“Docket No. 78-2831 SECRETARY OF LABOR, Complainant,v.GATES & FOX COMPANY, INC., Respondent.OSHRC Docket No. 78-2831DECISION Before:\u00a0 BUCKLEY, Chairman, and CLEARY, Commissioner. BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration.\u00a0 It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor (\”Secretary\”) under theAct and has no regulatory functions.\u00a0 See section 10(c) of the Act, 29 U.S.C.? 659(C).Gates & Fox Company, Inc. (\”Gates & Fox\”) was asubcontractor engaged in the construction of a portion of the Washington D.C. subwaysystem.\u00a0 The two citation items on review concern whether Gates & Fox’s DrottModel 2500 truck crane was operated too close to power lines in violation of 29 C.F.R. ?1926.550(a)(15)(i) and whether Gates & Fox failed to comply with 29 C.F.R. ?1926.800(b)(3) by not providing self-rescuers in the tunnel area serviced by a shaft atBrandywine Street.\u00a0 Administrative Law Judge Henry K. Osterman affirmed both of thecitation items and found that the violations were willful under section 17(a) of the Act,29 U.S.C. ? 666(a).[[1]]The two participating Commission members[[2]] have reached oppositeconclusions as to whether Gates & Fox violated the Act with respect to the items onreview.\u00a0 However, they agree that if the violations occurred they were not willful.The Secretary alleged that at the time of the inspection Gates & Fox’scrane was operating within 10 feet of power lines in violation of section1926.550(a)(15)(i).\u00a0 That standard states:? 1926.550 Cranes and derricks.(a) General Requirements.* * *(15) Except where electrical distribution and transmission lines have been deenergized andvisibly grounded at point of work or where insulating barriers, not a part of or anattachment to the equipment or machinery, have been erected to prevent physical contactwith the lines, equipment or machines shall be operated proximate to power lines only inaccordance with the following:(i) For lines rated 50 kV. or below, minimum clearance between the lines andany part of the crane or load shall be 10 feet;During the inspection, compliance officer John Wiseman observed Gates & Fox’s DrottModel 2500 truck crane operating close to power lines.\u00a0 The power lines were about 30feet above the ground, and the boom of the crane was two or three feet higher than thepower lines.\u00a0 The power lines carried 4,000 volts and were not insulated or visiblygrounded.\u00a0 Wiseman determined that the crane’s boom and load line were within 10 feetof the power lines and that mats coming from, I laid my rule across and looked straight inthe air, using a plane, to took at the lines.\”\u00a0 He later added:\u00a0 \”Itook my foot when I looked overhead and I make a mark right where the crane line wasswinging and that’s one of the ways I got my measurement.\”The crane operator, Howard Lane, testified that he did not observe themeasurement being made and that the crane was never within 10 feet of the power lines onthe day of the inspection.\u00a0 He also stated that he had no trouble keeping the cranemore than 10 feet away from the power lines while picking up and unloading the mats.\u00a0 Joseph Griffith, Gates & Fox’s project manager, testified that he had told Laneto keep the crane 10 feet away from the power lines.\u00a0 Lane had assured him that thecrane was 10 feet away from the power lines, but Griffith was not convinced, so he hadclimbed onto the boom of the crane to check for himself.\u00a0 He then was satisfied thatthe crane was more than 10 feet away from the power lines.\u00a0 Griffith did not specifywhen he made this check.In his decision, the administrative law judge affirmed this item of thecitation as willful and assessed a $3,000 penalty.\u00a0 The judge noted the conflictingtestimony as to whether the crane came within 10 feet of the power lines and thenconcluded:\u00a0 \”I accept the CO’s testimony that the measured the distance from thecrane’s cable to the power lines despite the testimony by the crane operator who statedthat he did not observe the measurement being made.\u00a0 The statement of these twowitnesses are not inconsistent with my conclusion that the violation was ‘willful’ . . ..\”Commissioner Cleary would affirm the judge’s finding of a violation. \u00a0Commissioner Cleary would accept the judge’s credibility finding that the complianceofficer measured the crane’s distance from the power lines.\u00a0 C. Kaufman, Inc.,78 OSAHRC 3\/C1, 6 BNA OSHC 1295, 1297, 1977-78 CCH OSHD ? 22,481, p. 27,099 (No. 14249,1978).\u00a0 He further finds that the compliance officer’s measurement is entitled togreat weight.\u00a0 Commissioner Cleary notes that the compliance officer made a markwhere the crane line was swinging and from that made his measurement.\u00a0 He concludesthat such a procedure is reasonably calculated to give an accurate determination of thedistance between the crane or load and lines, particularly where, as here, the mats werein violation of the cited standard by a distance of seven feet.Commissioner Cleary would find that the violation of section1926.550(a)(15)(i) with respect to the Drott Model 2500 truck crane was not willful.\u00a0 To establish that a violation was willful, the Secretary must prove that theviolation was committed with intentional disregard of or plain indifference to the Act’srequirements. Cedar Construction Co. v. OSHRC, 587 F.2d 1303 (D.C. Cir. 1978); D.A.& L. Caruso, Inc., 84 OSAHRC ____, 11 BNA OSHC 2138, 1981 CCH OSHD ? 26,985 (No.79-5676, 1984).\u00a0 Where the record reveals that the employer who knew of the hazardouscondition took some precautions to protect its employees, even though not entirelyeffective or complete, the employer’s conduct lacks the element of intentional disregardor plain indifference characterizing willful conduct. Mobil Oil Corporation, 83OSAHRC_____, 11 BNA OSHC 1700, 1983 CCH OSHD ? 26,699 (No. 4802, 1983).Gates & Fox’s supervisor, Griffith, was aware of the 10-foot clearance requirement andtold the crane operator to maintain that distance from the power lines.\u00a0 Griffithalso climbed onto the boom of the crane to check the distance and was satisfied that thecrane was more than 10 feet away.\u00a0 Furthermore, the crane operator believed that hekept the crane more than 10 feet from the power lines.\u00a0 No evidence was presentedshowing that it was necessary for the crane to come within 10 feet of the power lines toaccomplish its assigned tasks.\u00a0 Accordingly, the evidence does not establish thatGates & Fox intentionally disregarded or acted with plain indifference to employeesafety.In Chairman Buckley’s view, the evidence is insufficient to establish thatthe crane was operated within 10 feet of power lines on the day of the inspection. \u00a0Because the crane boom and power lines were at least 32 and 30 feet, respectively, abovethe ground when the compliance officer made his measurements, Chairman Buckley finds therewas a significant margin for error.\u00a0 He further concludes that the measurements werenot as accurate as possible, since the crane was performing work at the time, andtherefore moving.\u00a0 Chairman Buckley would give greater weight to the testimony of thecrane operator that the crane never came within 10 feet of the lines than he would to themeasurements of the compliance officer.\u00a0 The crane operator had been operating cranessince 1941 and was aware of the 10-foot clearance rule.\u00a0 The crane operator knew thelocation of the lines.\u00a0 He stated that in his work he had learned to pay attention topower lines and been warned by foremen on all jobs to be careful of them.\u00a0 The craneoperator also testified that he would know if he was \”getting close\” to thelines.\u00a0 Accordingly, Chairman Buckley concludes that the Secretary has notestablished a violation. [[3]]The Secretary also alleged that Gates & Fox willfully violated section 1926.800(b)(3)by failing to provide self-rescuers in the tunnel area serviced by the Brandywine Streetshaft.[[4]] Section 1926.800(b)(3) provides:1926.800 Tunnel and shafts.* * *(b) Emergency provisions.* * *(3) Bureau of Mines approved self-rescuers shall be available near the advancing face toequip each face employee.\u00a0 Such equipment shall be on the haulage equipment and inother areas where employees might be trapped by smoke or gas, and shall be maintained ingood condition.The judge affirmed the alleged violation as willful, holding that testimonyby the compliance officer \”supports a finding that Respondent’s employees were atwork blasting and drilling on an ‘advancing face’ . . . .\”[[5]]\u00a0 It isundisputed that Gates & Fox did not provide self-rescuers in the subway tunnel areaserviced by the Brandywine Street shaft.\u00a0 However, the compliance officer testifiedthat there was no advancing face at the Brandywine worksite.\u00a0 Moreover, the onlyevidence about blasting at a tunnel face related to the Ingomar Street worksite, adifferent location an undetermined distance from the Brandywine Street site.\u00a0 Onreview, Gates & Fox argues that it did not commit a violation since there was noadvancing face at the Brandywine Street worksite, and the standard only requires that selfrescuers be available near the advancing face.\u00a0 The Secretary agrees there was noadvancing face at the Brandywine Street worksite, but contends that self-rescuersnevertheless were required because the second sentence of the standard imposes anindependent requirement that self-rescuers shall be provided \”in other areas whereemployees might be trapped by smoke or gas.\”Commissioner Cleary would affirm the judge’s finding of a violation.\u00a0 Heagrees with the Secretary that the second sentence of the standard is not intended to berestricted to the \”advancing face\” but applies to any areas in tunnels or shaftswhere there is \”haulage equipment\” or where \”employees might be trapped bysmoke or gas.\”\u00a0 The standard’s use of the word \”other\” in the phrase\”and in other areas where employees might be trapped by smoke or gas . . \”.indicates that the standard is intended to apply to areas beyond the advancing face, andthat employees can be endangered in such areas.\u00a0 The phrase \”other areas whereemployees might be trapped by smoke or gas\” would be superfluous unless interpretedto apply to areas that are not near the advancing face.\u00a0 See, e.g., KroehlerManufacturing Co.,78 OSAHRC 88\/B9, 6 BNA OSHC 2045, 1978 CCH OSHD ? 23,110 (No.76-2120, 1978) (interpretations that leave terms devoid of content are to be avoided ifpossible).Commissioner Cleary also observes that the Commission has held that when astandard is subject to two plausible interpretations, the proper interpretation is the onethat will better achieve the Act’s objective of providing a safe and healthy workplace foremployees.\u00a0 Marshall v. Western Electric, Inc., 565 F.2d 240 (2d Cir. 1977).\u00a0 Wright & Lopez, Inc., 81 OSAHRC 92\/D10, 10 BNA OSHC 1108, 1981 CCH OSHD? 25,728 (No. 76-256, 1981).\u00a0 To accept Gates & Fox’s narrow reading of section1926.800(b)(3) one would have to conclude that the drafters of the standard were concernedonly with the safety of employees at the face of the tunnel, and were indifferent to ordid not provide for the safety of other employees.\u00a0 Yet at the same time theyrecognized there were other employees who could be endangered.\u00a0 In CommissionerCleary’s view the drafters of the standard could not have intended such a result,therefore, the second sentence of the standard should not be limited to the advancingface.Finally, Commissioner Cleary would find that the cited area was a locationwhere employees \”might be trapped by smoke or gas.\” He notes that at the time ofthe inspection Gates and Fox was performing blasting at another location in the tunnelproject.\u00a0 A few days after the inspection, a cave-in occurred after a blast, andemployees had to be evacuated.\u00a0 Gates & Fox was also using drilling machinery atthe Brandywine Street worksite.\u00a0 Thus, Gates & Fox’s work activities could havecreated instabilities in the rock formation resulting in a cave-in and requiring the useof self-rescuers.Commissioner Cleary would find that the violation with respect to the lack ofself-rescuers at the Brandywine Street worksite was not willful.\u00a0 A violation is notwillful if an employer’s failure to comply is the result of a good faith misinterpretationof the terms of the cited standard.\u00a0 General Electric Co., 77 OSAHRC 88\/A2, 5BNA OSHC 1448, 1977 CCH OSHD ? 21,853 (No. 11344, 1977).\u00a0 Commissioner Cleary wouldfind that Gates & Fox misinterpreted the standard in good faith and thus did not actwith intentional disregard of or plain indifference to the Act’s requirements when it didnot provide self-rescuers at the Brandywine Street location.Chairman Buckley would vacate the alleged violation because he concludes thatsection 1926.800(b)(3) requires that self-rescuers be made available only near theadvancing face.\u00a0 A standard should be construed to give effect to the natural andplain meaning of its words and should not be construed \”to mean what an agencyintended but did not adequately express.\”\u00a0 Donovan v. A.A. BeiroConstruction Company, Inc., Nos. 83-2008 & 83-2053, slip. op. at 20 (D.C. Cir.Oct. 26, 1984), quoting Kent Nowlin Construction Co. v. OSHRC, 593F.2d 368, 371 (10th Cir. 1979); see also Lisbon Contractors, Inc., 84OSAHRC _______, 11 BNA OSHC 1971, 1974, 1984 CCH OSHD ? 26,924, p. 34,500 (No. 80-97,1984)(\”A construction of a standard that bears no reasonable relationship to thestandard’s plain words cannot be expected to guide employers in their conduct.\”)Chairman Buckley concludes that to construe the two sentences as imposingcompletely separate requirements would be a tortuous reading of the standard.\u00a0 It isa well-established rule of statutory construction that a part or a section of a regulationshould be construed with every other part or section so as to produce a harmonious whole.\u00a0 2A Sutherland Statutory Construction ? 46.05 (4th ed. 1973).\u00a0 In theabsence of language indicating that the second sentence of the standard is intended tostand by itself as an independent requirement, the two sentences of section 1926.800(b)(3)should be considered together.\u00a0 See Schwarz-Jordan, Inc., 84 OSAHRC_____, 11 BNA OSHC 2145, 2147, 1984 CCH OSHD ? 26,989, pp. 34,713-14 (No. 81-2738, 1984)(effect must be given to language of standard within the context in which the languageappears); Spot-Bilt, Inc., 84 OSAHRC _____, 11 BNA OSHC 1998, 2001, 1984 CCH OSHD? 26,944, pp. 34,551-52 (No. 79-5328, 1984)(two sentences of emergency egress standard at29 C.F.R. ? 1910.36(b)(4) should not be read in isolation to impose independentrequirements).\u00a0 When the standard is considered as a whole, it is clear that thesecond sentence of the standard merely specifies the locations near the advancing facewhere the self-rescuers required by the first sentence are to be placed, and that suchequipment \”shall be maintained in good condition.\”\u00a0 Therefore, ChairmanBuckley concludes that in the absence of any advancing face, section 1926.800(b)(3) is notapplicable.Under section 12(f) of the Act, 29 U.S.C. ? 661(e), official action can be taken with theaffirmative vote of at least two members. To resolve their impasse on the merits of thetwo items at issue and to permit this case and the matters now stayed in the court ofappeals to be resolved, the Commission members have agreed to affirm that portion of thejudge’s decision finding violations with respect to the two items on review, but to accordthe judge’s decision no precedential value.\u00a0 See Life Sciences Products Co.,77 OSAHRC 200\/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD ? 22,313 (No. 14910, 1977), aff’dsub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979).\u00a0 In view of theCommission’s decision to avoid an impasse by affirming the judge’s findings of violationsand his position that no violations occurred, Chairman Buckley joins with CommissionerCleary in ruling that the judge erred in finding willful violations and in reducing thepenalties assessed by the judge.\u00a0 That portion of the judge’s decision finding\”willful\” violations is therefore reversed, and a penalty of $500 is assessedfor each item.FOR THE COMMISSION RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:\u00a0 NOV 30 1984The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation Office by e-mail ( [email protected]), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).FOOTNOTES: [[1]] This case was consolidated with Docket No. 78-2830 for trial before the judge.\u00a0 Following the issuance of the judge’s decision, Gates & Fox petitioned theCommission for review of items affirmed by the judge with respect to both docket numbers.\u00a0 The Commission, however, did not grant review of No. 78-2830 and specificallylimited review of No. 78-2831 to two alleged violations.\u00a0 Gates & Fox thenpetitioned the United States Court of Appeals for the District of Columbia Circuit(\”D.C. Circuit\”) for review of No. 78-2830 and of the items in No. 78-2831 forwhich the Commission did not grant review.\u00a0 The D.C. Circuit subsequently stayed itsproceedings pending completion of Commission review.[[2]] As established by the Act, the Commission is composed of three members.\u00a0 Section 12(a), 29 U.S.C. ? 661(a).\u00a0 Presently, the Commission has two membersas a result of a vacancy.[[3]] Assuming the accuracy of the compliance officer’s measurements, thecitation should nevertheless be vacated because there is no evidence that Gates & Foxhad knowledge of the violative conditions.\u00a0 Commission law precludes affirmance of aviolation unless it is established by the Secretary that the employer knew or, with theexercise of reasonable diligence, could have known of the violation.\u00a0 See, e.g.,Sasser Electric & Manufacturing Co., 84 OSAHRC ___, 11 BNA OSHC 2133, 2135-36,1984 CCH OSHD ? 26,982, pp. 34,684, 34,685 (No. 82-178, 1984).\u00a0 See alsoPennsylvania Power & Light Co., 737 F.2d 350, 357-58 (3rd Cir. 1984).\u00a0 Inthis case neither the operator of the crane nor any Gates & Fox supervisor was awareof any breach of the 10-foot clearance limit.\u00a0 In fact, Gates & Fox specificallymeasured to assure compliance and warned the operator not to come within 10 feet. \u00a0These facts establish that the employer did not know and could not have known of thealleged violation.[[4]] A self-rescuer is a device through which an employee may breathe in the event of acave-in or other emergency that causes a loss of oxygen.[[5]] The compliance officer defined the \”advancing face\” as the\”penetrating, unopened portion of the tunnel.\”\u00a0 At the Brandywine Streetworksite, the subway tunnels had been completely excavated and shafts gave access to thesurface. “