ILLINOIS BELL TELEPHONE COMPANY
OSHRC Docket No. 2097
Occupational Safety and Health Review Commission
September 26, 1977
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Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Herman Grant, Regional Solicitor
Richard G. Siegel, Illinois Bell Telephone Co.
F. J. Cunningham, Bus. Rep., Local 134, IBEW, AFL-CIO
D. J. Servatius, Pres.-Bus. Mgr., Local 165, IBEW
OPINION:
DECISION
BY THE COMMISSION:
This case arose out of an inspection by the Secretary of Labor of the construction of the Sears Tower building in Chicago, Illinois. � Citations alleging more than 350 violations under the Occupational Safety and Health Act of 1970, 29 U.S.C. � � 651 et seq. ["the Act"] were issued to 37 employers. � Respondent, Illinois Bell Telephone Company and 15 other employers filed notices contesting the citations. � After the filing of complaints and answers by the Secretary and the employers, respectively, the cases were consolidated for hearing before Administrative Law Judge Louis J. Rubin.
After an extensive and complex hearing, Judge Rubin issued a decision in which he held that the employers had failed to comply with more than 30 safety and health standards. � Former Commissioners Van Namee and Moran directed review of the Judge's decision. � On July 28, 1976, the [*2] � Commission issued an order conditionally vacating the directing order but permitting each of the 16 employers to continue to pursue its objections to the Judge's decision. � A.C & S., Inc., et al., 76 OSAHRC 93/A2, 4 BNA OSHC 1529, 1976-77 CCH OSHD para. 20,955 (Nos. 2097, et al., 1976). � Illinois Bell objected to the Judge's decision, and we issued an order indicating that we would consider the merits of its case. n1
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n1 Illinois Bell Telephone Co., et al., 1976-77 CCH OSHD para. 21,143 (Nos. 2097, et al., 1976).
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Illinois Bell was issued a citation alleging a failure to comply with five standards. � Judge Rubin vacated items one and two, and affirmed items three, four, and five. � No penalties were assessed. � Respondent challenges the Judge's affirmance of items three and four, and only these items are before the Commission. � Item three alleges that respondent failed to comply with the standard at 29 CFR � � 1926.400(a) n2 (the wire fastening standard). � Item four alleges a failure to comply with [*3] � the standard at 29 CFR � � 1926.401(j)(1) n3 (the light guarding standard).
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n2 The standard provides:
� � 1926.400 General requirements.
(a) All electrical work, installation, and wire capacities shall be in accordance with the pertinent provisions of the National Electrical Code, NFPA 70-1971; ANSI C1-1971 (Rev. of C1-1968), unless otherwise provided by regulations of this part
The pertinent provision of the National Electrical Code, which was referred to in the citation, provides:
Article 305 - Temporary Wiring
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2(c) Branch Circuits. . . . � When run as open conductors [branch circuits] shall be fastened at ceiling height every 10 feet. . . .
n3 The standard provides:
� � 1926.401 Grounding and bonding.
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(j) Temporary Lighting. (1) Temporary lights shall be equipped with guards to prevent accidental contact with the bulb, except that guards are not required when the construction of the reflector is such that the bulb is deeply recessed.
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Specifically, respondent contends that the citation [*4] � must be vacated because the compliance officer failed to provide an opportunity for respondent to be represented during the inspection. It further contends that vacating the citation is required because the Secretary failed to meet his burden of proving that Illinois Bell employees were exposed to the alleged hazards. Alternatively, respondent claims that if the alleged violations occurred, they were de minimis in nature because they were not directly or immediately related to the safety and health of respondent's employees.
Respondent's first contention is without merit. � We are in partial agreement with respondent's second contention, and therefore vacate item three. � We also agree, but for a different reason, that the violation alleged in item four is de minimis.
Section 8(e) of the Occupational Safety and Health Act of 1970, 29 U.S.C. � � 657(e), provides in pertinent part that,
[A] representative of the employer . . . shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace . . . for the purpose of aiding such inspection.
A divided Commission has held that the requirement of this section is fulfilled [*5] � when the Secretary's authorized representative substantially complies with the provision by making a reasonable effort to inform an employer about the inspection so that a representative may be appointed to accompany the inspecting official. � Western Waterproofing Company, Inc., 76 OSAHRC 64/A2, 4 BNA OSHC 1301, 1976-77 CCH OSHD para. 20,805 (No. 1087, 1976); revs'd on diff. grounds, No. 76-1703 (8th Cir., August 23, 1977). � Respondent argues that compliance officer Brickman failed to meet this requirement because he did not contact respondent when the inspection reached the areas at which respondent's employees were working.
Individual "walkaround" representation by each of the 37 employers would plainly have protracted the inspection. Sixty five of the Tower's 110 floors were in various stages of completion during the inspection. Approximately 1600 employees worked at the site. Compliance officer Brickman sought voluntary authorization from each employer to conduct the inspection while accompanied by two persons, one employed by the general contractor and one by a subcontractor, who would represent all employers. � A statement authorizing this arrangement was signed by [*6] � most of the employers at opening conferences held between August 22 and August 25. � Respondent did not sign the statement.
Illinois Bell's opening conference representatives, Mr. Zemke and Mr. Wolf, declined to sign the authorization statement because they lacked authority to do so. � Mr. Zemke stated that he would contact the compliance officer after learning if Illinois Bell would accept the representation arrangement. � Mr. Zemke never contacted the compliance officer. � In addition, however, the compliance officer had specifically informed Mr. Zemke at the opening conference that Illinois Bell retained the right to appoint a representative to join the inspection team. It is clear, therefore, that respondent was fully informed of its right to be individually represented during the inspection.
Despite knowledge of this right, respondent made no attempt to join the inspection team on August 28 when it began its tour of the worksite or on September 7 when the team reached the tenth floor, on which respondent's 16 employees were working almost exclusively during the time of the inspection. Had respondent not previously been informed of its "walkaround" right, Brickman's failure to [*7] � contact respondent when the inspection team reached the tenth floor may have been improper. � Compare Western Waterproofing Company, Inc., supra, with H.A.S. & Associates, 76 OSAHRC 144/A2, 4 BNA OSHC 1894, 1975-76 CCH OSHD para. 21,353 (No. 5572, 1976). � Respondent, however, was informed of its right sufficiently in advance of the inspection to appoint a representative to accompany the inspection team. Even if it wished to exercise its right only when the team was on floors where respondent's employees worked, respondent could have instructed its employees to contact their foreman when the team arrived, or easily could have monitored the progress of the team as it moved methodically downward from the 65th floor. Inspection would become unduly impeded if a compliance officer were required to suspend an inspection and locate an employer each time workmen were observed at a multi-employer workplace. We conclude, therefore, that the requirement of section 8(e) of the Act has been fully satisfied.
Allegations that a subcontractor's employees at a multi-employer construction site have been exposed to conditions not in compliance with a safety or health standard must � [*8] � be proven by the Secretary by a preponderance of the evidence. � Armor Elevator Company, 73 OSAHRC 54/A2, 1 BNA OSHC 1409, 1973-74 CCH OSHD para. 16,958 (Nos. 425 & 426, 1973). � Exposure can be established by proof of either actual exposure or access to noncomplying conditions. � Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2009, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976). � A finding of access is predicated upon establishing a reasonable foreseeability of exposure on the basis of facts such as the nature of the hazard, employees' work areas and duties, and the routes employees use to reach work areas and rest areas. � Gilles & Cotting, Inc., supra.
The facts pertaining to the cited noncomplying conditions are not challenged. � Five thousand temporary lights illuminated the site, but only those in the stairways were guarded as required by � � 1926.401(j)(1). � Compliance officer Brickman's inspection notes and photographs identify several locations at which portions of the 200,000 feet of temporary wiring failed to meet the requirements of � � 1926.400(a) in that wiring hung within five feet of the floor and was not fastened at ten-foot intervals. The locations were [*9] � identified as the northeastern end of the 55th floor, the northwestern end of the 49th floor, the northeastern corner of the 37th floor, and the southwestern corner of the 29th floor.
Although there is no evidence of actual exposure to improperly fastened wiring, nor evidence indicating that Illinois Bell employees worked in or passed through areas where the above specified conditions were located, Judge Rubin concluded that the incidence of improperly fastened wiring was so great that Illinois Bell employees necessarily were exposed. We disagree. � The Judge apparently relied on the compliant officer's testimony that conditions shown in inspection photographs existed throughout the site and that wiring fastened 10 to 15 feet apart was typical. n4 We assign little probative value to this testimony. � Brickman was unable to support his general statements with specific examples. � He had no recollection of wiring conditions independent of those referenced in his notes and photographs. Moreover, Brickman explained "throughout the site" to mean one or two instances of low-hanging wires in forty to fifty percent of the areas in the building and did not define "typical." Brickman did not [*10] � specify the location of these areas. � He also stated that at least one low-hanging wire existed on each floor. Each floor exceeded 50,000 square feet. The general statements, even when buttressed by the notes and photographs, indicate that the number of locations at which wiring was not fastened at ten-foot intervals is too limited to support the Judge's conclusion on the prevalence of the violation. � Accordingly, we hold that the Secretary has failed to establish employee access to the instances of the violative conditions enumerated by the compliance officer.
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n4 We note that wiring fastened at 10-foot intervals complies with the wire fastening standard. � We also note that the compliance officer merely estimated these distances, he did not make measurements throughout the site.
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The Secretary also predicated the � � 1926.400(a) citation on the fact that the wiring was assertedly not fastened at proper height throughout the worksite, even where the wiring was not within five feet of the floor. Judge Rubin appears � [*11] � to have concluded that there was a violation of the standard partly because electrical wiring throughout the building was suspended by non-conducting wires either two feet from the undersides of floors or one to two inches from the bottoms of beams that were two feet below the floor above. � This conclusion is based on an erroneous interpretation of the standard.
The wire fastening standard provides that temporary wiring run as open conductors ". . . shall be fastened at ceiling height. . . ." It does not require that wiring be fastened to the celling. � The reasons for the wording are clear. � Ceilings frequently are suspended several inches to two feet below the floor above to provide space for ducts and permanent wiring. Temporary wiring often is installed before ceilings are constructed in multi-floored buildings in order to supply electrical power for tools and lighting. � The standard permits use of the space immediately below a floor while affording as much protection against exposure to live wires as is provided by fastening wires to a ceiling.
The Sears Tower presents an example of the situation contemplated by the standard. � Floors were erected approximately twelve feet apart. � [*12] � Electrical, plumbing, and telephone ducts, and permanent wiring were installed in the space between the floor and ceiling below. � Temporary wiring was suspended approximately two feet below the floors. Ceilings were to be constructed at the height of the bottoms of steel beams supporting the floors, approximately two feet below the floors. We, therefore, conclude that respondent complied with the provision of the National Electrical Code cited in footnote 2, supra.
With respect to the � � 1926.401(j)(1) citation, we are persuaded that Illinois Bell employees had access to unguarded lights. � Much of the work by Illinois Bell employees was performed in the central telephone shaft. The shaft is a vertical alignment of four-foot by six-foot rooms on each floor, through which holes were drilled to permit the passage of telephone cables. Part of the work in these shafts required employees to climb ladders in order to attach cables to the tops of the shaft rooms. � Temporary lighting was in use in all shaft rooms above the ninth floor. Respondent's foreman testified that at least one of his crewmen had been exposed to an unguarded light while working at ceiling height in a shaft � [*13] � room where temporary lighting had been installed. � Respondent's foreman further testified that employees occasionally mounted ladders while pulling permanent telephone cables through 15-foot long ducts attached to the undersides of floors. Because the unguarded lights were spaced at ten-foot intervals, it is reasonable to infer that employees would have been exposed to the lights while pulling cables.
The Secretary therefore correctly cited respondent for a nonserious violation because the possibility of touching functioning lights is related directly to employee safety. n5 The Secretary is authorized to issue a de minimis notice only with respect to ". . . violations which have no direct or immediate relationship to safety or health." 29 U.S.C. � � 658(a). � The Commission, however, has the authority under 29 U.S.C. � � 659(c) to classify as de minimis n6 a violation that has only a negligible relationship to employee safety in affording "appropriate relief." General Electric Company, 75 OSAHRC 50/A2, 3 BNA OSHC 1031, 1974-75 CCH OSHD para. 19,567 (No. 2739, 1975) rev'd on other grounds, 540 F.2d 67 (2d Cir. 1976). National Rolling Mills Company, 76 OSAHRC 121/D7, � [*14] � 4 BNA OSHC 1719, 1976-77 CCH OSHD para. 21,114 (No 7987, 1976).
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n5 The compliance officer suggested several hazards presented by broken lights, but there is no evidence that any lights were or were likely to be broken.
n6 The full maxim is de minimis non curat lex (the law does not care for trifling matters). � The maxim has been applied with remedial legislation. � Cf. Ling v. Currier Lumber Co., 50 F. Supp. 204, 207 (D.E.D. Mich. 1943) (case under the Fair Labor Standards Act). � Nevertheless in light of the broad purpose of the Act in providing so far as possible safe workplaces, the application of the maxim under OSHA is narrow. � See, for example, Alfred S. Austin Construction Co., 76 OSAHRC 50/A2, 4 BNA OSHC 1166, 1975-76 CCH OSHD para. 20,660 (No. 4809, 1976). � Also compare, Mayfair Construction Co., No. 2171, also decided today.
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Although respondent failed to comply with the technical requirements of the light-guarding standard, we hold that respondent's employees were exposed to only a [*15] � slight hazard not warranting an abatement requirement or the imposition of a penalty. � National Rolling Mills Company, supra. Contact with the lights was unlikely because of the nature of the work performed by respondent's employees. � Exposure to the hazards was infrequent and for brief periods. � Connecting telephone lines, the primary work performed in the shaft, required restricted movement making accidental contact unlikely. � When telephone cables were passed through ducts by employees on ladders, the employees remained stationary and were restricted to pulling the cable through the ducts. Because the lights were spaced at ten-foot intervals, accidental contact while pulling cables was unlikely. � Finally, we note that there is no evidence of employee contact with the unguarded lights.
Accordingly, the nonserious violation alleged in item three is vacated and the violation alleged in item four is affirmed as a de minimis violation. � No penalty is assessed.
So ORDERED. �