HOWARD BARTHELMASS PAINTING CO., INC.

OSHRC Docket No. 78-5450

Occupational Safety and Health Review Commission

August 28, 1981

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

COUNSEL:

Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

A. Fuller Glaser, Jr., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Paul Dixon is before the Commission for review pursuant to 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"). In his decision, Judge Dixon vacated a citation that alleged a serious violation of the Act for the failure of Respondent, Howard Barthelmass Painting Company, Inc., to comply with the standard at 29 C.F.R. 1926.400(c)(2). n1 The Secretary of Labor ("the Secretary") petitioned for review of the judge's decision and Commissioner Cottine directed review on all of the issues raised by the petition, including the following:

Whether the standard published at 29 C.F.R. 1926.400(c)(2) applies to the facts of this case.

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n1 The standard at 29 C.F.R. 1926.400(c)(2) provides as follow:

Before work is begun the employer shall ascertain by inquiry or direct observation, or by instruments, whether any part of an electric power circuit, exposed or concealed, is so located that the performance of the work may bring any person, tool, or machine into physical or electrical contact therewith. The employer shall post and maintain proper warning signs where such a circuit exists. He shall advise his employees of the location of such lines, the hazards involved and the protective measures to be taken.

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For the reasons discussed below, we conclude that the Secretary failed to prove a serious violation of the Act based on noncompliance with section 1926.400(c)(2).

I

This proceeding arises from an investigation by a compliance officer of the Occupational Safety and Health Administration ("OSHA") into the death on October 6, 1978, of one of Respondent's employees, Kenneth Hartema, at a construction site consisting of a nearly-completed addition to an existing business facility in an industrial park in Kirkwood, Missouri. Although no one witnessed the accident, the evidence of record indicates that Hartema, while standing on the roof, was leaning over a parapet to paint the outside wall of the new building when his aluminum paint-roller extension struck a 7200-volt power line, resulting in his fatal injury. The power line was elevated at approximately proof level and it ran parallel to the side of the building at a distance estimated variously from 2-1/2 to 5-1/2 feet. A rescuer found Hartema lying on the ground, his eyes rolled back in his head and burn marks on his hands. Burn marks were also observed [*3] on the roof. The death certificate prepared following an autopsy by a St. Louis County medical examiner states that Hartema's death was caused by electrocution.

Respondent was subsequently issued a citation that alleged its failure to "ascertain prior to beginning work whether any part of an electric power circuit was so located that the performance of the work might bring any person, tool or machine into physical or electrical contact therewith . . . ." The Secretary proposed a $400 penalty. Respondent timely contested the citation. Thereafter, a complaint and an answer were filed and a hearing was held before Judge Dixon.

At the hearing, Respondent's vice-president, Skip Barthelmass, testified that one of Respondent's project supervision had visited the worksite on September 19 -- seventeen days prior to the accident -- in order to perform an estimate for the job. That project supervisor was the only employee of Respondent who evaluated the jobsite before Hartema was sent out to begin work on October 3. Barthelmass acknowledged that he personally had visited the site on October 4 to deliver some stain, but testified that he had not noticed the condition of the wires because [*4] he had remained in the front of the building. Two days later, Barthelmass returned to the jobsite as soon as he was informed of Hartema's accident. At that time, he measured the distance of the elevated electrical wire running nearest to the building and found that, at rest, the wire was 5-1/2 feet from the building but, when the wind gusted, the wire swung to within 1-1/2 feet of the building. Thompson and West, two witnesses at the hearing who had worked in an adjacent building and who discovered Hartema lying on the ground, estimated that at rest the wire was 2 to 3 feet from the building. Magraw, a police officer who was called to the scene, estimated the distance as about 3 feet. Thompson and Magraw could not remember if it had been windy at the time of the accident; West recalled that there had been an occasional light breeze, but it had not been blowing hard. All four witnesses agreed that there had been some slack in the wire. West and Thompson testified that for approximately four months during an earlier phase of construction the wire had been shielded with protective covers installed by the Union Electric Company, but that the company had removed these covers about [*5] 1-1/2 to 3 weeks before Hartema's accident. Police officer Magraw concurred with Thompson and West that there had been no protective covers present at the time of the accident. Barthelmass, who stated that safety was one of his responsibilities for Respondent, admitted that he had not contacted Union Electric either to have the electricity turned off or to have the protective covers put on. He noted that these wires may have served the entire industrial park, but they did not feed directly into this particular jobsite. No other evidence was presented regarding the purpose or use of the power lines.

II

In his decision, Judge Dixon noted that the cited standard at 29 C.F.R. 1926.400(c)(2) is limited in its coverage by section 1926.400(b), which provides, in pertinent part, as follows:

(b) Applicability. These regulations apply only to electrical installations used on the jobsite, both temporary and permanent . . . .

The judge found that the deceased was a painter engaged in painting rather than electrical work and concluded that "29 CFR 1926.400(c)(2) is a standard applicable to persons performing electrical work and . . . inapplicable to painters." For this reason, the [*6] judge concluded that the cited standard was inapplicable to the facts of this case. He further found that a wind-blown electrical wire coming into contact with a metal paint-roller extension was a hazard recognized neither by Respondent nor by the industrial painting industry. Moreover, in Judge Dixon's view, the evidence demonstrated that the fatal occurrence was an unforeseeable event for which Respondent should not be held responsible. Accordingly, he vacated the citation.

III

On review, the Secretary argues that the judge erred in holding that the cited standard is inapplicable to painters. He notes that under 29 C.F.R. 1910.12(b) painting contractors are included among the employers who are required to comply with applicable construction standards in 29 C.F.R. Part 1926. He also asserts that the cited standard applies by its terms, i.e., "any person," to all workers exposed to the conditions described in the standard.

In reply, Respondent supports the judge's conclusion that the cited standard is inapplicable to the cited working conditions. However, Respondent's reasoning differs from the judge's. Respondent emphasizes the scope limitation expressed in 29 [*7] C.F.R. 1926.400(b), supra, in arguing that the cited standard is applicable "only to electrical installations used on the jobsite." It asserts that there is no evidence in the case now before us that the fatality was caused by an electrical installation used on the jobsite because there is no evidence that the power lines in question were connected to, installed on or used on the construction jobsite. Respondent also notes that the deceased employee was neither working on nor using any electrical installation. Accordingly, Respondent concludes, the Secretary failed to sustain his burden of proving that section 1926.400(c)(2) is applicable to the cited working conditions. n2

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n2 Respondent also contends that the direction for review in this case should be vacated "and the Judge's decision left standing" because of an alleged "abuse of discretion in the application of the [Commission's] Rules of Procedure." Specifically, Respondent asserts that it was denied an opportunity to file an opposition to the Secretary's petition for discretionary review because the petition was filed after the twenty-day period referred to in 29 C.F.R. 2200.91(b)(1) had expired and also because it did not receive a copy of the petition until after the direction for review had been issued.

In United States Steel Corp., 81 OSAHRC    , 9 BNA OSHC 1641, 1643 n.8, 1981 CCH OSHD P25,282 at p. 31,251 n.8 (No. 76-5007, 1981), the Commission considered and rejected an argument by the employer that was essentially the same as Respondent's contention in this case. The Commission reasoned that, notwithstanding any possible noncompliance with the Commission's rules governing petitions for discretionary review, the issues stated in the direction for review were properly before the Commission because they could have been directed for review by a Commissioner on his own motion. For this same reason, we reject Respondent's contention in this case.

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IV

It is well settled that the burden of proving that a particular standard applies to the cited working conditions is on the Secretary. Here, the cited standard is applicable "only to electrical installations used on the jobsite, both temporary and permanent." 29 C.F.R. 1926.400(b). Yet, there is no evidence that any of the power lines referred to in the record were "used on the jobsite." Accordingly, we agree with Respondent's contention that the Secretary failed to prove the applicability of the cited standard. Since this holding is dispositive of the case, we need not reach the other specific arguments presented by the parties. We therefore affirm the judge's order vacating the citation.

SO ORDERED.