Williams Construction Co., Inc.
Final power-line citation withdrawn and $80,000 fee settlement approved
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This is citable Commission precedent from 1995, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
The case arose from citations issued after an accident at Williams Construction Co., Inc.'s Montana electrical power-line construction worksite. After other items had been withdrawn, the only remaining item alleged that an employee approached energized parts too closely with a conductive object. While the case was pending before the Commission, the Secretary agreed to dismiss that item and its proposed penalty with prejudice. The Secretary also agreed to pay Williams $80,000 in attorney fees and expenses under the Equal Access to Justice Act, and Williams withdrew its fee application. The Commission approved the complete settlement.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.950(c)(1).
- Outcome: Settled. The remaining citation item and proposed penalty were withdrawn with prejudice, and the Secretary agreed to pay $80,000 in fees and expenses.
- Key point: The settlement ended both the merits case and the employer's attorney-fee claim without an affirmed citation.
Full text (OSHRC public release)
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-34 19
Phone: (202) 606-5100
Fax: (202) 606-5050
SECRETARY OF LABOR
Complainant,
v. Docket No. 934190
WILLIAMS CONSTRUCTION CO.,
INC.,
Respondent.
ORDER
The parties stipulation and settlement agreement is approved.
BY DIRECTION OF THE COMMISSION
Executive Secretary
Dated: August 1, 1995 1995OSHRCNo. 41
Docket No. 93-1190
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Tedrick A. Housh, Jr., Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
1210 City Center Square
1100 Main Street
Kansas City, MO 64105
Iris H. Basta, Esquire
David L. Jackson, Esquire
Jackson, Murdo, Grant & McFarland, P. C.
203 North Ewing
Helena, MT 59601
Susan Callaghan, Esquire
Montana Power Company
40 East Broadway
Butte, MT 59701
Stephen C. Yohay, Esquire
McDermott, Will & Emery
1850 K Street, N. W.
Washington, D. C. 20006-2296
Benjamin R. Loye
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 250
1244 North Speer Boulevard
Denver, CO 80204-3582
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
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ROBERT B. REICH, SECRETARY OF LABOR, l
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Complainant, l
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l
v. :OSHRC Docket No. 93-1190
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WILLIAMS CONSTRUCTION CO., INC., .
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Respondent. l
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STIPULATION AND SETTLEMENT AGREEMENT
I
The parties have reached agreement on a full and complete
settlement and disposition of the issues in this proceeding which
is currently pending before the Commission.
II
It is hereby stipulated and agreed by and between the
Complainant, Secretary of Labor, and the Respondent, Williams
Construction Co., Inc., that:
10 Complainant hereby dismisses and withdraws with
prejudice item la of Citation 1, alleging a violation of 29
C.F.R. §1926.95O(c)(l), the only citation item remaining in this
case, and the notification of proposed penalty for that item.
2a Complainant hereby agrees to pay $80,000 to respondent
for attorney's fees and expenses in this proceeding in full
settlement of respondent% application for attorney's fees and
expenses under the Equal Access to Justice Act.
3. Respondent hereby dismisses and withdraws with
prejudice its petition for attorney% fees and expenses.
4 l No employee or authorized representative of employees
elected party status in this case.
50 Respondent certifies that a copy of this Stipulation
and Settlement Agreement was served on affected employees by
posting on the /q P, day of July, 1995, pursuant to Commission
Rules 7 and 100, and will remain posted for a period of ten (10)
days.
60 This stipulation is effective upon approval of a&order
of dismissal with prejudice of Docket No. 93-1190 by the
Commission.
Dated this day of July, 1995.
Respectfully submitted,
THOMAS S. WILLIAMSON, JR.
Solicitor
JOSEPH M. WOODWARD
Associate Solicitor for
-. Occupational Safety and Health
DANIEL J. MICK
Counsel for Regional
Trial Litigation
Attorney for Respondent AttorneyVfor the Secretary of Labor
Jackson, Murdo, Grant &
McFarland, PC. U.S. Department of Labor
203 North Ewing Street 200 Constitution Ave., NW, S-4004
Helena, Montana 59601-4298 Washington, D.C. 20210
(202) 219-6543
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419
PHONE:
coM(202)606-5100
nS(202)60&6100
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 934190
WILLIAMS CONSTRUCTION COMPANY, INC.
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on December 8, 1994. The decision of the Judge
will become a final order of the Commission on January 9, 1995 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretary on or before
December 28, 1994 in order to permit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. bY party
havmg questions about review rights may contact the Commission’ ‘sExecutive
Secretary or call (202) 606-5400.
FOR THE CO&EMISSION /
Date: December 8, 1994
DOCKET NO. 93-1190
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOFL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
Tedrick Hous+, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
1210 City Center Squire
1100 Main Street
Kansas City, MO 64105
Iris H. Basta, Esquire
David L. Jackson, Esquire
Jackson, Murdo, Grant & McFarland
203 North Ewin Street
Helena, MT 59 t 01
Benjamin R. Lo e
AdministrativeITaw Jud e
Occupational Safety anf Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO f 0204 3582
00116125196:08
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244 N. Speer Boulevard
Room 250
Denver, Colorado 80204-3582
PHONE: .
COM (303) 8444409
Fls (303) 8444409
Ki (303)844-3759
Frs (303) 8444759
.-
I
SECRETARY OF LABOR, I
Complainant, I
I
v. I OSHRC DOCKET
I NO. 934190
WILLIAMS CONSTRUmION I
COMPANY, INC., I
Respondent. I
APPEARANCES:
Tobias B. Fritz, Esq., Office of the Solicitor, United States Department of Labor,
Kansas city, Missouri
Iris H. Basta, Esq., David L. Jackson, Esq., Jackson, Murdo, Grant & McFarland, P.C.,
Helena, Montana
Before: Administrative Law Judge Benjamin R. Loye
DECISION AND ORDER
This proceeding arises under the Occupational Safety and Health Act of 1970 (29
U.S.C. Section 651 et seq.; hereafter called the “Act”).
Respondent, Williams Construction Company, Inc. (Williams), at all times relevant
to this action maintained
‘I’ a worksite on property owned by the Ravalli Electric
Cooperative, near Hamilton, Montana, where it was engaged in electrical power line con-
struction. Respondent admits it is an employer engaged in a business affecting com-
merce and is subject to the requirements of the Act.
On March 29, 1993 pursuant to an investigation of a September 30, 1992 accident
at Williams’ Ravalli worksite, the Occupational Safety and Health Administration
(OSHA) issued citations, together with proposed penalties, alleging violations of the Act.
By filing a timely notice of contest Respondent brought this proceeding before the
Occupational Safety and Health Review Commission (Commission).
On July 25-28, 1994 a hearing was held in Helena, Montana. During the hearing
the parties stipulated to the withdrawal of all but “serious” citation 1, item la, alleging
violation of 51926.950(c)(l). The parties have submitted briefs on the issues and this
matter is ready for disposition.
Alleged Violations
Serious citation 1, item la alleges:
29 CFR 1926.950(c)(l): An employee was permitted to approach and take conductive
object without an approved insulating handle closer to exposed energized parts than
shown in Table V-l:
(a) 3 Miles East of Hamilton, Montana on the Bitterroot Stock Farm on or about
September 30, 1992.
Section 1926.95O(c)( 1) provides:
No employee shall be permitted to approach or take any conductive object with-
out an approved insulating handle closer to exposed energized parts than shown in
table V-l, 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 live-line bare-hand work
Table V-1 prescribes a minimum working and clear hot stick distance of 2 feet for
voltages of 2.1 to 15 kilovolts.
StipulatedFacts
The parties stipulate that Craig Cleaves, an apprentice lineman, was electrocuted
on September 30, 1992 while employed by Williams. Immediately prior to the accident,
Cleaves was outside of, but able to reach past the allowable approach distance, into the
two foot protective zone mandated for a voltage of 7.2 kv under Table V-l.
The parties further stipulate that Williams has an adequate safety program which
is effectively communicated and enforced. Cleaves was trained, consistent with Williams’
safety policy not to reach into the safety zone mandated under Table V-l. Williams had
no work rule, however, prohibiting linemen ‘from working from a position from which
they could reach within the safety zone, and Cleaves’ positioning was consistent with
Williams’ training and normal operating procedures.
The parties agree that Cleaves was electrocuted when, contrary to his training, he
hung a handline on an unguarded energized conductor. Cleaves’ action, reaching inside
the two foot protective zone with a conductive object, was an isolated incident of miscon-
duct, contrary to Williams’ work rules. YJrr. Vol. 4, Exh. A]
Issues
The parties agree that the only matter at issue is the Secretary’s interpretation of
the cited standard. The witnesses agree that a violation of the standard is established
here, and any time any part of an employee’s body enters the two foot limit imposed by
the standard. The Secretary maintains, however, that in order to ensure compliance with
the standard the employer must adopt and enforce a policy prohibiting employees from
positioning themselves within reach plus two feet of the energized line.
A 4
Dikcuwion
Section 1926.95O(c)( 1) re q uires that the employer keep employees from entering
the hot stick area established by table V-l. The standard does not, however, prescribe
the manner in which this is to be accomplished. Complainant here seeks to enlarge the
scope of the standard) requiring the employer to employ a specific means of securing
compliance. The Complainant argues that its interpretation is consistent with the
purposes of the Act in that it affords greater protection for employees. Complainant
l
3
maintains that its interpretation is reasonable and is, therefore, entitled to deference.
Martin v. OSHRC (CFI Steel Cop), 111 S.Ct. 1171, 1179 (1991).
The undersigned finds, however, that Complainant’s interpretation of the standard
is inconsistent with the evidence in the record, which establishes the Secretary’s intent
regarding the purpose of minimum approach distances. Complainant’s interpretation _
must, therefore, be rejected.
The Commission has held that the preamble to the final rule is the most author-
itative statement of the Secretary’s intent. Secretary of Labor v. American Sterilizer Co., 15
BNA OSHC 1476, 1992 CCH OSHD 729,575 (No. 86-1179, 1992). The cited standard
was originally adopted as a consent standard without hearing and comment; however,
new electrical power generation, transmission and distribution standards were
promulgated in January 1994, along with detailed commentary. In regards to 51910.269,
which is based on 51926.950 and adopts the clearance values from Table V-1 the
preamble states:
[E]ach of these distances, was intended to provide a sufficient gap between the
worker and the line so that the current could not arc to the employee under the
most adverse. transient voltage that could be imposed on the line plus an amount
for inadvertent movement on the part of the employee.
59 Fed.Reg. 4320, 4381 (January 31, 1994)
OSHA must first determine the size of the air gap that must be present so
that an arc does not occur during the most severe over voltage on the system.
This has been referred to as the electrical component of the minimum approach
distance. To determine the minimum safe approach distance, OSHA must then
add an extra distance to account for ergonomic considerations or human error.
Id. at 4383.
The ergonomic data in the record are limited. The relevant data born the record
include a typical arm’s reach of about two feet and a reaction time to a stimulus
of .2 to more than 1.0 second. To prevent an employee fkom breaching the air
gap required for the electrical component, the ergonornic distance must be suffi-
cient for the employee to be able to recognize a hazardous approach to an ener-
gized line and withdraw to a safe position.
* * *
It should be noted that the ergonomic component of the minimum approach dis-
tance is only considered a safety factor that protects employees in case of errors in
judging and maintaining the full movement approach distance. The actual
working position selected must account for the range of movements that could
normally be anticipated while an employee is working. Otherwise, the employee
would violate the minimum approach distance while he or she is working.
Id. at 4384
If the interpretation advanced here by Complainant were adopted, the cited com-
ments would be meaningless, as Complainant’s interpretation is designed to make inad-
vertent movement into the hot stick zone impossible. It is clear from the preamble that
the intent of the drafters was, rather, to establish a performance standard, building in
enough latitude to allow employees to select a working position which would not bring
them into the standard’s clearance zones, based on their range of anticipated, not
possible, movements. Complainant’s position is inconsistent with that intent, as it would
establish a strict specifications standard, eliminating any exercise of judgment.
The undersigned recognizes that the preamble to $1910.269 is not directly
applicable to 51926.950. However, to ignore the document would lead to an absurd
result. Employers cited for violation of 91910.269(l)(2) could be held to a less stringent
standard than those cited under the parallel standard 1926.950, without any evidence that
the Secretary intended to establish less rigorous requirements. In the absence of any
evidence that OSHA issued interpretive rules, or agency enforcement guidelines address-
ing its reach plus two interpretation, this judge cannot find that the Secretary intended
such a result.
This judge finds that Complainant’s suggested means of compliance, though a
good way to satisfy the employer’s obligation, is not the only means allowed under the
standard. Based on the stipulated facts indicating that employee Cleaves’ action in
reaching past the minimum approach distance was an act of isolated employee miscon-
duct, the citation in this matter will be dismissed.
5
Findings of Fact and Conclusions of Law
All findings of fact and conclusions of law relevant and necessary to a determina-
tion of the contested issues have been found specially and appear in the decision above.
See Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
- Serious citation 1, item la, alleging violation of 51926.950(c)(l) is VACATED.
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