UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 76-1803

TUNNEL ELECTRIC CONSTRUCTION CO.,

 

                                              Respondent.

 

 

August 11, 1980

DECISION

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

BY THE COMMISSION:

            This case is before the Commission for review under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). At issue is a citation alleging that the Respondent, Tunnel Electric Construction Company, committed a serious violation of section 5(a)(2) of the Act by failing to comply with the safety standards found at 29 C.F.R. §§ 1926.800(l)(1) and 1926.402(a)(8).[1]

            Administrative Law Judge Benjamin G. Usher affirmed the citation and assessed a penalty of $500. Chairman Timothy F. Cleary subsequently directed review of the judge’s decision sua sponte on the following issues:

            (1) Whether the standard at 29 C.F.R. § 1926.402(a)(8) is unconstitutionally void for vagueness;

            (2) Whether the Administrative Law Judge erred in concluding that the electrical cables to which respondent’s employees were exposed presented the hazards contemplated by the standard at 29 C.F.R. § 1926.402(a)(8); and

            (3) Whether the Administrative Law Judge erred in concluding that respondent’s lack of exclusive control over the work that gave rise to the charged violation is not a valid defense to the charge.

            Respondent filed a brief in response to the direction for review. The Secretary of Labor (‘the Secretary’) submitted a statement-of-position letter in lieu of a brief, urging an affirmance of the judge’s decision and expressing his reliance upon the record, the Secretary’s post-hearing brief, and the judge’s decision and order.

I

            The citation at issue resulted from an inspection of a subway construction project in Washington, D.C. where Respondent, an electrical subcontractor, was responsible for providing temporary light and power to the prime contractor on the site, Morrison-Knudsen and Associates (‘Morrison-Knudsen’). Morrison-Knudsen supplied all materials for Respondent including the necessary electrical cables. It also gave Respondent’s on-site foreman, Hughes, daily instruction regarding work assignments for the electricians. At the time of the inspection, Morrison-Knudsen was concluding its installation of concrete on the walls of the inbound tunnel. This process had already been completed in the adjacent outbound tunnel. The concrete-pouring operation involved heavy equipment—mobile scaffolds for installing reinforcing bar and finishing cement and a radius car for placing concrete—moving on steel track in the tunnel. Morrison-Knudsen poured about 200 feet of concrete per day. In addition to Hughes, Respondent had two employees assisting the concrete-pouring operation during the day shift and one employee during each of the ‘swing’ and ‘graveyard’ shifts. Their duties were to move the cables and to keep the lights, motors, and fans running.

            During the inspection an Occupational Safety and Health Administration compliance officer, Clyde Farrar, observed some 3000 feet of energized 480 volt cable lying in mud, muck, and debris and under a flow of water on the ‘invert’ (floor) of the inbound tunnel. The cable was used to power the tunnel’s temporary electric lighting. Sections of the cable were kinked, broken at connection points, or had protective armor unraveled. In some places, the 480 volt cable lay directly against the tracks and in others, adjacent to them. The 480 volt cable consisted of three power conductors and three smaller grounding conductors wrapped in successive layers of cable tape, interlocking metal cladding (referred to as ‘armor’), and tubing of polyvinyl chloride one-sixteenth inch thick. Farrar also observed an energized 7200 volt cable that was used to power the radius car in the inbound tunnel lying on the invert of the outbound tunnel near a cross adit, a small passageway connecting the inbound and outbound tunnels. The cable lay partially encased in hardened concrete. The 7200 volt cable consisted of three insulated conductors, each with a braided electrostatic shield, and three grounding conductors, one of which was insulated. All of the conductors were pressure-extruded to achieve a round outside surface and were wrapped in a neoprene jacket that ranged from one-quarter to three-eighths of an inch thick. A locomotive, some ‘muck cars,’ and a car used to transport employees at shift changes were operating on track in the outbound tunnel.

            In Farrar’s view the hazard associated with the condition of the two cables was that physical damage to the cable could cause a fire or explosion and employees, depending upon their proximity to the cables, could inhale the resultant fumes and could suffer burns or shocks causing serious physical injury or death. In fact, Farrar found, as Hughes already knew, that both cables had been damages on a number of occasions. The damage to the cables had been caused by water seeping into a junction box, air and water pipes being dropped on the invert, concrete forms falling while being transported within the tunnel, and derailments of ‘muck cars’. During the course of the inspection, electricians assigned to extricate the 480 volt cable from some hardened concrete accidentally struck the cable with a pick-axe, causing the circuit breaker to blow out, the lights to go out, and sparks to fly from the cable. There were no reported injuries attendant to these instances of cable damage.

            The 480 volt cable had initially been suspended from ‘S’ hooks along the wall of the tunnel, but was gradually removed at the direction of Morrison-Knudsen’s Electrical Superintendent, Shanks, and placed on the invert, out of the way of the progress of the concrete-pouring operation.[2] Before the cable was lowered, Hughes complained to his immediate supervisor at Tunnel Electric, LaPrise, regarding the shock hazard associated with dropping the cable in the muck and water along the floor of the tunnel. LaPrise, an Area Manager whose principal duties at the worksite appear to have been collecting time sheets and delivering checks, advised Hughes to proceed as instructed by Morrison-Knudsen. Hughes warned him men to stay away from the cable. However, that was not practicable if they were to perform their job assignments in the tunnels. Respondent was supposed to re-hang the cable on the wall behind the advance of the concrete-pouring operation, but that soon was neglected because the cable became variously embedded in concrete, entangled in air and water lines, or submerged under mud. In order to re-hang the cable, it would have been necessary to turn off the power while the electricians took steps to free the cable. Shanks, however, instructed Hughes not to cut off the lights, for this would have retarded the work in the tunnel.[3] Eventually, by the time of the inspection, some 3000 feet of 480 volt cable was down on the inbound tunnel and 70 feet of 7200 volt cable was down in the outbound tunnel. More than 500 feet was lodged in concrete.

II.

            The standard at section 1926.402(a)(8) requires that electric cables be elevated or covered. See note 1 supra. It is undisputed that the cables were not elevated. Therefore, the controversy has centered, in part, on the question of whether the cables were ‘covered’ within the meaning of the standard. On review, Respondent argues at length that the standard is vague because of the absence in the standards of any definition for the ambiguous term ‘covered’; that the cited cables were ‘covered’ according to the industry practice; and that, in the absence of a specific definition, it was reasonable for Respondent to conclude that these cables were ‘covered.’ These are essentially the same contentions that were asserted below and rejected by the judge. Inasmuch as he correctly decided the issue before him, we adopt the judge’s conclusions. See Adrian Construction Co., 79 OSAHRC 16/A2, 7 BNA CCH 1172, 1979 CCH OSHD ¶ 23,389 (No. 15414, 1979); Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD ¶22,737 (No. 14281, 1977). Additionally, we note in particular that resort to a ‘reasonable person’ test to clarify the term ‘covered’ is unwarranted. Respondent’s focus upon the single word ‘covered’ ignores the clear context of its use and deprives the standard of its salutary force. The cited standard plainly commands that a cable be either elevated or covered to the extent necessary for protection from damage which would cause a hazard. Thus, an employer who chooses to guard against cable damage by means of a protective cover must ascertain the types of damaging agents present in the vicinity of the cable and must adopt a covering sufficiently durable to withstand contract with those agents. In our view, this standard is drafted with sufficient precision given the variety of cable coverings that could be required under myriad working conditions. See Austin Commercial v. OSHRC, 610 F.2d 200 (5th Cir. 1979); Diebold Inc. v. OSHRC, 585 F.2d 1327 (6th Cir. 1978). Moreover, as we have held previously, a standard is not vague simply because its application requires the exercise of judgement. Dravo Corp., 80 OSAHRC ___, 7 BNA OSHC 2095, 1980 CCH OSHD ¶24,158 (No. 16317, 1980), appeal docketed, No. 80–1267 (3rd Cir., Feb. 27, 1980). Respondent should have recognized that the cables were not adequately covered because locomotives, mobile scaffolds, ‘much cars’ and other heavy equipment operating in the confined tunnel work area were obviously capable of damaging the cables—and did. In addition, heavy materials such as forms and pipes could and did damage the cables.

III.

            Respondent presents several arguments on the issue of whether the Secretary has established the existence of the hazard contemplated by the cited standard. In essence, Respondent submits that the Secretary’s assertions regarding the potential hazard are purely speculative. Initially, Respondent contends that, because the cables were equipped with ground fault interrupter systems which would cut off the power in the event of cable damage, its employees were protected from injury. Respondent also suggests that heavy equipment could not have been operating in the inbound tunnel because the track had been partially removed or obstructed. We conclude that the judge properly rejected these claims, holding that Respondent has not carried its burden of proving that the ground fault interrupter system is ‘fail safe’ insofar as insuring employees’ health and safety; and that the presence of damaging agents such as locomotives, ‘muck cars,’ mobile scaffolds, concrete forms, air-hammers and pick-axes in both tunnels is supported by the record. We therefore adopt his decision on these issues. Adrian Construction Co., supra; Gulf Oil Co., supra.

            Respondent also asserts that there was no hazard under the circumstances presented by this case because no injuries resulted from any of the reported incidents of cable damage. Moreover, Respondent points out that its employees all were experienced electricians who were fully aware of the existence, location, and purpose of the cables. Finally, Respondent discounts the incident involving the pick-axe-wielding electrician as an employee ‘frolic’.

            The Commission has held that, when a standard prescribes specific means of enhancing employee safety, a hazard is presumed to exist if the terms of the standard are violated. Clifford B. Hannay & Son, Inc., 78 OSAHRC 12/A2, 6 BNA OSHC 1335, 1978 CCH OSHD ¶22,525 (No. 15983, 1978). Again, it is undisputed that neither the 480 volt cable nor the 7200 volt cable was elevated. We are also persuaded that neither was ‘covered’ within the meaning of the standard. Consequently, since the cable was not elevated and not provided with an adequate cover, the hazard was established. Additionally, there is ample testimony to establish the substantial probability that death or serious physical harm could result if an injury-causing accident occurred. The probability of an accident’s actually taking place is irrelevant. Dravo Corp., supra, 7 BNA OSHC at 2101, 1980 CCH OSHD at p. 29,370. Moreover, it is well settled that employers are not relieved of responsibility for compliance with a standard because of the absence of injuries. Winn-Dixie Stores, Inc., 78 OSAHRC 35/B11, 6 BNA OSHC 1598, 1978 CCH OSHD ¶22,712 (No. 76–1733, 1978).

            As for Respondent’s assertions concerning the experience of its electricians, even highly experienced employees are entitled to the protection the Act seeks to provide. As we stated in Butler Lime and Cement Co., 79 OSAHRC 103/D12, 7 BNA OSHC 1973, 1975, 1979 CCH OSHD ¶24,091 at p. 29,269 (No. 855, 1979) appeal docketed, No. 80–1121 (7th Cir., Jan. 31, 1980), ‘an employer may not ignore readily available opportunities to take simple precautionary measures that will protect an employee from exposure to life threatening hazards simply because the employee is experienced.’ Therefore, Respondent’s failure to comply with the cited standard cannot be excused on the basis of the experience of its employees.

            Finally, by referring to the ‘frolicking’ electrician, Respondent has raised the affirmative defense of unpreventable employee misconduct. The Commission has stated that, in order to establish this defense, an employer must show that the action of its employee was a departure from a uniformly and effectively communicated and enforced work rule. H.B. Zachry Co., 80 OSAHRC ___, 7 BNA OSHC 2202, 1980 CCH OSHD ¶ 24,196 (No. 76–1393, 1980), appeal docketed, No. 80–1357 (5th Cir., Mar. 28, 1980). The mere formulation of work rules, however, is not sufficient to avoid responsibility for a violation. But for Hughes’ general caution to the electricians to stay away from the very cables that the employees were charged with maintaining, there is nothing in the record to support this affirmative defense. In any event, the pick-axe incident is neither the sole nor the determinative indicia of a hazard in this case. The gravamen of this violation is employee exposure to energized cables which were inadequately protected against the obvious threat of damage posed by the heavy equipment in the work area. The fact that, excluding the pick-axe incident, the testimony revealed at least five separate instances of damage to the cables only confirms the Secretary’s assertions of a hazard in the tunnel.

IV.

            Respondent also raises a number of contentions to support the defense that it neither created nor controlled the hazard at this multi-employer worksite and, therefore, cannot be held responsible. Respondent relies upon the Commission decisions in Grossman Steel and Aluminum Corporation, 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975–76 CCH OSHD ¶20,691 (No. 12775, 1976) and Anning-Johnson Company, 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975–76 CCH OSHD ¶20, 690 (No. 4409, 1976). It argues that as a subcontractor it only provided labor while Morrison-Knudsen provided materials including the cable and that the highest ranking employee on the site was a mere foreman who was not part of Tunnel Electric’s management. Respondent maintains that the foreman’s immediate supervisor at Tunnel Electric, LaPrise, was present at the worksite only periodically to handle administrative matters. In general, no work was performed by Respondent’s personnel except at Morrison-Knudsen’s instruction. In particular, Morrison-Knudsen directed Respondent to drop the cables to the invert. For its part, Respondent told its men to avoid the cables and to repair them when necessary. Finally Respondent states that Morrison-Knudsen had sufficient control of the site to require additional protective measures.

            Essentially, these contentions were made below and were properly rejected by the judge. Therefore, we adopt his conclusions. Adrian Construction Co., supra; Gulf Oil Co., supra. Although acting under daily instruction from Morrison-Knudsen, Respondent retained responsibility for maintaining the cables. We add that Respondent’s foreman had knowledge of the hazard, knowingly participated in creating the hazard by dropping the 480 volt cable[4] at Morrison-Knudsen’s direction, and had knowledge that employees were exposed to the hazard. Moreover, the record reflects only feeble Tunnel Electric efforts to abate the condition. Foreman Hughes protested to his supervisor, LaPrise. LaPrise advised him, essentially, to do what he was told. Later, Hughes told his men to avoid the cables. Respondent’s own president testified that both Hughes and LaPrise had authority to order Tunnel Electric employees out of the tunnel even over the objection or contrary order of Morrison-Knudsen. Such a posture of passivity in the face of known and serious hazards cannot be excused especially where, as here, the employer possesses the technical expertise and personnel to abate the hazards. Howard Electric Co., 78 OSAHRC 37/B9, 6 BNA OSHC 1518, 1978 CCH OSHD ¶22,672 (No. 15339, 1978).

V.

            In lieu of the proposed penalty of $800.00, the judge assessed $500.00. The judge noted that the size of Respondent’s business is small-to-medium and that its history of compliance with the Act is, according to the Secretary’s records, comparatively good. In addition, Respondent’s attitude toward the health and safety of its employees as reflected in the record is not devoid of good faith. We agree with the judge that a penalty of $500.00 is consistent with the objectives of section 17(j) of the Act.

 

Accordingly, we affirm the citation and assess a penalty of $500.00.

 

SO ORDERED

 

FOR THE COMMISSION:

 

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: AUG 11, 1980

 


 


UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 76-1803

TUNNEL ELECTRIC CONSTRUCTION CO.,

 

                                              Respondent.

 

October 18, 1977

DECISION AND ORDER

Appearances:

Kenneth A. Hellman, Esq. Office of the Solicitor U. S. Department of Labor Washington, D.C. for the Complainant

 

Harold Gordon, Esq. Gordon and Healy Attorneys at Law Washington, D.C. for the Respondent

 

USHER, Judge:

            This is a proceeding initiated by the Secretary of Labor, United States Department of Labor, pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter referred to as the Act) seeking affirmance by the Commission of a citation which charges a ‘serious’ violation of Section 5(a)(2) of the Act and seeking further to have the Commission assess an $800 penalty for this alleged violation.

            The citation was issued by Complainant’s agent, the Area Director of the Occupational Safety and Health Administration (hereinafter ‘OSHA’) on April 1, 1976, the result of an inspection by an OSHA Compliance Safety and Health Officer (hereinafter ‘the OSHO’) of a work site in Washington, D.C. on several days between February 23 and March 2, 1976. Respondent timely contested the citation, pursuant to Section 10(c) of the Act, and a Complaint and Answer were filed in accordance with the Commission’s Rules of Procedure. The issues were tried before the undersigned at Washington, D.C. on October 27 28, November 3 4, 1976, and January 5 6, 1977.

            Jurisdictional Facts

            Respondent is an Illinois corporation (Tr. 5) which maintains offices at McCook, Illinois (Tr. 8), employs employees (Tr. 11, et seq.) and engages in a business affecting interstate commerce (Tr. 14, 15).

            The issues

            The pleadings, the evidence adduced by the parties and the arguments of counsel have served to raise the following basic issues.

            1. Was Complainant’s Complaint following basic issues.

            2. Can Complainant amend the citation in his Complaint?

            3. Is the occupational safety and health standard promulgated by Complainant and codified at 29 CFR 1926.402(a)(8) (hereinafter ‘the standard’) ‘unconstitutionally void for vagueness’?

            4. Did Respondent violate Section 5(a)(2) of the Act by failing to comply with the provisions of the cited standard?

            5. Did Respondent’s actions (or its failure to act) constitute a ‘hazard’ to its employees?

            6. Did Respondent present a valid defense to the charged violation because of ‘not having exclusive control of the work or the premises.’?

            7. If Respondent violated the provisions of the Act, was that violation ‘serious’ or ‘other than serious’ (hereinafter ‘the CSHO’) of the Act?

            8. If Respondent violated the provisions of the Act, what penalty, if any, is appropriate?

Timeliness of Complaint

            According to the record, Complainant did not file his Complaint in strict accordance with the Commission’s Rules of Procedure (Rule 33 (a)(1)). His Motion for Extension of Time was granted by Chief Judge Charles K. Chaplin. Respondent’s Motion for Reconsideration of that ruling and its Motion to Strike were considered by the full Commission as an interlocutory matter and were denied prior to the assignment of the matter to me. Respondent again made the motion before me, and it was denied. The question is treated briefly here only because it is again raised in Respondent’s post-trial brief. It should suffice to say that Respondent has shown no legal prejudice occasioned by Judge Chaplin’s ruling or by that of the Commission.

Amendment of Complaint

            In the citation Complainant charged a violation of the safety and health standard codified at 29 CFR 1926.400(a), and the violative conduct is described:

            Electrical equipment was not installed in a neat and workmanlike manner in accordance with Article 110 12 of the National Electrical Code NFPA 70 1971; ANSI CI 1971 (Rev of CI 1968) in that:

            a) 7200 volt energized Mine Power Feeder Cable was allowed on floor or invert of tunnel and not supported 8 feet above to prevent physical damage.

            b) 80 volt interloc Armor Cable used as lighting service was allowed on floor or invert of tunnel and not supported 8 feet above to prevent physical damage.

            In his Complaint Complainant amended the charge to assert a violation of the standards codified at 29 CFR 1926.800(1)(i) and 29 CFR 1926.402(a)(8) and described the violation as follows:

. . . electrical cable passing through work areas was not covered or elevated to protect it from damage which would create a hazard to employees in that:

 

(1) the 7200 volt energized Mine Power Feeder Cable in the outbound tunnel at the cross adit of Shaft 4 was on the floor or invert of the tunnel.

 

(2) the 480 volt Interloc Armor Cable used for lighting service was on the floor or invert of the inbound tunnel between shafts 2 (134+80) and 4 (164+50) for approximately 3000 linear feet.

 

            He asserted that the amendment served ‘to allege both the factual and legal charges with greater specificity . . ..’

            Respondent’s objection to Complainant’s right to amend the citation in his Complaint was argued at a pretrial hearing on October 27, 1976, and Complainant’s Motion to Amend was granted.[5] It was made clear at that hearing that the charged violation was a ‘failure to comply with the provisions of 29 CFR 1926.402(a)(8), as made applicable by 29 CFR 1926.800(1)(i).’

            The standard set forth at 29 CFR 1926.800(1)(i) is contained in Subpart ‘S’ of the Occupational Safety and Health Standards and Interpretations, is entitled ‘Tunnels and Shafts, Caissons, Cofferdams, and Compressed Air,’ and is subtitled ‘Tunnels and Shafts.’ It provides that

[e]lectrical equipment shall conform to the requirements of Subpart K of this part.

 

Subpart ‘K’ of the standards and interpretations contains 29 CFR 1926.402(a)(8) which provides:

Cable passing through work areas shall be covered or elevated to protect if from damage which would create a hazard to employees.

 

Validity of Standard[6]

            Respondent has argued at length and has adduced plethoric testimony and physical evidence to establish that ‘[t]he Secretary’s regulation [1926.402(a)(8)] is unconstitutionally vague in two respects . . . the regulation fails to define the word ‘covered’ [and] the Secretary then attempts to read a stricter and different standard into the regulation by claiming it means “adequately covered.” Counsel for Respondent asserts ‘the standard violates due process; Fifth Amendment, United States Constitution’ because, among other things, ‘men of common intelligence must necessarily guess at its meaning and differ as to its application,’ citing Connally v. General Construction Company, 269 U.S. 385; International Harvester Company v. Kentucky, 234 U.S. 216; Collins v. Kentucky, 234 U.S. 634; Boyce Motor Lines, Inc. v. United States, 342 U.S. 337; Ryder Truck Lines, Inc. v. Secretary of Labor, 497 F.2d 230; Secretary of Labor v. California Stevadoring Company, CCH OSHD para. 15,097; and Diamond Roofing Co., Inc. v. OSHRC et al, 528 F.2d 645.

            *3 Respondent’s position that the enforcement of a vaguely worded standard may be violative of due process is well taken as several of the cited cases instruct us. However, here the vagueness, or perceived vagueness, is self-imposed by Respondent who insists that the outer protective layers of the cable which ‘cover,’ ‘insulate,’ ‘shelter,’ and ‘guard’ the inner conductors of the current constitute the covering required by the terms of the safety standard.

            Significantly, all ‘men of common intelligence’ need not ‘guess at [the] meaning [of the standard].’ The CSHO, Clyde W. Farrar, a man of extensive experience in the field of construction safety, had no difficulty understanding what the standard requires.[7] Respondent’s foreman, Robert Hughes, a recognized that the cable needed to be ‘covered’ in a manner different from that which existed. Complainant’s expert witness, Ralph Lee, a thoroughly competent electrical engineer, understood the requirements of the standard.

            Complainant’s argument is persuasive. As he points out with considerable logic, an employer is put on notice by the standard’s provisions that he must either elevate or cover a cable ‘if conditions in the workplace . . . are such that the cable may be damaged and if that damage will create a hazard to employees . . ..’ Thus, he contends that the standard ‘delineates its reach in words of common understanding,’ citing Secretary of Labor v. OSHRC and Santa Fe Trail Transport Company, 505 F.2d 869; Cameron v. Johnson, 390 U.S. 611.

            Complainant’s counsel further cautions us that this standard, having been promulgated pursuant to remedial legislation, must be read ‘in light of the conduct to which it is applied’ (Secretary of Labor v. OSHRC and Santa Fe Trail Transport Company, supra; Ryder Truck Lines, Inc. v. Secretary of Labor, supra; McLean Trucking Company v. OSHRC and Secretary of Labor, 503 F.2d 8.) The obvious purpose of the standards promulgated pursuant to the Act is to assure safe and healthful working conditions for employees. The reason for requiring that a cable be covered or elevated is ‘to protect it from damage which would create a hazard to employees’ and to thus assure safe and healthful working conditions for those employees. By its very terms, therefore, the standard requires that a cable be either elevated or covered to the extent necessary for protection from damage which would create a hazard. Complainant’s argument that the standard requires ‘adequate’ covering to accomplish the stated purpose is entirely reasonable.

            In light of these considerations, I find that the standard promulgated pursuant to Section 6 of the Act and codified at 29 CFR 1926.402(a)(8) is not void because of vagueness.[8]

            Discussion and Evaluation of the Evidence of the Alleged Violation

            The testimony of the CSHO, the opinion expressed by Complainant’s expert witness, and the testimony of Respondent’s employees establishes the facts which are essential to the findings set forth hereinafter.

             On or about February 24, 1976, Respondent was engaged as the ‘temporary electrical’ subcontractor on the Metro construction project known as project A6a. Morrison-Knudsen and Associates was engaged there as the general contractor.

            The work site, located in Northwest Washington, was accessed at 2400 Rock Creek Parkway. Two parallel tunnels were being excavated and the interiors of the tunnels were being finished with concrete at the time of the OSHA inspection. The tunnels were connected at various points by crossovers or ‘cross adits,’ and access to the tunnels was gained by shafts.

            The CSHO described a 480-volt cable which he observed laying on the ground or floor of the inbound tunnel for approximately 3000 feet between shafts numbered 2 and 4. The cable was being used to electrically power lights and sundry equipment in the tunnel. He described the cable as kinked, broken and damaged, and characterized the ‘invert’[9] as being composed of water, mud and muck. Respondent’s witness stated that the cable had laid on the floor of the tunnel for some six weeks prior to the OSHA inspection. Previously, it had been hung on the wall on ‘S’ hooks, but was taken down and laid on the floor by Respondent’s employees at the foreman’s direction. The foreman had been told to do so by his superior who acted on instructions from the general contractor’s supervisory personnel. Respondent’s foreman testified that the cable was damaged; the protective cover or ‘neoprene jacket’ was cut and ‘the conductors exposed.’ It ‘was in that condition . . . [for] several weeks.’

            The foreman described what he perceived to be the hazard presented by the damaged cable. He instructed his men ‘to hang a red raincoat over [the exposed conductors]’ and further advised them ‘to stay away from it,’ but it was not possible for them to ‘stay away from it and do their jobs.’ The witness testified that Respondent’s employees were required to work near the cable in question and that the cable was then energized.

            The testimony of the foreman establishes that he advised Respondent’s project superintendent about the hazard involved in placing the cable on the floor of the tunnel, but the superintendent, Claude Laprise, replied that he had been instructed to do so by Morrison-Knudsen supervisory personnel.

            According to the testimony, the cable ‘blew up,’ exploded,’ and ‘there were bits of copper spread over the cable.’ ‘It tripped the 150-amp circuit’ on at least one occasion. Respondent’s employees were working in the tunnel at the time.

            While the record leaves some doubt concerning how the break (or breaks) in the cable occurred, the evidence supports the conclusion that damaging agents were present. For example, heavy equipment was propelled within the tunnel on steel wheels operating upon steel tracks, and the cable was strewn perilously close to the tracks.

            The testimony of Claude Laprise, Respondent’s foreman, was limited, but it did serve to deny any knowledge on his part concerning the fact that the cable in question ‘blew up’ or ‘exploded.’ Significantly, he was not questioned by either party about his alleged instructions to drop the cable from the ‘S’ hooks and lay it on the wet ground prior to the commencement of the concreting operation.

            One of Respondent’s employees, Walter Alexander, an electrician, testified about having had to repair breaks in the cable that was found laying on the floor of the tunnel. This occurred on two different occasions prior to the OSHA inspection. The cable had been ‘smashed [as though] it had been struck by something . . . [t]he outer jackets were torn open, in one instance the conductors were burnt.’

            The CSHO also observed what he described as a ‘7200-volt power cable’ laying on the floor or invert of the outbound tunnel at the cross adit of shaft 4. It, too, was positioned near the steel track upon which the ‘train cars’ were propelled, and employees were observed working in close proximity to it.

            Respondent has not contended that the cables in question were elevated. It has not seriously contested the assertion that they were not covered by any extraneous substance, but rather has obliquely asserted that the electric-current conductors were surrounded by a neoprene outer jacket (1/4 to 3/8 inch thick) and that the neoprene (or polyvinyl chloride) jacket constituted a ‘cover’ as required by the standard.

            Assuming arguendo that the standard allows for such an interpretation, the question next presented is whether or not such a covering protected the cable from damage which would create a hazard. The extensive and credible testimony of Complainant’s expert witness, Ralph Lee, when summarized, establishes the fact that the ‘cloth tape,’ ‘interlocking metal cladding [or] reinforcing ’ and the ‘polyvinyl chloride tubing’ which surrounded the energy conducting ‘cable bundle’ did not constitute a cover sufficient to protect the cable from damage which would create a hazard. Having heard the testimony of the CSHO and Respondent’s employees concerning the conditions which existed in the tunnel at the time of the OSHA inspection, Mr. Lee opined ‘that the cable is unsuited for that use, and the likelihood of failure is unusually high.’ Mr. Lee described conditions which could be expected to create a ‘mechanical injury to the cable’ and thus present a ‘hazard,’ viz, ‘the ignition of an arc similar to, but much more intense than, an electrical arc of an arc welding apparatus . . . with molten copper or steel droplets being propelled out [from the cable] to distances of five to ten feet.’ The witness described in some detail the personal injuries he has witnessed as the result of exposure to the described hazard.

            Respondent adduced the testimony of Thomas Weichel, who was duly qualified as an expert witness. Mr. Weichel’s significant contribution to the controversy was his ability to say, without qualification, that the cables in question were ‘covered’ as that term is used in the National Electrical Code and as defined by the Insulated Power Cable Engineers Association (IPCEA) of which he is a member. He was not, however, able to enlighten us as to the meaning of ‘covered’ as that term is used in the OSH standard codified at 29 CFR 1926.402(a)(8).[10]

            The evidence, therefore, clearly establishes that the two cables which were laid by Respondent’s employees on the floor of the tunnel at the above-described work site were not elevated or ‘covered’ to protect them from damage which would cause a hazard.

            Respondent’s Actions Constituted a Hazard

            As has been stated hereinabove, the CSHO, Respondent’s employees and Mr. Lee, whose expert testimony was adduced by Complainant, considered the unguarded, ‘uncovered’ cables as hazardous. Mr. Weichel did not.[11]

            The record contains a plethora of opinions and counter opinions regarding the effectiveness of a ‘ground fault circuit interrupter system’ allegedly in use at the work site while the cables laid on the floor of the tunnel. Respondent asserts that this system eliminated any possible hazard resulting from a physical insult to the cables. The system, described in great detail by Messers Weichel and Lee, may or may not have been operative at the time of the OSHA inspection. In either event, Respondent has not carried its burden of proving that the system is ‘fail safe’ insofar as ensuring employees’ health and safety. The device is seemingly intended to protect machinery and equipment rather than persons.

            Lack of Control by Respondent

            Respondent’s assertion that it was ‘not liable for violating the . . . regulations [because] it did not have exclusive control of the work or premises’ (citing Secretary of Labor v. OSHRC and Underhill Construction Corporation, 513 F.2d 1032) is not well founded. Underhill simply stands for the proposition:

‘. . . where . . . an employer is in control of an area, and responsible for its maintenance, . . . to prove a violation of OSHA, the Secretary of Labor need only show that a hazard has been committed and that the area of the hazard was accessible to the employees of the cited employer or those of other employees engaged in a common undertaking.’ (Ibid at p. 1038).

 

            The testimony of Respondent’s employees established the fact that Respondent was the subcontractor at the work site in question ‘doing electrical work for the excavation of the tunnel.’ Among its responsibilities was maintenance of the cables in question, and its foreman ‘instructed [his] men to lay it on the floor;’ ‘. . . it was on the wall . . . [m]y men took it off the wall.’ Respondent created the condition and its employees not only had access to the hazard presented by the cables, but, according to the evidence, they (perhaps together with the employees of the general contractor and other subcontractors) were actually exposed to the hazard. Under these circumstances, the lack-of-control defense (as more clearly enunciated in Secretary of Labor v. Anning-Johnson Co., OSHRC Docket Nos. 3694 and 4409, CCH OSHD para. 20,690; and Secretary of Labor v. Grossman Steel and Aluminum Corporation, OSHRC Docket No. 12775, CCH OSHD para. 20,691) is not available to Respondent.

            Seriousness of the Violation

            The testimony of the CSHO, as well as that of Respondent’s employees and the expert witness, Mr. Lee, fully establishes Complainant’s assertion that there was a substantial probability that death or serious physical harm could result from the violative condition. The probability of a fatal electrocution was not proven, but the serious results of possible physical damage to the cable were detailed, especially in the testimony of Mr. Lee.

            The Penalty

            The $800 penalty proposed by Complainant is not totally reasonable. The criteria set forth in Section 17 of the Act were considered by Complainant’s agents at the time they computed the proposed penalty. However, additional credits might be given because of the size of Respondent’s business and its history of previous violations. The business is relatively small to medium, and its history of compliance with the Act’s provisions is, so far as the record reflects, comparatively good. A $500 penalty would more nearly conform with the mandate of Section 17 of the Act.

FINDINGS OF FACT

            A preponderance of the probative evidence of record, taken in its entirety, compels the following findings of fact:

            1. Respondent, Tunnel Electric Construction Company, is an Illinois corporation which engages in electrical construction in several states.

            2. On or about February 24, 1976, Respondent maintained a place of business or work site at the Metro A6a project in Northwest Washington, D.C., where it performed as a temporary-electrical subcontractor for Morrison-Knudsen Associations and employed eight or more employees who handled goods and materials that had moved in interstate commerce.

            3. On or about February 24, 1976, two or more of Respondent’s employees were exposed to an occupational safety hazard which was occasioned by the presence of energized electrical cables laying upon the floor of a tunnel at the aforementioned work site.

            4. The electrical cables referred to in Finding of Fact No. 3 were not covered or elevated to protect them from physical damage which would create a hazardous condition from which serious physical harm or death could, as a substantial probability, result.

            5. Subsequent to, and as a result of, an inspection of the above-mentioned work site by Complainant’s agent on or about February 24, 1976, a citation was issued to Respondent by Complainant and a penalty for Respondent’s violative conduct was proposed by Complainant.

            6. The size of Respondent’s business is relatively small-to-medium; its history under the Act, so far as Complainant’s records indicate, is compliant; a total lack of a good faith attitude by Respondent toward the safety and health of its employees has not been demonstrated in the record.

CONCLUSIONS OF LAW

            1. Jurisdiction of the parties and of the subject matter herein is conferred upon the Occupational Safety and Health Review Commission by Section 10(c) of the Act.

            2. At all times relevant hereto, Respondent was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Act and as such was subject to the requirements of Section 5(a)(2) of the Act.

            3. The occupational safety and health standard promulgated by Complainant and codified at 29 CFR 1926.402(a)(8) is not unconstitutionally void for vagueness.

            4. On or about February 24, 1976, Respondent violated the provisions of Section 5(a)(2) of the Act by failing to comply with the provisions of the safety standard promulgated pursuant to Section 6 of the Act and codified at 29 CFR 1926.402(a)(8).

            5. The penalty hereby assessed for the aforesaid violation has been computed with due consideration of the criteria set forth in Section 17(j) of the Act.

ORDER

            Upon consideration of the aforegoing findings and conclusions, it is hereby ORDERED that

            The citation issued to Respondent by Complainant on April 1, 1976, is AFFIRMED and a penalty of $500 is ASSESSED.

 

BENJAMIN G. USHER

Judge, OSHRC

Dated: OCT 18, 1977

 

Hyattsville, Maryland

 

 



[1] 29 C.F.R. § 1926.800(l)(1) provides:

§ 1926.800 Tunnels and shafts

(1) Electrical Equipment. (1) Electrical equipment shall conform to the requirements of Subpart K of this part.

29 C.F.R. § 1926.402(a)(8) provides:

Subpart K—Electrical

§ 1926.402 Equipment Installation and Maintenance

(a) Flexible cable and cords.

(8) Cable passing through work areas shall be covered or elevated to protect if from damage which would create a hazard to employees.

[2] Notwithstanding Respondent’s contrary arguments, the record indicates that dropping this cable from its protected, elevated position was not the only feasible option in order to complete the concrete-pouring. The cable could have been passed through the adjacent tunnel and, while still elevated on ‘S’ hooks, back-fed to illuminate the concrete-pouring operation from behind. Indeed, this method had been employed earlier regarding the 480 volt cable when concrete was poured in the outbound tunnel. Moreover, at the time of the inspection the 7200 volt cable was elevated through the outbound tunnel and then backfed across into the inbound tunnel. Nevertheless, some seventy feet of it had been permitted to rest on the invert of the outbound tunnel at the cross adit, where it became partially encased in hardened concrete. The record is not clear as to who authorized and who accomplished the lowering of the 7200 volt cable in this area.

[3] The record shows that the general contractor would not authorize any elective repairs to maintain the cable that would have necessitated shutting off the power in the tunnel. Only emergency repairs necessitated by power failures were permitted.

[4] See note 2 supra.

[5] Commission’s Rules of Procedure, Rule 33(a)(3); National Realty and Construction Company, Inc., v. OSHRC, et al., 489 F.2d 1257 (December 13, 1973).

[6] Respondent’s counsel errs when he asserts ‘[t]he mere fact this matter required a five-day trial of this matter [sic] shows the standard is void for vagueness.’ He also points out that I repeatedly asked Complainant’s counsel for an explanation of the meaning of the word ‘covered’ as used in the standard, and he implies that my questioning proves ‘vagueness.’ It might be noted that had Complainant’s counsel presented his counter argument as well at trial as he has in his Post-Trial Brief, perhaps the trial time would have been shortened.

[7] About Mr. Farrar, Respondent’s counsel said: ‘. . . I have known the Compliance Officer in this case personally for 15 years. He is no fool. He has more experience in this than anyone in this room, and he knew what he was doing when he cited us. . . . he is a personal [sic] expert, and I can personally testify that I have prosecuted cases against him 15 years ago.’

[8] The parties’ arguments and counter-arguments regarding whether or not the standard requires an extraneous covering, or a covering in addition to that which was included in the cable’s manufacture, need not be addressed here. The covering, whether a part of the cable itself or exogenous thereto, must be adequate to protect it from hazard-creating damage.

[9] The floor of the tunnel is referred to by witnesses and counsel—in the transcript and in briefs—as ‘the invert.’

[10] Respondent’s expert witness did state, however, that the standard in question is, in his opinion, not clear [vague] with respect [to the use of the word]“covered.” In his opinion “guarded” would be a better word to use.’

[11] It is interesting to note that Respondent’s Area Manager, Claude Laprise, was called as Respondent’s witness. It might be presumed that he would have information which would be helpful in resolving the factual issues here. However, neither party asked him a single significant question.