SECRETARY OF LABOR,
Complainant,

v.

GULF STATES UTILITIES COMPANY,
Respondent.

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL- CIO,
LOCAL UNION 2286,

Authorized Employee Representative.

OSHRC Docket No. 82- 0867


_DECISION_

Before: BUCKLEY, Chairman; RADER and WALL, Commissioners. BY THE COMMISSION.

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. § 661(1), section 12(j) of the Occupational Safety and
Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act"). The Commission is
an adjudicatory agency, independent of the Department of Labor and the
Occupational Safety and Health Administration . It was established to
resolve disputes arising out of enforcement actions brought by the
Secretary of Labor under the Act and has no regulatory functions. See
section 10(c) of the Act, 29 U.S.C. § 659(c).

Gulf States Utilities Company ("Gulf States") is a public utility that
supplies electricity in parts of southeastern Texas and southwestern
Louisiana. On July 8, 1982, a Gulf States line crew was changing certain
insulators for a Power line at a site near Vinton, Louisiana. On one
pole supporting the power line some of the line-to-pole insulators had
been damaged by vandalism. The Gulf States crew was replacing the
damaged porcelain insulators with new epoxy ones, which are less
susceptible to damage than porcelain. There were two other sets of
insulators on the same pole, but the crew was not replacing these
insulators because they were not damaged.

The crew consisted of five employees, including a foreman, a
second-class lineman, and a third-class lineman. When the crew arrived
at the worksite, they received a clearance order indicating that the
power lines had been deenergized. The foreman then discussed with the
crew the procedure by which they would ground the lines at the worksite.
Even though the lines had been deenergized, it was necessary to ground
them on both sides of the pole so that any voltage induced in a
deenergized line by a parallel energized line would flow to ground at
the worksite and not present a hazard to the employees working at the
pole. The crew used grounding chains, first attached to a neutral or
grounded line (or the ground) and thereafter attached to a
conductor--the deenergized power lines. The crew used insulated tools to
attach the grounding chains to the conductor.

After the damaged insulators had been replaced with new insulators, the
crew proceeded to remove the grounding chains. They were to be removed
in the reverse order of installation--the last conductor grounded would
be the first ungrounded, and so forth. The crew was to use insulated
tools to detach a grounding chain from a conductor. All of these
procedures were discussed by the crew just prior to the start of work on
the lines.

In previously grounding one conductor to another already-grounded one
the crew had spliced two grounding chains together to form one long
enough to make the connection. During the process of removing the
grounding chains, the conductor end of this spliced chain was properly
detached from the conductor with an insulated tool. As a result of an
error, however, another grounding chain was removed out of order.
Because of this error, the spliced chain was no longer attached to a
grounded line and one of the linemen, who was holding the spliced chain
in his lap while trying to unsplice it, was electrocuted by a flow of
current induced in the no-longer-grounded line.

After the accident, the Secretary conducted an inspection and issued a
citation to Gulf States. The citation alleged that, on or about July 8,
1982, Gulf States violated 29 C.F.R. § 1926.954(e)(2) by failing to
remove grounding cables in the reverse order of installation and by
failing to use an insulated tool while uncoupling the two spliced
grounding chains.[[1]] Section 1926.954(e)(2) appears in 29 C.F.R. Part
1926, Subpart V, which governs the "construction" of electric
transmission and distribution lines and equipment. [[2]]

Gulf States argued to the judge and now argues to the Commission that
the cited standard is inapplicable because the work its employees were
performing on electric power lines was not "construction" but, rather,
was maintenance work. Gulf States points out that the legislative
history of Subpart V and Commission precedent indicate that maintenance
work is not subject to Subpart V. Judge Sparks concluded that the
standard was applicable because Gulf States' employees were engaged in
"improvement" rather than maintenance of existing electric transmission
and distribution lines and equipment. Review was directed on this
issue.[[3]] We reverse Judge Sparks' decision and vacate the citation.
We find that the work performed on the power lines was maintenance work
and therefore not subject to Subpart V of Part 1926.

Section 1926.950(a)(1) states that Subpart V applies to construction and
indicates that construction includes improvement. The preamble to the
standard makes clear, however, that the drafters of Subpart V did not
intend construction to cover maintenance work, see 37 Fed. Reg. 24882
(1972),[[4]] and the Commission has long upheld this position in its
decisions. See Mississippi Power & Light Co., 79 OSAHRC 109/D12, 7 BNA
OSHC 2036, 2038, 1980 CCH OSHD ¶ 24,146, p. 29,330 (No. 76-2044, 1979);
Consumer Power Co., 77 OSAHRC 73/E8, 5 BNA OSHC 1423, 1425, 1977-78 CCH
OSHD ¶ 21,786, p. 26,190 (No. 11107, 1977); Pacific Gas & Electric Co.,
75 OSAHRC 40/B9, 2 BNA OSHC 1692, 1693, 1974-75 CCH OSHD ¶ 19,431, pp.
23,191-92 (No. 2821, 1975), aff'd mem., 554 F.2d 1070 (9th Cir. 1977).

The Secretary does not dispute that the standard is inapplicable to
maintenance work; he takes issue only with Gulf States' characterization
of the work as "maintenance" rather than "improvement." The question,
then, is whether the work performed by Gulf States was improvement or
maintenance.

In arguing that the work on the day of the alleged violation was
"improvement," the Secretary first maintains that replacing damaged
insulators is "improvement" per se. The Secretary asserts that because a
damaged insulator [[4]] does not perform its function of insulating a
conductor from its support structure, the work of installing a
replacement insulator of even the same sort would "improve" the
structure. Alternatively, the Secretary argues that the replacement of
porcelain insulators with epoxy insulators upgraded the electric lines
and thus was itself an "improvement."[[5]]

We disagree. The Secretary's first argument--that the replacement of
damaged insulators with insulators of any type "improves" the lines--is
so broad as to make every imaginable sort of maintenance an
"improvement." To adopt it would give no effect to the Secretary's own
rulemaking decision to exclude maintenance from Subpart V, a decision
that the Secretary's review brief neither mentions nor acknowledges.
Replacing damaged insulators is analogous to replacing spark plugs or
light bulbs as they are damaged or wear out--tasks

that are plainly maintenance. The replacement of the damaged insulators
here did not change the capacity or function of the power lines.
Instead, the lines were simply maintained in the same condition they
were before the insulators were damaged. This precisely fits the
ordinary meaning of "maintenance" as "[t]he work of keeping something in
proper condition." American Heritage Dictionary 787 (1976).

The Secretary's alternative argument--that the replacement of porcelain
insulators with epoxy insulators is itself an "improvement"--also
mischaracterize the nature of the work being done here. The tasks
involved in installing replacement epoxy insulators were identical to
those for installing replacement porcelain insulators. The insulation
level remained the same with the installation of epoxy insulators. The
epoxy insulators did not alter or improve the transmission line's
current-carrying capacity, power-transfer capabilities, voltage rating
or any other function.

That the epoxy insulators are more damage-resistant does not take the
work of Gulf States' employees out of the category of maintenance. The
porcelain insulators were not replaced because they were more
susceptible to damage, but because they were actually damaged. They were
not replaced as part of a systematic plan for upgrading the porcelain
insulators. In fact on the pole in question the linemen replaced only
the one insulator which had been damaged, making no change in two
undamaged porcelain insulators on the same pole. Clearly the main
purpose of the work was maintenance or upkeep, not improvement. To hold
that the simple replacement of the damaged insulators in this case was
improvement would have the practical effect of nullifying any exclusion
in the standard for maintenance work.[[6]]

In conclusion, since the work performed in this case involved
maintenance, and not construction, of electric transmission and
distribution lines, section 1926.954(e)(2) does not apply. The citation
is vacated.


FOR THE COMMISSION

RAY H. DARLING, JR.


DATED: November 20, 1985

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FOOTNOTES:

[[1]] The cited standard states:

§1926.954 Grounding for protection of employees.
(e) Attaching grounds. (1) When attaching grounds,the ground end shall
be attached first, and the other end shall be attached and removed by
means of insulated tools or other suitable devices.

(2) When removing grounds, the grounding device shall first be removed
from the line or equipment using insulating tools or other suitable devices.

[[2]] Section 1926.950(a)(1) provides:

§ 1926.950 General requirements.

(a) Application. The occupational safety and health standards contained
in this Subpart V shall apply to the construction of electric
transmission and distribution lines and equipment.

(1) As used in this Subpart V the term "construction" includes the
erection of new electric transmission and distribution lines and
equipment, and the alteration, conversion, and improvement of existing
electric transmission and distribution lines and equipment.

[[3]] Review was directed on the issues of (1) whether the replacement
of the insulators was maintenance or improvement; (2) whether the cited
standard requires an insulated tool to uncouple spliced grounding chains
after the chains
have been removed from the conductor; and (3) whether Gulf States -could
have reasonably anticipated that one of its experienced employees would
have removed grounding chains out of sequence, thus creating the hazard
of electrocution that occurred here. Since we vacate the citation on the
ground that the replacement of the insulators was clearly maintenance,
and thus the cited standard is inapplicable, it is not necessary to
reach the other issues directed for review.

Chairman Buckley would note the following: The record indicates that an
insulated tool was used to remove the spliced grounding chain from the
conductor, but not to unsplice the chains. Gulf States contended that
the cited standard requires only that an insulated tool be used for
detaching the chain from the conductor and that it does not cover any
other task, including other handling of the chain. It argued that the
purpose of detaching the grounding chain from a conductor is so that it
can be handled without an insulating tool. Gulf States also contended
that its safety procedures call for the grounding procedure required by
§ 1926.954(e) and it could not have reasonably anticipated the employee
error (removing the ground out of order) that made it unsafe for the
decedent to handle the spliced cables. The judge found that Gulf States
uniformly and effectively communicated and enforced its work rule
requiring that grounding chains be removed in the inverse order of their
placement.

[[4]] When the Secretary adopted Subpart V, he explained its
applicability as follows:

Applicability. The proposed occupational safety and health standards
contained in Subpart V are applicable to the construction of electric
transmission and distribution lines and equipment. Some comments were
received which recommended that the standards be extended to maintenance
work. The comments go beyond the subject matter of this proceeding which
is addressed to the erection of new electric transmission and
distribution lines and equipment, and the alteration, conversion, and
improvement of existing transmission and distribution lines and equipment.

[[5]] The Secretary also argues that because the crew had been changing
poles and wires as well as insulators during the three or four months
preceding the accident, the employees were engaged in work for
construction and "improvement." We reject this argument. The Secretary's
citation alleged that a violation of the cited standard occurred on or
about July 8. 1982, at which time the crew was only replacing damaged
insulators. The Secretary did not make any charge or present any
evidence suggesting that this crew violated any safety standards during
the conduct of work of a different nature and at other times. In the
absence of evidence that the crew failed to abide by these regulations
at other times and on other sites, we limit our inquiry into whether a
violation occurred on or about the date set forth in the citation.

[[6]] The Secretary cites several Commission cases in support of his
position, but the cases are clearly distinguishable All involved far
more substantial alterations to the electric power transmission systems
than is involved in this case. In Mississippi Power, a crew was
replacing an entire utility pole with a new larger pole. In Pacific Gas,
a crew was replacing a rotted wooden pole with a new one, transferring
the power lines to the new pole, replacing two secondary conductors with
a duplex conductor, and installing one new transformer in place of two
old ones. This reduced the number of lines and transformers needed in
the system. In the case before us, only broken porcelain insulators on
one side of a pole were being replaced with epoxy insulators.