” SECRETARY OF LABOR,Complainant,v.NATIONAL STEEL AND SHIPBUILDINGCOMPANY,Respondent.JOHN McGINLEY, Union Health and SafetyRepresentative, National Steel andShipbuilding Company,Authorized EmployeeRepresentative.OSHRC Docket No. 86-1376_ORDER_The Secretary’s notice of withdrawal of citation is construed as amotion to withdraw the citation and is granted. This order is issuedpursuant to a delegation of authority to the Executive Secretary. 41Fed. Reg. 37173 (1976), amended at 44 Fed. Reg. 7255 (1979).FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: January 7, 1988————————————————————————SECRETARY OF LABOR,Complainant,v.NATIONAL STEEL AND SHIPBUILDING CO.Respondent.JOHN McGINLEY, UNION HEALTH ANDSAFETY REPRESENTATIVE, NATIONALSTEEL AND SHIPBUILDING COMPANY,Authorized Representative.OSHRC DocketNo. 86-1376_NOTICE OF WITHDRAWAL OF CITATION_Comes now the Secretary of Labor, by and through counsel, and withdrawsthe citation issued to respondent on September 8, 1986 in the abovereferenced case.Respectfully submitted,GEORGE R. SALEMSolicitor of LaborCYNTHIA L. ATTWOODAssociate Solicitor forOccupational Safety and HealthDANIEL J. MICKCounsel for Regional TrialLitigationANTONY F. GILAttorney for the Secretaryof Labor————————————————————————_CERTIFICATE OF SERVICE_I hereby certify that a copy of the foregoing Notice of Withdrawal ofCitation was mailed postage prepaid on this 2nd day of November, 1987 to:Robert A. WhiteNational Steel and Shipbuilding Co.John B. McGinleyUnion Health and Safety RepresentativeNational Steel and Shipbuilding CompanyJudge R. M. ChildOSHRCANTONY F. GILAttorney————————————————————————SECRETARY OF LABOR,Complainant,v.NATIONAL STEEL AND SHIPBUILDINGCOMPANY,Respondent,JOHN McGINLEY, Union Health andSafety Representative, National Steeland Shipbuilding Company,Authorized EmployeeRepresentative.OSHRC DOCKET NO. 86-1376_DECISION AND ORDER_Child, JudgeAPPEARANCES:For the Complainant:Leroy Smith, Esq., Los Angeles, CaliforniaFor the Respondent:Robert A. White, Esq., San Diego, CaliforniaFor the Authorized Employee Representative:John McGinley, San Diego, California_Statement of the Case_This matter is before the Occupational Safety and Health ReviewCommission (the Commission) pursuant to section 10(c) of theOccupational Safety and Health Act of 1970, 29 U.S.C. ? 651 _et_ _seq_.,(the Act). Complainant seeks affirmance of Citation No. 01, issued torespondent September 8, 1986, charging one item of serious violation ofsection 5(a)(2) of the Act and of the penalty which was proposed thereonin the sum of $400.00.The matter came on regularly for hearing at San Diego, California, onthe 25th day of March 1987. Each of the parties has submitted PostHearing Briefs in support of its position and the complainant hassubmitted Proposed Findings of Fact and Conclusions of Law. To theextent said proposed Findings and Conclusions are consistent with thoseentered herein, they are accepted; to the extent they are not soconsistent, they are rejected. Jurisdiction of the subject matterherein has been admitted and is not an issue, nor is jurisdiction of theparties._The Issues_:Issues raised by the citation and the pleadings to be here determined are:A. Was the respondent in violation of the standard at 29 C.F.R.1915.181(b) as alleged in the citation?[[1\/]]B. Was the violation, if any, the result of unforeseeable employeemisconduct?C. If the respondent was in violation of the standard, was theviolation serious?D. What, if any, penalty would be appropriate?_Statement of Facts_Respondent is a corporation engaged in the business of ship-building andship repair in San Diego, California. The incident giving rise to thepresent proceedings took place aboard and during the construction of acommercial oil tanker which is referred to in the citation andthroughout the proceedings as \”Hull 438.\”Sometime previous to August 7, 1986, a \”salt box\” had been placed on thedeck of Hull 438. The sole purpose of a salt box is to create anartificial electrical load for testing of the power output of the ship’sdiesel power generators. Its installation on the vessel is temporaryand it is removed after completion of generator testing.The salt box in question consisted of a large metal tank, approximately20 feet long, and 10 feet wide. The metal tank is approximately 5 feethigh with a metal cage or screen continuing above the sides of the tankand covering the top. (Tr. 246-247; Exhibits R-11, 12, 13, 14, 16) Thetank portion of the salt box is filled with a mixture of salt water andfresh water. Nine large metal blades are suspended from an I-Beamrunning above the water tank. The metal blades are arranged in threegroups of three, and each blade is approximately 5 feet by 4 feet and1\/2 inch thick. (Tr. 112) The blades can be raised or lowered into thewater by means of an electric motor operated from a control panelattached to the outside front of the salt box. The blades are setinside tracks or guides to insure proper alignment. (Tr. 112; Exhibit R-15)A wooden ladder is attached to the front of the salt box to the right ofand giving access to a door in the screen. The bottom of the screeneddoor is approximately 5 feet above deck level, and just above a weathercover extending over the control panel. (Tr. 45, 186; Exhibits R-11,12, 16, 17) The screened door is equipped with a hasp which couldaccommodate a padlock. (Exhibit R-18) Inside the screened door there isa walkway or landing along the length of the tank between one screenedside and the metal blades. The walkway is approximately 15 inches wide. (Tr. 341)Basically, the use of the salt box simulates the electrical demand thatwill be placed on the generators during actual operation of the vessel. The salt box is connected to the generators through the main circuitboard of the vessel, which in turn is connected to the generators. Inthe present case, the salt box had been hooked to the main circuit boardof the vessel in such a way that it was continually energized even whenthe generators were not functioning and could not be deenergized withoutcutting off all shore power being fed to the ship. (Tr. 64, 65, 138)The salt boxes used by respondent were built by its repair division. Employees in the repair division would at times utilize salt boxes whilerepairing vessels and at such times the salt box leads are connected tothe generator circuit breaker. (Tr. 104,108) The repair divisionhooked the salt boxes up with a disconnect and if there were nodisconnect provided, they would place one in the circuit. Thus the saltbox would be disconnected when it wasn’t actually being used in a test.(Tr. 110)For unexplained reasons the new construction division did not utilizethe method followed by the repair division of respondent in connectingup the salt boxes. As recently as 1984, however, this had not been thecase. (Tr. 108,109)Mr. Joel Grace, respondent’s Electrical Test Production Foreman who hadsupervised the installation of the salt box on Hull 438 and wasresponsible for testing the generators by use of the device, telephonedMr. Roy Moffett, respondent’s foreman in charge of the department havingresponsibility for maintenance, repair, and storage of the salt box, andasked that he have someone come over to Hull 438 to meet him and advisehim as to what was required to repair the salt box. One of the sets ofblades had jumped track and could not be lowered or raised. Mr. Gracetold Mr. Moffett to have the man meet him at the aft gangway of theship. (Tr. 220, 261, 262)Mr. Moffett, in turn, asked Mr. Keith Morris, an electrical technicianand leadman in his department, to send a couple of men over to see Mr.Grace and check on the salt box. (Tr. 220, 221)Mr. Morris selected Mr. Tom Tweedie, an electrical technician in thatdepartment with nine years work experience with the respondent. Morristold Tweedie, \”I got a job for you over on Hull 438. The salt box ismessed up. I think the blade has jumped the track.\” (Tr. 114) Morrisinstructed Tweedie to take a prybar and if the blade had jumped thetrack to stand on one end of the blade and pry the other end into place. Morris also told Tweedie to take Guy Ochletree, an electrician, withhim and to hurry because Grace was waiting for them and would show themthe \”jobsite.\” (Tr. 114, 115, 116, 128)At no time during the aforesaid conversations did anyone mention whetherthe salt box was energized. Grace knew the salt box to be energized. Moffett, Morris, Ochletree and apparently Tweedie, all of whom worked inthe repair-maintenance division, assumed the salt box to bedeenergized. Mr. Tweedie previously had installed and disconnected saltboxes in repair operations on six or eight occasions. (Tr. 113, 114) Moffett testified that he would assume a salt box with an imbalance tobe disconnected in order to prevent overheating damage to or destructionof the generator caused by unbalanced phase loads. (Tr. 225,226,230) At the time Moffett instructed Morris to send the men to Hull 438 he wasnot aware that the salt box could not be disconnected; unlike thesituations commonly confronting personnel in \”repair division\” prior tothis time. (Tr. 227)Mr. Tweedie and Mr. Ocheltree left their department and proceededdirectly to the gangway of Hull 438. They apparently missed Mr. Grace,or went to the forward gangway of the ship, as opposed to the aftgangway where Mr. Grace was waiting, and went aboard the vessel. Afterascertaining the location of the salt box, they went directly to it. (Tr. 38-45)Although the facts are in dispute as to what happened thereafter, it isundisputed that Mr. Tweedie climbed the ladder to the salt box, openedthe unlocked door providing access to the interior of the salt box andcame in fatal contact with an energized circuit therein._Discussion__Issue A_:Was the respondent in violation of the standard at 29 C.F.R. 1915.181(b)as alleged in the citation?To prove a violation of section 5(a)(2) of the Act, the complainant mustprove by a preponderance of the evidence an employer’s noncompliancewith an applicable standard and employee exposure to the hazard createdby the violative condition. _Otis Elevator_ _Co._, 78 OSAHRC 88\/E5, 6BNA OSHC 2048, 1978 CCH OSHD ? 23,135 (No. 16057, 1978).Complainant argues that the method of hooking up the salt box withoutthe benefit of a disconnect provision so that it was at all timesenergized while shore power was serving the vessel under construction,which fact was known to construction test foreman Grace, coupled withthe failure to padlock the door providing access to the interior of thesalt box and the failure to inform \”repair\” personnel of the energizedstatus of the salt box created a situation which permitted employees towork on an electrical circuit before that circuit was deenergized.Respondent, on the other hand, argues that to construe the word \”permit\”so as to make it equivalent to \”fail to prevent\” would be an unfairapplication of the standard; and that in any event Mr. Tweedie’s failureto comply with respondent’s electrical safety rules, given hisexperience and job tenure, made it unforeseeable that he would beginwork on a live circuit.Respondent’s safety rules provide that an employee shall not commencework on an electrical circuit (1) without proper authorization fromsupervising personnel, (2) without prior testing with a voltage meter,and (3) that a system be locked out or tagged out when work is to beperformed on it. (Respondent’s Post Trial Brief p.8 and references toRespondent’s Exhibit 10 referred to thereat)Here, respondent’s electrical test production foreman knew that the mainswitchboard had been bypassed and that there was no facility fordisconnecting the salt box which was constantly energized so long asshore power served the vessel, but did not so inform the supervisorypersonnel he requested send assistance. Access to the salt box and itsconstantly energized parts could have been prevented by the mereexpedient of putting a padlock on the entrance door. Under thesecircumstances of invitation to a hazardous arena the respondentknowingly permitted \”repair division\” employees to work on an electricalcircuit which was energized.Respondent here is charged with the knowledge and actions of itssupervisory personnel in the performance of their respective duties andresponsibilities. Thus respondent is charged with the repair division’ssupervisory personnel instructing and thereby permitting its employeesto work on a supposedly deenergized salt box at the request ofconstruction division’s supervisory personnel who knew, but did notcommunicate, that the salt box was energized and could not readily bedeenergized. Although neither division supervisor’s knowledge or actionwas known to the other, the respondent is charged with both.That the hazard was foreseeable is amply demonstrated by the securityprovisions of screen and door equipped with hasp for padlock. Byomitting the ounce of prevention in the form of a padlock, therespondent permitted access to the interior of the salt box by employeessent there for the purpose of working therein. It is not foreseeablethat employees would pass through a locked door. It is foreseeable thatemployees sent to assist in solving a mechanical problem inside the saltbox would pass through a lockable, but unlocked door. Indeed, thecorrective work to be performed, i.e., realignment of a metal plate bystanding on one side and using a prybar on the other suggests that therepair work was more mechanical than electrical. If the employee sentfrom the repair division to do the work had been other than anelectrician, the result would have doubtless been the same.Before permitting that work to be done, the circuit (salt box) shouldhave been deenergized. Only respondent’s Electrical Test ProductionForeman knew the salt box to be energized and only he knew what stepswere necessary to deenergize it. His silence and failure to padlock thedoor to the box permitted employees to work therein before it wasdeenergized. His actions are attributable to the respondent._Issue B_:Was the violation, if any, the result of unforeseeable employee misconduct?To establish the defense of unpreventable employee misconduct therespondent has the burden of proving that the employee’s actionconstituting non-compliance with a standard was a departure from auniformly and effectively enforced work rule. _See Daniel__Construction Company_, OSAHRC Docket No. 16265 (1982), 10 BNA OSHC1549; _Daniel International Corp., Wansley Project_, 81 OSAHRC 71\/D6, 9BNA OSHC 2027, 2031, 1981 CCH OSHD ? 25,813 pp. 32,265-266 (No. 76-181,1981)Respondent cites _Howard P. Foley Company_, 5 BNA OSHC 1501 (OSAHRCDocket No. 13244). In _Foley_ the Commission describes this defense asfollows:In general, an employer is only responsible for violations it has theability to prevent. _If an employer has a safety program which wouldnormally be adequate to prevent a violation of a particular standard,then a violation which occurs in spite of its program is__unpreventable, and the employer is not responsible_. Elements of aneffective safety program include work rules designed to preventviolations, adequate communication of the rules to employees, methods ofdiscovering whether violations occur, and enforcement of the rules ifviolations are discovered.(cases deleted) (Emphasis added)Here an employee suffered a fatal accident which might have been avoidedif he had availed himself of a voltage meter and tested the circuitprior to entry. But failure to check as recommended by the work rule isnot the gravamen of the alleged violation. The respondent is chargedwith permitting an employee to work on an electrical circuit withoutfirst deenergizing the circuit. Respondent’s own work rule requires that. . . \” a _system_ be ‘locked out’ or ‘tagged out’ when work is to bedone on it.\” (Exhibit R-10) (Emphasis added) These procedurespresuppose an act of deenergizing. Subparagraph (c) of the standardhere under consideration provides for deenergizing as follows:29 C.F.R. ? 1915.181 Electrical circuits and distribution boards.(c) Deenergizing the circuit shall be accomplished by opening thecircuit breaker, opening the switch, or removing the fuse, whichevermethod is appropriate. The circuit breaker, switch, or fuse locationshall be tagged to indicate that an employee is working on the circuit. Such tags shall not be removed nor the circuit energized until it (sic)definitely determined that the work on the circuit has been completed.The salt box on Hull 438 was installed in such manner that it could notbe deenergized on board the vessel as contemplated by the foregoingstandard. Neither Mr. Tweedie nor his supervisors knew this. Therespondent’s Electrical Test Production Foreman who requested assistanceregarding the salt box did know of the by-pass arrangement requiringtotal power shut-down not merely deenergization of a system.Respondent offered no testimony that it had a rule, enforced orotherwise, requiring system wiring standardization which would permitsystem deenergization. Neither did respondent offer testimony that ithad a rule, enforced or otherwise, requiring system deenergization in adescribed manner. (Tr. 161) Had the respondent established a uniformprocedure or had it required that each division supervisory personnel beacquainted with methodology employed by other related divisions,situation could have been avoided.Since respondent had provided no means of deenergizing the salt box onboard the vessel, it cannot now stand on a claim that an employeeviolated a non-existent rule that he\/she do so in order to \”lock out\” or\”tag out\” that unavailable act.The employee’s failure to check at the point where the work was beingdone may have cost him his life, but it did not cause the violation ofwhich respondent is charged, to-wit: permitting that work to be donewithout first deenergizing the circuit. Indeed there was no \”circuit\”which the employee could have deenergized. To make the situation safeit would have required a total shutdown of power to the vessel. Of thepersonnel material to this inquiry only the Electrical Test ProductionForeman had knowledge of this unorthodox connection and he failed tocommunicate the fact.Respondent has failed to make out the defense of unpreventable employeemisconduct._Issue C_:If the respondent was in violation of the standard, was the violationserious?Section 17(k) of the Act provides that a violation is deemed to beserious \”. . . if there is a substantial probability that death orserious physical harm could result from a condition which exists, . . . \”.While energized, the salt box carried 440 volts of electrical power. That such power could kill or maim is amply demonstrated from theoutcome of this case.The violation of the standard was serious._Issue D_:What, if any, penalty would be appropriate?There was evidence that the respondent considered the statutoryrequirements in arriving at the proposed penalty which is appropriate inthis case. (Tr. 164-169)Now, having observed the demeanor of the witnesses and having weighedthe credibility thereof, there are here entered the following:_Findings of Fact_1. Respondent is, and at all times material hereto was, a corporationwith an office and place of business at 28th Street and Harbor Drive,San Diego, California 92138; and at all times material hereto wasengaged in shipbuilding and repair.2. Respondent at all times material hereto was engaged in a businessaffecting interstate commerce in that respondent was engaged in handlinggoods or materials which had been moved in interstate commerce and wasan employer employing its employees at the aforesaid workplace in saidbusiness.3. Facts set forth under Statement of Facts herein above are hereincorporated by reference as though specifically set forth at this point.4. By energizing the salt box in question without the benefit of asystem circuit or disconnect provision on Hull 438 and failing to notifyrepair and maintenance division personnel of that fact or of the factthat the salt box was energized even though there was no padlock on thedoor giving access to the interior thereof, respondent permitted itsemployees to work therein and was thereby in violation of the standardat 29 C.F.R. 1915.181(b).5. Employees of the repair and maintenance division equipped,instructed and sent to assist in correcting a mechanical problem in thesalt box in question were exposed to the hazard of electrical shock andelectrocution by coming in contact with live components of thisconstantly energized, though not functioning, salt box.6. There is no evidence that respondent had a uniform and effectivelyenforced work rule:(a) Requiring on board wiring of systems in a uniform manner providingdisconnect methods which could benefit from \”lockout\” or \”tag out\”procedures.(b) Providing communication between divisions to advise of installationswhich were unorthodox or varying from the norm.(c) Requiring one division to warn other divisions of hazards they wouldbe exposed to in regard to energized \”circuits\” when invited to enteranother division’s work area.(d) Requiring workmen from the repair and maintenance division to shutdown all power to Hull 438, or any other vessel, before commencing workon what they reasonably could assume to be a deenergized salt box.7. Respondent’s safety manual contained a provision that an employeeshall not commence work on an electrical circuit without prior testingwith a voltage meter, but its safety manual was not required reading(Tr. 32, 102, 215), voltage meters were not required equipment forelectricians sent to work on jobs (Tr. 35, 39, 40, 95-99), there is noevidence that any employee has ever been disciplined for failing tocarry or use a voltage tester. (Tr. 141)8. The violation referred to herein was serious within the meaning ofsection 17(k) of the Act, in that there was a substantial probabilitythat death or serious physical harm could result.9. The proposed penalty of $400.00 is appropriate and reflects dueconsideration of the size of the business of the respondent, the gravityof the violation alleged, the good faith of the respondent and thehistory of prior violations, if any, as required by section 17(j) of theAct._Conclusions of Law_1. Jurisdiction of the subject matter of this proceeding is conferredupon the Commission by section 10(c) of the Act and the Commission hasjurisdiction of the parties hereto.2. The standard at 29 CFR 1915.181(b) applies to the job-site and workactivity for which respondent was here cited.3. The respondent was in serious violation of the standard at 29 C.F.R.1915.181(b) as alleged in the citation issued and the complaint filedherein.4. Item 1 of serious Citation No. 01, issued to respondent September 8,1986, should be affirmed.5. A penalty of $400.00 should be assessed for the violation here found._ORDER_Item 1 of serious Citation No. 01, issued to respondent September 8,1986, is AFFIRMED and a penalty of $400.00 is ASSESSED.R. M. ChildJudge, OSHRCDated: July 29, 1987FOOTNOTES:[[1\/]] The citation and standard read:_Citation_29 CFR 1915.181(b): Electrical circuits were not deenergized andchecked before employees were permitted to work on the circuits:LOCATION: On or before 08\/07\/86 at the aft port side of the deck houseon hull #438, employees were permitted to work on a salt box which wasneither checked for an energized circuit nor deenergized to precludeaccidental contact with live parts._Standard_? 1915.181 Electrical circuits and distribution boards.(b) Before an employee is permitted to work on an electrical circuit,except when the circuit must remain energized for testing and adjusting,the circuit shall be deenergized and checked at the point at which thework is to be done to insure that it is actually deenergized. Whentesting or adjusting an energized circuit, a rubber mat, duck board, orother suitable insulation shall be used underfoot where an insulateddeck does not exist.”