STUTTGART MACHINE WORKS, INC.  

OSHRC Docket No. 77-3021

Occupational Safety and Health Review Commission

February 24, 1981

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Oliver H. Ragland, President, Stuttgart Machine Works, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge J. Paul Brenton is before the Commission pursuant to a direction for review issued by Commissioner Cottine under 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").   Respondent, Stuttgart Machine Works, Inc., was cited for allegedly violating section 5(a)(2) of the Act, 29 U.S.C. §   654(a)(2), by failing to comply with the standard at 29 C.F.R. §   1926.550(e). n1 The citation was issued following an incident in which Respondent's employee operated a derrick within ten feet of an energized power line. Judge Brenton vacated the citation, concluding that Respondent had established the defense of unpreventable employee misconduct. We reverse the judge's decision and affirm the citation.

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n1 This standard provides:

§   1926.550 Cranes and derricks.

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(e) Derricks. All derricks in use shall meet the applicable requirements for design, construction, installation, inspection, testing, maintenance, and operation as prescribed in American National Standards Institute [ANSI] B30.6-1969, Safety Code for Derricks.

In pertinent part, ANSI B30.6 - 1969 provides:

6-3.5.3 Operating Near Electric Power Lines

a.   Except where the electrical distribution and transmission lines have been de-energized and visibly grounded at point of work or where insulating barriers not a part of or an attachment to the derrick have been erected to prevent physical contact with the lines, derricks shall be operated proximate to, under, over, by, or near power lines only in accordance with the following:

(1) For lines rated 50 kV or below minimum clearance between the lines and any part of the derrick or load shall be 10 feet.

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I

Respondent operates a steel fabricating mill and machine works shop in Stuttgart, Arkansas.   In addition, Respondent engages in well-drilling operations.   The latter activity includes going out to fields and raising well pumps that have fallen over.   This is referred to as the "pump pulling" operation.   In all, Responent employs thirty-five persons.

On August 9, 1977, Respondent's foreman, A. A. Kirksieck, and two helpers were engaged in pulling a pump from a rice field.   They were using a hoisting device consisting of a derrick mounted on the rear of an old Chevrolet pickup truck. The truck was not insulated or grounded.   Kirksieck, who had been a foreman for Respondent for over twenty years, was directing all aspects of the operation on this occasion.   As Kirksieck proceeded to raise the derrick, it came in contact with an overhead power line. Kirksieck was electrocuted and one of the helpers, John Cooper, received an electrical shock as he reached for a board on the truck.

Respondent's president, Oliver Ragland, testified that the company had oral safety rules.   Ragland stated that these rules [*3]   were communicated to the employees at periodic safety meetings "three or four times a year." These meetings were unscheduled and somewhat spontaneous.   Ragland testified that he would "catch [the crew] at one of the coffee breaks, and we would just talk about it -- safety."

Ragland testified that Respondent did not maintain a formal safety indoctrination program for new employees. He stated that new employees received their training at the meetings where, Ragland asserted, "[w]e talk about electric lines and things." Ragland also testified as follows with respect to Respondent's rules governing the hazard involved in this case.

Q.   (by Mr. Wernick, the Secretary's attorney) What specifically would be mentioned [at the safety meetings]?

A.   Just that you're not supposed to operate [the derricks] closer than ten feet . . . .

Q. . . . [W]hat was said . . . regarding work in these areas?

A.   Just don't operate them.

Q.   Don't operate them within 10 feet?

A.   Don't operate them within 10 feet. n2

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n2 Ragland also testified that various insurance companies and heavy equipment manufacturers had supplied Respondent with decels bearing a warning to maintain a ten foot clearance from power lines.   These were intended for placement on any trucks that might be used in proximity to such lines.   However, Ragland did not know whether or not the stickers had ever been placed on Respondent's "rigs."

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When asked specifically about instructions to Kirksieck concerning the procedures for operating equipment in the vicinity of power lines, Ragland stated that "[b]y experience he knew how to do it; you didn't have to tell him." There was no evidence that the two helpers in Kirksieck's crew had received any specialized training or instruction regarding the operation of derricks in the vicinity of power lines.   Ragland implied that such instruction would have been useless, testifying that the helpers would not question anything Kirksieck did because it was "not their place" to do so.

Ragland stated that, typically, a customer would initiate a pump pulling operation by calling and requesting Respondent's services in raising a fallen pump. Respondent would dispatch a crew either that same day or on the following day.   Ragland stated that although he recognized that power lines are present occasionally at the worksites and that such power lines posed a hazard to the crews, he would never ask the customer during the initial call whether or not there were power lines present at the worksite.   "The first time [*5]   [the workers] know whether a highline is going to even enter the picture is when they . . . drive to the job and look." Ragland further testified that there had been instances when Kirksieck had been sent out to pull pumps but had not done so because of the presence of power lines.   On such occasions, Kirksieck had returned to the shop until the lines were deenergized by the power company.   Respondent presented no evidence that it ever made an effort to enforce its safety rules or that it provided periodic, on-site supervision to assure that its rules were implemented.

II

Judge Brenton framed the issue as whether the misconduct of Kirksieck was unpreventable. Relying on Floyd S. Pike Electrical Contractors, Inc., 78 OSAHRC 50/El, 6 BNA OSHC 1675, 1978 CCH OSHD P22,805 (No. 3069, 1978), the judge noted that an employer may establish the defense of unpreventable employee misconduct by demonstrating (1) its commitment to employee safety represented by the establishment of work rules that effectively implement the requirement of the standard at issue, (2) the effective communication of the work rules to its employees, and (3) the effective enforcement of the work rules through   [*6]   supervision adequate to detect failures to comply with the rules and discipline sufficient to discourage such violations.

Judge Brenton found this case virtually indistinguishable from Floyd S. Pike, in which the Commission held that the employer had proven all of the elements of the defense.   The judge found that Respondent had an established work rule requiring the maintenance of a ten foot clearance from power lines as required by the cited standard.   He found that the work rules were effectively communicated to employees, reasoning that "Respondent has had no electrical injuries from operating derricks, thus, it is inferred that no one of [Respondent's foremen] over the years had had a problem with an overhead power line because he failed to abide by the rules." Concerning supervision and discipline, the judge stated that "it seems reasonable to infer that there were genuine efforts in those directions because otherwise respondent's injury record over the 31 years covered would not be as spotless as is indicated by the dearth of evidence bearing on that subject." The judge concluded that the occurrence of the accident "shows plain employee error without explanation as to why [*7]   the misconduct occurred other than inattention, inadvertence, plain obstinance, or one time reckless disregard for his own safety and that of his fellow employees."

III

The Secretary argues in his petition for review n3 that Respondent failed to maintain an effective safety program designed to prevent Kirksieck's noncompliance with the cited standard.   The Secretary asserts that, at best, Respondent's safety program consisted solely of an oral rule to maintain a ten-foot clearance between a derrick and power lines. n4 According to the Secretary, the rule was not effectively communicated to employees in view of the fact that Respondent's safety instructions were given only informally and spontaneously.   The Secretary notes particularly that new employees were not given any safety instruction prior to beginning work.   The Secretary further argues that the judge's finding that Respondent's rule was effectively enforced is not supported by any evidence.   The Secretary notes that the judge relied on the absence of evidence of prior incidents in finding that the rule was effectively enforced.   The Secretary argues that such reliance is unjustified.   Finally, the Secretary suggests that [*8]   Respondent's favorable accident record was "simply a matter of good fortune."

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n3 The Secretary has not submitted a brief on review but relies on the arguments made in his petition for discretionary review.

n4 The Secretary implies that whether Respondent had even an oral rule to this effect is questionable, noting that Ragland's testimony concerning the ten-foot requirement was not corroborated.

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Respondent, in its brief on review, argues in support of the judge's decision.   Respondent insists that it had a well established rule that employees encountering power lines on any jobsite were not to work near the lines but were instead to return to the shop and arrange for the power company to either deenergize or remove the lines.   Respondent contends that the rule, even though not written, was effective for a small company in which there is close, personal contact with employees at all times.   Respondent further argues that communication of safety rules through informal safety meetings is appropriate in a company of   [*9]   its small size.   Respondent notes that Kirksieck was aware of the rule, as demonstr ted by the fact that he had on previous occasions returned to the shop when the presence of energized power lines would have interfered with a pump pulling operation.

Respondent also takes issue with the Secretary's assertion that new employees did not receive any preliminary safety instructions.   Respondent contends that the testimony on this point concerned the two helpers who were working with Kirksieck at the time of the accident.   According to Respondent, these employees did receive safety training within their job classification but did not receive training in derrick or crane operations because they did not operate such equipment.   Finally, Respondent asserts that, contrary to the Secretary's contention, its favorable safety record does tend to indicate that its rules were effectively enforced.

IV

Judge Brenton correctly held that the case turns on whether Respondent has established the defense of unpreventable employee misconduct, and the judge correctly relied on Floyd S. Pike Electrical Contractors, Inc., supra, in stating the elements of that defense.   See also Jensen   [*10]    Construction Co., 79 OSAHRC 49/D3, 7 BNA OSHC 1477, 1979 CCH OSHD P21,319 (No. 76-1538, 1979).   We conclude, however, that the judge erred in finding that Respondent established the defense.

We first note that the record is ambiguous as to the content of the work rule at issue.   Although Ragland testified that employees were instructed to maintain a ten-foot clearance from power lines, he also indicated that employees were not to work near power lines at all but were to arrange to have the lines deenergized when a pump pulling operation would occur near a line. n5 In its brief on review, Respondent asserts that its rule was to have the lines deenergized. It makes no reference to a ten-foot clearance requirement.   Respondent's inability to unambiguously state the content of its rule casts serious doubt on whether Respondent effectively communicated any rule to its employees.

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n5 The general informality of Respondent's safety program, typified by its oral safety rules, does not by itself defeat Respondent's defense.   It is not required that a safety program be formal, only that safety rules and instructions be clearly and effectively communicated to employees.

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Assuming, however, that Respondent had either a rule requiring a ten-foot clearance or a rule prohibiting any work near power lines, the record establishes that the rule was not effectively communicated. Although Respondent insists that Kirksieck knew of the rule, it makes no such claim as to the two helpers. Indeed, it asserts that they had no need to know of the rule because they were not crane or derrick operators.   However, any person who works near a piece of conductive equipment that is operated near a power line is endangered if the equipment comes too close to the line.   This is illustrated by the fact that one of the helpers was injured when Respondent's derrick contacted the line.   See also Lidstrom, Inc., 76 OSAHRC 40/E6, 4 BNA OSHC 1041, 1975-76 CCH OSHD P20,564 (No. 3433, 1976).   An employer must communicate a safety rule to all employees who will be exposed to a hazard if the rule is breached.   Otherwise, employees who are unaware of the rule will be unable to protect themselves and others on the jobsite from the hazard against which the rule is directed.   In general, an employer [*12]   cannot rely on one employee's training and experience as the sole means of protecting other employees.   The Act places final responsibility for compliance on the employer.   Brown & Root, Inc., 80 OSAHRC    , 8 BNA OSHC 2140, 1980 CCH OSHD P24,853 (No. 76-1296, 1980).   Thus, even if Kirksieck was fully aware of a rule prohibiting operating a derrick near a power line, Respondent's failure to inform the helpers that they would be endangered by being near a derrick that is within ten feet of a power line defeats its defense of unpreventable employee misconduct.

Finally, we conclude that Respondent has not established that any rule it had was effectively enforced.   We agree with the Secretary that a favorable safety record can be a matter of good fortune rather than an indication of an effectively enforced safety program.   In fact, we have refused to infer that a safety program is effective simply because an employee had performed, without incident on a number of occasions in the past, the same task he was performing when he failed to comply with a standard.   Butler Lime and Cement Co., 79 OSAHRC 103/D12, 7 BNA OSHC 1973, 1979 CCH OSHD P24,091 (No. 855, 1979).   A favorable safety [*13]   record only indicates that injuries have not occurred, not the absence of violations.   Thus, an employer's favorable safety record does not establish the adequacy of an employer's safety program.   In order to establish that its safety program was adequately enforced, the employer must present specific evidence concerning the manner in which it enforces its safety rules.   See Asplundh Tree Expert Co., 79 OSAHRC 109/A2, 7 BNA OSHC 2074, 1980 CCH OSHD P24,147 (No. 16162, 1979).   Respondent has not presented any such evidence in this case.   Accordingly, we conclude that Respondent has not established the affirmative defense of unpreventable employee misconduct.

IV

The Secretary proposed a penalty of $800 for the violation.   In assessing penalties, we must consider the gravity of the violation together with the size, good faith, and prior history of the employer.   Section 17(j) of the Act, 29 U.S.C. §   666(i).   The gravity of the violation was high, as one employee was electrocuted and two others were exposed to the possibility of electrocution.   Although we have concluded that Respondent's safety program was inadequate to prevent the violation, in general Respondent appears to [*14]   have acted in good faith.   Respondent is a small employer and had been cited previously for a violation of the Act unrelated to the violation in this case.   Under the circumstances, a penalty of $500 is appropriate.

Accordingly, the judge's decision is reversed, the citation alleging noncompliance with 29 C.F.R. §   1926.550(e) is affirmed, and a penalty of $500 is assessed.   SO ORDERED.