Union Electric Company, Geraldine District

Plain-English summary

An unprotected Union Electric employee came closer to an energized line than the minimum distance allowed by the construction electrical-clearance standard. The company's rule required rubber gloves when employees came within reach of energized conductors, but it did not state the specific minimum distances required by the OSHA rule. The Commission also found that Union Electric had not shown diligent supervision and effective enforcement sufficient to establish unpreventable employee misconduct. It adopted the judge's decision and affirmed the citation.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.950(c)(1).
• Outcome: Energized-line clearance violation affirmed.
• Key point: A company safety rule does not implement a clearance standard when it omits the standard's specific minimum distances, and an employee-misconduct defense also requires effective enforcement.

Full text (OSHRC public release)

Docket No. 77-3049

SECRETARY OF LABOR,

Complainant,

v.

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. �
654(a)(2), section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C.
�� 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. � 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. � 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 � 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 � 26,389, pp. 33,491-92 (No. 78-5366,
1982); Marson Corp., 82 OSAHRC 29/C4, 10 BNA OSHC 1660, 1662, 1982 CCH OSHD � 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 � 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 � 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:

� 1926.950  General requirements.

(c) Clearances.  The provisions of subparagraph (1) or (2) of this
paragraph shall be observed.

(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 � 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 � 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 � 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 � 21,696 (No. 11015, 1977), a case in which the Commission concluded
that the employer's safety rule was not the equivalent of � 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 � 25,985 (No. 78-204, 1982) (dissenting opinion).