Hanovia Lamp Division, Canrad Precision Industries, Inc.

Plain-English summary

On remand from the Third Circuit, the Commission considered whether Hanovia should have required two-person teams for high-voltage laboratory testing. The Secretary's expert said many major companies used that practice, but the evidence also showed that laboratories varied their approach depending on the test. The employee involved was a highly experienced technician with 14 years of high-voltage work and an unblemished safety record. The Commission held that the Secretary had not proved that a team requirement was feasible and necessary under these particular circumstances.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: The general-duty citation and penalty assessment were vacated.
• Key point: Evidence that a safety practice is generally used in an industry does not establish a general-duty violation without proof that it was feasible and appropriate for the specific work circumstances.

Full text (OSHRC public release)

Docket No. 89

HANOVIA LAMP DIVISION, CANRAD PRECISION INDUSTRIES, INC.
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OSHRC Docket No. 89

Occupational Safety and Health Review Commission

May 23, 1975

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[*1]
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Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

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BY THE COMMISSION: This matter is before the Commission following a remand from the United States Court of Appeals for the Third Circuit. n1

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n1
Brennan v. OSAHRC and Hanovia Lamp Division, Canrad Precision Industries,
502 F.2d 946 (3rd Cir., 1974).

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In its decision, the Court approved the Commission's holding that the respondent did not violate 29 U.S.C. �
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654(a)(1) (the "general duty clause") of the Occupational Safety and Health Act of 1970, 29 U.S.C. � �
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651,
et seq.,
by failing to supervise properly a laboratory employee, Orville Galligher. n2 The Court remanded to us because our decision did not affirmatively reflect consideration of the feasibility of a suggestion offered by the complainant, through an expert witness, that the respondent should have required that its technicians work in teams of two.
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It noted that the evidence introduced by the complainant was "some evidence that the two-person requirement for high voltage testing is a feasible [*2]
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measure for materially reducing the likelihood of employee disregard of recognized electrical hazards." 502 F.2d at 952. We were asked to determine whether the complainant met his burden of proof on this theory.
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There are no other issues before us.

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n2 The facts are stated in our prior opinion reported at 2 OSAHRC 55.

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The testimony introduced by the complainant in support of his suggestion is as follows:

Q . . .
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As a safety expert, I'd like your opinion as to whether it is safe or it is not safe to allow a man to work alone under these conditions?

A No, generally, when working with high voltages, there should be a co-worker, in case the man gets into some sort of trouble, a co-worker can assist him.
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It's poor practice to have one man alone working around such high voltage equipment and such large exposures.

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Q When you say poor, could you be more specific when you say it's poor practice?

A Well, I happen to know that many major companies engaged in this type of research have specific rules and regulations [*3]
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written down that their test technicians must follow, and almost they require two people in attendance on this type of experiment or test procedure.

The respondent did not dispute that some laboratories require employees to work in teams of two.
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However, it stated that some allow their employees to work alone, "depending on the thing," and did not admit that allowing an employee to work alone is "poor practice".

There was also testimony in the record indicating that other employees in addition to Galligher were allowed to work alone at times.
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There is no evidence, however, that such employees were not highly qualified and experienced, or that they were inadequately supervised. Moreover, the employee, Roth, who had 11 years of experience with electricity, stated that there were times when employees worked in teams of two and further stated that on the occasions when he worked alone, it was "[f]or short periods of time." Further, the fact that in the 10 years Lienhard supervised the laboratory there was not a single man-hour lost because of accidents is relevant under section 654(a)(1), and has some probative force.
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See Brennan v. OSAHRC & Republic Creosoting Co.,
501 F.2d [*4]
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1196, 1202 (7th Cir. 1974). We also note the absence of any specification of a team requirement in the citation or complaint.

Thus, the complainant's evidence indicates that the team system is
generally
used when work is performed with high voltages. The respondent's evidence shows that the team system concept is used depending on the nature of the test.

In our opinion, the complainant failed to establish that the use of the team system was feasible under the particular circumstances of this case.
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The evidence shows that Galligher was a qualified and experienced technician who had worked for the respondent for 21 years, including 14 years with high voltage equipment.
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During this 21 years, he had an unblemished safety record, and his supervisor
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had never observed him do anything that was unreliable or unsafe. n3 Although there are work situations where employees should be used in teams, the evidence does not establish that this is such a case.

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n3 We note, as did the Circuit Court, that unknown to his employer Galligher was under unusual emotional stress.

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For the reasons given above, we vacate the citation and the penalty assessment.
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