Donohue Industries, Inc.

Plain-English summary

A Donohue Industries electrician returned a portable spot welder to service without connecting its grounding wire, and a millwright was later fatally electrocuted while using it at the paper mill. The Commission reviewed the item alleging that Donohue failed to ground the welder. It found that Donohue had an adequately communicated grounding rule, relevant training, experienced electricians, and an enforced disciplinary program. The evidence also indicated that the welder was grounded before the electrician opened its plug that day, so an earlier periodic or visual inspection would not have disclosed the later condition. Because the Secretary did not prove actual or constructive knowledge, the Commission vacated the grounding citation.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.255(c)(6), 1910.334(a)(3)(ii), and 1910.334(a)(4)
• Outcome: The spot-welder grounding item on review was vacated for lack of employer knowledge.
• Key point: A violative condition does not establish liability unless the Secretary also proves that the employer knew or, with reasonable diligence, could have known of it.

Full text (OSHRC public release)

Walter, J. David
Normal
Walter, J. David
2
2
2018-08-02T18:43:00Z
2018-08-02T18:43:00Z
1
10555
60164
501
141
70578
16.00

Clean
Clean
false

false
false
false

EN-US
X-NONE
X-NONE

SECRETARY OF LABOR,

Complainant,

v.

Docket No. 99-0191

DONOHUE INDUSTRIES, INC.,

Respondent.

DECISION

Before:
RAILTON, Chairman; and STEPHENS, Commissioner.

BY
THE COMMISSION:

This case arose out of an inspection that the
Secretary’s Occupational Safety and Health Administration (“OSHA”) conducted at
a paper mill operated by Donohue Industries, Inc. (“Donohue”) in Lufkin, Texas.
The inspection, which resulted in a citation alleging three serious violations
of the Occupational Safety and Health Act, 29 U.S.C. 651-678 (“the Act”), was
prompted by the electrocution death of a Donohue employee. Donohue contested
the citation, and a hearing was held before former Commission Administrative
Law Judge Stanley Schwartz. He issued a decision affirming one item and
vacating two others.

At issue before the Commission is the judge’s decision
to vacate an item that charged that Donohue failed to ground a spot welder. The
judge held that the violation resulted from unpreventable employee misconduct.
We affirm the judge’s action in vacating the item but do so on
the ground that the Secretary failed to carry her burden of proving that
Donohue had knowledge of the violative condition.

I

At about 9 a.m. on August 31, 1998, six Donohue millwrights
were assigned to use a spot welding machine to attach new facing wire to a drum
decker, a large metal cylinder used in paper production. Millwright Robert Loggins calibrated the spot welder, and it seemed to be
working properly. However, shortly after Loggins ’
calibration test, when the millwrights were ready to weld the new facing wire
into place, they discovered that the spot welder would not work.

The millwrights reported the problem to Donohue
Electrical and Instrument (“E&I”) supervisor Richard Thomas, who called one
of the E & I technicians, Robert Hearne, to the drum decker to “[r] eset a breaker.” Hearne arrived at the drum decker at about
10:30 a.m. and shut off the electric power. He then examined the spot welder’s
plug. He testified that the individual wires leading into the plug had been
stripped back, and that the waterproof neoprene shield was not pushed up into
the plug. Loggins testified, however, that there
appeared to be “just one solid black piece of wire coming out” from the plug.
Hearne testified that the plug also did not have all the cord grip connectors
that secure the cord to it, but he believed it was safe to use the plug without
them.

Based on its condition, Hearne believed that a fault
in the plug might have caused the circuit breaker to trip, so he removed the
plug from the wall receptacle. The cord leading from the welder into the plug
contained four wires. Three of them — a black, a white, and a green wire — ran
into the plug. The fourth wire, which was red, did not run into the plug but
was taped back to the cord’s surface. Hearne testified that he tugged on the
individual wires, and the green wire, which is always the ground wire, came
right out.

Hearne then removed the plug’s metal casing and took
it apart to inspect. Loggins held the plug’s housing,
which consisted of two metal parts, while Hearne worked on the plug. According
to Hearne, the black and white wires were attached to two of the three
terminals in the base of the plug, but the grounding wire was not attached to
anything. Hearne testified that he did not believe the grounding wire had been
attached inside the plug, and that it was too big to put under the plug’s
grounding screw without a “lug,” which was not present.

Hearne told the millwrights that he could get a newer
plug which would allow him to ground the machine properly, but that the plug was
in the supply room, a 10-15 minute walk from the spot
welder. Because, as he testified, the millwrights were in a hurry to begin
their work and it was their decision to use the ungrounded welder, Hearne
decided to rewire the plug instead of replace it.
Hearne did not tell anybody it was unsafe to operate the spot welder without a
proper ground, because he did not believe it actually was
unsafe to operate in this condition. Nor did Hearne contact a supervisor,
although he was carrying his two-way radio that day. Instead, Hearne
reconnected the wires in what he felt was essentially the same manner as he had
found them, although he shortened all of them so that the neoprene shield would
reach the base of the plug and create a watertight seal. Hearne testified,
however, that he could not find a way to attach the green wire inside the
casing, so he cut it back to prevent accidental contact with a phase conductor.

After Hearne’s rewiring was complete, Loggins inserted the plug into the wall receptacle and
secured the locking ring (“back-in nut”). Hearne reset the circuit breaker and
the millwrights returned to the drum decker. Loggins
tested the spot welder on the sample of facing wire and found that the welder
worked. He then handed the two welding leads up to millwright Randy Russell,
who was standing atop the decker.

Russell testified that even though he was wearing
rubber-soled shoes, he got a hard shock as he walked across the decker, so he
dropped the leads. Millwright Marvin Dodd then got down on his knees on the
drum decker and picked up the leads by their insulation. He yelled and fell on
the leads, and apparently suffered repeated shocks. He died of electrocution.

Hearne testified that when he heard the millwrights
yelling, he ran to the disconnect and shut it down. Hearne further testified
that he then jerked the plug apart and cut off the wires, because he was very
upset and didn’t want anyone using the plug again. The plug was not found after
the accident.

The spot welder was tested after the fatality, once by
a representative of the manufacturer, and once by Mike Burleson, a mechanical
engineer hired by Donohue to investigate the accident. Both testified that the
spot welder worked properly and they found no defect
in it.

II

Following OSHA’s inspection, Donohue was cited, inter
alia , for a violation of 29 C.F.R. § 1910.255(c)(6), which provides
that the “secondary and case of all portable welding transformers shall be
grounded.” That is the only item on review.

In his decision, Judge Schwartz vacated the item. He
found that Donohue made out the affirmative defense of unpreventable employee
misconduct. Specifically, he concluded that Hearne’s failure to correct the
grounding problem on the spot welder’s plug was “idiosyncratic behavior.” The
judge also found that it was not foreseeable Hearne would depart from the
company's established work rule regarding grounding. He essentially based this
finding on two factors. First, he noted that Donohue hired electricians such as
Hearne based on their electrical training and experience, and that a specific part
of the electricians’ job was to periodically inspect for compliance with
grounding rules, which he described as “a basic principle of the electrical
trade.” Second, the judge noted that Hearne was a non-supervisory employee who
made a field decision departing from a specific work rule, even though he had a
radio for contacting his supervisor and could have obtained a replacement plug
from a nearby storage room.

On review, the Secretary argues that Donohue failed to
properly instruct Hearne and other electricians that all electrical equipment
must be grounded, and that it failed to enforce such a rule.

III

To prove a violation of an OSHA standard, the
Secretary must show by a preponderance of the evidence that: (1) the cited
standard applies; (2) there was noncompliance with its terms; (3) employees had
access to the violative conditions; and (4) the cited employer had actual or
constructive knowledge of those conditions. See, e.g., Southwestern Bell
Tel. Co. (“SWBT”) , 19 BNA OSHC 1097, 1098, 2000 CCH OSHD ¶ 32,198,
p. 48,747 (No. 98-1748, 2000), aff’d without published opinion , No.
00-60814 (5th Cir., Nov. 15, 2001). The crucial element in this case is
knowledge.

“Knowledge is a fundamental element of the Secretary
of Labor's burden of proof for establishing a violation of OSHA regulations.” Trinity
Indus., Inc. v. OSHRC , 206 F.3d 539, 542 (5th Cir. 2000) (citing Carlisle
Equipment Co. v. Secretary of Labor , 24 F.3d 790, 792-93 (6th Cir. 1994)).
“To prove the knowledge element of its burden, the Secretary must show that the
employer knew, or with exercise of reasonable diligence could have known of the
non-complying condition.” Trinity , 206 F.3d at 542.

Because Hearne failed to contact a supervisor
concerning the lack of grounding, it is clear that Donohue
did not have actual knowledge of the violative conditions. Therefore, the issue
presented is whether, with the exercise of reasonable diligence, Donohue could
have discovered the ungrounded welder. Whether an employer was reasonably
diligent involves a consideration of several factors, including the employer’s
obligation to have adequate work rules and training programs, to adequately
supervise employees, to anticipate hazards to which employees may be exposed,
and to take measures to prevent the occurrence of violations. Precision
Concrete Constr. , 19 BNA OSHC 1404, 1407, 2001 CCH OSHD ¶ 32,331, p.
49,552 (No. 99-707, 2001) (citing Pride Oil Well Serv. , 15 BNA OSHC
1809, 1814, 1991-93 CCH OSHD ¶ 29,807, p. 40,584 (No. 87-692, 1992)).

Donohue’s work rule addressing grounding is set out in
its Safety Handbook: “Portable electric tools shall be effectively grounded at
all times while connected to a power source, with the
exception of UL-approved double insulated tools.” The welding machine
was not double-insulated. The Safety Handbook also requires that: “All hand and
power tools shall be maintained in good condition.” Thomas, the E & I supervisor,
testified that new hires are provided with the handbook, and another copy
generally is passed out at the monthly safety meetings, where power tool
requirements are discussed periodically. Hearne had a copy of the handbook.

Safety training for Donohue electricians includes classes
and videos. One required video, introduced in evidence, states that a portable
welding machine should be checked to make sure it is grounded. Although that
video addresses arc welding, rather than the resistance welder involved here,
Thomas testified that it would be equally applicable here. Another required
video shows an attempt to remove a ground prong from the electrical plug of an
arc welding machine, while the narrator says that an employee should “never
remove or override a safety feature.” Burleson, testifying as an expert for
Donohue, stated that the grounding requirement is a “cardinal rule” in “basic
electricity.” According to Thomas, Donohue’s electricians are instructed never
to sacrifice safety just to get a job done quickly.

Hearne was a highly experienced electrician. Following
his graduation from high school in 1975, he entered an apprentice program for
electricians and became a journeyman electrician. In 1986, Hearne earned an associate’s degree in electronic engineering technology, graduating
at the top of his class. Before commencing his employment with Donohue in 1996,
from 1986-1996, Hearne worked as both an electronic technician and an
electrician. Thomas described him as a very experienced and better-than-average
employee. He had no record of safety violations at Donohue before this
incident. Hearne stated that he had received the highest ratings possible in
the company’s evaluations of his work performance. Despite Hearne’s substantial
electrical experience, Hearne testified that it was his understanding that
Donohue’s work rule regarding grounding applied only to hand tools. He
maintains that no one told him that other types of equipment, such as
the spot welding machine, had to be grounded.

However, other testimony supports finding that
Donohue’s trained electricians were familiar with this basic principle of their
trade. Several of Hearne’s fellow electricians testified that they knew from
their background or experience that all equipment should be grounded. They also
generally testified that if they felt a piece of electrical equipment was
unsafe, they would inform their supervisor. Like Hearne, many had not been
aware before the August 31 accident of a specific Donohue work rule that all
equipment must be grounded.

Thomas
testified that an electrician who failed to ground a piece of machinery would
receive oral counseling, at a minimum. Several Donohue electricians testified
that they were not aware of any situation in which Donohue had known that an electrician
had failed to ground a piece of equipment and had not disciplined the person.
Several of them also were aware of Donohue disciplining an employee other than
Hearne for a safety violation. Hearne was terminated based on the incident in
question here.

Thomas also testified that both Donohue electricians
and mechanics do quarterly inspections of the company’s electrical equipment to
assure grounding. When a piece of machinery has been checked, a colored plastic
tie wrap is placed around the equipment’s cord. However, there is no record
evidence to establish that this department had periodically inspected the model
600 spot welder, which was kept in the maintenance tool room and used only once
or twice a year. Donohue admits that it did not keep records showing periodic
inspection and certification of portable welding machines such as the model
600, as required by OSHA regulations.

Notwithstanding Donohue’s failure to establish that
the model 600 spot welder had been subjected to a periodic inspection,
millwright Loggins testified that Donohue electrician
Jim Wall rewired the Model 600's plug some months before the accident. Also,
expert Burleson gave the opinion that the welding machine must have been
grounded until August 31, because there had been no prior accidents with it and
disconnection of the ground would have created substantial voltages in the
plug’s case. The Secretary’s expert witness, OSHA electrical engineer Terry
Wilkins, testified that the green wire could have been grounded by mere contact
with the inside of the plug casing, although he believed that the lack of prior
accidents does not establish that the machine was grounded before August 31.

IV

In determining whether Donohue was reasonably
diligent, the first step is to assess the adequacy of Donohue’s grounding work
rule and its training programs. Precision Concrete Constr. , 19 BNA OSHC
at 1407, 1991-93 CCH OSHD at p.  49,552.
The judge found that Donohue had a work rule “which required that portable
electric tools be grounded,” and that electricians “were all provided with a
safety handbook containing the rule when they were hired.” Donohue also
required electricians to view training videos that stated that welding machines
should be checked to make sure they are grounded and that employees should
“never remove or override a safety feature.” The judge also found that each
electrician “knew that it was appropriate to ground all electrical equipment,”
even though Donohue had not specifically instructed its electricians that its
safety policy required that all equipment like the spot welder be grounded.
Indeed, it was not unreasonable for Donohue to expect its trained and
experienced electricians to be familiar with and adhere to this basic tenet of
the electrical trade. In addition, the judge found that Donohue’s periodic
grounding inspection program reinforced the company’s policy that all such
equipment was to be grounded. Based on these findings, we hold that
Donohue adequately communicated a workrule requiring
that all portable electrical equipment be grounded.

The record also shows that the workrule
was adequately enforced. See, e.g. , Stahl Roofing, Inc. , 19 BNA
OSHC 2179, 2182-83, 2003 CCH OSHD ¶  32,646,
pp. 51,218, 219 (No. 00-1268, 2003)( consolidated) .
The judge found that “Donohue’s pre-inspection and post-inspection disciplinary
procedures when viewed together, exhibit a serious concern for safety.” Thomas
testified that an electrician who failed to ground a piece of machinery would
receive oral counseling, at a minimum. Because Hearne’s failure to connect the
welder’s ground wire resulted in a death, he did not receive oral counseling,
as required by Donohue’s disciplinary policy for first infractions, but was
terminated. Several Donohue electricians testified they were not aware of any
situation in which Donohue had known that an electrician had failed to ground a
piece of equipment and had not disciplined the person. Several also were aware
of Donohue disciplining an employee other than Hearne for a safety violation.

Based on the foregoing, we find that the Secretary has
failed to show any relevant defect in Donohue’s grounding program for portable
electrical equipment. As a result, she has failed to prove
the necessary knowledge by the employer of the violative condition.

In his decision, the judge concluded that Donohue
could not claim that it lacked knowledge of the ungrounded spot welder because
it did not regularly inspect it before the accident. The Secretary elaborates
on this point on review, arguing that if Donohue had periodically inspected the
machine with a basic electrical tester, it would have detected the grounding
problem. We find that the record does not support the Secretary’s claim.
Donohue had such a tester and used it in the quarterly inspection program.
However, such a testing device would not have detected a lack of grounding if
the ground wire happened to be in contact with the plug’s casing, even
tentatively. In finding that the evidence “does not establish how long the
welder was actually ungrounded prior to August 31,
1998,” the judge essentially found that there was no basis to conclude that a
periodic grounding inspection of the spot welder before August 31 would have
detected a lack of grounding.

We find that the evidence establishes that the spot
welder actually was grounded before Hearne
opened it on August 31, because it worked properly when Loggins initially calibrated it that morning and there had
been no previous accidents with it. Therefore, Donohue’s failure to inspect the
spot welder with a basic electrical tester does not establish constructive
knowledge of a lack of grounding. Nor does the record suggest that a visual
inspection for external defects before the accident would have revealed a lack
of proper grounding. At best, it would have shown that a four-wire cord was
attached to the plug, with the red wire taped back to prevent contact with the
plug, and with fully adequate insulation. To millwright Loggins ,
it appeared there was “just one solid black piece of wire coming out” from the
plug, and the lack of cord grip connectors was not a safety issue in Hearne’s
view. Thus, visual external inspection of the plug and cord would not have
revealed unsafe conditions much less a lack of grounding, which we find did not
exist before the day of the accident based on the expert testimony of Burleson
and Wilkins. Accordingly, we find no basis on which to conclude that Donohue
had constructive knowledge of the grounding problem before Hearne examined the
plug on August 31 . See Stahl Roofing, Inc. , 19 BNA OSHC at 2182-83, 2003 CCH OSHD at pp.
51,218-19. 

The citation for an alleged grounding violation is
vacated.

SO ORDERED.

/s/

W.
Scott Railton

Chairman

/s/ 

James
M. Stephens

Commissioner

Dated: August 29,
2003 

SECRETARY OF LABOR,

Complainant,

v.

OSHRC DOCKET NO. 99-0191

DONOHUE INDUSTRIES, INC., and its successors,

Respondent.

APPEARANCES:

For
the Complainant:

Connie M. Ackermann, Esq., Raquel Tamez ,
Esq., Office of the Solicitor, U.S. Department of Labor

For
the Respondent:

Thomas H. Wilson, Esq., Merritt B. Chastain, Esq., Vinson &
Elkins, L.L.P., Houston, Texas

Before:
           Administrative
Law Judge: Stanley M. Schwartz

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,
Donohue Industries, Inc., and its successors ( Donohue),
at all times relevant to this action, operated a paper
mill at Hwy. 103 East, Lufkin, Texas. Donohue admits it was
engaged in a business affecting commerce and is subject to the requirements of
the Act.

On
August 31, 1998, a Donohue employee was electrocuted while using
a Model 600 spot welder at the Lufkin paper mill. Following the reported
fatality, from September 1 to September 16, 1998, the Occupational Safety and
Health Administration (OSHA) conducted an inspection of Donohue’s
Lufkin work site. As a result of that
inspection, Donohue was issued citations alleging violations of
the Act together with proposed penalties. By filing a timely notice of contest Donohue brought this proceeding before the Occupational Safety and
Health Review Commission (Commission).

On
August 19-20 and September 3, 1999, a hearing was held in Lufkin, Texas. At that time the citation was amended to reflect
that the citations referred only to the events of August 31, 1998 (Tr. 12). The
parties agreed that §1926.255(c)(6) is the applicable standard governing the
conditions described in citation 1, item 1a (Tr. 14-15). In addition, items 1
and 2 were grouped as items 1a and 1b, with a single proposed penalty (Tr.
12-13, 16). The parties have submitted briefs on the issues, as amended, and
this matter is ready for disposition.

Alleged
Violations of §1910.255(c)(6) and .334(a)(3)(ii)

Serious
citation 1, item 1a, as amended, alleges:

29 CFR 1910.255(c)(6): The frame or case of the welding machine was not
grounded under the conditions and according to the methods prescribed in
Subpart S, 29 CFR 1910:

a) At No. 5 drum decker in the ground wood dept. A
model 600 stainless steel spot welder was not grounded either by ground cord or
at the machine case.

Serious
citation 1, item 1b, as amended, alleges:

29 CFR 1910.334(a)(3)(ii): Attachment plugs and
receptacles were connected or altered in a manner which prevented proper
continuity of the electric equipment grounding conductor at the point where
plugs were attached to receptacles:

a) At the No. 5 drum decker located in the ground
wood department. Model 600 stainless steel spot welder was not grounded either
through cord or case grounding.

Facts

At
approximately 9:00 a.m., on August 31, 1998, millwrights Marvin Dodd, Jerry
Mosely, Randy Russell, Robert Loggins , Ronnie Steveson and Robert Williams, were assigned to replace the
facing wire on drum decker No. 5 (Tr. 19-20, 24-25, 85; Exh .
R-14, R-13, R-14, C-26). The millwrights retrieved the Model 600 spot welding
machine that they always used to change the facing wire from the central tool
room (Tr. 25, 138-39; Exh . 1). The operating crew
drained the water out of the vat (Tr. 125), and the millwrights proceeded to
take off the old facing wire with tin snips, and
rolling it off the decker while it ran with the rheostat on low (Tr. 25-28, 35).
The millwrights then shut the decker down, and cleaned
it off with wire brushes and spray wands (Tr. 35, 125). After washing down the
decker, the millwrights carried the new roll of facing wire up onto the decker
and wired one end of the rolled wire to the decker drum in several places (Tr.
43). One of the millwrights then ran the drum at a slow speed as the others fed
the facing wire onto the decker drum (Tr. 43). Cloth straps were then wrapped
around the drum to secure the wire, and the millwrights smoothed and tightened
the facing wire (Tr. 43-44).

Randy
Russell testified that when they first brought the spot welder out to drum
decker No 5, he and Robert Loggins calibrated the
welder, to assure that it would weld the wire facing without burning (Tr. 108).
Loggins stated that he was standing when he tested
the machine (Tr. 445). When the millwrights were ready to spot weld the facing
wire into place, approximately 30 to 45 minutes later, they discovered that the
spot welder would not work (Tr. 109, 445). The millwrights reported the problem
with the spot welder to their supervisor, who called an electrician, Robert
Hearne, to drum decker No. 5 (Tr. 46, 109). Dodd, Mosely, Russell, and Loggins , opted to work through lunch and went back to meet
Hearne (Tr. 46).

Robert
Hearne, who was an E&I technician at Donohue at the time of the accident
(Tr. 145), testified that it was his job at Donohue to hook up new
installations, perform routine electrical maintenance, and to get equipment up
and running as quickly as possible (Tr. 151).

Hearne
stated that he responded to a call around 10:30 a.m. on August 31; his
supervisor Richard Thomas told him to go over to the No. 5 drum decker to reset
the breaker (Tr. 154-55). When Hearne arrived the spot
welder was plugged into the receptacle (Tr. 157; Exh .
2). Upon his arrival, he threw the knife switch down, shutting down the power
(Tr. 50, 159-60). Hearne testified that the individual wires leading into the
plug had been stripped back and that the waterproof neoprene shield was not
pushed up into the plug (Tr. 161). Based on its condition, he believed that a
fault in the plug might be responsible for tripping the breaker (Tr. 160).
Hearne and Robert Loggins then removed the spot
welder’s three prong plug (Tr. 175; Exh . C-4, C-5)
from the receptacle on the wall ( Exh . C-2, C-3). The
cord had three wires, a red wire, which had been taped back (Tr. 163), and
black, white and green wires which ran into the plug (Tr. 163). Hearne
testified that he tugged on the individual wires, and that the green wire,
which is always the ground, came right out (Tr. 162, 164, 190). Hearne did not
believe that the grounding wire had been attached, because it hadn’t been
flattened; Hearne testified that a correctly attached ground wire would have
been flattened under some kind of a lug inside of the
plug (Tr. 165). Hearne removed the metal casing, and
took the plug apart to inspect it (Tr. 50, 58, 165). Hearne testified that the
black and white wires were attached to two of the three terminals in the base
of the plug (Tr. 175). The grounding wire was not attached to anything (Tr. 177).

Hearne
testified that there was a green screw on the metal casing (Tr. 191). Hearne
stated that with the proper terminal lug, you could ground the welder by
attaching the green wire to that screw (Tr. 191). Hearne testified that the
wire was too big to put under the screw without a lug (Tr. 191).

Hearne
testified that he asked the millwrights whether they wanted him to get a new
plug, because there wasn’t any way to properly attach the ground wire in the
existing plug (Tr. 178). Hearne stated that the millwrights were working
through lunch, and were in a hurry; they told him that
they didn’t care about the plug, and just wanted the welder running (Tr. 179).
Hearne believed that the welder had been working without a ground before he
disassembled the plug, and felt it was the millwrights’ call (Tr. 179). Hearne
also believed that because the welder had been in use, it was safe to leave it
ungrounded (Tr. 192, 224, 229). He, therefore, reassembled the plug in what he
felt was essentially the same manner as he had found it, though he shortened
all the wires so that the neoprene shield would reach the base of the plug and
create a watertight seal (Tr. 179, 226). Hearne stated, however, that he cut
the green wire back so that it couldn’t accidentally become energized (Tr.
180-82, 226).

Robert
Loggins testified that there was only one solid black
cord coming from the base of the plug when Hearne started to work on it (Tr. 448).
Loggins stated that, inside the casing, there was one
wire, a green one, that was about an inch shorter than the other two wires, and
was loose (Tr. 448-49, 471). Loggins stated that when
Hearne got the plug apart, he held the two sides of the metal casing, while
Hearne held the three pronged red plug and terminal in
his hand (Tr. 453; Exh . C-31, C-32). Loggins testified that Hearne disconnected all three wires,
trimmed them to equal lengths, and attached each of the wires, including the
green ground wire to the three terminal screws (Tr. 452, 455, 676). Loggins stated that he did not know, at that time, how the
plug was supposed to be wired, and only learned that later, from other
electricians out at the mill (Tr. 472).

Hearne
testified that he would never put power to the ground, and that he did not
attach it to a hot terminal on the day of the accident (Tr. 190).

Mosely,
Hearne and Loggins all testified that Loggins inserted the plug into the receptacle, and Hearne
threw the knife switch (Tr. 63, 183, 458). The millwrights returned to the drum
decker. Loggins testified that the ground plate and
facing wire were still lying on the wooden box next to the welder where he had
placed them before (Tr. 458). Loggins tried out the
spot welder on the sample of facing wire, and found
that the welder worked without problems (Tr. 63, 88, 184, 458). Mosely
testified that Loggins then handed the welder’s two
leads up to Russell, who was standing atop the decker (Tr. 68, 458-59). Russell
testified that though he was wearing rubber soled shoes, as he walked across
the decker he got a hard shock and dropped the leads (Tr. 119, 121). Dodd then
got down on his knees and picked up the leads by their insulation. Russell
could not tell if Dodd actually had begun to weld when
Dodd yelled, and fell on the leads (Tr. 120, 130). Russell stated that he was
shocked repeatedly on the decker until the power was shut off (Tr. 120-21).

Hearne
testified that when he heard the men yelling he ran to the disconnect and shut
it down (Tr. 185). Hearne stated that he was very upset and didn’t want anyone
using the plug again (Tr. 186). He jerked the plug apart and cut off the wires
(Tr. 186, 239).

Richard
Thomas, Hearne’s supervisor at Donohue, testified that after the accident,
Hearne told him that he told the millwrights he wanted to replace the spot
welder’s plug, and that he cut off the ground and did not connect it to the
power source (Tr. 643, 649-50). Similarly, Larry Cook, a master craftsman
electrician at Donohue, testified that Hearne told him shortly after the
accident that he was unable to connect the ground wire to the ground screw that
was in the plug (Tr. 763).

Terry
Wilkins, a OSHA Compliance Officer (CO ),has a
B.S.E.E., Bachelor’s of Science in electrical
engineering, and ten years of engineering experience in addition to his OSHA
experience and training (Tr. 263-74). Wilkins is also a member of the American
Society of Safety Engineers (Tr. 276). Wilkins was recognized, without
objection, as an expert in basic electrical engineering principles and
compliance with OSHA’s electrical safety standards (Tr. 277-78).

Wilkins
testified that the model 600 spot welder is portable electric equipment subject
to the requirements of §1910.254(c)(2)(I). Wilkins testified as to the contents
of the depositions of Steve Harvey, a welder technician for SCAPA National, who
assembles model 600 spot welders, and Sonny Drake, SCAPA’s manager of
installation services (Tr. 286, 312; Exh . C-37).
Harvey stated, in deposition, that the model 600 is grounded internally, i.e.,
a ground wire attached to the inside of the welder cabinet runs to the
plug, which is supposed to be plugged into a grounded source (Tr. 317, 332; Exh . C-37, p. 24). If the power cord isn’t plugged into a
grounded source, or if the ground wire is not attached to the plug, the machine
is not grounded ( Exh . C-37, p. 24).

Wilkins
testified that the correct procedure for Hearne to have followed in this
instance would have been to connect the ground wire to the body of the plug
(Tr. 390). Hearne’s failure to do so was , in itself, a
serious violation of the National Electrical Code as well as OSHA standards
(Tr. 393). Wilkins testified that the ground wire could not have been attached
to the plug as it was configured at the time Hearne found it, however, because
there was no grounding lug (Tr. 418). A grounding lug is necessary to hold the
grounding wire under the grounding screw on the inside of the plug’s metal
casing (Tr. 418). CO Wilkins believed that a complete plug would have included
a grounding lug (Tr. 418-19).

Mike
Burleson, a consulting engineer with Systems Engineering and Laboratories
testified for Donohue as an expert in forensic reconstruction (Tr. 513-14). Burleson
testified that, based on his investigation, he believed that the plug on the
model 600 spot welder was miswired (Tr. 518). Based
on the testimony of Robert Loggins , Burleson
concluded that the ground wire had been connected to the formerly empty terminal
lug and connected to the third phase of Donohue’s three-phase system (Tr. 519).
Burleson admitted that correctly wiring the plug was “not rocket science,” and
that it would be a fairly routine procedure for a
journeyman electrician with Mr. Hearne’s qualifications (Tr. 547-48). Burleson
credited Loggins version of the events of August 31,
because he was troubled by Hearne’s behavior following the accident (Tr.
550-51). Burleson stated that it was illogical to disassemble the plugs and cut
the wires after the event (Tr. 550-51).

Burleson
stated that the spot welder’s plug was a “body-grounded plug,” i.e.,
that the ground wire should have been connected to the lug screw inside the
plug casing (Tr. 521). Burleson concurred with Wilkins that the welder was not
grounded at the time of the accident (Tr. 518, 525). Burleson agreed that the
spot welder was grounded only when the properly wired plug was plugged into a
grounded receptacle (Tr. 532).

Burleson
testified that the spade, or ring connector, or lug, referred to by CO Wilkins
was not generally part of, though it was commonly used with, this type of plug
(Tr. 527). Burleson stated that where the ground is a stranded wire, placing
the wire under the grounding screw without a ring connector or lug would not
make a good connection for long term use, though it would function (Tr. 527-28,
609). Burleson admitted that if, as both Hearne and Loggins
testified, the ground wire was loose, it was not adequately connected (Tr.
609).

Burleson
stated that if Hearne cut down the ground wire rather than connecting it to the
plug, it would have been a “significant violation of general electrical rules”
(Tr. 553). Furthermore, Burleson stated that, in that case, the ungrounded
condition of the welder would be the probable cause of the accident (Tr.
597-98).

Discussion

Serious
Citation 1, Item 1a

1910.255(c)(6)
provides:

Grounding . The secondary and case of all
portable welding transformers shall be grounded.

The
evidence establishes that the case of the model 600 spot welder was not
grounded on August 31, 1998. The welder’s casing was grounded only when its
ground wire was attached to a plug, which was, in turn, plugged into a grounded
source. Both Hearne and Loggins testified that the
grounding wire was loose inside the metal casing of the plug when Hearne opened
it. Hearne admits that he left the plug ungrounded when he returned it to
service; he cut the ground wire so it could not become
energized, neither could it be attached to the body of the plug, which both CO
Wilkins and Mike Burleson testified would have been the correct procedure. At no time, on the date in question, was the ground wire functioning
in the manner in which it was intended.

It is clear that the violative condition existed as cited.
Donohue maintains, however, that the violative condition was latent, and that
it could not have known that the spot welder was ungrounded until Hearne opened
the plug on August 31. Donohue maintains that Hearne’s failure to correct the
violative condition was the result of unpreventable employee misconduct.

Knowledge.
In order to show employer knowledge of a violation the
Secretary must show that the employer knew, or with the exercise of reasonable
diligence, could have known of a hazardous condition. Dun Par Engd . Form Co. , 12 BNA OSHC 1962, 1986-87 CCH
OSHD ¶27,651 (No. 82-928, 1986).

Richard
Thomas testified that electrical equipment is tested quarterly to assure that
it is grounded (Tr. 623). Both electricians and mechanical people do quarterly
checks; once a piece of machinery has been checked, a colored tie wrap is
placed around the equipment’s cord (Tr. 623). Thomas stated that the spot
welder was kept in the maintenance room, and that no one from his department
had inspected the machine (Tr. 625, 637). Thomas testified, however, that he
saw the spot welding machine after the accident and observed a white tie wrap
around the welder’s cord; the tie wrap indicated to him that someone had
checked out the spot welder (Tr. 625; Exh . C-29).

Dennis
Shoemaker, a master craft electrician, has worked for Donohue for the past 18
years (Tr. 698). Shoemaker testified that he performed routine inspections as a
part of his job, but that he had never inspected the model 600 spot welder, and did not know anyone who had (Tr. 699-701).

Ben
Coulter, a master craft electrician, has worked at Donohue for 31 years (Tr.
737-38). Coulter testified that he never performed a routine inspection of the
spot welder, and did not know anyone who had (Tr.
739).

Larry
Cook has been a master craftsman electrician at Donohue for over 10 years (Tr.
760). Cook testified that prior to August 31, 1998, he never performed any kind
of routine inspection on the model 600 spot welder (Tr. 760).

Kevin
Jones, a shift electrician, testified that he worked at Donohue for seven years
(Tr. 745). Jones stated that he performed routine inspections of equipment as
part of his regular duties, but that he had never inspected the model 600 spot
welder (Tr. 749). Jones testified that a different color is used each quarter
to indicate that a routine inspection has been performed, but that white ties
are never used because they are too common (Tr. 748-49).

Though
whether the cited welder was grounded prior to August 31, 1998 is not at issue
here, this judge notes that the preponderance of the evidence establishes that
Donohue failed to exercise due diligence to discover defects of any kind in the
model 600 spot welder prior to that date. In her post-hearing brief, the
Secretary points out that OSHA standards at §1910.255(e) require periodic
inspection and certification of portable welding machines such as the model 600
(Tr. 349-50, 356-57). In discovery, the Secretary requested the required certification;
Donohue replied that there were no such documents in existence (Tr. 351-52; Exh . C-39). Donohue called no witnesses with actual
knowledge of any inspections. Nonetheless, Donohue claims that the white tag on
the welder’s cord indicates that the welder was inspected. Though the Secretary
called and questioned numerous Donohue electricians and E&I technicians
none could recall ever inspecting the welder; none knew of anyone who had
inspected the welder. Kevin Jones, who conducted periodic inspections for
Donohue’s maintenance department, testified that white ties are never used to
indicate that a periodic inspection has been performed.

Because
the weight of the evidence shows that Donohue did not regularly inspect the
spot welder which is the subject of this litigation, it cannot rely on its lack
of knowledge as a defense.

This
judge notes that though the evidence establishes Donohue’s failure to exercise
due diligence in inspecting the spot welder, it does not establish how long the
welder was actually ungrounded prior to August 31,
1998. Though Hearne testified that there was no resistance on the ground wire
when he gently tugged on it before opening up the
plug, CO Wilkins admitted that the grounding wire, could have been grounded by
its mere contact with the inside of the plug casing (Tr. 798-99). It was Burleson’s opinion that disconnection of the ground would have
created substantial voltages in the case (Tr. 543). Because there had been no
prior incidents, he believed the spot welder must have been adequately grounded
prior to the date of the accident (Tr. 543).

It
is clear, however, that the welder was not grounded on the date which is the
subject of this action. As noted above, the testimony of both Loggins and Hearne establishes that the welder’s plug was
not grounded when they initially opened it up. Moreover, Hearne’s testimony
establishes that he deliberately reassembled the plug without grounding it.

Donohue
argues that no representative of management was present on August 31, and that
it cannot be held liable for Hearne’s unpreventable misbehavior on that date.
The Commission has held, however, that the fact that the employer may not have
known of the specific instance of violative conduct at the time it occurred
does not mean that the conduct was unpreventable. Ormet
Corp ., 14 BNA OSHC 2134, 2138-39, 1991-93 CCH OSHD ¶29,254, p. 39,203 (No.
85-531, 1991). Whether Donohue had constructive knowledge of Hearne’s conduct
depends on the steps it took to prevent such behavior, and so must be discussed
as part and parcel of Donohue’s claim of employee misconduct.

Unpreventable
employee misconduct. Richard Thomas testified that he was on Donohue’s
hiring committee; he stated that in a job search for electricians, such as
Robert Hearne, the committee looked for applicants with an associate degree in
electrical engineering or electronics, who had at least five years of
experience (Tr. 615-16). Thomas testified that an electrician at Donohue starts
out as a basic journeyman, and is given safety
training which includes classes and views various videos, including “Welding
Safety, Securing the Work Zone,” and “Maintenance Training, Introduction to Arc
Welding” (Tr. 616-17; Exh . R-7, R-8). Thomas
testified that the two tapes refer to grounding, and
warn the viewer not to take off any safeties or remove any grounds (Tr. 618).
Thomas testified that the Champion [now Donohue] Safety Handbook was in effect
at the time of the accident (Tr. 619; Exh . R-1). Page
2 of the safety handbook referring to Power Tool Safety, states that “[p] ortable electric tools shall be effectively grounded at all
times while connected to a power source [with the exception for UL approved
double insulated tools].” (Tr. 621). New hires are provided with a safety
handbook, and the contents of the handbook are reviewed at monthly safety
meetings (Tr. 622).

Thomas
testified that an electrician who discovered equipment that was ungrounded was
supposed to fix it, or if that was impossible, bring it to the shop, or cut off
the plug to disable the equipment (Tr. 656). Thomas was not aware of any
circumstance in which an electrician discovered, but
failed to ground an ungrounded piece of machinery (Tr. 627, 658). Thomas
testified that electricians are instructed never to sacrifice safety just to
get a job done quickly (Tr. 656). Thomas stated that an electrician who failed
to ground a piece of machinery would receive, at a minimum, oral counseling
(Tr. 655).

Thomas
stated that Hearne was a more than qualified applicant, and a better than
average employee (Tr. 616, 642). Hearne earned an associates
degree in electronic engineering technology in 1986, graduating at the top of
his class (Tr. 148). Hearne started at Donohue in 1996 and had a good safety
record before the accident (Tr. 150, 647-48). Thomas testified that he did not
want to let Hearne go, but that because his failure to connect the welder’s
ground wire resulted in a death, Hearne did not receive oral counseling, as
required by Donohue’s disciplinary policy for first infractions (Tr. 467-68).
Instead Hearne was terminated (Tr. 650, 652, 659; See also testimony of Robert Hearne,
Tr. 151-52, 203).

Robert
Hearne admitted that he had a copy of the safety hand book provided by Donohue,
which requires that portable electrical tools be grounded (Tr. 236-37). Hearne
testified that the electricians actually checked hand
tools for grounds, but that it was his understanding that Donohue’s work rule
applied only to hand tools (Tr. 205, 246). Hearne testified that no one told
him that other types of equipment had to be grounded (Tr. 206). Hearne did not
believe he had the authority to stop the job to replace the defective plug (Tr.
247). He did not call his supervisor to have the work stopped because he was
just trying to get the equipment up and running (Tr. 244, 248), and he did not
believe the spot welder was unsafe to operate (Tr. 233). Hearne stated that
some equipment can be operated safely without a ground (Tr. 207). Hearne did
not believe he was violating a safety rule when he failed to ground the model
600 spot welder (Tr. 231).

Hearne
stated that he had, prior to August 31, run across other ungrounded equipment
at Donohue (Tr. 181). Hearne testified that on one other occasion, he had
talked to his supervisor, Richard Thomas about an ungrounded piece of machinery
(Tr. 232). Hearne stated that after conferring with their supervisor, Gene
Finley, it was determined that it would cost too much money to ground the
equipment, and it was left ungrounded (Tr. 232).

Shoemaker
testified that he was never told specifically that all equipment had to be grounded
until after the August 31, 1998 accident, though as an experienced electrician
he knew it was appropriate to do so (Tr. 701, 718). Shoemaker testified that he
was aware of equipment at Donohue that was not grounded as of August 31 (Tr.
702). Shoemaker did not know of any circumstance where a supervisor knew of and
allowed an employee to leave a piece of equipment ungrounded (Tr. 715).
Shoemaker also stated that he had performed quick fixes on machinery to get it
up and running, though the quick fix might not be the safest alternative (Tr.
702). Shoemaker testified that he did not have the authority to pull an unsafe
piece of equipment out of service (Tr. 703). If the equipment was part of a
production process, he would have to go to his supervisor, who would have to
clear it with operations (Tr. 703). Shoemaker did not feel that he would get
into trouble for shutting down a piece of unsafe equipment, if he could prove
the equipment was actually unsafe , but stated that
under the present management, he would hesitate before making the call himself
(Tr. 704). Shoemaker believed he might get in trouble if the production
department did not believe there was actually a safety
problem (Tr. 704).

Shoemaker
was not aware of anyone, other than Robert Hearne, who had ever been terminated
for violating a safety rule (Tr. 707-08). Shoemaker did know of other mill
employees who had been disciplined for safety violations (Tr. 717). Shoemaker
also knew of some Donohue employees who removed locks prior to completion of a
lock-out/tag-out procedure, exposing three contractors who were sitting on the
bus bar to possible electrocution, who were not disciplined (Tr. 708-12).
Shoemaker did not know whether those employees actually
violated any Donohue safety rule, but testified that the action was, at
least, a serious error in judgment (Tr. 710-11).

Charles
Freeman, a master craft electrician, has worked at Donohue for over 15 years
(Tr. 720). Freeman testified that he had never been informed by anyone at
Donohue that all equipment must be grounded prior to the August 31 accident
(Tr. 724). Freeman also testified that he has come across equipment at Donohue
that is not grounded (Tr. 724). Freeman stated that if he found an unsafe piece
of equipment, he would tell the operator that it was unsafe, but that it would
be up to the supervisor in that department what steps would be taken (Tr. 732).
However, he also testified that if the operator insisted on using an unsafe
(ungrounded) piece of equipment, he would call his supervisor (Tr. 732-33).

Ben
Coulter testified that before August 31, 1998, he was not aware of a specific
work rule that all equipment be grounded (Tr. 742). Coulter stated that he had
been asked to hook up a piece of equipment without a ground, and that he had
temporarily fixed equipment to get it back into service (Tr. 743).

Kevin
Jones testified that he was unaware, prior to August 31, that Donohue had a
work rule requiring that all equipment be grounded (Tr. 752). He was never
instructed to ground all equipment (Tr. 752). Jones testified that he had come
across equipment that was not grounded, and plugs that
did not have anywhere for the ground to go (Tr. 751, 753). Jones testified that
he had temporarily fixed equipment to get it running (Tr. 753). Jones stated
that it was not the shift people’s job to permanently fix equipment; that
responsibility was day shift’s, though sometimes weeks would go by before
equipment was permanently fixed (Tr. 754). Jones testified that if he felt a
piece of equipment was unsafe, he would contact his supervisor before putting
it back into service (Tr. 757). Jones did not know of any incidents where
supervisory personnel knew of a violation of safety rules,
but did nothing about it (Tr. 757).

Larry
Cook stated that he was never told of Donohue’s work rule requiring that all
equipment be grounded, though, as an experienced electrician, he knew that it
was appropriate, when wiring machinery, to ground it (Tr. 761, 764). Cook testified
that he had come across ungrounded equipment at Donohue (Tr. 761). Cook did not
feel that he had the authority to shut a piece of equipment down (Tr. 761). If
he found ungrounded, or otherwise unsafe equipment, Cook
stated that he would notify his supervisor, and if directed, he would ground
such equipment (Tr. 764-65).

A.W.
Davidson has been an electrical and instrument (E&I) technician with
Donohue for 35 years (Tr. 767). Davidson testified that he had never
specifically been instructed to ground all equipment (Tr. 770). However, he
assumed that all equipment should be grounded (Tr. 770). Davidson did not
believe he had the authority to stop a job without the permission of the
maintenance or production supervisor (Tr. 771). Davidson testified that he is
president of the International Brotherhood of Electrical Workers (IBEW) local, and was in a position to know of any disciplinary
actions taken against the local’s members (Tr. 773). Davidson could remember
only one instance, other than the termination of Robert Hearne, when a member
of his union was disciplined for violating a safety rule (Tr. 772-74). Davidson
was aware of one additional instance when written reprimands were issued to
plant employees who were not members of the union (Tr. 775). Davidson
testified, however, that he was also aware of instances where employees
violating safety rules were not disciplined (Tr. 778-79). It was Davidson’s opinion that safety rules were not consistently
enforced at Donohue (Tr. 781).

Discussion

In order to establish an unpreventable employee misconduct
defense, the employer must establish that it had: established work rules
designed to prevent the violation; adequately communicated those work rules to
its employees (including supervisors); taken reasonable steps to discover
violations of those work rules; and effectively enforced those work rules when
they were violated. New York State Electric & Gas Corporation , 17
BNA OSHC 1129, 1995 CCH OSHD ¶30,745 (91-2897, 1995).

The
record establishes that Donohue had a work rule which required that portable
electric tools be grounded. Its electricians were all provided with a safety
handbook containing the rule when they were hired. Though none of the
electricians testifying at the hearing had ever been specifically instructed
that Donohue had a safety policy requiring that all such equipment be grounded,
each one knew that it was appropriate to ground all electrical equipment.
Though the portable welder itself was apparently overlooked, it is undisputed
that Donohue conducted routine checks to assure that portable equipment was
grounded. Though Donohue’s electrician’s testified
that they found ungrounded equipment in the plant, it was not clear whether the
subject equipment fell under the work rule, which applies only to portable equipment,
and none stated that they left portable equipment ungrounded after having
discovered it. There was no evidence that Donohue’s supervisory personnel knew
of any uninspected or ungrounded portable equipment

Donohue’s
electricians, including Robert Hearne, were hired because they had demonstrated
educational and practical electrical experience. It was not unreasonable for
Donohue to assume that these trained individuals were familiar (as indeed they
were) with basic electrical principles, including grounding requirements. This
judge cannot say that Donohue failed to exercise due diligence in communicating
and/or enforcing its work rule requiring the grounding of portable equipment
where: 1) its electricians were hired on the basis of their electrical training
and experience; 2) the subject work rule was one of the basic principles of the
electrical trade; and 3) a specific part of the electricians’ job was to periodically
inspect equipment for compliance with said work rule.

This
case does not involve the oft-found situation where a supervisor engages in
misconduct and is exposed to the hazardous condition. The Commission has found
that to be strong evidence of lax enforcement of the employer's safety program.
Baytown Construction Co ., 16 BNA OSHC 1705, 1710, 1992 CCH OSHD ¶29,741,
p. 40,414 (No. 88-2912-5, 1992). Richard Thomas, Hearne's supervisor, was
sufficiently trained in the hazards of and procedures necessary for the
grounding of electrical equipment. Hearne was a non-supervisory employee. The
field decision he made was a departure from a specific work rule. He possessed
a radio for contacting Thomas and a replacement plug was readily available from
a nearby storage room. Unlike sudden rescue attempts in confined spaces, it was
not foreseeable that Hearne would depart from the company's established work
rule based on the facts set forth above.

In
addition, there is no evidence that any prior failure to ground portable
electric tools went undisciplined. Richard Thomas, Hearne's supervisor, as
noted above, credibly testified that he was not aware of any circumstances in
which an electrician discovered but failed to ground an ungrounded piece of
machinery. An electrician who failed to ground a piece of machinery would
receive, at a minimum, oral counseling. Also, Commission precedent does not
rule out consideration of post-inspection discipline, provided it is viewed in
conjunction with pre-inspection discipline. R. Zoppo
Co ., 9 BNA OSHC 1392, 1981, CCH OSHD ¶25,230 (No. 14,884, 1981). Here,
Donohue, after a thorough in-house investigation, terminated Mr. Hearne. The
merits of the termination are appropriately before an arbitrator for resolution.
The record supports a finding that Donohue's pre-inspection and post-inspection
disciplinary procedures when viewed together, exhibit a serious concern for
safety.

In
reaching my conclusion, it is found that Mr. Hearne's violative conduct was
idiosyncratic behavior. This case is tragic. Both parties have presented an
excellent record and post-trial briefs. The issue of unpreventable employee
misconduct has been a very close one. The dispositive factors have been that
Mr. Hearn was a very experienced journeyman electrician. He was well trained in the area of grounding electrical equipment. His failure
to ground the equipment was a serious mistake of judgment that violated both
OSHA standards and basic NEC electrical standards. The rule itself is basic.
Both parties' experts agreed that it was against basic electrical concepts to
fail to ground the welding machine. If this was a matter where an employee,
even an experienced journeyman electrician, was allowed broad discretion to
perform his work by whatever means the employee considered reasonable and
appropriate in the circumstances, the result would have been different. In such
a case, the fact that Hearne was a journeyman electrician with a known record
of safe work performance would not relieve Donohue of the responsibility to
affirmatively enforce its safety rules. Donohue's specific work rules as
applied to this work situation did not give employees too much discretion in
identifying unsafe conditions. I find Respondent could reasonably rely on its
employee Hearne to recognize and avoid the dangerous condition of not grounding
the welding machine he encountered at the workplace.

For
the reasons stated above, I find that Donohue had a work rule which required
the grounding of all portable electrical tools. Given the nature of the
electrical staff's training and the scope of their job duties, the rule was
adequately communicated. Respondent has established its affirmative defense of
unpreventable employee misconduct. The citation is therefore vacated.

Serious
Citation 1, item 1b

1910.334(a)(3)(ii)
provides:

Attachment plugs and
receptacles may not be connected or altered in a manner which would prevent
proper continuity of the equipment grounding conductor at the point where plugs
are attached to receptacles. Additionally, these devices may not be altered to
allow the grounding pole of a plug to be inserted into slots intended for
connection to the current-carrying conductors.

Facts

The
Secretary showed that the cord on the welder had been changed out, or altered,
in that the cord in use on August 31 was not the one originally supplied with
the welder. CO Wilkins noted that in Steve Harvey’s deposition, Harvey stated
that because the spot welder is a single-phase piece of equipment, only
three-wire cords are supplied with the welder as manufactured (Tr. 353). Harvey
stated that the cord that was on the welder on August 31, 1998 had been
altered, i.e. , a four wire cord had been
substituted (Tr. 354; deposition of Steve Harvey, p. 31-33; Exh .
C-38). Robert Loggins testified that he recalled the
power cord being replaced (Tr. 476).

Discussion

The
Violation. The record establishes that changing out the cord and plug would
not necessarily prevent continuity of the ground. The welder could have been
grounded by correctly attaching the ground wire to the body of the plug. This
alteration does not establish a violation of the standard.

However,
as discussed above, it is clear that on August 31,
1998, the plug of the subject welder was connected, or snipped off so as to
prevent connection, in a manner which prevented continuity of the grounding
conductor. The Secretary has shown that, on that date, the standard was violated.

Employee
Misconduct. As in the item above, Donohue relies on the affirmative defense
of employee misconduct. Donohue maintains that its work rule requiring that all
portable electrical equipment be grounded was adequately communicated and
enforced, and should have prevented the cited violation, barring the misconduct
of Robert Hearne. This judge agrees. For the reasons stated above this item is
vacated.

Serious
citation 1, item 3

The
citation alleges:

29
CFR 1910.334(a)(4): Portable electric equipment and flexible cords used in
highly conductive work locations, or in locations where employees were likely
to contact water or conductive liquids, were not approved for those locations:

a) In the ground wood place wood drum No. 5. A
Model 600 stainless steel spot welder was with out a
ground or special protection in a wet and high humidity location.

Facts

The
drum decker consists of a drum, approximately 8 feet in diameter and 15 to 20
feet long. The drum sits in a big stainless steel vat,
and as it turns separates wood pulp from the water in the vat (Tr. 36, 135).
Russell described the operation as a wet process, and
stated that there was some water on the floor, and that both his clothing and
leather gloves were wet on the day of the accident (Tr. 111, 115, 135). Russell
testified that he had been shocked by the welder before when his hands and/or
gloves were wet (Tr. 131-32).

Loggins testified that it was pretty wet
around the No. 5 drum decker, and that his gloves were wet on the day of the
accident (Tr. 473, 478).  

Tommy
Maxie, a screen room helper at Donohue on August 31, 1998, testified that he
was part of the crew who washed down the decker that morning for maintenance (Tr.
481). Maxie testified that he checked the vat after the accident,
and found that the dump valves were open on the decker and that there
was very little water in the bottom of the vat (Tr. 485).

Mosely
testified that there was not a lot of water around during the re-facing
operation, but that it was hot and humid in August, and that his clothes and
gloves were wet from sweat (Tr. 38). Mosely had gotten a “tingle” from the
welder before, and testified that it was quite common
to be mildly shocked when using it (Tr. 28, 76-77). Mosely identified dried
wood pulp and wet pulp and water mixed on the floor in the Secretary’s
photographs of the drum decker area (Tr. 40-42; Exh .
C-7, 16, 17, 18, 19, 20, 29). In addition there was
dried pulp on the spot welder itself (Tr. 91-92).

Robert
Loggins testified that there was no water actually on the spot welder’s case at the time of the
accident (Tr. 465).

Burleson
testified that when the welder was examined after the accident, there was no
evidence of corrosion to indicate that there had ever been any water inside the
unit (Tr. 515).

Terry
Wilkins opined that the No. 5 drum decker area was a “wet location,” in that
there could be standing water in the area where the spot welder was used, and
because sodium hydroxide, which is generally used in pulping operations, makes
water more conductive (Tr. 280). Wilkins

testified that Article 100 of the National
Electric Code defines wet locations as “distillations underground or in
concrete slabs or masonry, in direct contact with the earth and locations
subject to saturations with water or other liquids, such as, vehicle washing
areas and locations exposed to weather and unprotected.” (Tr. 282).

Burleson
did not consider the decker area a wet location, because there was no standing
water in the decker’s vat (Tr. 533). Moreover Burleson
did not believe that the spot welder, if properly grounded, posed an
unreasonable risk when operated in a damp environment (Tr. 535). The spot
welder has rubber wheels, and is elevated off the
floor of the drum decker area (Tr. 535). The S-O cord on the welder is suitable
for damp locations (Tr. 555).

In
his deposition Sonny Drake testified that Donohue’s 600 spot welder was not UL
approved (Deposition of Sonny Drake, p. 11). Drake stated that approval could
not be obtained until an automatic shut-off thermostat was installed on the
model; otherwise the model design was identical (Tr. 312; Deposition, p.
11-12). Drake stated that the model was specifically developed for the pulp and
paper industry for the exact purpose it was used (Deposition, p. 16). Drake
testified that it was safe to operate the spot welder in the kind of damp
environment where the drum decker was located (Deposition, p. 18-19). Drake
testified that the welder would pose a hazard only if the operator was actually standing in water, or if the welder was sprayed
down, and water had gotten into the cabinet itself (Deposition, p. 20).

Wilkins
stated that, based on the depositions of Steve Harvey and Sonny Drake, he did
not believe that the model 600 spot welder was approved by any nationally
recognized testing laboratory for any location, wet, dry or damp, prior to
sometime in 1997 (Tr. 289-91, 320). Wilkins stated that the spot welder at
issue in this matter was manufactured sometime in the mid ‘80's; the welder was
loaned to Donohue in 1988 (Tr. 289). Wilkins testified that the plug itself was listed as a watertight plug
by UL (Tr. 321), but, based on Hearne’s testimony, Wilkins believed that the
plug had not been maintained, and so lost its approved status (Tr. 318-322).

Discussion  

The
cited standard provides:

Conductive work locations . Portable
electrical equipment and flexible cords used in highly conductive work
locations (such as, those inundated with water or other conductive liquids), or
in job locations where employees are likely to contact water or conductive
liquids, shall be approved for those locations.

Although
the drum decker vat had been drained prior to the refacing project, the wood
pulp operation is a wet process, and there was generally water, or other
conductive liquid in the drum decker area. Some liquid remained in the drum
decker vat and on the floor during the refacing process. The employees present
on August 31 testified that it was very humid in the drum decker area, that
their clothes, gloves and skin were wet. The evidence establishes that the drum
decker area was a highly conductive work location, because
there was generally water and/or conductive liquid in the area with which
employees were likely to come in contact.

It is clear that the model 600 spot welder in use at Donohue
had not received any kind of approval, and so did not comply with the
requirements of §1910.334(a)(3)(ii).

Penalty

A
penalty of $7,000.00 was proposed for this item.

Donohue
is a large company, with approximately 1,000 employees; 250 in the cited plant
(Tr. 370). Donohue’s millwrights had been exposed to the cited hazard
intermittently since 1988, whenever refacing a drum decker.

CO
Wilkins testified that a piece of equipment not approved for a conductive work
location could expose employees to the danger of electrical shock, which could
result in death (Tr. 325-26). Wilkins could not testify as to the precise
hazard, because he did not know under what conditions it was safe to operate
the welder, because there was no approval by any testing laboratory (Tr. 326).
The record indicates that it was quite common for the millwrights to receive a
mild shock when using the welder with wet gloves. The record does not, however,
support Wilkins opinion that the lack of approval could lead to serious
electrical shock or electrocution. On the contrary, it appears that the welder
eventually obtained UL approval without any major design changes. There is no
evidence that the addition of the automatic shut-off thermostat required for
the model 600's approval increased the welder’s safety in conductive
environments. In short, this judge believes that the gravity of this item was
overstated.

Taking into account the relevant facts, I find that a
penalty of $1,000.00 is appropriate.

ORDER

1.         Citation
1, item 1a, alleging violation of §1910.255(c)(6) is VACATED.

2.         Citation
1, item 1b, alleging violation of §1910.334(a)(3)(ii) is VACATED.

3.         Citation
1, item 3, alleging violation of §1910.334(a)(4) is AFFIRMED, and a penalty of
$1,000.00 is ASSESSED.

/s/

Stanley M. Schwartz

Judge,
OSHRC

Dated: March 13, 2000