CONSOLIDATED RAIL CORPORATION

OSHRC Docket No. 78-238

Occupational Safety and Health Review Commission

July 30, 1982

[*1]

Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor, USDOL

William P. Jones, for the employer

Mark E. Lichty, Consolidated Rail Corp., for the employer

Mr. Michael Broderick, International Representative, I.B.E.W., for the employees

OPINION:

DECISION

BY THE COMMISSION:

In this case, Administrative Law Judge Foster Furcolo held that Respondent, Consolidated Rail Corporation ("Conrail"), violated section 5(a)(1) n1 of the Act by allowing its employees to ground overhead railway high voltage electrical wires without first pretesting the wires to assure they were deenergized. Judge Furcolo also held that Conrail violated 29 C.F.R. 1910.132(a). n2 We affirm Judge Furcolo's decision.

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n1 This case arose under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). Section 5(a)(1) of the Act, 29 U.S.C. 654(a)(1), provides:

Sec. 5.(a) Each employer -- (1) 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 29 C.F.R. 1910.132(a) provides, in pertinent part,

Protective equipment, including personal protective equipment for . . . extremities, . . . shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment . . . encountered in a manner capable of causing injury or impairment. . . .

[*2]

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I

Pursuant to an employee complaint, a compliance officer of the Occupational Safety and Health Administration ("OSHA") inspected Conrail's electrical facilities in Stamford, Connecticut, in November and December, 1977. During his inspection, the compliance officer observed Conrail workers preparing to perform work on 11,000-volt overhead wires. The employees grounded the wires by attaching long wooden poles called "ground sticks" or "shepherd sticks." The employees did not pretest the wires before attaching the ground sticks to see if the wires were still live. The compliance officer feared that grounding the wires without pretesting would expose Conrail employees to burns or electrocution. Therefore, the Secretary cited Conrail for violating section 5(a)(1) of the Act.

The compliance officer also observed that, when the employees attached the ground sticks to the wires, the employees were not wearing protective gloves and that several of the wooden poles in use were worn, in general disrepair, and had shredded insulation. The compliance officer believed this equipment was inadequate for the [*3] tasks required. Therefore, the Secretary cited Conrail for violating section 1910.132(a).

II

Before Judge Furcolo, Conrail argued against the two alleged violations on their merits but Conrail also moved to dismiss the citation, claiming that OSHA did not have "jurisdiction of the subject matter" of the citation. First, Conrail claimed that OSHA's own electrical standards precluded OSHA jurisdiction. It referred to 29 C.F.R. 1910.308(c)(2)(iii), n3 which states that the OSHA electrical standards will not apply to,

Installations of railways for generation, transformation, transmission, or distribution of power used exclusively for operation of rolling stock or installations used exclusively for signalling and communication purposes.

Conrail also claimed that a March 14, 1978 policy statement n4 of the Federal Railway Administration ("FRA") precluded OSHA jurisdiction under section 4(b)(1) of the Act. n5 In the policy statement, the FRA attempted to delineate the respective jurisdictions of the FRA and OSHA. The policy statement indicates that while OSHA standards apply to working conditions in the railroad industry that are similar to those of any industrial workplace, the [*4] FRA regulates health and safety matters directly related to railroad operations, and therefore FRA regulations preclude the applicability of OSHA standards to subjects such as railroad track, roadbed, and associated devices and structures. n6

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n3 Since the inspection and citation in this case, the Secretary has promulgated new electrical standards, 29 C.F.R. 1910.301 - 1910.308. See 46 Fed. Reg. 4056 (1981). The exemption to which Conrail referred, formerly 29 C.F.R. 1910.308(c)(2)(iii), is now found at 29 C.F.R. 1910.302(a)(2)(iii). In this decision, we will use the old designation.

n4 See 43 Fed. Reg. 10583-10590 (1978).

n5 Section 4(b)(1), 29 U.S.C. 653(b)(1), provides in pertinent part,

Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

n6 43 Fed. Reg. at 10585.

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The Secretary argued that neither the language [*5] of the electrical standards nor the March 14, 1978 FRA policy statement precluded OSHA authority over the alleged hazards. The Secretary argued that the exclusion at section 1910.308(c)(2)(iii) applies only to specific citations under the OSHA electrical standards. Because Conrail was cited for a section 5(a)(1) violation, the exclusion did not apply. In addition, the section 5(a)(1) citation was proper, according to the Secretary, because there was no specific standard in the OSHA electrical standards for which Conrail could be cited. The Secretary also argued that the FRA policy statement is not a standard or regulation under section 4(b)(1) of the Act, contending that the policy statement is only a general statement of the future intent of the FRA and does not preclude OSHA authority.

III

Judge Furcolo found that neither basis put forward by Conrail precluded the Secretary's authority. The judge stated that section 1910.308(c)(2)(iii) did not apply because,

In my view, the Respondent's employees were not 'installing' equipment but were maintaining or repairing or operating existing facilities.

Judge Furcolo also noted that the inspection of the Conrail facilities occurred [*6] before the March 14, 1978 FRA policy statement. Therefore, the policy statement had no effect on this case. Judge Furcolo went on to conclude that Conrail violated sections 5(a)(1) and 1910.132(a) as alleged.

Conrail petitioned the Commission for review. Commissioner Cottine directed review on all issues raised by the petition includig the following questions:

(1) Whether the administrative law judge erred in finding that the Federal Railroad Administration had not exercised its statutory authority to prescribe standards affecting occupational safety and health within the meaning of 4(b)(1) of the Act, 29 U.S.C. 653(b)(1), by its policy statement of March 14, 1978, 43 Fed. Reg. 10584.

(2) If the policy statement constitutes an exercise of statutory authority by the Federal Railroad Administration, whether the particular working condition involved in this case is covered by the policy statement.

(3) Whether the administrative law judge erred in finding that the Respondent failed to comply with the occupational safety standard published at 29 C.F.R. 1910.132(a), and with 5(a)(1) of the Act, 29 U.S.C. 654(a)(1).

In its petition, Conrail also reiterated its contention [*7] that OSHA jurisdiction was precluded by the language of 29 C.F.R. 1910.308(c)(2)(iii). On review, the parties make essentially the same arguments they made to the judge.

IV

We agree with Judge Furcolo's conclusion that the policy statement did not preclude OSHA's authority to issue the citation in this case. The inspection was performed and citation was issued several months before the publication of the policy statement. The only FRA action in effect at the time these activities occurred was a notice of proposed rulemaking. n7 The Commission has held that a notice of proposed rulemaking is not a sufficient exercise of authority under section 4(b)(1) to preempt OSHA authority. n8 Seaboard Coast Line Railroad Co., 75 OSAHRC 11/E14, 3 BNA OSHC 1767, 1975-76 CCH OSHD P20,185 (No. 11904, 1975), appeal dismissed, 548 F.2d 1052 (D.C. Cir. 1976).

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n7 See 41 Fed. Reg. 29153 (1976).

n8 The Commission has held that the FRA policy statement preempts OSHA authority over those working conditions in the railroad industry that the FRA states fall within its exclusive jurisdiction. Consolidated Rail Corp., 82 OSAHRC    , 10 BNA OSHC 1577, 1982 CCH OSHD P26,044 (No. 79-1277, 1982), appeal filed, No. 82-3302 (3rd Cir. June 28, 1982). However, in Consolidated Rail Corp., both the citation and the inspection occurred after the effective date of the FRA policy statement. See also Consolidated Rail Corp., 82 OSAHRC    , 10 BNA OSHC 1564, 1982 CCH OSHD P26,046 (No. 78-1504, 1982), appeals filed, Nos. 82-3301 & 82-3305 (3rd Cir. June 28, 1982) (the Secretary lacked authority to issue the citation because the FRA policy statement, which indicated that the FRA had exercised exclusive jurisdiction over the working conditions, became effective before the Secretary issued the citation). In this case, the inspection took place and the citation was issued before the policy statement took effect.

Commissioner Cottine notes that, in his view, the FRA policy statement is not a standard or regulation within the meaning of 4(b)(1) of the Act and therefore cannot under any circumstances operate to preempt the applicability of OSHA standards to railroad operations.

[*8]

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We also agree with Judge Furcolo's conclusion that section 1910.308(c)(2)(iii) did not preclude the Secretary from issuing the citation, but for different reasons than those given by the judge. Under section 6(a) of the Act, 29 U.S.C. 655(a), the Secretary was authorized to adopt as occupational safety and health standards established federal standards and national consensus standards. S.Rep. No. 1282, 91st Cong. 2d Sess. 6 (1970), reprinted in Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 146 (1971). The two major sources of national consensus standards were the American National Standards Institute and the National Fire Protection Association ("NFPA"). Id. Promulgation of additional standards, as well as modification of existing standards, was to be achieved through the rulemaking procedures set forth in section 6(b) of the Act, 29 U.S.C. 655(b).

Pursuant to section 6(a) authority, the Secretary adopted various national consensus and established federal standards in 29 C.F.R. Part [*9] 1910, including the Subpart S electrical standards. 36 Fed.Reg. 10466 (1971). The principal source of the electrical standards was the 1968 National Electrical Code ("NEC" or "Code"). Acting under the two-year authority of section 6(a), the Secretary amended the electrical standards by adopting significant portions of the revised 1971 Code. 37 Fed.Reg. 3431 (1972).

Section 1910.308(a) of the OSHA electrical standards, prior to further amendment on January 16, 1981, see note 3 supra, stated:

Section 1910.309 adopts as a national consensus standard the National Electrical Code NFPA 70-1971; ANSI C1-1971 (Rev. of C1-1968), which is incorporated by reference in this subpart.

The NEC and the OSHA electrical standards that adopted its provisions were designed to cover electrical installations and utilization equipment installed or used within buildings or other designated premises. 29 C.F.R. 1910.308(c)(1); NEC 90-2(a). Section 1910.308(b) stated that the Code's purpose was:

the practical safeguarding of any persons and of buildings and their contents from hazards arising from the use of electricity for light, heat, power, radio, signaling, and for other purposes.

The [*10] NEC 90-2(b) also specifically excluded certain electrical installations from the scope of the Code, including:

[i]nstallations of railways for generation, transformation, transmission or distribution of power used exclusively for operation of rolling stock or installations used exclusively for signaling and communication purposes.

NEC 90-2(b)(3). Section 1910.308(c)(2) of the OSHA standards incorporated verbatim the NEC exclusions. The exclusion was preserved in the new electrical standards. See note 3 supra.

There is no question in this case that the overhead wire which was being grounded by Conrail's employees was used to power the railroad. Therefore, by the terms of the electrical standards, OSHA could not apply the standards in sections 1910.308 and 1910.309 to this electrical installation. However, the OSHA exclusions do not represent a determination by the Secretary that the designated electrical installations should not be regulated at all under the Act. Rather, the exclusions are a recognition that the incorporated national consensus standards were not designed to cover the designated installations. n9 Thus, the exclusions apply only to the standards contained [*11] within the subpart. n10

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n9 In the preamble to the adoption of the revised electrical standards, 46 Fed. Reg. 4034 (1981), the Secretary specifically discussed one of the exclusions, the utility exclusion, formerly set forth at 1910.308(c)(2)(v) and recodified at 1910.302(a)(2)(v). The Secretary stated:

As stated by witnesses at the hearing, the scope provision of the standard does not grant exemptions. . . . Instead, the "utility exemption," as it is referred to, is simply a statement of installations which were never intended to be within the scope of the NEC, or of this standard. In other words the standard, like the NEC, does not contain provisions which are appropriate for dealing with utility installations. . . .

46 Fed. Reg. at 4038. Similarly, railway installations were not granted an exemption from the Act's enforcement by the scope provision to the electrical standards. They are simply not regulated by the specific standards included within that subpart.

n10 Exclusions contained in a specific standard apply "only to the detailed requirements contained in that section of the regulations." Faultless Div., Bliss & Laughlin Indus., Inc. v. Secretary, 674 F.2d 1177, 1188 (7th Cir. 1982) (emphasis in original).

[*12]

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The Secretary cannot apply the general duty clause to conditions expressly covered by specific standards. Ted Wilkerson, Inc., 81 OSAHRC 70/D8, 9 BNA OSHC 2012, 1981 CCH OSHD P25,551 (No. 13390, 1981), and cases cited therein. However, recognizing that specific standards could not be promulgated to cover all hazardous conditions, Congress enacted section 5(a)(1):

The general duty clause in this bill would not be a general substitute for reliance on standards, but would simply enable the Secretary to insure the protection of employees who are working under special circumstances for which no standard has yet been adopted.

S. Rep. No. 1282, 91st Cong., 2d Sess. 10 (1970), reprinted in Senate Comm. on Labor & Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety & Health Act of 1970, at 150 (1971). Because the standards in Subpart S-Electrical did not apply to the working conditions involved in this case, the Secretary properly cited Conrail for violations of section 5(a)(1) n11 and section 1910.132(a). n12 Accordingly, we turn to the merits of these [*13] citations.

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n11 Commissioner Cleary is satisfied that the context of the "exclusion" in 1910.308 is such that there is no standard covering railroad installations, and thus it is appropriate to apply 5(a)(1). He does not regard this case as permitting 5(a)(1) to be applied in those instances in which a standard covers working conditions but contains an exclusion, and 5(a)(1) is employed to effectively negate the exclusions. Similarly, he would not countenance the use of 5(a)(1) where a hazard is addressed by a standard, see Daniel International, Inc., 82 OSAHRC    , 10 BNA OSHC 1556, 1982 CCH OSHD P26,033 (No. 78-4279, 1982), or where a standard comprehensively regulates to the point that the sense of the standard is that no further regulation is intended, cf. Puget Sound Tug & Barge, 81 OSAHRC 50/A2, 9 BNA OSHC 1764, 1782, 1981 CCH OSHD P25,373 at p. 31,601 (No. 76-4905, 1981) (concurring and dissenting opinion), appeal filed, No. 81-7406 (9th Cir. June 26, 1981).

n12 See American Smelting & Refining Co. v. OSHRC, 501 F.2d 504 (8th Cir. 1974) (section 5(a)(1) was properly cited for excessive employee lead exposure prior to the effective date of the recently promulgated lead standard). Also, the Commission and the circuit courts have held that the general machine guarding standard, 1910.212, is applicable to press brakes notwithstanding the specific exclusion of press brakes from a more specific standard, the mechanical power press guarding standare at 1910.217. See Faultless Div., Bliss & Laughlin Indus., Inc. v. Secretary, note 10 supra; Diebold, Inc., 76 OSAHRC 3/E5, 3 BNA OSHC 1897, 1975-76 CCH OSHD P20,333 (Nos. 6767 et al, 1976), rev'd on other grounds, 585 F.2d 1327 (6th Cir. 1978); Irvington Moore, Div. of U.S. Natural Resources, Inc., 75 OSAHRC 45/A2, 3 BNA OSHC 1018, 1974-75 CCH OSHD P19,523 (No. 3116, 1975), aff'd, 556 F.2d 431 (9th Cir. 1977).

[*14]

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V

Because Conrail's employees did not test high voltage overhead wires to determine whether they were energized before attaching grounds, the Secretary alleged that Conrail violated section 5(a)(1). Judge Furcolo affirmed the citation. Conrail argues that the industry does not recognize a need to test lines before grounding them and does not use the fiberglass "glow sticks" suggested by the Secretary. Conrail also argues that the glow sticks are not feasible.

To establish a section 5(a)(1) violation, the Secretary must show that the employer failed to render its workplace free from a hazard that is recognized and likely to cause death or serious physical harm to its employees. See Little Beaver Creek Ranches, Inc., No. 77-2096 (June 30, 1982). The Secretary must also demonstrate that there was a feasible means available to abate the hazard. Id.; National Realty and Const. Co. v. OSHRC, 489 F.2d 1257, 1268 (D.C. Cir. 1973).

The recognized hazard under section 5(a)(1) is a condition or practice in the workplace that is harmful and known to be hazardous by either the industry in [*15] general or by the employer in particular. Kansas City Power & Light Co., 82 OSAHRC    , 10 BNA OSHC 1417, 1982 CCH OSHD P25,957 (No. 76-5255, 1982); Beaird-Poulan, A Div. of Emerson Electric Co., 79 OSAHRC 21/D11, 7 BNA OSHC 1255, 1979 CCH OSHD P23,493 (No. 12600, 1979). The Secretary need only show recognition of this hazard, not recognition of the means of abatement. Kansas City Power & Light Co., supra; see Continental Oil Co. v. OSHRC, 630 F.2d 446 (6th Cir. 1980), cert. denied, 101 S.Ct. 1481 (1981); see also General Dynamics Corp., Quincy Shipbuilding Div. v. OSHRC, 599 F.2d 453 (1st Cir. 1979).

The hazard in this case is burns or electrical shock from employee exposure to energized electrical lines during grounding procedures. Judge Furcolo found that Conrail had actual knowledge of this hazard. He relied on evidence showing that supervisory employees knew of flashes of fire several inches to several feet long when employees attached ground sticks to energized lines. Employees had been burned or temporarily blinded as a result. Also, Conrail had a rule requiring testing before working on electrical lines and Conrail had instructed [*16] employees to stand upwind and look away when grounding a line. Conrail asserts that the hazard was not recognized but, to a large extent, Conrail focuses not on the hazardous condition or practice of grounding energized lines but on recognition of the abatement method. Conrail argues that the industry did not recognize a hazard from failing to test and did not see a need for glow sticks. However, insofar as Conrail incorrectly defines the hazard in terms of the abatement method, Conrail's arguments are without merit, and a preponderance of the evidence supports the finding that Conrail knew of the hazard. The evidence also shows that an incident was likely to cause death or serious physical harm.

Because employees were grounding electrical lines without first testing to determine if they were energized, the worksite was not free of the hazard. Also, the record establishes that a feasible means of abatement existed. The Secretary presented evidence that fiberglass glow sticks can warn that a line is energized. n13 Judge Furcolo found use of these glow sticks infeasible because of Conrail's evidence that the glow sticks are too delicate for use by railroads. However, the record [*17] shows that with proper care glow sticks are capable of long terms use. In fact, glow sticks are being effectively used by some electric companies. Accordingly, we find that there was a feasible means of abatement. Because all of the elements of a section 5(a)(1) violation are established, we affirm the judge's decision upholding the section 5(a)(1) violation.

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n13 In addition to glow sticks, the record also establishes that volt meters and buzz boxes can be used to warn employeer if a conductor is energized.

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Judge Furcolo assessed a penalty of $400 for this violation. Having considered the factors in 29 U.S.C. 666(j), we conclude that $400 is appropriate for the violation.

VI

Judge Furcolo also affirmed four items charging that Conrail violated section 1910.132(a). n14 Item 2(a) concerns employee failure to wear rubber gloves while attaching ground sticks. Items 2(d)-(f) concern employee use of ground sticks with defective insulation or frayed grounds. The Secretary alleged that these ground sticks were not [*18] properly maintained.

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n14 A fifth item was also affirmed but we reverse the judge's decision and vacate this item, item 2(c), because on review the Secretary moves to withdraw subitem 2(c) due to lack of evidence. We grant the Secretary's unopposed motion to withdraw the citation for that subitem.

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Section 1910.132(a) is a "broadly worded standard that imposes a generalized duty to protect employees by the use of whatever personal protective equipment is necessary by reason of certain hazards, including those of processes or equipment." Owens-Corning Fiberglas Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1295, 1979 CCH OSHD P23,509 at pp. 38,491-92 (No. 76-4990, 1979), aff'd, 659 F.2d 1285 (5th Cir. 1981). Its application depends on "whether a reasonable person familiar with the circumstances surrounding an allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard warranting the use of protective equipment." Id.

Conrail's assertion that rubber gloves are [*19] not used by the railroad industry is without merit. Although evidence of industry custom and practice is relevant in determining whether a reasonable person would perceive a hazard, it is not dispositive. Id. "Nothing in the OSH Act or its legislative history requires or permits the Secretary to await an industry consensus about unsafe conditions before moving to enforce." Faultless Div., Bliss & Laughlin Indus., Inc. v. Secretary, 674 F.2d at 1187, citing Voegele Co. v. OSHRC, 625 F.2d 1075 (3d Cir. 1980), and Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717 (4th Cir. 1979).

The evidence establishes that grounding live wires presented a hazard of electrical shock or burns from flashes of fire. Unrefuted testimony establishes that employees did not wear gloves when grounding the wires and that this practice increased the likelihood of injury. As previously noted, Conrail was aware of the numerous instances when employees had been exposed to these hazards. n15 Furthermore, the frayed and worn condition of the ground sticks increased the chances of accidental injury against which rubber gloves could provide protection. Accordingly, we affirm the judge's [*20] decision affirming item 2(a).

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n15 See Consolidated Rail Corp., 10 BNA OSHC at 1567 n.8, 1982 CCH OSHD at p. 32,715 n. 8.

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Items 2(d)-(f) involve the use of damaged ground sticks. In Pratt & Whitney Aircraft, Div. of United Technologies Corp. 81 OSAHRC 39/A2, 9 BNA OSHC 1653, 1665, 1981 CCH OSHD P25,359 at p. 31,512 (No. 13401, 1981), appeal withdrawn, No. 81-4104 (2d Cir. Aug. 3, 1981), the Commission concluded that the personal protective equipment requirements of section 1910.132(a) refer to protective objects that may be worn by employees. The Commission found that the standard is not applicable to the absence of asbestos insulation around hot pipes that employees could contact and from which they could receive burns. Pratt & Whitney is controlling in this case. We therefore reverse the judge's decision and vacate items 2(d)-(f).

The judge assessed $150 for the five instances of violation of section 1910.132(a) which he affirmed. We affirm only one of the five instances and we have [*21] carefully considered the penalty appropriate for the one violation remaining. Having considered the factors in 29 U.S.C. 666(j), we assess $50.

VII

Accordingly, we affirm the judge's decision affirming item 1 of citation 1 alleging a violation of section 5(a)(1) and we assess a penalty of $400. We affirm the judge's decision affirming item 2(a) of citation 1 alleging a violation of section 1910.132(a) for failure to wear rubber gloves and we assess a penalty of $50. We reverse the judge's decision affirming items 2(c)-(f) of citation 1 and vacate those items. SO ORDERED.

CONCURBY: ROWLAND (In Part)

DISSENTBY: ROWLAND (In Part)

DISSENT:

ROWLAND, Chairman, dissenting in part and concurring in part:

I disagree with the majority insofar as it concludes that Conrail violated sections 5(a)(1) and 1910.132(a). Consistent with circuit court and Commission precedent, the exclusion at section 1910.308(c)(2)(iii) for railway power installations cannot be circumvented by resort to section 5(a)(1). Furthermore, the Secretary did not prove that Conrail violated section 1910.132(a) with respect to protective gloves. Accordingly, I would reverse the judge's disposition of items 1a and 2a of citation 1, and vacate the [*22] alleged violations.

Section 1910.308(c)(2) specifies express exclusions from the Secretary's electrical standards. n15 One of the exclusions, section 1910.308(c)(2)(iii), explicitly excepts:

Installations of railways for generation, transformation, or distribution of power used exclusively for operation of rolling stock or installations used exclusively for signaling and communication purposes.

It is undisputed that Conrail's employees were grounding railway power lines. Therefore, as the majority concedes, the terms of the Secretary's own standards on electrical hazards precluded the Secretary from citing Conrail under the specific electrical standards.

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n15 Section 1910.308(c)(2) has been recodified as section 1910.302(a)(2). See note 3, infra. I will use the old designation.

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The Secretary argues that since there was no specific section in the electrical standards under which Conrail could be cited, he could cite section 5(a)(1). However, no section in the OSHA electrical standards was applicable to this [*23] case because of the exemption. n16 By charging Conrail with a violation under section 5(a)(1) for alleged electrical hazards associated with the railway power installations, the Secretary attempted to circumvent his own exception.

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n16 The majority suggests that 1910.308(c)(2)(iii) is an "exclusion" not an "exemption". However, in an analogous case, the Court of Appeals for the Fifth Circuit explained that flat roofs are "exempted" from the requirements of a standard which by its terms applies only to sloped roofs. R. L. Sanders Roofing v. OSHRC, 620 F.2d 97, 99-100 (5th Cir. 1980) (interpreting 29 C.F.R. 1926.451(u)(3)). I therefore conclude that 1910.308(c)(2)(iii) is properly characterized as an exemption.

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An employer is entitled to fair notice of potential liability under the Act. E.g., Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976). Thus, where the Secretary has adopted standards containing a specific exception, the Secretary cannot defeat the exception by applying section [*24] 5(a)(1). Southern Ohio Building Systems, Inc. v. OSHRC, 649 F.2d 456 (6th Cir. 1981); R. L. Sanders Roofing v. OSHRC, 620 F.2d 97 (5th Cir. 1980). See Daniel International, Inc., 82 OSAHRC 23/D3, 10 BNA OSHC 1556, 1982 CCH OSHD P26,033 (No. 78-4279, 1982); John T. Brady & Co., 82 OSAHRC 9/D10, 10 BNA OSHC 1385, 1982 CCH OSHD P25,941 (No. 76-2894, 1982); A. Prokosch & Sons Sheet Metal, Inc., 80 OSAHRC 96/A2, 8 BNA OSHC 2077, 1980 CCH OSHD P24,840 (No. 76-406, 1980). See generally American Luggage Works, Inc., 82 OSAHRC    /   , 10 BNA OSHC 1678, 1684, 1982 CCH OSHC P26,072, p. 32,798 (No. 77-893, 1982) (Rowland, dissenting), appeal filed, No. 82-1572 (1st Cir. July 19, 1982). Because the language in section 1910.308(c)(2)(iii) specifically exempts railway installations, fundamental fairness precluded the Secretary from resorting to section 5(a)(1).

The majority nevertheless reasons that because section 1910.308(c)(2)(iii) incorporates verbatim the NEC railway exclusion, the Secretary only intended to acknowledge the scope of the NEC provisions and did not intend to leave railway electrical installations unregulated. The majority's rationale [*25] ignores section 1910.308(b), which explains that the purpose of the incorporated NEC provisions is:

[T]he practical safeguarding of any persons and of buildings and their contents from hazards arising from the use of electricity for light, heat, power, radio, signaling, and for other purposes. The standards contained therein are occupational safety and health standards to the extent that they safeguard any person who is an employee of an employer.

(Emphasis added.) Significantly, this purpose clause was modified from the NEC purpose clause, so as to state that the electrical standards were intended to protect "any . . . employee." The Secretary's statement of purpose in conjunction with the railway exclusion suggests the Secretary determined that railway installations need not be regulated in order to practically "safeguard and . . . employee." Nor is the preamble to the Secretary's 1981 revision of the electrical standards necessarily indicative of the Secretary's intent at the time he adopted the NEC standards, because the preamble was issued several years after the electrical standards were originally adopted under section 6(a) of [*26] the Act. In light of the Secretary's expressed intent to protect "any" employee and in light of the specific exclusion of railway electrical installations, I cannot conclude that Conrail was fairly apprised of its proported liability under section 5(a)(1).

Moreover, the Secretary's and the majority's position is inconsistent with the rulemaking process contemplated by section 6(b) of the Act. See Daniel International, Inc., supra, 10 BNA OSHC 1559, 1982 CCH OSHD at p. 32,683. I note that the Secretary has excercised his section 6(b) authority to promulgate specific electrical standards for communications installations, which were also exempted by the section 1910.308(c)(2) exclusions. See 29 C.F.R. 1910.268 (telecommunications standards); 40 Fed. Reg. 13,436 (telecommunications standards promulgated under 6(b) of the Act). This indicates that the Secretary himself has recognized that he must promulgate specific standards if he wishes to cover the excepted installations. n17 Since Conrail was exempt from liability by the language of section 1910.308(c)(2)(iii), I would vacate the section 5(a)(1) charge as alleged in citation 1, item 1a.

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n17 Because the inspection and citations occurred prior to the FRA policy statement, I do not address the issue of whether the FRA policy statement would preempt, under section 4(b)(1), any future efforts by OSHA to regulate railway power installations with specific standards. See note 8, infra.

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Nor did the Secretary prove a violation of section 1910.132(a), concerning rubber gloves to protect the employees from an alleged "possibility of electrical shock." As the majority notes, Commission precedent holds that a section 1910.132(a) violation cannot be upheld unless the Secretary shows that "a reasonable person familiar with the circumstances surrounding an allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard warranting the use of protective equipment." Owens-Corning Fiberglas Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1979 CCH OSHD P23,509 (No. 76-4990, 1979) (reasonable person), aff'd, 659 F.2d 1285 (5th Cir. 1981) (industry custom or actual knowledge). n18

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n18 I need not decide whether the majority's reasonable person test or the Fifth Circuit's industry custom/actual knowledge test is more appropriate, because under either test, a section 1910.132(a) violation cannot be sustained when, as here, the only reliable evidence shows that the industry does not customarily use personal protective equipment.

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The record is devoid of any evidence suggesting that employees in the railway industry customarily use rubber gloves to supplement the insulating properties of the wooden poles when grounding power lines. To the contrary, Mr. Mayer, a Conrail supervisor with over thirty years experience in the railway industry, testified without rebuttal that he has never been rubber gloves used in conjunction with wooden ground sticks.

The majority concludes that this evidence of industry custom is not dispositive. In the majority's view, Conrail was actually aware of the "numerous instances" of employee exposure to electrical shock warranting the use of rubber gloves. n19 I disagree.

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n19 The majority also suggests that Conrail's alleged awareness of burns shows that Conrail perceived the need for rubber gloves. But, the OSHA compliance officer contended that rubber gloves would protect against the "possibility of electrical shock or electrocution," not burns.

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The record shows that the employees were in no danger of electrical shock as long as the wooden ground sticks retained their insulating properties. Although the compliance officer criticized the way Conrail handled and maintained the sticks, there is no evidence that the insulating capacity of the sticks was adversely affected. Significantly, none of the employees testified that they had been shocked when attaching the wooden ground sticks. Since the only probative evidence shows that the railway industry does not customarily use protective gloves when grounding power lines with wooden shepherd sticks, the Secretary has not established the violation of section 1910.132(a) alleged in item 2a, citation 1. Therefore, I would reverse the judge's [*30] decision.