Docket No. 77-3049

SECRETARY OF LABOR,
Complainant,

UNION ELECTRIC COMPANY,
GERALDINE DISTRICT,
Respondent,

OSHRC Docket No. 77-3049

DECISION

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
BY THE COMMISSION:

Administrative Law Judge Alan M. Wienman affirmed a citation issued to Union Electric Company. The citation alleged that Union Electric violated 29 U.S.C. ї 654(a)(2), section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-678 ("the Act"), when an unprotected employee came closer to an energized line than permitted by Table V-1 of 29 C.F.R. ї 1926.950(c)(1).[[1/]] Union Electric's petition for review of the judge's decision was granted by former Commissioner Barnako under section 12(j) of the Act, 29 U.S.C. ї 661(i). On review, Union Electric largely renews the arguments it made before the judge.[[2/]] We have considered these arguments in light of the record and adopt the judge's decision. We add only some additional observations.

Union Electric claims that it was error for the judge to conclude that its own safety rule did not provide the protection required by section 1926.950(c)(1) and that the rule was not enforced. Union Electric's rule requires that:

Rubber gloves with protectors shall be put on before coming within reach and worn while within reach of conductors or equipment which is energized or may become energized.

It does not, however, speak in terms of specific distances to be maintained from energized lines as does section 1926.950(c)(1). Thus, Union Electric cannot be said to have fulfilled its duty to comply with the standard because its rule does not encompass the requirements of section 1926.950(c)(1). See The Kansas Power & Light Co., 77 OSAHRC 39/A2, 5 BNA OSHC 1202, 1206, 1977-78 CCH OSHD І 21,696, p. 26,059 (No. 11015, 1977). Commission precedent also supports the judge's view that an employer fails to adequately enforce his safety rules by not providing diligent supervision. To adequately enforce a workrule, an employer must take steps to discover violations and effectively enforce the rule when infractions are discovered. E.g., Farthing & Weidman, Inc., 82 OSAHRC 75/A2, 11 BNA OSHC 1069, 1072, 1983 CCH OSHD І 26,389, pp. 33,491-92 (No. 78-5366, 1982); Marson Corp., 82 OSAHRC 29/C4, 10 BNA OSHC 1660, 1662, 1982 CCH OSHD І 26,075, p. 32,804 (No. 78-3491, 1982). Enforcement includes discipline sufficient to prevent recurrence of the violative conduct as well as communication of the occurrence of such discipline to employees to make them aware that workrules will be enforced. See Floyd S. Pike Elec. Contractor, Inc., 78 OSAHRC 50/E1, 6 BNA OSHC 1675, 1978 CCH OSHD І 22,805 (No. 3069, 1978). On this record, we affirm the judge's decision on the ground that Union Electric failed to sustain the affirmative defense with respect to unpreventable employee misconduct. See Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD І 22,737 (No. 14281, 1977).

SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: MAR 31 1983

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FOOTNOTES:

[[1/]] At the time of the alleged violation, the standard provided in pertinent part:

ї 1926.950 General requirements.

(1) No employee shall be permitted to approach or take any conductive object without an approved insulating handle closer to exposed energized parts than shown in Table V-1, unless:

(i) The employee is insulated or guarded from the energized part (gloves or gloves with sleeves rated for the voltage involved shall be considered insulation of the employee from the energized part), or

(ii) The energized part is insulated or guarded from him and any other conductive object at a different potential, or
(iii) The employee is isolated, insulated, or guarded from any other conductive object(s), as during liveline bare-hand work.

TABLE V-1

ALTERNATING CURRENT--MINIMUM DISTANCES

Voltage range                        Minimum working
(phase to phase)                     and clear hot
kilovolt                                  stick distance
2.1 to 15............................. 2 ft. 0 in.
15.1 to 35............................2 ft. 4 in.
[remainder of table omitted]

[[2/]] At the close of the Secretary's case in chief, Union Electric's counsel moved to dismiss on the ground that the Secretary had not made out a prima facie case. The judge took the motion under advisement. Union Electric then chose to proceed with its own case and presented evidence. On review, Union Electric argues that the Commission should find that the judge erred in not granting the motion. However, by choosing to proceed with its own evidence, Union Electric waived any objection it had to the judge's reservation of a ruling on the motion. See Harrington Constr. Corp., 77 OSAHRC 7/B3, 4 BNA OSHC 1471, 1473, 1976-77 І 20,913, p. 25,110 (No. 9809, 1976), citing A.P. Hopkins v. Studebaker Corp., 496 F.2d 969, 971 (6th Cir. 1974). See generally 5 Moore's Federal Practice І 41.13[1], p. 41-178 & n.31 (2d ed. 1982). Once a defending party expands a record, the judge must decide the case on the entire record, not on a part of it. We also note that Judge Wienman followed the preferred Commission practice. See Texland Drilling Corp., 80 OSAHRC 106/C13, 9 BNA OSHC 1023, 1026, 1980 CCH OSHD І 24,954, p. 30,788 (No. 76-5307, 1980); see also White v. Rimrock Tidelands, Inc., 414 F.2d 1336, 1340 (5th Cir. 1969).

[[1]] There is no allegation of violation with regard to the other clearance distances set forth in Table V-1.

[[2]] The majority cites The Kansas Power & Light Co., 77 OSAHRC 39/A2, 5 BNA 1202, 1977-78 CCH OSHD І 21,696 (No. 11015, 1977), a case in which the Commission concluded that the employer's safety rule was not the equivalent of ї 1926.950(c)(1) and Table V-1. However, in that case the Commission found that the employer's safety rule was inadequate for the following reasons: (1) The safety rule was applicable to only a particular type of operation performed on energized lines; (2) Although some of the voltage/clearance ratios set forth in the employer's manual were more stringent than in the standard, in other instances the minimum clearances were less stringent; and (3) The employer's manual merely "suggests" minimum distances while Table V-1 requires that minimum distances be maintained. None of the three factors which the Commission relied upon in The Kansas Power & Light Co., are present here.

[[3]] I do not mean to suggest, however, that I would necessarily place on an employer an obligation to do anything more in its safety program than establish and communicate safety rules to employees. Since I find Union Electric's mechanisms for detecting and imposing sanctions for violations of its safety rules were adequate in the circumstances, I need not now consider whether an employer should be required to enforce as well as establish safety rules. See H.E. Weise, Inc., 82 OSAHRC 18/A2, 10 BNA OSHC 1499, 1982 CCH OSHD І 25,985 (No. 78-204, 1982) (dissenting opinion).