument that insulating or deenergizing the power line was not feasible. n10 Insulating or deenergizing the power line would have caused an interruption of power to the 200 to 230 customers served by the line. n11 Little Beaver's field was adjacent to the power line, and irrigation pipes in the field were frequently, if not constantly, being moved. Therefore, requiring insulation or deenergizing of the line every time pipes in its vicinity were moved would cause frequent power outages and would require other customers with irrigated fields to restart their electric pumps when service was restored. Moreover, the policy of the Missoula Electric Cooperative, which owned the line, was to keep power on without interruption or "with the very slightest interruption [the Cooperative] can tolerate." Thus, it is hardly conceivable that the Cooperative would permit, or its customers would tolerate, the frequent power interruptions that would be necessary if the line were insulated or deenergized every time [*22] irrigation pipes were moved in its vicinity.

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n10 The citation also charged Little Beaver with failure to provide insulated gloves. However, this issue was not litigated at the hearing, and the judge properly concluded that a violation could not be found on this basis.

n11 Except in an emergency, a power line was deenergized before an insulated boot was placed on it. Thus, insulating a power line would not avoid the need to interrupt power.

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Moreover, it was possible for employees to do their work without lifting the pipes more than 4 feet off the geound, and the power line was at a height of 24 feet and was several feet beyond the fenced perimeter of the field. Therefore, it was possible for the work to be accomplished safely without deenergizing or insulating the line, if proper work practices were followed.

The Secretary points out that in Chapman & Stephens Co., supra, the Commission found that it was feasible for a power line passing through the employer's citrus prove to be deenergized even though [*23] the line was under the control of a power company. However, Chapman & Stephens is factually distinct from the present case. In Chapman & Stephens an employee pulled a bent twenty-foot sprinkler pipe from its base and contacted an overhead power line 10 1/2 feet away. The removal of the pipe was to repair the bend in the pipe and was not a routine event. The number of customers served by the line was not shown. Unlike the present case, requiring the power line in Chapman & Stephens to be deenergized every time a sprinkler pipe below it was removed would not have necessitated frequent power outages, because removal was not routine. Also, since the number of customers on the line was not shown, it was unclear whether deenergizing the line would have caused much inconvenience to others. Additionally, the pipe was much closer to the power line than that in the present case and, thus, the pipe probably could not have been removed safely, even with proper work practices, unless the line was deenergized. Thus, the Commission's decision in Chapman & Stephens does not compel a finding that it would have been feasible to deenergize or insulate the power line in this case. [*24]


For the foregoing reasons, Judge Cronin's vacation of the citation is reversed. The critera for a section 5(a)(1) violation of the Act have been met, and hence the citation is affirmed. Considering the gravity of the violation and Little Beaver's size, good faith and prior history, we assess a penalty of $540.




ROWLAND, Chairman, dissenting:

I dissent from the majority's opinion insofar as it concludes that Little Beaver's safety program was insufficient to render the worksite free from the cited hazard. Accordingly, I would affirm Judge Cronin's decision to vacate the citation for an alleged violation of section 5(a)(1).

The obligation imposed on each employer by section 5(a)(1) to furnish a workplace "free from" recognized hazards does not make the employer an insurer or guarantor of his employee's safety. National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1265-66 (D.C. Cir. 1973); see Brennan v. OSHRC (Raymond Hendrix) 511 F.2d 1139, 1144-45 (9th Cir. 1975), Brennan v. Butler Lime & Cement Co., 520 F.2d 1011, 1017 (7th Cir. 1975). An employer satisfies his duty under section 5(a)(1) if he takes all reasonably necessary precautions, [*25] such as implementing safety rules, to prevent reasonably predictable exposure to recognized hazards. General Dynamics Corp., Quincy Shipbuilding Division v. OSHRC, 599 F.2d 453, 458 (1st Cir. 1979). Consequently, an allegation by the Secretary that the workplace was not "free from" a recognized hazard cannot be sustained when the evidence shows that the employer issued unambiguous and well-communicated safety rules, which were directed toward the hazard and which the employer reasonably expected the employees to follow. Jones & Laughlin Steel Corp., No. 76-2636 (June 25, 1982); United States Steel Corp., 81 OSAHRC 28/C2, 9 BNA OSHC 1641, 1981 CCH OSHD P25,282 (No. 76-5007, 1981) cited at n. 4, supra.

Based on the evidence in the record, Judge Cronin vacated the alleged violation of section 5(a)(1) because Little Beaver repeatedly communicated specific safety instructions, warning the employees of the overhead power lines, admonishing the employees against inverting the irrigation pipes, and directing the employees to flush the gophers from the pipes with water. The majority rejects Judge Cronin's conclusion that Little Beaver's safety program was adequate. [*26] n12 I disagree.

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n12 Judge Cronin concluded that the evidence establishing the adequacy of Little Beaver's safety instructions sufficiently negated the Secretary's allegation of employer knowledge. I note that the evidence showing that Little Beaver's safety program was sufficient, and that the employees unexpectedly deviated from the workrules, establishes both that Little Beaver rendered its workplace "free from" the hazard and that Little Beaver lacked knowledge of employee exposure to the hazard.

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The majority reasons that Judge Cronin underestimated the significance of the "young" age of the employees. However, the judge fully took into account the age of the employees when assessing the adequacy of Little Beaver's work rules. Judge Cronin explained that additional safety instructions were not needed, despite the age of the boys, because moving irrigation pipes and removing gophers were simple tasks which the employees had correctly performed numerous times before. The judge's reasoning is supported by the [*27] uncontradicted testimony of foreman Kaiser, who stated that the employees were experienced in moving irrigation pipes and had moved "many, many hundreds of them." As Judge Cronin noted, the evidence shows that the employees had never deviated from Little Beaver's safety procedures when transporting pipes and removing gophers, in contrast to the majority's speculation that the "young" employees "may be prone to disregard safety rules." Contrary to the assertion of the majority that Judge Cronin failed to consider whether the high-school-age employees would "appreciate the danger" of contacting the power lines, Judge Cronin accepted as true the uncontradicted testimony of Pat Whelan, one of the high-school-age employees. Whelan stated at the hearing that he was aware of the power lines and that he knew from foreman Kaiser's instructions that he should not tilt pipes on end to remove gophers, especially in the vicinity of power lines. The judge specifically determined that Whelan's testimony showed Whelan knew and understood the safety rules. n13 The judge's implicit determination that Whelan's testimony was credible should not be disturbed on review. See, e.g., Kus-Tum [*28] Builders, Inc., 81 OSAHRC 97/B2, 10 BNA OSHC 1128, 1981 CCH OSHD P25,738 (No. 76-2644, 1981). Since Commission precedent holds an employer's safety rules are adequate if they are understood and previously followed by the employees, the judge correctly determined that Little Beaver's safety program was not rendered inadequate by the age of the workers. United States Steel Corp., supra, 9 BNA OSHC at 1644, 1981 CCH OSHD at pp. 31,251-52.

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n13 The majority relies on Danco, p. 11 supra, in which the Commission and the Court of Appeals mentioned the young age of the workcrew. However, both the Commission and the Court of Appeals emphasized that the employees in Danco had not been given specific safety instructions on a regular basis. Conversely, the employees here were issued specific instructions on numerous occasions and understood those instructions. Moreover, Little Beaver's employees were experienced, unlike the inexperienced workers in Danco. See 586 F.2d at 1247. Accordingly, I agree with Judge Cronin that this case is distinguishable from Danco.

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The majority further concludes that the instruction to have "nothing to do with power" was not sufficiently precise. But, as the judge noted, the employees were also told not to stand the pipes on end and to flush the animals from the pipes with water. Kaiser warned the employees of the existence and location of the power lines, thus suggesting that the employees were aware of the rationale behind Little Beaver's safety rules. Indeed, the OSHA compliance officer admitted that the accident would not have occurred but for a deviation from Little Beaver's specific instructions, which the compliance officer aptly summarized as a rule "not to invert irrigation pipe because of the hazard involved of the overhead power lines."

Nor do I agree with the majority's contention that the rules were not adequately implemented. The majority emphasizes that more than one employee, including Fowler, violated the rules and that the foreman Kaiser was not sure if he communicated the workrules on the day of the accident. I do not find that evidence dispositive. It is undisputed that Little Beaver issued the safety instructions [*30] on numerous occasions, and that Whelan, the only high-school-age employee who testified at trial, understood those rules. Although foreman Kaiser could not specifically remember, he assumed that he reiterated Little Beaver's safety program on the day of the accident, based on his habit of repeatedly communicating the safety instructions to the employees. More importantly, the employees, including Fowler, had never disregarded the workrules previously and had been observed correctly following the safety procedures immediately before the accident. See National Realty & Construction Co., supra, at 1266 (an employer is not responsible under section 5(a)(1) for unexpected, idiosyncratic deviations from his safety program). Therefore, contrary to the majority's contention, the record supports the judge's conclusion that Little Beaver implemented adequate safety instructions which Little Beaver could reasonably expect would be followed by the employees.

In light of Little Beaver's safety program, I conclude that Little Beaver freed its workplace from the hazard of contacting energized, overhead power lines with irrigation pipes. Because an alleged violation of section 5(a)(1) [*31] cannot be sustained when the Secretary does not establish that the employer failed to render its workplace "free from" the recognized hazard, I would affirm the judge's vacation of the citation.