“Docket No. 86-1376 \u00a0SECRETARY OF LABOR, Complainant, v. NATIONAL STEEL AND SHIPBUILDING COMPANY, Respondent. JOHN McGINLEY, Union Health and Safety Representative, National Steel and Shipbuilding Company, Authorized Employee Representative.OSHRC Docket No. 86-1376ORDER The Secretary’s notice of withdrawal of citationis construed as a motion to withdraw the citation and is granted.\u00a0 This order isissued pursuant to a delegation of authority to the Executive Secretary.\u00a0 41 Fed.Reg. 37173 (1976), amended at 44 Fed. Reg. 7255 (1979).FOR THE COMMISSIONRay H. Darling, Jr. Executive SecretaryDATED:\u00a0 January 7, 1988SECRETARY OF LABOR, Complainant, v. NATIONAL STEEL AND SHIPBUILDING CO. Respondent.JOHN McGINLEY, UNION HEALTH AND SAFETY REPRESENTATIVE, NATIONAL STEEL AND SHIPBUILDING COMPANY,Authorized Representative.OSHRC Docket No. 86-1376NOTICE OF WITHDRAWAL OF CITATIONComes now the Secretary of Labor, by and throughcounsel, and withdraws the citation issued to respondent on September 8, 1986 in the abovereferenced case.Respectfully submitted, GEORGE R. SALEM Solicitor of Labor CYNTHIA L. ATTWOOD Associate Solicitor forOccupational Safety and Health DANIEL J. MICK Counsel for Regional Trial LitigationANTONY F. GILAttorney for the Secretary of Labor CERTIFICATE OF SERVICEI hereby certify that a copy of the foregoingNotice of Withdrawal of Citation 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 Representative National Steel and Shipbuilding Company Judge R. M. ChildOSHRC ANTONY F. GIL Attorney SECRETARY OF LABOR, Complainant, v. NATIONAL STEEL AND SHIPBUILDING COMPANY, Respondent, JOHN McGINLEY, Union Health and Safety Representative, National Steel and Shipbuilding Company, Authorized Employee Representative.OSHRC DOCKET NO. 86-1376 DECISION AND ORDERChild, JudgeAPPEARANCES:For the Complainant:Leroy Smith, Esq., Los Angeles, California For the Respondent:Robert A. White, Esq., San Diego, CaliforniaFor the Authorized Employee Representative:John McGinley, San Diego, California Statement of the CaseThis matter is before the Occupational Safetyand Health Review Commission (the Commission) pursuant to section 10(c) of theOccupational Safety and Health Act of 1970, 29 U.S.C. ? 651 et seq., (theAct).\u00a0 Complainant seeks affirmance of Citation No. 01, issued to respondentSeptember 8, 1986, charging one item of serious violation of section 5(a)(2) of the Actand of the penalty which was proposed thereon in the sum of $400.00.The matter came on regularly for hearing at San Diego, California, on the 25th day ofMarch 1987.\u00a0 Each of the parties has submitted Post Hearing Briefs in support of itsposition and the complainant has submitted Proposed Findings of Fact and Conclusions ofLaw.\u00a0 To the extent said proposed Findings and Conclusions are consistent with thoseentered herein, they are accepted; to the extent they are not so consistent, they arerejected.\u00a0 Jurisdiction of the subject matter herein has been admitted and is not anissue, nor is jurisdiction of the parties. The Issues:Issues raised by the citation and the pleadingsto be here determined are:A.\u00a0 Was the respondent in violation of thestandard at 29 C.F.R. 1915.181(b) as alleged in the citation?[[1\/]]B.\u00a0 Was the violation, if any, the result of unforeseeable employee misconduct?C.\u00a0 If the respondent was in violation ofthe standard, was the violation serious?D.\u00a0 What, if any, penalty would beappropriate? Statement of FactsRespondent is a corporation engaged in thebusiness of ship-building and ship repair in San Diego, California.\u00a0 The incidentgiving rise to the present proceedings took place aboard and during the construction of acommercial oil tanker which is referred to in the citation and throughout the proceedingsas \”Hull 438.\”Sometime previous to August 7, 1986, a\”salt box\” had been placed on the deck of Hull 438.\u00a0 The sole purpose of asalt box is to create an artificial electrical load for testing of the power output of theship’s diesel power generators.\u00a0 Its installation on the vessel is temporary and itis removed after completion of generator testing.The salt box in question consisted of a large metal tank, approximately 20 feet long, and10 feet wide.\u00a0 The metal tank is approximately 5 feet high with a metal cage orscreen continuing above the sides of the tank and covering the top.\u00a0 (Tr. 246-247;Exhibits R-11, 12, 13, 14, 16) The tank portion of the salt box is filled with a mixtureof salt water and fresh water.\u00a0 Nine large metal blades are suspended from an I-Beamrunning above the water tank.\u00a0 The metal blades are arranged in three groups ofthree, and each blade is approximately 5 feet by 4 feet and 1\/2 inch thick.\u00a0 (Tr.112)\u00a0 The blades can be raised or lowered into the water by means of an electricmotor operated from a control panel attached to the outside front of the salt box. \u00a0The blades are set inside tracks or guides to insure proper alignment. (Tr. 112; ExhibitR-15)A wooden ladder is attached to the front of thesalt box to the right of and giving access to a door in the screen.\u00a0 The bottom ofthe screened door is approximately 5 feet above deck level, and just above a weather coverextending over the control panel.\u00a0 (Tr. 45, 186; Exhibits R-11, 12, 16, 17)\u00a0 Thescreened door is equipped with a hasp which could accommodate a padlock.\u00a0 (ExhibitR-18) Inside the screened door there is a walkway or landing along the length of the tankbetween one screened side and the metal blades. The walkway is approximately 15 incheswide.\u00a0 (Tr. 341)Basically, the use of the salt box simulates theelectrical demand that will be placed on the generators during actual operation of thevessel.\u00a0 The salt box is connected to the generators through the main circuit boardof the vessel, which in turn is connected to the generators.\u00a0 In the present case,the salt box had been hooked to the main circuit board of the vessel in such a way that itwas continually energized even when the generators were not functioning and could not bedeenergized without cutting off all shore power being fed to the ship. (Tr. 64, 65, 138)The salt boxes used by respondent were built byits repair division.\u00a0 Employees in the repair division would at times utilize saltboxes while repairing vessels and at such times the salt box leads are connected to thegenerator circuit breaker.\u00a0 (Tr. 104,108)\u00a0 The repair division hooked the saltboxes up with a disconnect and if there were no disconnect provided, they would place onein the circuit. Thus the salt box would be disconnected when it wasn’t actually being usedin a test. (Tr. 110)For unexplained reasons the new constructiondivision did not utilize the method followed by the repair division of respondent inconnecting up the salt boxes.\u00a0 As recently as 1984, however, this had not been thecase. (Tr. 108,109)Mr. Joel Grace, respondent’s Electrical TestProduction Foreman who had supervised the installation of the salt box on Hull 438 and wasresponsible for testing the generators by use of the device, telephoned Mr. Roy Moffett,respondent’s foreman in charge of the department having responsibility for maintenance,repair, and storage of the salt box, and asked that he have someone come over to Hull 438to meet him and advise him as to what was required to repair the salt box.\u00a0 One ofthe sets of blades had jumped track and could not be lowered or raised.\u00a0 Mr. Gracetold Mr. Moffett to have the man meet him at the aft gangway of the ship. (Tr. 220, 261,262)Mr. Moffett, in turn, asked Mr. Keith Morris, anelectrical technician and leadman in his department, to send a couple of men over to seeMr. Grace and check on the salt box.\u00a0 (Tr. 220, 221)Mr. Morris selected Mr. Tom Tweedie, anelectrical technician in that department with nine years work experience with therespondent.\u00a0 Morris told Tweedie, \”I got a job for you over on Hull 438. \u00a0The salt box is messed up.\u00a0 I think the blade has jumped the track.\” \u00a0 (Tr.114)\u00a0 Morris instructed 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. \u00a0 Morrisalso told Tweedie to take Guy Ochletree, an electrician, with him and to hurry becauseGrace was waiting for them and would show them the \”jobsite.\” \u00a0 (Tr. 114,115, 116, 128)At no time during the aforesaid conversationsdid anyone mention whether the salt box was energized.\u00a0 Grace knew the salt box to beenergized.\u00a0 Moffett, Morris, Ochletree and apparently Tweedie, all of whom worked inthe repair-maintenance division, assumed the salt box to be deenergized.\u00a0 Mr. Tweediepreviously had installed and disconnected salt boxes in repair operations on six or eightoccasions.\u00a0 (Tr. 113, 114)\u00a0 Moffett testified that he would assume a salt boxwith an imbalance to be disconnected in order to prevent overheating damage to ordestruction of the generator caused by unbalanced phase loads.\u00a0 (Tr. 225,226,230)\u00a0 At the time Moffett instructed Morris to send the men to Hull 438 he was not awarethat the salt box could not be disconnected; unlike the situations commonly confrontingpersonnel in \”repair division\” prior to this time. (Tr. 227)Mr. Tweedie and Mr. Ocheltree left theirdepartment and proceeded directly to the gangway of Hull 438.\u00a0 They apparently missedMr. Grace, or went to the forward gangway of the ship, as opposed to the aft gangway whereMr. Grace was waiting, and went aboard the vessel.\u00a0 After ascertaining the locationof the salt box, they went directly to it.\u00a0 (Tr. 38-45)Although the facts are in dispute as to whathappened thereafter, it is undisputed that Mr. Tweedie climbed the ladder to the salt box,opened the unlocked door providing access to the interior of the salt box and came infatal contact with an energized circuit therein.DiscussionIssue A:Was the respondent in violation of the standardat 29 C.F.R. 1915.181(b) as alleged in the citation?To prove a violation of section 5(a)(2) of theAct, the complainant must prove by a preponderance of the evidence an employer’snoncompliance with an applicable standard and employee exposure to the hazard created bythe violative condition.\u00a0 Otis Elevator Co., 78 OSAHRC 88\/E5, 6 BNAOSHC 2048, 1978 CCH OSHD ? 23,135 (No. 16057, 1978).Complainant argues that the method of hooking upthe salt box without the benefit of a disconnect provision so that it was at all timesenergized while shore power was serving the vessel under construction, which fact wasknown to construction test foreman Grace, coupled with the failure to padlock the doorproviding access to the interior of the salt box and the failure to inform\”repair\” personnel of the energized status of the salt box created a situationwhich permitted employees to work on an electrical circuit before that circuit wasdeenergized.Respondent, on the other hand, argues that toconstrue the word \”permit\” so as to make it equivalent to \”fail toprevent\” would be an unfair application of the standard; and that in any event Mr.Tweedie’s failure to comply with respondent’s electrical safety rules, given hisexperience and job tenure, made it unforeseeable that he would begin work on a livecircuit.Respondent’s safety rules provide that anemployee shall not commence work on an electrical circuit (1) without proper authorizationfrom supervising personnel, (2) without prior testing with a voltage meter, and (3) that asystem be locked out or tagged out when work is to be performed on it.\u00a0 (Respondent’sPost Trial Brief p.8 and references to Respondent’s Exhibit 10 referred to thereat)Here, respondent’s electrical test production foreman knew that the main switchboard hadbeen bypassed and that there was no facility for disconnecting the salt box which wasconstantly energized so long as shore power served the vessel, but did not so inform thesupervisory personnel he requested send assistance.\u00a0 Access to the salt box and itsconstantly energized parts could have been prevented by the mere expedient of putting apadlock on the entrance door.\u00a0 Under these circumstances of invitation to a hazardousarena the respondent knowingly permitted \”repair division\” employees to work onan electrical circuit which was energized.Respondent here is charged with the knowledgeand actions of its supervisory personnel in the performance of their respective duties andresponsibilities.\u00a0 Thus respondent is charged with the repair division’s supervisorypersonnel instructing and thereby permitting its employees to work on a supposedlydeenergized salt box at the request of construction division’s supervisory personnel whoknew, but did not communicate, that the salt box was energized and could not readily bedeenergized.\u00a0 Although neither division supervisor’s knowledge or action was known tothe other, the respondent is charged with both.That the hazard was foreseeable is amplydemonstrated by the security provisions of screen and door equipped with hasp for padlock.\u00a0 By omitting the ounce of prevention in the form of a padlock, the respondentpermitted access to the interior of the salt box by employees sent there for the purposeof working therein.\u00a0 It is not foreseeable that employees would pass through a lockeddoor.\u00a0 It is foreseeable that employees sent to assist in solving a mechanicalproblem inside the salt box would pass through a lockable, but unlocked door. \u00a0Indeed, the corrective work to be performed, i.e., realignment of a metal plate bystanding on one side and using a prybar on the other suggests that the repair work wasmore mechanical than electrical.\u00a0 If the employee sent from the repair division to dothe work had been other than an electrician, the result would have doubtless been thesame.Before permitting that work to be done, thecircuit (salt box) should have been deenergized.\u00a0 Only respondent’s Electrical TestProduction Foreman knew the salt box to be energized and only he knew what steps werenecessary to deenergize it.\u00a0 His silence and failure to padlock the door to the boxpermitted employees to work therein before it was deenergized.\u00a0 His actions areattributable to the respondent.Issue B:Was the violation, if any, the result ofunforeseeable employee misconduct?To establish the defense of unpreventableemployee misconduct the respondent has the burden of proving that the employee’s actionconstituting non-compliance with a standard was a departure from a uniformly andeffectively enforced work rule.\u00a0 See Daniel Construction Company,OSAHRC Docket No. 16265 (1982), 10 BNA OSHC 1549; Daniel International Corp., WansleyProject, 81 OSAHRC 71\/D6, 9 BNA 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 (OSAHRC Docket No. 13244).\u00a0 In Foley the Commission describesthis defense as follows:In general, an employer is only responsible forviolations it has the ability to prevent.\u00a0 If an employer has a safety programwhich would normally be adequate to prevent a violation of a particular standard, then aviolation which occurs in spite of its program is unpreventable, and the employeris not responsible.\u00a0 Elements of an effective safety program include work rulesdesigned to prevent violations, adequate communication of the rules to employees, methodsof discovering whether violations occur, and enforcement of the rules if violations arediscovered.(cases deleted) (Emphasis added)Here an employee suffered a fatal accident which might have been avoided if he had availedhimself of a voltage meter and tested the circuit prior to entry.\u00a0 But failure tocheck as recommended by the work rule is not the gravamen of the alleged violation. \u00a0The respondent is charged with permitting an employee to work on an electrical circuitwithout first deenergizing the circuit. Respondent’s own work rule requires that . . .\” a system be ‘locked out’ or ‘tagged out’ when work is to be done onit.\”\u00a0 (Exhibit R-10) (Emphasis added)\u00a0 These procedures presuppose an actof deenergizing.\u00a0 Subparagraph (c) of the standard here under consideration providesfor deenergizing as follows:29 C.F.R. ? 1915.181 Electrical circuits and distribution boards. (c) Deenergizing the circuit shall beaccomplished by opening the circuit breaker, opening the switch, or removing the fuse,whichever method is appropriate.\u00a0 The circuit breaker, switch, or fuse location shallbe tagged to indicate that an employee is working on the circuit.\u00a0 Such tags shallnot be removed nor the circuit energized until it (sic) definitely determined that thework on the circuit has been completed.The salt box on Hull 438 was installed in suchmanner that it could not be deenergized on board the vessel as contemplated by theforegoing standard.\u00a0 Neither Mr. Tweedie nor his supervisors knew this.\u00a0 Therespondent’s Electrical Test Production Foreman who requested assistance regarding thesalt box did know of the by-pass arrangement requiring total power shut-down not merelydeenergization of a system.Respondent offered no testimony that it had arule, enforced or otherwise, requiring system wiring standardization which would permitsystem deenergization.\u00a0 Neither did respondent offer testimony that it had a rule,enforced or otherwise, requiring system deenergization in a described manner.\u00a0 (Tr.161)\u00a0 Had the respondent established a uniform procedure or had it required that eachdivision supervisory personnel be acquainted with methodology employed by other relateddivisions, situation could have been avoided.Since respondent had provided no means ofdeenergizing the salt box on board the vessel, it cannot now stand on a claim that anemployee violated 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 pointwhere the work was being done may have cost him his life, but it did not cause theviolation of which respondent is charged, to-wit:\u00a0 permitting that work to be donewithout first deenergizing the circuit.\u00a0 Indeed there was no \”circuit\”which the employee could have deenergized.\u00a0 To make the situation safe it would haverequired a total shutdown of power to the vessel.\u00a0 Of the personnel material to thisinquiry only the Electrical Test Production Foreman had knowledge of this unorthodoxconnection and he failed to communicate the fact.Respondent has failed to make out the defense ofunpreventable employee misconduct.Issue C:If the respondent was in violation of thestandard, was the violation serious?Section 17(k) of the Act provides that aviolation is deemed to be serious \”. . . if there is a substantial probability thatdeath or serious physical harm could result from a condition which exists, . . . \”.While energized, the salt box carried 440 voltsof electrical power.\u00a0 That such power could kill or maim is amply demonstrated fromthe outcome of this case.The violation of the standard was serious. Issue D:What, if any, penalty would be appropriate?There was evidence that the respondentconsidered the statutory requirements in arriving at the proposed penalty which isappropriate in this case.\u00a0 (Tr. 164-169)Now, having observed the demeanor of thewitnesses and having weighed the credibility thereof, there are here entered thefollowing:Findings of Fact1.\u00a0 Respondent is, and at all timesmaterial hereto was, a corporation with an office and place of business at 28th Street andHarbor Drive, San Diego, California 92138; and at all times material hereto was engaged inshipbuilding and repair.2.\u00a0 Respondent at all times material heretowas engaged in a business affecting interstate commerce in that respondent was engaged inhandling goods or materials which had been moved in interstate commerce and was anemployer employing its employees at the aforesaid workplace in said business.3.\u00a0 Facts set forth under Statement ofFacts herein above are here incorporated by reference as though specifically set forth atthis point.4.\u00a0 By energizing the salt box in question without the benefit of a system circuit ordisconnect provision on Hull 438 and failing to notify repair and maintenance divisionpersonnel of that fact or of the fact that the salt box was energized even though therewas no padlock on the door giving access to the interior thereof, respondent permitted itsemployees to work therein and was thereby in violation of the standard at 29 C.F.R.1915.181(b).5.\u00a0 Employees of the repair and maintenancedivision equipped, instructed and sent to assist in correcting a mechanical problem in thesalt box in question were exposed to the hazard of electrical shock and electrocution bycoming in contact with live components of this constantly energized, though notfunctioning, salt box.6.\u00a0 There is no evidence that respondenthad a uniform and effectively enforced work rule:(a) Requiring on board wiring of systems in auniform manner providing disconnect methods which could benefit from \”lockout\”or \”tag out\” procedures.(b) Providing communication between divisions toadvise of installations which were unorthodox or varying from the norm.(c) Requiring one division to warn other divisions of hazards they would be exposed to inregard to energized \”circuits\” when invited to enter another division’s workarea.(d) Requiring workmen from the repair andmaintenance division to shut down all power to Hull 438, or any other vessel, beforecommencing work on what they reasonably could assume to be a deenergized salt box.7.\u00a0 Respondent’s safety manual contained aprovision that an employee shall not commence work on an electrical circuit without priortesting with a voltage meter, but its safety manual was not required reading (Tr. 32, 102,215), voltage meters were not required equipment for electricians sent to work on jobs(Tr. 35, 39, 40, 95-99), there is no evidence that any employee has ever been disciplinedfor failing to carry or use a voltage tester.\u00a0 (Tr. 141)8.\u00a0 The violation referred to herein wasserious within the meaning of section 17(k) of the Act, in that there was a substantialprobability that death or serious physical harm could result.9.\u00a0 The proposed penalty of $400.00 isappropriate and reflects due consideration of the size of the business of the respondent,the gravity of the violation alleged, the good faith of the respondent and the history ofprior violations, if any, as required by section 17(j) of the Act.Conclusions of Law1.\u00a0 Jurisdiction of the subject matter ofthis proceeding is conferred upon the Commission by section 10(c) of the Act and theCommission has jurisdiction of the parties hereto.2.\u00a0 The standard at 29 CFR 1915.181(b)applies to the job-site and work activity for which respondent was here cited.3.\u00a0 The respondent was in serious violationof the standard at 29 C.F.R. 1915.181(b) as alleged in the citation issued and thecomplaint filed herein.4.\u00a0 Item 1 of serious Citation No. 01,issued to respondent September 8, 1986, should be affirmed.5.\u00a0 A penalty of $400.00 should be assessedfor the violation here found.ORDER Item 1 of serious Citation No. 01, issued torespondent September 8, 1986, is AFFIRMED and a penalty of $400.00 is ASSESSED.R. M. ChildJudge, OSHRCDated:\u00a0 July 29, 1987FOOTNOTES: [[1\/]] The citation and standard read: Citation 29 CFR 1915.181(b):\u00a0 Electrical circuits were not deenergized and checked beforeemployees were permitted to work on the circuits:LOCATION:\u00a0 On or before 08\/07\/86 at the aftport side of the deck house on hull #438, employees were permitted to work on a salt boxwhich was neither checked for an energized circuit nor deenergized to preclude accidentalcontact with live parts.Standard ? 1915.181\u00a0 Electrical circuits and distribution boards.(b) Before an employee is permitted to work on an electrical circuit, except when thecircuit must remain energized for testing and adjusting, the circuit shall be deenergizedand checked at the point at which the work is to be done to insure that it is actuallydeenergized.\u00a0 When testing or adjusting an energized circuit, a rubber mat, duckboard, or other suitable insulation shall be used underfoot where an insulated deck doesnot exist.”