National Steel & Shipbuilding Company

Plain-English summary

National Steel used a temporary electrical load tank, called a salt box, while testing a ship's generators. An electrician entered the unlocked box and was killed by contact with an energized 440-volt circuit. The judge found that supervisors failed to communicate that the box remained energized or to secure its access door, affirmed the violation as serious, and assessed $400. On review, the Secretary withdrew the citation. The Commission granted the withdrawal, leaving no affirmed citation or penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1915.181(b)
• Outcome: Serious citation and $400 penalty withdrawn.
• Key point: The Commission granted the Secretary's withdrawal of the citation arising from the fatal contact with the energized testing equipment.

Full text (OSHRC public release)

Docket No. 86-1376

SECRETARY OF LABOR,

Complainant,

v.

NATIONAL STEEL AND SHIPBUILDING

COMPANY,

Respondent.

JOHN McGINLEY, Union Health and Safety

Representative, National Steel and

Shipbuilding Company,

Authorized Employee

Representative.

OSHRC Docket No. 86-1376

ORDER

The Secretary's notice of withdrawal of citation
is construed as a motion to withdraw the citation and is granted.  This order is
issued pursuant to a delegation of authority to the Executive Secretary.  41 Fed.
Reg. 37173 (1976), amended at 44 Fed. Reg. 7255 (1979).

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED:  January 7, 1988

SECRETARY OF LABOR,

Complainant,

v.

NATIONAL STEEL AND SHIPBUILDING CO.

Respondent.

JOHN McGINLEY, UNION HEALTH AND

SAFETY REPRESENTATIVE, NATIONAL

STEEL AND SHIPBUILDING COMPANY,

Authorized Representative.

OSHRC Docket

No. 86-1376

NOTICE OF WITHDRAWAL OF CITATION

Comes now the Secretary of Labor, by and through
counsel, and withdraws the citation issued to respondent on September 8, 1986 in the above
referenced case.

Respectfully submitted,

GEORGE R. SALEM

Solicitor of Labor

CYNTHIA L. ATTWOOD

Associate Solicitor for

Occupational Safety and Health

DANIEL J. MICK

Counsel for Regional Trial

Litigation

ANTONY F. GIL

Attorney for the Secretary

of Labor

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing
Notice of Withdrawal of Citation was mailed postage prepaid on this 2nd day of November,
1987 to:

Robert A. White

National Steel and Shipbuilding Co.

John B. McGinley

Union Health and Safety Representative

National Steel and Shipbuilding Company

Judge R. M. Child

OSHRC

ANTONY F. GIL

Attorney

SECRETARY OF LABOR,

Complainant,

v.

NATIONAL STEEL AND SHIPBUILDING

COMPANY,

Respondent,

JOHN McGINLEY, Union Health and

Safety Representative, National Steel

and Shipbuilding Company,

Authorized Employee

Representative.

OSHRC DOCKET NO. 86-1376

DECISION AND ORDER

Child, Judge

APPEARANCES:

For the Complainant:

Leroy Smith, Esq., Los Angeles, California

For the Respondent:

Robert A. White, Esq., San Diego, California

For the Authorized Employee Representative:

John McGinley, San Diego, California

Statement of the Case

This matter is before the Occupational Safety
and Health Review Commission (the Commission) pursuant to section 10(c) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. � 651 et seq ., (the
Act).  Complainant seeks affirmance of Citation No. 01, issued to respondent
September 8, 1986, charging one item of serious violation of section 5(a)(2) of the Act
and of the penalty which was proposed thereon in the sum of $400.00.

The matter came on regularly for hearing at San Diego, California, on the 25th day of
March 1987.  Each of the parties has submitted Post Hearing Briefs in support of its
position and the complainant has submitted Proposed Findings of Fact and Conclusions of
Law.  To the extent said proposed Findings and Conclusions are consistent with those
entered herein, they are accepted; to the extent they are not so consistent, they are
rejected.  Jurisdiction of the subject matter herein has been admitted and is not an
issue, nor is jurisdiction of the parties.

The Issues :

Issues raised by the citation and the pleadings
to be here determined are:

A.  Was the respondent in violation of the
standard at 29 C.F.R. 1915.181(b) as alleged in the citation?[[1/]]

B.  Was the violation, if any, the result of unforeseeable employee misconduct?

C.  If the respondent was in violation of
the standard, was the violation serious?

D.  What, if any, penalty would be
appropriate?

Statement of Facts

Respondent is a corporation engaged in the
business of ship-building and ship repair in San Diego, California.  The incident
giving rise to the present proceedings took place aboard and during the construction of a
commercial oil tanker which is referred to in the citation and throughout the proceedings
as "Hull 438."

Sometime previous to August 7, 1986, a
"salt box" had been placed on the deck of Hull 438.  The sole purpose of a
salt box is to create an artificial electrical load for testing of the power output of the
ship's diesel power generators.  Its installation on the vessel is temporary and it
is removed after completion of generator testing.

The salt box in question consisted of a large metal tank, approximately 20 feet long, and
10 feet wide.  The metal tank is approximately 5 feet high with a metal cage or
screen continuing above the sides of the tank and covering the top.  (Tr. 246-247;
Exhibits R-11, 12, 13, 14, 16) The tank portion of the salt box is filled with a mixture
of salt water and fresh water.  Nine large metal blades are suspended from an I-Beam
running above the water tank.  The metal blades are arranged in three groups of
three, and each blade is approximately 5 feet by 4 feet and 1/2 inch thick.  (Tr.
112)  The blades can be raised or lowered into the water by means of an electric
motor operated from a control panel attached to the outside front of the salt box.  
The blades are set inside tracks or guides to insure proper alignment. (Tr. 112; Exhibit
R-15)

A wooden ladder is attached to the front of the
salt box to the right of and giving access to a door in the screen.  The bottom of
the screened door is approximately 5 feet above deck level, and just above a weather cover
extending over the control panel.  (Tr. 45, 186; Exhibits R-11, 12, 16, 17)  The
screened door is equipped with a hasp which could accommodate a padlock.  (Exhibit
R-18) Inside the screened door there is a walkway or landing along the length of the tank
between one screened side and the metal blades. The walkway is approximately 15 inches
wide.  (Tr. 341)

Basically, the use of the salt box simulates the
electrical demand that will be placed on the generators during actual operation of the
vessel.  The salt box is connected to the generators through the main circuit board
of the vessel, which in turn is connected to the generators.  In the present case,
the salt box had been hooked to the main circuit board of the vessel in such a way that it
was continually energized even when the generators were not functioning and could not be
deenergized without cutting off all shore power being fed to the ship. (Tr. 64, 65, 138)

The salt boxes used by respondent were built by
its repair division.  Employees in the repair division would at times utilize salt
boxes while repairing vessels and at such times the salt box leads are connected to the
generator circuit breaker.  (Tr. 104,108)  The repair division hooked the salt
boxes up with a disconnect and if there were no disconnect provided, they would place one
in the circuit. Thus the salt box would be disconnected when it wasn't actually being used
in a test. (Tr. 110)

For unexplained reasons the new construction
division did not utilize the method followed by the repair division of respondent in
connecting up the salt boxes.  As recently as 1984, however, this had not been the
case. (Tr. 108,109)

Mr. Joel Grace, respondent's Electrical Test
Production Foreman who had supervised the installation of the salt box on Hull 438 and was
responsible for testing the generators by use of the device, telephoned Mr. Roy Moffett,
respondent's foreman in charge of the department having responsibility for maintenance,
repair, and storage of the salt box, and asked that he have someone come over to Hull 438
to meet him and advise him as to what was required to repair the salt box.  One of
the sets of blades had jumped track and could not be lowered or raised.  Mr. Grace
told Mr. Moffett to have the man meet him at the aft gangway of the ship. (Tr. 220, 261,
262)

Mr. Moffett, in turn, asked Mr. Keith Morris, an
electrical technician and leadman in his department, to send a couple of men over to see
Mr. Grace and check on the salt box.  (Tr. 220, 221)

Mr. Morris selected Mr. Tom Tweedie, an
electrical technician in that department with nine years work experience with the
respondent.  Morris told Tweedie, "I got a job for you over on Hull 438.  
The salt box is messed up.  I think the blade has jumped the track."   (Tr.
114)  Morris instructed Tweedie to take a prybar and if the blade had jumped the
track to stand on one end of the blade and pry the other end into place.   Morris
also told Tweedie to take Guy Ochletree, an electrician, with him and to hurry because
Grace was waiting for them and would show them the "jobsite."   (Tr. 114,
115, 116, 128)

At no time during the aforesaid conversations
did anyone mention whether the salt box was energized.  Grace knew the salt box to be
energized.  Moffett, Morris, Ochletree and apparently Tweedie, all of whom worked in
the repair-maintenance division, assumed the salt box to be deenergized.  Mr. Tweedie
previously had installed and disconnected salt boxes in repair operations on six or eight
occasions.  (Tr. 113, 114)  Moffett testified that he would assume a salt box
with an imbalance to be disconnected in order to prevent overheating damage to or
destruction of the generator caused by unbalanced phase loads.  (Tr. 225,226,230)
  At the time Moffett instructed Morris to send the men to Hull 438 he was not aware
that the salt box could not be disconnected; unlike the situations commonly confronting
personnel in "repair division" prior to this time. (Tr. 227)

Mr. Tweedie and Mr. Ocheltree left their
department and proceeded directly to the gangway of Hull 438.  They apparently missed
Mr. Grace, or went to the forward gangway of the ship, as opposed to the aft gangway where
Mr. Grace was waiting, and went aboard the vessel.  After ascertaining the location
of the salt box, they went directly to it.  (Tr. 38-45)

Although the facts are in dispute as to what
happened thereafter, it is undisputed that Mr. Tweedie climbed the ladder to the salt box,
opened the unlocked door providing access to the interior of the salt box and came in
fatal contact with an energized circuit therein.

Discussion

Issue A :

Was the respondent in violation of the standard
at 29 C.F.R. 1915.181(b) as alleged in the citation?

To prove a violation of section 5(a)(2) of the
Act, the complainant must prove by a preponderance of the evidence an employer's
noncompliance with an applicable standard and employee exposure to the hazard created by
the violative condition.  Otis Elevator Co. , 78 OSAHRC 88/E5, 6 BNA
OSHC 2048, 1978 CCH OSHD � 23,135 (No. 16057, 1978).

Complainant argues that the method of hooking up
the salt box without the benefit of a disconnect provision so that it was at all times
energized while shore power was serving the vessel under construction, which fact was
known to construction test foreman Grace, coupled with the failure to padlock the door
providing access to the interior of the salt box and the failure to inform
"repair" personnel of the energized status of the salt box created a situation
which permitted employees to work on an electrical circuit before that circuit was
deenergized.

Respondent, on the other hand, argues that to
construe the word "permit" so as to make it equivalent to "fail to
prevent" would be an unfair application of the standard; and that in any event Mr.
Tweedie's failure to comply with respondent's electrical safety rules, given his
experience and job tenure, made it unforeseeable that he would begin work on a live
circuit.

Respondent's safety rules provide that an
employee shall not commence work on an electrical circuit (1) without proper authorization
from supervising personnel, (2) without prior testing with a voltage meter, and (3) that a
system be locked out or tagged out when work is to be performed on it.  (Respondent's
Post Trial Brief p.8 and references to Respondent's Exhibit 10 referred to thereat)

Here, respondent's electrical test production foreman knew that the main switchboard had
been bypassed and that there was no facility for disconnecting the salt box which was
constantly energized so long as shore power served the vessel, but did not so inform the
supervisory personnel he requested send assistance.  Access to the salt box and its
constantly energized parts could have been prevented by the mere expedient of putting a
padlock on the entrance door.  Under these circumstances of invitation to a hazardous
arena the respondent knowingly permitted "repair division" employees to work on
an electrical circuit which was energized.

Respondent here is charged with the knowledge
and actions of its supervisory personnel in the performance of their respective duties and
responsibilities.  Thus respondent is charged with the repair division's supervisory
personnel instructing and thereby permitting its employees to work on a supposedly
deenergized salt box at the request of construction division's supervisory personnel who
knew, but did not communicate, that the salt box was energized and could not readily be
deenergized.  Although neither division supervisor's knowledge or action was known to
the other, the respondent is charged with both.

That the hazard was foreseeable is amply
demonstrated by the security provisions of screen and door equipped with hasp for padlock.
  By omitting the ounce of prevention in the form of a padlock, the respondent
permitted access to the interior of the salt box by employees sent there for the purpose
of working therein.  It is not foreseeable that employees would pass through a locked
door.  It is foreseeable that employees sent to assist in solving a mechanical
problem inside the salt box would pass through a lockable, but unlocked door.  
Indeed, the corrective work to be performed, i.e., realignment of a metal plate by
standing on one side and using a prybar on the other suggests that the repair work was
more mechanical than electrical.  If the employee sent from the repair division to do
the work had been other than an electrician, the result would have doubtless been the
same.

Before permitting that work to be done, the
circuit (salt box) should have been deenergized.  Only respondent's Electrical Test
Production Foreman knew the salt box to be energized and only he knew what steps were
necessary to deenergize it.  His silence and failure to padlock the door to the box
permitted employees to work therein before it was deenergized.  His actions are
attributable to the respondent.

Issue B :

Was the violation, if any, the result of
unforeseeable employee misconduct?

To establish the defense of unpreventable
employee misconduct the respondent has the burden of proving that the employee's action
constituting non-compliance with a standard was a departure from a uniformly and
effectively enforced work rule.  See Daniel Construction Company ,
OSAHRC Docket No. 16265 (1982), 10 BNA OSHC 1549; Daniel International Corp., Wansley
Project , 81 OSAHRC 71/D6, 9 BNA OSHC 2027, 2031, 1981 CCH OSHD � 25,813 pp.
32,265-266 (No. 76-181, 1981)

Respondent cites Howard P. Foley Company ,
5 BNA OSHC 1501 (OSAHRC Docket No. 13244).  In Foley the Commission describes
this defense as follows:

In general, an employer is only responsible for
violations it has the ability to prevent.  If an employer has a safety program
which would normally be adequate to prevent a violation of a particular standard, then a
violation which occurs in spite of its program is unpreventable, and the employer
is not responsible .  Elements of an effective safety program include work rules
designed to prevent violations, adequate communication of the rules to employees, methods
of discovering whether violations occur, and enforcement of the rules if violations are
discovered.

(cases deleted) (Emphasis added)

Here an employee suffered a fatal accident which might have been avoided if he had availed
himself of a voltage meter and tested the circuit prior to entry.  But failure to
check as recommended by the work rule is not the gravamen of the alleged violation.  
The respondent is charged with permitting an employee to work on an electrical circuit
without first deenergizing the circuit. Respondent's own work rule requires that . . .
" a system be 'locked out' or 'tagged out' when work is to be done on
it."  (Exhibit R-10) (Emphasis added)  These procedures presuppose an act
of deenergizing.  Subparagraph (c) of the standard here under consideration provides
for deenergizing as follows:

29 C.F.R. � 1915.181 Electrical circuits and distribution boards.

(c) Deenergizing the circuit shall be
accomplished by opening the circuit breaker, opening the switch, or removing the fuse,
whichever method is appropriate.  The circuit breaker, switch, or fuse location shall
be tagged to indicate that an employee is working on the circuit.  Such tags shall
not be removed nor the circuit energized until it (sic) definitely determined that the
work on the circuit has been completed.

The salt box on Hull 438 was installed in such
manner that it could not be deenergized on board the vessel as contemplated by the
foregoing standard.  Neither Mr. Tweedie nor his supervisors knew this.  The
respondent's Electrical Test Production Foreman who requested assistance regarding the
salt box did know of the by-pass arrangement requiring total power shut-down not merely
deenergization of a system.

Respondent offered no testimony that it had a
rule, enforced or otherwise, requiring system wiring standardization which would permit
system deenergization.  Neither did respondent offer testimony that it had a rule,
enforced or otherwise, requiring system deenergization in a described manner.  (Tr.
161)  Had the respondent established a uniform procedure or had it required that each
division supervisory personnel be acquainted with methodology employed by other related
divisions, situation could have been avoided.

Since respondent had provided no means of
deenergizing the salt box on board the vessel, it cannot now stand on a claim that an
employee violated a non-existent rule that he/she do so in order to "lock out"
or "tag out" that unavailable act.

The employee's failure to check at the point
where the work was being done may have cost him his life, but it did not cause the
violation of which respondent is charged, to-wit:  permitting that work to be done
without first deenergizing the circuit.  Indeed there was no "circuit"
which the employee could have deenergized.  To make the situation safe it would have
required a total shutdown of power to the vessel.  Of the personnel material to this
inquiry only the Electrical Test Production Foreman had knowledge of this unorthodox
connection and he failed to communicate the fact.

Respondent has failed to make out the defense of
unpreventable employee misconduct.

Issue C :

If the respondent was in violation of the
standard, was the violation serious?

Section 17(k) of the Act provides that a
violation is deemed to be serious ". . . if there is a substantial probability that
death or serious physical harm could result from a condition which exists, . . . ".

While energized, the salt box carried 440 volts
of electrical power.  That such power could kill or maim is amply demonstrated from
the outcome of this case.

The violation of the standard was serious.

Issue D :

What, if any, penalty would be appropriate?

There was evidence that the respondent
considered the statutory requirements in arriving at the proposed penalty which is
appropriate in this case.  (Tr. 164-169)

Now, having observed the demeanor of the
witnesses and having weighed the credibility thereof, there are here entered the
following:

Findings of Fact

1.  Respondent is, and at all times
material hereto was, a corporation with an office and place of business at 28th Street and
Harbor Drive, San Diego, California 92138; and at all times material hereto was engaged in
shipbuilding and repair.

2.  Respondent at all times material hereto
was engaged in a business affecting interstate commerce in that respondent was engaged in
handling goods or materials which had been moved in interstate commerce and was an
employer employing its employees at the aforesaid workplace in said business.

3.  Facts set forth under Statement of
Facts herein above are here incorporated by reference as though specifically set forth at
this point.

4.  By energizing the salt box in question without the benefit of a system circuit or
disconnect provision on Hull 438 and failing to notify repair and maintenance division
personnel of that fact or of the fact that the salt box was energized even though there
was no padlock on the door giving access to the interior thereof, respondent permitted its
employees to work therein and was thereby in violation of the standard at 29 C.F.R.
1915.181(b).

5.  Employees of the repair and maintenance
division equipped, instructed and sent to assist in correcting a mechanical problem in the
salt box in question were exposed to the hazard of electrical shock and electrocution by
coming in contact with live components of this constantly energized, though not
functioning, salt box.

6.  There is no evidence that respondent
had a uniform and effectively enforced work rule:

(a) Requiring on board wiring of systems in a
uniform manner providing disconnect methods which could benefit from "lockout"
or "tag out" procedures.

(b) Providing communication between divisions to
advise of installations which were unorthodox or varying from the norm.

(c) Requiring one division to warn other divisions of hazards they would be exposed to in
regard to energized "circuits" when invited to enter another division's work
area.

(d) Requiring workmen from the repair and
maintenance division to shut down all power to Hull 438, or any other vessel, before
commencing work on what they reasonably could assume to be a deenergized salt box.

7.  Respondent's safety manual contained a
provision that an employee shall not commence work on an electrical circuit without prior
testing with a voltage meter, but its safety manual was not required reading (Tr. 32, 102,
215), voltage meters were not required equipment for electricians sent to work on jobs
(Tr. 35, 39, 40, 95-99), there is no evidence that any employee has ever been disciplined
for failing to carry or use a voltage tester.  (Tr. 141)

8.  The violation referred to herein was
serious within the meaning of section 17(k) of the Act, in that there was a substantial
probability that death or serious physical harm could result.

9.  The proposed penalty of $400.00 is
appropriate and reflects due consideration of the size of the business of the respondent,
the gravity of the violation alleged, the good faith of the respondent and the history of
prior violations, if any, as required by section 17(j) of the Act.

Conclusions of Law

1.  Jurisdiction of the subject matter of
this proceeding is conferred upon the Commission by section 10(c) of the Act and the
Commission has jurisdiction of the parties hereto.

2.  The standard at 29 CFR 1915.181(b)
applies to the job-site and work activity for which respondent was here cited.

3.  The respondent was in serious violation
of the standard at 29 C.F.R. 1915.181(b) as alleged in the citation issued and the
complaint filed herein.

4.  Item 1 of serious Citation No. 01,
issued to respondent September 8, 1986, should be affirmed.

5.  A penalty of $400.00 should be assessed
for the violation here found.

ORDER

Item 1 of serious Citation No. 01, issued to
respondent September 8, 1986, is AFFIRMED and a penalty of $400.00 is ASSESSED.

R. M. Child

Judge, OSHRC

Dated:  July 29, 1987

FOOTNOTES:

[[1/]] The citation and standard read:

Citation

29 CFR 1915.181(b):  Electrical circuits were not deenergized and checked before
employees were permitted to work on the circuits:

LOCATION:  On or before 08/07/86 at the aft
port side of the deck house on hull #438, employees were permitted to work on a salt box
which was neither checked for an energized circuit nor deenergized to preclude accidental
contact with live parts.

Standard

� 1915.181  Electrical circuits and distribution boards.

(b) Before an employee is permitted to work on an electrical circuit, except when the
circuit must remain energized for testing and adjusting, the circuit shall be deenergized
and checked at the point at which the work is to be done to insure that it is actually
deenergized.  When testing or adjusting an energized circuit, a rubber mat, duck
board, or other suitable insulation shall be used underfoot where an insulated deck does
not exist.