IOWA SOUTHERN UTILITIES COMPANY

OSHRC Docket No. 9295

Occupational Safety and Health Review Commission

March 15, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr. Reg. Sol., USDOL

McChord Carrico, Assistant General Counsel, Iowa Southern Utilities Co., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

A decision of Administrative Law Judge Vernon Riehl is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [Hereinafter "the Act"]. In his decision Judge Riehl affirmed a citation alleging a serious violation of the Act for failure to comply with the standard at 29 CFR 1926.950(b). n1

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n1 The standard reads:

Subpart V - Power Transmission and Distribution

1926.950 General requirements.

* * *

(b) Initial inspections, tests, or determinations.

(1) Existing conditions shall be determined before starting work, by an inspection or a test. Such conditions shall include, but not be limited to, energized lines and equipment, conditions of poles, and the location of circuits and equipment, including power and communication lines, CATV and fire alarm circuits.

(2) Electric equipment and lines shall be considered energized until determined to be deenergized by tests or other appropriate methods or means.

(3) Operating voltage of of equipment and lines shall be determined before working on or near energized parts.

[*2]

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Respondent petitioned for review of the Judge's decision, and an order granting its petition was issued. We affirm the decision of the Judge insofar as it is consistent with this decision.

Respondent is engaged in the production, distribution, and sale of electric power. On June 17, 1974, an employee of respondent, lineman Daniel Schnicker [hereinafter "decedent"], was electrocuted while attempting to remove the middle phase of a three-phase power line energized at 13,200 volts. Following the accident, the worksite was inspected and a citation alleging noncompliance with 1926.950(b) was issued. Respondent contested the citation, and the parties agreed to submit the case for decision by the Judge on the basis of a stipulation of facts and supporting affidavits. No hearing was held.

The stipulation stated that at the time of the accident a "temporary working foreman" was at the jobsite. It also stated that "[t]he accident was the result of respondent's employees' failure to take the necessary precautions to ascertain that power distribution lines had been de-energized before working on them." [*3] The Judge found that the temporary working foreman "had precisely the knowing character of the facts constituting a violation of the standard to establish a violation on the part of respondent." Finding that the foreman was "in charge" of the job, the Judge imputed his acts and knowledge to respondent and affirmed the citation.

On review, respondent makes two basic arguments. First, it is argued that the temporary working foreman was not a supervisory employee whose conduct and actions can be imputed to respondent. Second, respondent argues that it had done all that it could reasonably have been expected to do to prevent the violation, and that to hold it responsible for the "unexpected" action of its employees is tantamount to imposing a strict liability standard contrary to the intent of the Act. We reject both arguments.

We believe that the Judge imputed correctly the temporary working foreman's actions and knowledge to respondent. In Ocean Electric Corp., 3 BNA OSHC 1705, 1975-76 CCH OSHD para. 20,167 (No. 5811, 1975), petition for review docketed, No. 76-1060, 4th Cir., January 16, 1976, we stated:

A corporate employer can, of course, only act and acquire [*4] knowledge through its agents. Thus, in the ordinary case, the actions and knowledge of supervisory employees are imputed to their employer and the employer is responsible for violations they create or of which they have actual or constructive knowledge . . . (citations omitted).

The stipulation in the present case stated that the temporary working foreman at the involved jobsite had "only that degree of limited technical authority necessary to carry out the requirements of the job assigned to him by his supervisor." This vague description of the foreman's duties is clarified in respondent's brief wherein it is stated:

The temporary working foreman had no authority to decide what job to work on, when to work on a particular job, who was to work on a particular job, or make any of the other myriad decisions which requires the consultation, advice, and direction of a supervisory (or management level) employee . . . [T]he temporary working foreman designation is to grant authority over those details which are incidental to the main function of completing the job assigned.

Furthermore, in his affidavit respondent's Electric Operating Supervisor stated that, "the temporary working [*5] foreman classification is made of various individuals from time to time in order to expedite the minor details of fulfilling job assignments as made by Company supervisors," and that "the foreman in question on this particular work site failed to order all of the necessary steps to have the line de-energized and that such failure contributed to deceased's death . . ." (emphasis added).

These descriptions show that the temporary working foreman was vested with some degree of authority over the other crew members assigned to carry out the specific job involved. This authority included the power to order that the necessary steps be taken in order to complete properly the job, including ordering that the condition of the line be determined before work thereon commenced, as required by the standard. This is an adequate basis for finding that the temporary working foreman was a supervisory employee for purposes of this case. It is the substance of the delgation of authority over other employees that is of primary importance, and not the title of the employee to whom the authority is given.

In Ocean Electric Corp., supra, we also held, however, that an employer who [*6] otherwise would be found in violation of the Act due to the actions and knowledge of a supervisor, could defend on the basis that it took all necessary precautions to prevent the occurrence of the violation. Respondent's second argument raises this defense. We conclude, however, that it has not been established.

As stated in Ocean Electric Corp., in order to establish that all necessary precautions had been taken,

We will require a showing by the employer that the supervisory employee with knowledge of the violation was himself adequately supervised with regard to safety matters. Elements in such a showing may include the degree to which the employer demonstrates a genuine commitment to safety, the manner in which this commitment is communicated to employees, the effort exerted in actually attempting to discover violations committed by supervisory employees, and any disciplinary measures taken when violations have been discovered (citation omitted).

In arguing that it has done everything that it could reasonably be expected to do to prevent the occurrence of the violation, respondent emphasizes the scope of its safety and training program, and asserts that the involved employees' [*7] failure to comply with the standard was directly contrary to company safety rules and instructions. We must therefore examine respondent's safety and training program to determine whether respondent fulfilled its duty under the Act by adequately instructing its employees, particularly its foreman, on the need for and manner of complying with 29 CFR 1926.950(b). See Ames Crane & Rental Service, Inc. v. Dunlop, 532 F.2d 123, 125 (8th Cir. 1976); Brennan v. Butler Lime & Cement Co., 520 F.2d 1011, 1017-18 (7th Cir. 1975). If respondent has failed in this respect, its defense fails and it will be responsible for the violations.

The stipulation contains a general statement that, "[a]s part of their formal and continuous training, respondent's employees are instructed by Company personnel concerning the necessary safety precautions that must be taken in regard to various jobs as they are assigned from time to time." Affidavits submitted by supervisors of respondent describe the safety and training program, which includes lectures, films, meetings, reading assignments, tests, inspections, and on-the-job training. Respondent submits that as a result of the involved employees' [*8] participation in the program, they should have known the necessary steps to be taken in order to carry out properly the assigned job. We disagree.

The adequacy of respondent's safety and training effort cannot be determined simply by listing the major features of its safety program. Specific safety instructions and workrules concerning hazards peculiar to the job being performed are the essential foundations of an adequate safety program. See Brennan v. Butler Lime & Cement Co., supra; Ames Crane & Rental Service, Inc. v. Dunlop, supra. Respondent emphasizes two particular company safety "rules" which it asserts should have been, but were not, followed. In respondent's view, if these rules had been observed no violation would have resulted.

First, we are directed to 209.4 of respondent's safety rules publication. This safety rule reads as follows:

Section 209 -- Grounding De-energized Circuits & Apparatus

209.1 Rubber gloves and rubber sleeves shall be used when applying and removing grounds.

209.2 When circuits and equipment are de-energized for work, they shall be short-circuited and grounded with approved grounding sets on each side of the work [*9] area, regardless of whether there is more than one source of supply.

209.3 Grounding cables shall be connected to an effective ground before making any connections to the conductor.

209.4 Before the grounding sets are applied an employee shall first determine, by approved means, that all phases of the circuits or equipment are de-energized. The workmen shall stand well below the circuit when applying grounding clamps (emphasis added).

This rule, however, is not an equivalent of the cited standard. By its terms, respondent's rule applies only in a much narrower set of circumstances, i.e., when applying grounding sets to circuits or equipment on which work is being performed. The standard is addressed to a broader range of activity, requiring that existing conditions be determined "before starting work," which includes, but is not limited to, the application of grounds.

Respondent has not cited us to any other work rule or rules that would afford the employees a measure of protection comparable to that provided for in the standard, n2 nor has our review of the record revealed any. Therefore, its defense that it took all necessary precautions to prevent the occurrence [*10] of the violation fails.

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n2 The burden of showing the existence of an appropriate work rule requiring compliance with the cited standard is on respondent. Utilities Line Constr. Co., 4 BNA OSHC 1681, 1976-77 CCH OSHD para. 21,098 (No. 4105, 1976). We note also that an employer must do more than merely issue safety instructions. Its instructions also must be adequately communicated to its employees and uniformly and effectively enforced. A.J. McNulty & Co., Inc., 4 BNA OSHC 1097, 1976-77 CCH OSHD para. 20,600 (No. 2295, 1976); B-G Maintenance Management, Inc., 4 BNA OSHC 1282, 1976-77 CCH OSHD para. 20,744 (No. 4713, 1976).

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The second safety "rule" that respondent emphasizes does not change this result. Respondent argues that it is a basic company "ethic" that "each employee is primarily responsible for his own safety." It asserts that if decedent had followed this rule, he would have determined for himself the condition of the line before commencing work thereon, and therefore the foreman's failure [*11] would not have affected him.

This argument must also be rejected. First, the decedent's failure to determine existing conditions is also attributable to respondent's lack of an appropriate work rule. Second, under the Act final responsibility for compliance with its requirements is placed on the employer. This responsibility cannot be shifted from an employer to its employees by any work rule. Atlantic & Gulf Stevedores, Inc. v. O.S.H.R.C., 534 F.2d 541, 553-5 (3d Cir. 1976).

The Secretary proposed a penalty of $550 for this serious violation. In the stipulation the parties stated that in computing the proposed penalty consideration was given to the gravity of the violation and respondent's size good faith, and history of previous violations. The Judge concluded that the proposed penalty was appropriate and assessed a $550 penalty. We agree that this penalty is appropriate.

Accordingly, the citation for a serious violation of the Act for failure to comply with 29 CFR 1926.950(b) is affirmed and a penalty of $550 is hereby assessed.

It is so ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The record in this case does not establish that respondent knew or should have [*12] known of the alleged violative actions of its employees, which actions were in contravention of established work procedures designed for their protection. Furthermore, it is improper to impute the foreman's knowledge to respondent in order to find liability under the Act for noncompliance with the occupational safety standard codified at 29 C.F.R. 1926.950(b).

As I noted in my separate opinion in Secretary v. Utilities Line Construction Company, OSAHRC Docket No. 4105, September 16, 1976, three Circuit Courts have acknowledged that either actual or constructive knowledge is an essential element of any violation of the Act. n3 Thus, complainant must show that respondent knew, or with the exercise of reasonable diligence should have known, of the existence of the conditions or practices upon which the alleged violation is based. n4 My colleagues are disregarding that requirement, however, and holding respondent liable under a standard of strict liability which is neither authorized nor intended by the Act. Horne Plumbing and Heating Co. v. OSAHRC, 528 F.2d 564 (5th Cir. 1976); Secretary v. B.D. Click Co., OSAHRC Docket No. 9806, October 29, 1976; Secretary v. Engineer [*13] Construction Incorporated, 20 OSAHRC 348 (1975).

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n3 Dunlop v. Rockwell International, 540 F.2d 1283 (6th Cir. 1976); Horne Plumbing and Heating Co. v. OSAHRC, 528 F.2d 564 (5th Cir. 1976); Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975).

n4 Messrs. Barnako and Cleary have in footnote 2 of the preceding opinion, as they have done in the past, improperly shifted the burden of proof to the respondent. See Secretary v. Ocean Electric Corp., OSAHRC Docket No. 5811, November 21, 1975 (dissenting opinion).

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Any complete review of respondent's extensive safety literature would lead the reviewer to the conclusion that respondent has expended considerable time, effort, and expense in its employee training and safety program. My colleagues' statement that the record does not reveal any work rules which afford employees a measure of protection comparable to the cited standard is at best fanciful.

It was stipulated by the parties that the accident occurred [*14] as a "result of Respondent's employees' failure to take the necessary precautions to ascertain that power distribution lines had been de-energized before working on them." As my colleagues correctly note, the standard allegedly violated, 29 C.F.R. 1926.950(b), requires that existing conditions be determined "before starting work." They also correctly acknowledge that respondent's safety rule 209.4 requires a determination that lines are de-energized before grounding sets are applied. I do not understand, however, how they conclude the 1926.950(b) is addressed to a "broader range of activity." What the majority fails to properly consider is that safety rule 209.2 requires grounding by way of approved grounding sets whenever lines or equipment are de-energized for work. n5

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n5 The text of the pertinent safety rules is quoted in full in the majority opinion.

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The majority opinion states the following:

"By its terms, respondent's rule applies only in a much narrower set of circumstances, i.e., when [*15] applying grounding sets to circuits or equipment on which work is being performed. The standard [29 C.F.R. 1926.950(b)] is addressed to a broader range of activity, requiring that existing conditions be determined 'before starting work,' which includes, but is not limited to, the application of grounds."

Respondent's rules directly apply to the circumstances before us and require the same predetermination of conditions as is required by 1926.950(b). If grounding is required when, as in this case, work is to be performed on a line which should be de-energized, n6 and if before it is grounded the line must be checked, it cannot be said that section 1926.950(b) is broader than respondent's rules. It is clear that the requirements in the standard are implicitly contained in respondent's rules.

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n6 See 29 C.F.R. 1926.950(d)(1)(iv) which also requires grounding of de-energized lines or equipment that is to be worked on.

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Since my colleagues' theory of liability in this case is based on an erroneous finding that [*16] respondent's safety rules do not provide a measure of protection comparable to the cited standard, their holding is legally incorrect. The citation should be vacated.