Texas Electric Utility Construction, Inc.

Plain-English summary

Texas Electric sent a journeyman foreman and four apprentice linemen to help another electric cooperative restore storm-damaged power lines. The host cooperative split the crew and placed two apprentices under its supervisor, who controlled the site and reenergized a line without required tags after receiving an incorrect all-clear. One Texas Electric employee was electrocuted. The judge found that the tagging standard applied and had not been followed, but the Secretary did not prove that Texas Electric knew or reasonably could have known of the untagged condition. Texas Electric had disclosed its employees' inexperience and reasonably relied on the host cooperative's promised supervision and storm-repair expertise. The citation was vacated and no penalty was assessed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.269(m)(3)(iv)
• Outcome: Serious power-line tagging citation vacated; no penalty assessed.
• Key point: The Secretary did not establish employer knowledge where the host utility controlled the work and assumed direct supervision of the cited employer's apprentices.

Full text (OSHRC public release)

       UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

))))))))))))))))))))))))))))))))))))))))))))),
Secretary of Labor, :
Complainant, :
:
v. : OSHRC Docket No. 01-1029
:
Texas Electric Utility Construction, Inc., :
Respondent. :
)))))))))))))))))))))))))))))))))))))))))))))-

Appearances:

        Christopher V. Grier, Esquire                        Robert E. Rader, Jr., Esquire
           Office of the Solicitor                              Rader &Campbell
           U. S. Department of Labor                            Dallas, Texas
          Dallas, Texas                                              For Respondent
                 For Complainant

Before: Administrative Law Judge Stephen J. Simko, Jr.

                                        DECISION AND ORDER

        Texas Electric Utility, Inc. (TEUC), is a contractor engaged in building, repairing and

maintaining high voltage electric power distribution and transmission lines. In December 2000, a
severe ice storm in east Texas damaged power lines and caused major power outages. Rusk County
Electric Cooperative (RCEC) asked respondent and other companies to assist in restoring electrical
power to its customers.
On December 19, 2000, an employee of the respondent was fatally electrocuted while
working on power lines for RCEC near Longview, Texas. A fatality investigation was conducted
by the Occupational Safety and Health Administration on December 20, 2000. As a result of this
investigation, a citation was issued to TEUC on June 1, 2001.
 Citation No. 1, item 1, alleges a serious violation of 29 C.F.R. § 1910.269(m)(3)(iv) for
failing to use tags to ensure protection of employees against the reenergizing of the power lines on
which they were working. A penalty of $6,300.00 was proposed. TEUC timely contested the
citation.
The case was originally designated for E-Z trial procedures under 29 C.F.R. § 2200.200, et
seq.; however, E-Z trial procedures were discontinued. The hearing was held in Dallas, Texas, on
December 13, 2001. The parties stipulated that the testimony of Ronnie Spencer in Secretary v. Rusk
County Cooperative, OSHRC Docket No. 01-1071, on December 12, 2001, would be testimony in
this case. TEUC admitted jurisdiction and coverage in its answer. As affirmative defenses,
respondent asserts that:
1. Respondent did not create or control the alleged violation. Rather, the alleged violation
was created and controlled by the supervising contractor.
2. Alternatively, any “violation” created or controlled by employees of respondent was an
isolated instance of employee misconduct of which respondent had no knowledge, and which
respondent could not have reasonably foreseen.
3. Adoption, implementation, use, or compliance by respondent with the practices, means,
methods, operations, or processes sought by the Secretary is not feasible or possible.
For the reasons that follow, Citation No. 1, item 1, is vacated and no penalty is assessed.

                                        Background

    In the aftermath of the ice storm in east Texas, TEUC sent its foreman, John Colfax, and four

apprentice linemen to assist RCEC in repairing the storm break. Respondent instructed Colfax to
report to RCEC and to do whatever it needed to be done. When Colfax reported to Keith Holmes
at RCEC, Holmes told him that the crew would be split up and assigned to work under different
RCEC supervisors. Colfax objected to splitting up his crew because the other four workers in his
crew were only apprentice linemen who needed to be supervised by a journeyman lineman. Holmes
assured Colfax the apprentices would be working under experienced journeyman linemen. Colfax
and two of his men were assigned to work under RCEC supervisor Joe Collins. Shane Freeman and

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Bryan Hale were assigned to work under RCEC supervisor Ronnie Spencer. Two men from Sam
Houston Electric Cooperative and two tree trimmers from Brock Tree Service were also assigned
to work under Spencer.
Spencer supervised the crew and the entire jobsite. He assigned tasks and made all decisions
as to work to be done. He was responsible for safety compliance by the crew. He directed the work
of Freeman and Hale and had the authority to fire them. Freeman, a TEUC apprentice lineman,
testified that he considered Spencer to be his foreman on this job and that Spencer was in charge of
this crew or group of employees. Freeman normally worked under the supervision of John Colfax,
a journeyman lineman for TEUC. When Freeman worked in Colfax’s crew, Colfax had the
responsibility to tag the disconnect. He testified that Spencer took the place of Colfax on this job.
On December 19, 2000, these employees, working under the supervision of RCEC
supervisor Ronnie Spencer, were repairing power lines along FM 349, a Farm and Market road.
When Ronnie Spencer, the Texas Electric employees, and the Brock employees arrived at the power
line disconnect location, Spencer visually checked the “OCR” and “air gap” and determined that the
power line at this location had been deenergized. These devices, when disconnected, deenergize the
line and prevent reenergization. They had been disconnected by the Sam Houston employees twenty
minutes earlier. Neither Spencer nor any employee under his supervision tagged the OCR or the air
gap to indicate that employees were working and to prohibit operation of the disconnecting means
at three locations. The first location was a quarter mile from the OCR involving a split segment of
the line. A quarter mile further down the line, and a half mile from the OCR, an insulator was
broken. At the third location, three quarters of a mile from the OCR, a tree had fallen onto the
distribution line.
Spencer assigned the two Texas Electric employees to replace the broken insulator at the
second location one-half mile from the OCR. The OCR and air gap were not visible from the three
problem areas, and employees working at the three areas were not visible to each other. When the
repairs were made, Spencer reenergized the line after he received a confirmation via walkie-talkie
from Horn of Sam Houston Electrical Cooperative that all employees were clear of the power lines.
Bryan Hale of TEUC was fatally electrocuted when he came into contact with the energized line.

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Discussion

   The Secretary has the burden of proving the violation:
   In order to establish a violation of an occupational safety or health standard, the
   Secretary has the burden of proving: (a) the applicability of the cited standard, (b) the
   employer’s noncompliance with the standard’s terms, (c) employee access to the
   violative conditions, and (d) the employer’s actual or constructive knowledge of the
   violation (i.e., the employer either knew or, with the exercise of reasonable diligence
   could have known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHA 2131, 2138 (No. 90-1747, 1994).

                               Alleged Serious Violation of
                              29 C.F.R. § 1910.269(m)(3)(iv)

   The Secretary in Citation No. 1, item 1, alleges that:
           Tags were not used to prohibit the operation of disconnecting means
           to indicate that employees are at work:

   FM 349, 1/4 mile South of FM 2011, Longview, Texas:

           On or about December 19, 2000, tags were not used at work site to
           ensure the protection of the work crews against the re-energizing of
           the power lines on which they were working.

   The standard at 29 C.F.R. § 1910.269(m)(3)(iv) provides:

   (3) Deenergizing lines and equipment. (iv) Tags shall prohibit operation of the
   disconnecting means and shall indicate that employees are at work.

   The Secretary must prove that 29 C.F.R. § 1910.269(m)(3)(iv) applies to work, working

conditions, or work practices.
29 C.F.R. § 1910.269(a)(1) sets forth the general application of this section providing in part:
(A) General--(1) Application. (I) This section covers the operation and maintenance
of electric power generation, control, transformation, transmission, and distribution
lines and equipment. These provisions apply to:

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(A) Power generation, transmission, and distribution installations,
including related equipment for the purpose of communication or
metering, which are accessible only to qualified employees;

    More specifically, 29 C.F.R. § 1910.269(m)(1) provides in part:
    (M) Deenergizing lines and equipment for employee protection--(1) Application.
    Paragraph (m) of this section applies to the deenergizing of transmission and
    distribution lines and equipment for the purpose of protecting employees.

    Respondent’s employees, Freeman and Hale, were working on power distribution lines on

December 19, 2002. The standard directly relates to protecting employees working on such lines.
The standard is clearly applicable to work, working conditions, and work practices on this jobsite.
The Secretary has the burden of proving the employer’s noncompliance with the terms of the
cited standard. It is undisputed that respondent did not use tags at the disconnect location on this site
to prohibit the operation of disconnecting means or to indicate that employees were at work.
Respondent does not assert that it tagged this location, but argues that the foreman for RCEC was
responsible for such tagging. The Secretary has met her burden, proving that TEUC did not comply
with the terms of the cited standard when it did not use the required tags.
Respondent’s employees had access to the violative conditions. They were working on
distribution lines and equipment when the disconnecting means on these lines were not tagged. The
Secretary has met her burden of proof relating to this element.
The issue remaining to be decided is whether the respondent, TEUC, knew, or with the
exercise of reasonable diligence, could have known of the violative conditions.
As discussed above, respondent’s employees, Hale and Freeman, were inexperienced
apprentices in need of close supervision by a journeyman lineman or foreman. John Colfax, the
TEUC journeyman lineman in charge of the TEUC crew, told Rusk’s supervisor Keith Holmes that
the four employees with him were apprentices needing such supervision. He even objected to
splitting up his crew due to the inexperience of the four apprentices. Holmes denied the request by
Colfax to keep the crew together, but assured him that the apprentices would work under the
supervision of experienced journeyman linemen. Freeman and Hale also told Holmes of their lack
of experience. Holmes told them he would take care of them.

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As an electrical cooperative, Rusk specializes in the repair of storm damaged power lines,
and is fully capable of working safely under adverse emergency conditions to restore electrical
power.
Ronny Spencer, with Rusk, directly supervising the work of Freeman and Hale, was
responsible for their safety compliance and had authority to fire them. Freeman testified that he
considered Spencer to be his foreman on this job, and that he felt Spencer took the place of Colfax
as his supervisor. Rusk considered Spencer the supervisor of the crew, which included Freeman and
Hale. Both TEUC and RCEC have policies to deenergize and tag out power lines while they are
being repaired. Both companies had done so in the past.
Respondent, TEUC, was reasonably diligent in informing RCEC management of the
inexperience of its apprentice employees and the need for direct close supervision at all stages of the
work. Respondent’s reliance on RCEC to provide such supervision was reasonable in this situation,
since RCEC had expertise in repair of storm damaged power lines, controlled the jobsite, and was
knowledgeable of the terrain and layout of the power lines in this part of east Texas. The Secretary
produced insufficient evidence to prove that TEUC had actual or constructive knowledge that the
power line was not tagged to prohibit the operation of disconnecting means and to indicate that
employees were at work.
There being a failure to prove that respondent TEUC knew, or with the exercise of
reasonable diligence, could have known of the violative condition, the alleged violation of 29 C.F.R.
§ 1910.269(m)(3)(iv) is vacated and no penalty is assessed.

                                FINDINGS OF FACT AND
                                CONCLUSIONS OF LAW

     The preceding decision constitutes the findings of fact and conclusions of law in accordance

with Rule 52(a) of the Federal Rules of Civil Procedure.

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ORDER

   It is ORDERED:
   Citation No. 1, item 1, alleging a serious violation of 29 C.F.R. § 1910.269(m)(3)(iv), is

vacated and no penalty is assessed.

                                                       /s/

                                        STEPHEN J. SIMKO, JR.
                                        Judge

Date: July 29, 2002

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