United States of America

*OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION*

1924 Building - Room 2R90, 100 Alabama Street, SW

Atlanta, Georgia 30303-3104









Secretary of Labor, 	
Complainant,

	
v.

	OSHRC Docket No. 01-1253
Sam Houston Electric Coop., Inc., 	
Respondent.

	



Appearances:




Christopher V. Grier, Esq., Office of the Solicitor, U. S. Department of Labor, Dallas, Texas
For Complainant




Tony R. Rosenstein, Esq., Baker Botts, LLP, Houston, Texas
For Respondent



Before: Administrative Law Judge Nancy J. Spies



*DECISION AND ORDER*



Sam Houston Electric Coop., Inc. (SHECO), contests a one-item citation
issued by the Secretary on June 12, 2001. SHECO is a rural electric
cooperative chartered by the state government to provide electricity to
its members. In December 2000, a severe ice storm in eastern Texas
caused extensive damage to several power lines, resulting in outages in
that part of the state. Two of SHECO's employees volunteered to assist
Rusk County Electric Cooperative, Inc. (RCEC), in restoring power to
RCEC's approximately 17,000 members. On December 19, 2000, a lineman for
another electric service company also assisting RCEC, Texas Electric
Utility Construction, Inc. (TEUC), was electrocuted while working on a
power line at a location near Longview, Texas. The Secretary
investigated the fatality and issued citations to SHECO, RCEC, and TEUC.

The citation alleges that SHECO committed a serious violation of §
1910.269(m)(3)(iv), because its employees failed to use tags to ensure
the protection of employees against re-energizing power lines on which
they were working.

A hearing in this matter was held on December 3, 2001, in Houston,
Texas. SHECO argues that it did not violate the terms of the cited
standard; that it was not an employer within the meaning of the
Occupational Safety and Health Act of 1970 (Act) at the fatality site;
that its employees were not exposed to a hazardous condition; and that
the lineman's electrocution was the result of unpreventable employee
misconduct. The parties have filed post-hearing briefs.

For the reasons discussed below, it is determined that the Secretary
failed to establish that SHECO had actual or constructive knowledge of
the violative condition. The citation will be vacated.

*Background*

In December 2000, RCEC was experiencing emergency operational problems
in Rusk County due to downed power lines resulting from a severe ice
storm. The ice storm did not affect power lines serviced by SHECO, whose
service area is in Livingston, Texas, located approximately 80 miles
southwest of Rusk County. RCEC asked area electric service companies for
assistance in repairing the lines. Two SHECO linemen, Larry Horn and
Ronnie Hindsman, volunteered to help, as did TEUC linemen Bryan Hale and
Shane Freeman. RCEC also arranged for Brock Contractors to cut fallen
tree branches that had become entangled in the power lines.

Ronnie Spencer, a staking engineer for RCEC, supervised the emergency
power restoration effort (Tr. 55). His crew on December 19 consisted of
SHECO employees Horn and Hindsman, TEUC employees Hale and Freeman, and
two employees from Brock Contractors (Tr. 56-57). Their last job on
December 19 was repairing power lines located along Highway 349,
approximately 4 miles from Kilgore, Texas (Tr. 56). Spencer assigned the
employees from TEUC to replace a damaged insulator, and he assigned the
Brock Contractors employees to accompany them and to trim some branches
around the power lines. The employees from TEUC and Brock Contractors
did not have walkie-talkies or any other means of communicating with
Spencer once he left their assigned site. Spencer, Horn, and Hindsman
drove to another location along the road, approximately ¼ mile away,
where a pine tree had fallen across the power lines (Tr. 64-65, 112-113).

The bucket truck operated by the TEUC employees became stuck in a ditch
by the side of the road as Hale and Freeman attempted to untangle two
power lines. Spencer learned of their predicament from some RCEC
employees who had driven by to deliver lunch to the TEUC and Brock
employees. Spencer sent Horn and Hindsman to pull them out of the ditch
with their SHECO truck. After doing so, Horn radioed Spencer that Hale
and Freeman were clear of the power lines. Spencer re-energized the
lines (Tr. 66-70, 168-171).

RCEC contends that Horn mistakenly thought that Hale and Freeman were
finished with their task and prematurely signaled that they were clear
of the line. The Secretary contends that Horn correctly signaled Spencer
that the TEUC employees were clear of the line, but for some reason (not
explored at the hearing) Hale returned to the bucket and began working
on the power line again. In any event, when Spencer re-energized the
line, Hale was electrocuted (Tr. 11).

*The Citation *

The Secretary has the burden of proving her case by a preponderance of
the evidence.

In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (a) the applicability
of the cited standard, (b) the employer's noncompliance with the
standard's terms, (c) employee access to the violative conditions, and
(d) the employer's actual or constructive knowledge of the violation
(/i.e., /the employer either knew or, with the exercise of reasonable
diligence could have known, of the violative conditions).



/Atlantic Battery Co., /16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

*Item 1: Alleged Serious Violation of § 1910.269(m)(3)(iv)*

The Secretary charges SHECO with a serious violation of §
1910.269(m)(3)(iv), which provides:

Tags shall prohibit operation of the disconnecting means and shall
indicate that employees are at work.



The citation alleges:

On or about December 19, 2000, tags were not used at work site to ensure
the protection of employees against the re-energizing of the power lines
on which they were working.



(1) Applicability of Cited Standard

Section 1910.269(a)(1) provides that § 1910.269 (Electric power
generation, transmission, and distribution) "covers the operation and
maintenance of electric power generation, control, transformation,
transmission, and distribution lines and equipment." Section 1910.269(m)
(1) provides: "Paragraph (m) of this section applies to the deenergizing
of transmission and distribution lines and equipment for the purpose of
protecting employees." SHECO employee Horn testified that he was working
on a distribution line on December 19, 2000 (Tr. 52). Section
1910.269(m)(3)(iv) applies to the cited condition.

(2) Violation of Terms of the Cited Standard

None of the seven employees working on the Rusk County power lines on
December 19, 2000, used tags to indicate that employees were working on
deenergized power lines (Tr. 51, 61-62). SHECO argues that the seven
employees working on the power lines comprised a single crew, and thus
were not required to use tags under an exception provided in §
1910.269(m)(2)(iii).

Section 1910.269(m)(2)(i) provides:

If a system operator is in charge of the lines or equipment and their
means of disconnection, all of the requirements of paragraph (m)(3) of
this section shall be observed, in the order given.



Thus, if there is a system operator, the standard requires that tags be
used. However, the Secretary's own witness, OSHA assistant area director
Stephen Boyd, testified that there was no system operator working on
December 19, 2000 (Tr. 216). This brings into play § 1910.269(m)(2)(ii),
which provides:

If no system operator is in charge of the lines or equipment and their
means of disconnection, one employee in the crew shall be designated as
being in charge of the clearance. All of the requirements of paragraph
(m)(3) of this section apply, in the order given, except as provided in
paragraph (m)(2)(iii) of this section. The employee in charge of the
clearance shall take the place of the system operator, as necessary.



Spencer testified that, as supervisor, he was the member of the crew
designated as being in charge of the clearance (Tr. 80-81). As noted, if
a crew member is designated as being in charge of clearance, the
requirements of paragraph (m)(3) (including the use of tags) apply,
except as provided in § 1910.269(m)(2)(iii), which provides: 

If only one crew will be working on the lines or equipment and if the
means of disconnection is accessible and visible to and under the sole
control of the employee in charge of the clearance, paragraphs
(m)(3)(i), (m)(3)(iii), (m)(3)(iv), (m)(3)(viii), and (m)(3)(xii) of
this section do not apply. Additionally, tags required by the remaining
provisions of paragraph (m)(3) of this section need not be used.



SHECO argues that only one crew was working on the power lines at the
time of the fatality, and thus tags were not required. In support of its
argument, SHECO introduced an OSHA Standard Interpretation and
Compliance Letter addressing the subject of "Clarification of single and
multiple crews for purposes of deenergizing lines" (Exh. R-2). The
pertinent part of the letter states (Exh. R-2; emphasis in original):

*Question #1:* At what point do we no longer have a single crew working
on this single transmission line which may be as much as 100 miles long
and instead have independent crews needing separate clearance as
required by 29 CFR 1910.269(m)(3)(iii)?



*Reply:* Paragraph 1910.269(m)(3)(viii) requires each independent crew
to follow steps outlined in § 1910.269(m)(3) *separately* to ensure that
a group of workers does not make faulty assumptions about what steps to
de-energize lines or equipment have been or will be taken by another
group. The preamble summary and explanation section to this rule
(*Federal Register*, 59(20), Monday, January 31, 1994, p. 4391.)
contains the following paragraph (m)(3)(iii) discussion on multiple crews:



*Additionally, this paragraph does not apply to work performed by two
crews working on lines or equipment controlled by the same disconnecting
means. (A group of employees made up of several 'crews' of employees who
are under the direction of a single employee and who are working in a
coordinated manner to accomplish a task on the same lines or equipment
are considered to be a single crew, rather than as multiple independent
crews. . .)*



**Therefore, for purposes of paragraph 1910.269(m), workplace scenarios
with two or more crews that do not meet this test are independent crews.
The employee in charge of the single crew must have*sole control* of the
work and must coordinate the activities of all employees involved in the
job. In addition, the employee in charge must be responsible for the
clearance for the entire job and must be the only person communicating
with the system operator, unless responsibility has been transferred
under § 1910.269(m)(3)(ix). The procedures must include effective visual
or verbal (e.g., radio) communications with all crew members. In
addition, the employee in charge, in accordance with § 1910.269(c), must
conduct *a single job briefing with all the employees* involved before
they start the job.



Under this interpretation, the seven employees working on the Rusk
County power lines on December 19 were not a single crew. The record
establishes that Spencer was the employees' supervisor and had sole
control of the work, but he did not have effective visual or radio
communications with all crew members. While it is not the purpose of
this proceeding and decision to determine the cause of the fatal
accident, it is apparent from the record that the TEUC employees' lack
of direct communication with Spencer resulted in the miscommunication of
vital information.

TEUC employee Freeman testified as follows (Tr. 112-113):

Freeman: [W]hen [Spencer] told me to clear up the line, he did tell me,
"Send the tree trimmers down there when you all are finished," and I
never did send the tree trimmers down there. They were standing right
there beside me.



Q.: Were you in communication with anyone when the line was energized?



Freeman: The only person would have been when the tree trimmers were
there, and they were standing right there besides me.

. . .

Q.: Were they in communication with anyone?



Freeman: No, they would have to drive down there to the breaker pole.



Horn testified that shortly after he and Hindsman had pulled the TEUC
vehicle out of the ditch, he received a call on the radio from Spencer,
wanting to know if the lines were clear to be re-energized. Horn stated
(Tr. 171-172):

One of the gentlemen--I don't know if it was Shane or Brian, I couldn't
tell you which individual it was, we were all dressed in cold-weather
gear. The gentlemen looked very similar, very similar height--indicated
to me that they were in the clear. And, I was still walking towards him.
I said, "You all have already cleared the lines?"

And he verified by saying, "Yes, we are clear," and he gave me, I call
it a old lineman's signal in the clear [motioning hands with thumbs and
forefingers up].



It is the Secretary's theory that one of the TEUC employees told Horn
that they were clear, and then, for reasons unknown, started working on
the lines again. However the miscommunication occurred, if the TEUC
employees had had their own radio to communicate directly with Spencer,
there would have been less likelihood of a fatal accident. Hale or
Freeman could have radioed Spencer to tell him they were clear, and if
they believed it necessary to continue working on the line, they could
have radioed him and let him know of the change. Reliance on a third
party resulted in confusion that may have contributed to Hale's death.

Based on the guidelines set out in the compliance letter, the seven
workers comprised more than one crew, and were therefore required to use
tags. In failing to use tags, the employees violated §1910.269(m)(3)(iv).

(3) Employee Exposure

SHECO claims that Horn and Hindsman were not exposed to hazardous
condition because they followed safe work practices, including using
insulated gloves and a hot stick, while working on the Rusk County power
lines (Tr. 157). This argument is rejected.

"Exposure to a violative condition may be established either by showing
actual exposure or that access to the hazard was reasonably
predictable." /Phoenix Roofing, Inc., /17 BNA OSHC 1076 (No. 90-2148,
1995). SHECO contends that Horn and Hindsman's safety precautions
eliminates their exposure to the violative condition. But the SHECO
employees' access to the untagged power lines was reasonably
predictable. Reasonable predictability is established by showing "that
employees either while in the course of their assigned working duties,
their personal comfort activities while on the job, or their normal
means of ingress-egress to their assigned workplaces, will be, are, or
have been in a zone of danger." /Giles & Cotting, Inc., /3 BNA OSHC
2002, 2003 (No. 504, 1976). Horn and Hindsman were assigned to work on
the power lines, which were in the zone of danger. "The zone of danger
is determined by the hazard presented by the violative condition, and is
normally that area surrounding the violative condition that presents the
danger to employees which the standard is intended to prevent." /RGM
Construction Co., /17 BNA OSHC 1229, 1234 (No. 91-2107, 1995).

Regardless of the safety precautions taken by Horn and Hindsman, they
were in the zone of danger of the untagged lines. The Secretary has
established their exposure to the violative condition.

(4) Employer knowledge

The final element that the Secretary must prove is that SHECO had actual
or constructive knowledge that its employees did not use tags on
December 19. On this element the Secretary has failed to make her case.

Horn and Hindsman responded to a call for volunteers from RCEC. At the
time in question, they were both linemen; neither of them were
supervisors. Horn and Hindsman worked on restoring the power in Rusk
County for several days. During that time they stayed in a hotel in
Longview, Texas, at RCEC's expense (Tr. 152-152).

RCEC engineer Spencer supervised Horn and Hindsman, as well as the TEUC
and Brock employees. Horn testified that he and Hindsman "did nothing
unless we were directed to do so" (Tr. 20). During the period that they
worked on the Rusk County power lines under Spencer's supervision,
neither Horn nor Hindsman had any contact with SHECO's management
personnel (Tr. 154, 189).

The Secretary did not show that SHECO had actual knowledge of the
violation. It did not know that its employees worked in separate crews
or failed to tag out while doing so on December19, 2000. The record
establishes that SHECO received no information regarding its employees'
work activities during the time in question.

The Secretary argues that SHECO had constructive knowledge that its
employees would be exposed to the hazard of working with untagged power
lines. She cites the digest of an unreviewed ALJ case, /Charles T.
Driscoll Masonry Restoration Company, Inc.,/ 6 BNA OSHC 1657, 1658 (No.
77-2320, 1978), in support of her position: "An employer cannot avoid
liability for violation of safety standards by merely failing to
authorize any employee to act in a managerial or supervisory capacity.
The employer could have known of the violative conditions had it carried
out its duty to oversee the operation."

In /Driscoll/, the employer argued that its president had not seen the
cited scaffolds prior to the OSHA inspection, and therefore did not know
of the violations. The employer had never designated one of the workers
to be the supervisor in the president's absence, and so all of the
workers were of equal status. /Driscoll/ is easily distinguishable from
the present case, where SHECO's employees volunteered to work for
another employer under the supervision of an engineer. SHECO had no duty
to oversee the emergency operation at a remote worksite for which its
employees volunteered.

The Secretary also contends that SHECO had constructive knowledge that
its employees were not using tags because the company failed to train
them in the use of tags. Horn testified that he did not use tags and had
not received training in their use (Tr. 52, 190). SHECO maintains that
it trained all of its employees in the safety requirements of § 1910.269.

SHECO introduced a copy of Horn's safety training classes. Included
among the many courses Horn took is "OSHA Working Energy '95," a one-day
course apparently taught by OSHA personnel on the subject of § 1910.269
(Exh. R-1; Tr. 201-202). SHECO employs a full-time training and safety
instructor, and it holds weekly safety meetings during which its safety
manual is reviewed (Tr. 150-151, 200). Horn's admission that he did not
use tags does not establish that SHECO failed to train its employees on
this requirement, or that it had constructive knowledge that its
employees would fail to use tags if ever working in separate crews with
RCEC. Horn's lack of awareness of the tagging requirement may have
resulted from his own inattention to the safety training. In any event,
the citation of § 1910.269(a)(2)(i) would be more applicable for a lapse
in training, which SHECO would be wise to address.
Section 1910.269(a)(2)(i) provides in pertinent part:

Employees shall be trained in and familiar with the safety-related work
practices, safety procedures, and other safety requirements in this
section that pertain to their respective job assignments.



The Secretary is attempting to use an alleged safety training violation
to establish the constructive knowledge element of her case. The
Secretary's evidence is too slender to support a finding of constructive
knowledge for the off-site employer. Some training was provided in
tagging, even if SHECO did not ordinarily use tags for its own work. It
is determined that the Secretary has failed to prove that SHECO knew its
employees were not using tags while working under the supervision of a
RCEC supervisor on December 19, 2000. Horn and Hindsman were out of
contact with SHECO's management personnel, and SHECO had no supervisory
personnel on the site. Because of the disposition of this case, it is
unnecessary to address any other legal arguments.

Item 1 is vacated.

*Findings of Fact and Conclusions of Law*

The foregoing decision constitutes the findings of fact and conclusions
of law in accordance with Federal Rule of Civil Procedure 52(a).

*Order*

Based upon the foregoing decision, it is hereby ORDERED that item 1 of
citation no. 1 is vacated, and no penalty is assessed.





/s/

NANCY J. SPIES

Judge



Date: May 13, 2002