BEFORE THE

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD

DEPARTMENT OF INDUSTRIAL RELATIONS

STATE OF CALIFORNIA

 

In the Matter of the Appeal of:

SOUTHERN CALIFORNIA EDISON

8631 Rush Street

Rosemead, CA 91770

                              Employer

 

 

Docket No.

96-R3D3-3205

 

DECISION AFTER

RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority invested in it by the California Labor Code, and having granted the petition for reconsideration filed in the above-entitled proceeding by Southern California Edison Company (Employer), makes the following decision after reconsideration.

JURISDICTION

From January 8, 1996 through May 9, 1996, Ramesh Gupta, Associate Compliance Engineer for the Division of Occupational Safety and Health (the Division), conducted a complaint inspection at a place of employment maintained by Employer on Grove Avenue between Remington Street and Kimball Avenue in Chino, California. Mr. Gupta observed Employer's employee, Joshua A. Flores, (Mr. Flores) working in a two-bucket lift truck on exposed high-voltage wire without his foreman acting as an observer.

Employer was cited on May 9, 1996 for an alleged violation of section 2940(d)1. [Observer facing away from working employee]. The alleged violation was classified as serious and carried a proposed civil penalty of $1,750.

Employer timely appealed the citation. A hearing was held before Administrative Law Judge (ALJ) Jack Hesson. Employer was represented by Donald A. Redd, Senior Attorney. The Division was represented by staff counsel, Margaret Cloudt. The International Brotherhood of Electrical Workers, Local 47 was granted party status and was represented by Bob Villalobos, Assistant Business Manager.

The ALJ held that Mr. Flores, the exposed employee, was working on an energized high-voltage wire and his foreman, John Rowe, (Mr. Rowe) was not functioning primarily as an observer. The citation was affirmed but the civil penalty was reduced from $1,750 to $1,225.

EVIDENCE

Compliance Engineer, Mr. Gupta, testified that on January 8, 1996, he observed two of Employer's employees working on 12,000 volt lines doing "double dead end work" from a two bucket lift truck at a site located behind the Chino Airport. Mr. Gupta testified that he observed one employee working on an energized wire while the other employee had his back turned. Mr. Gupta was too far away to determine exactly what the employee working on the wire was doing. The job foreman, Mr. Rowe, told him that he had been installing a guy wire on the back of the pole while Mr. Flores was "scratch cleaning" the wire.

Mr. Flores testified that he was cleaning the wire with a brush. He was "scratch cleaning" the wire which takes just a few seconds. According to Mr. Flores, changing a fuse is more dangerous than "scratch cleaning" a wire, and a frayed wire will create an even greater hazard. He was not sure which way the foreman was facing when he was cleaning the wire.

Bob Villalobos testified that in his opinion, exceptions to section 2940(d) allow for quick repair to restore service, but that the observer should not have been doing anything else. He agreed that scratch cleaning is less dangerous than changing a fuse.

Hal Lindsey testified that he has been a Health and Safety Manager for Employer since 1992 and has been with Employer for 35 years. He testified that both employees on the job at issue were qualified electrical workers. In his opinion an observer does not have to work only as an observer when doing the type of work that was done in this case. The work being done in this case is similar to the work described in section 2940(c).

ISSUES

1. Is a worker acting primarily as an observer of another employee working on a high voltage system under section 2940(d) if he is engaged in another task?

Does section 2940(c) create an exception to the requirements of section 2940(d)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

Employer was cited under section 2940(d), which states in relevant part:

During the time work is being done on any exposed conductors or exposed parts of equipment connected to high-voltage systems, a qualified electrical worker, or an employee in training, shall be in close proximity at each work location to:

(1) act primarily as an observer for the purpose of preventing an accident, and

(2) render immediate assistance in the event of an accident. . . . .

In order to establish a violation of section 2940(d) the Division must establish that the work being done was work done on an exposed conductor or work done on exposed parts of equipment connected to high voltage systems. Section 2700 defines the relevant terms as follows:

Exposed: (as applied to energized parts) Energized parts that can be inadvertently touched or approached nearer than a safe distance by a person. Parts not suitably guarded, isolated, or insulated.

Conductor: A wire, cable, or other conducting material suitable for carrying current.

High-Voltage System: Associated electrical conductors and equipment operating at or intended to operate at a sustained voltage of more than 600 volts between conductors.

Qualified Electrical Worker: A qualified person who by reason of a minimum of two years of training and experience with high-voltage circuits and equipment and who has demonstrated by performance familiarity with the work to be performed and the hazards involved.

In this case, the testimony of Mr. Flores established that the work being done was work done on an exposed part of equipment connected to a high-voltage system. Mr. Gupta testified that he was told by the foreman, Mr. Rowe, that the system that was being worked on carried 12,000 volts. No witness disputed that the system was over 600 volts.

Hal Lindsey testified for Employer that both workers on the job were qualified electrical workers.

1. A Worker is not Acting Primarily as an Observer of Another Employee Working on a High Voltage System under Section 2940(d) if the Assigned Observer is Engaged in Another Task.

The primary question that exists under sub-section (d) is whether or not the foremen, John Rowe, was acting primarily as an observer during the period of time that Joshua Flores was hot scratch cleaning the wire. Webster's New World Dict. (3d college ed. 1991) pp. 936, 1069 defines primarily as: 2. mainly; principally. Observer is defined as: 1. A person who observers something; specific.

Under the facts of this case, the most reliable evidence is that Mr. Rowe did not observe Mr. Flores while Mr. Flores was working on exposed conductors or exposed parts of equipment connected to a high-voltage system. Both workers were in the two-bucket lift about four feet apart thereby establishing that they were in close proximity to each other. However, the evidence establishes that Mr. Rowe either had his back turned away from Mr. Flores while Mr. Flores was scratch cleaning the wire or that Mr. Rowe was inserting a guy wire at the time that Mr. Flores was scratch cleaning the wire. Neither act by Mr. Rowe constitutes acting primarily as an observer for the purpose of preventing an accident during the time the work was being done on the exposed parts of equipment.

The Board is cognizant that during periods of work a person acting primarily as an observer may be temporarily diverted from observing the work being performed by the employee working on the exposed equipment. The Board believes however, that the clear intent of the regulation is to have a qualified electrical worker in close proximity who is not engaged in tasks other than observing the work being performed by the employee working on the exposed equipment. In this case, it appears from the testimony that Mr. Rowe was not observing Mr. Flores at all during the period of time that Mr. Flores was working on the exposed wire. Although Mr. Flores was only "scratching" the wire for a few seconds, the danger of serious injury existed during that period of time that Mr. Rowe was engaged in another task. It is noted that the view of photographic exhibit 3, taken a short period of time after Mr. Gupta observed the violation, shows the worker at the right, Mr. Rowe, looking away from Mr. Flores. We find from the facts presented that Mr. Rowe could not have been acting primarily as an observer while Mr. Flores was scratching the wire. In order to be acting primarily as an observer it would be incumbent upon Mr. Rowe to be mainly observing Mr. Flores doing his work on the exposed wire. He could not have been mainly observing Mr. Flores doing that work if he was engaged in another activity while Mr. Flores was performing the covered task.

2. Section 2940(c) Does Not Create an Exception to the Requirements of Section 2940(d).

Section 2940(c) states in pertinent part:

. . . Except for replacing fuses, operating switches, or other operations that do not require the employee to contact energized high-voltage conductors or energized parts of equipment, clearing “trouble” or in emergencies involving hazard to life or property, no such employee shall be assigned to work alone. . . .

Employer argues that the activity or operation being performed at the time the Division contended an observer was required, is less hazardous than replacing a fuse. Employer argues that because the activity is less hazardous than replacing a fuse it should be considered an exception under section 2940(c).

As noted above, the Board finds that Mr. Flores was working on energized conductors or equipment connected to energized electrical high-voltage systems when he was scratching the wire which was energized at 12,000 volts. The Board finds that the language of subdivision (d) is unambiguous. Section 2940(d) mandates that during the time work is being done on exposed parts of equipment (which are connected to a high-voltage system) a qualified electrical worker shall act primarily as an observer for the purpose of preventing an accident. Since the language of section 2940(d) is not defective or imperfect; and the facts establish a violation, the Board is required to enforce the section as drafted by the Standards Board. (See City of Sacramento Fire Department, OSHAB 88-004, Decision After Reconsideration (Mar. 22, 1989).)

Employer next contends that the only testimony presented at the hearing regarding activity of an employee of Employer who the Division alleges should have been acting as an observer was by way of hearsay testimony provided by Mr. Gupta. Mr. Gupta testified that the employee who should have been acting as an observer told him he was engaged in "connecting a guy wire." Employer contends that this is hearsay testimony that is not sufficient in itself to support a finding unless it would be admissible over objection in a civil action.

The Board rejects Employer's argument that the statements of Mr. Rowe are inadmissible hearsay. The Board has held that statements made by either foremen or supervisors who are responsible for their employers safety concerns at a given work site constituted an admission pursuant to Evidence Code section 1222. (See Parducci Wine Cellars, OSHAB 92-1024, Decision After Reconsideration (May 26, 1995).)

As noted above, Mr. Gupta testified that he observed Mr. Rowe with his back toward Mr. Flores. In addition, the photograph of Mr. Flores and Mr. Rowe taken a short time after Mr. Gupta first observed Mr. Flores and Mr. Rowe clearly displays Mr. Rowe with his back toward Mr. Flores. It is further noted that Mr. Flores could not have been primarily observed by Mr. Rowe if Mr. Rowe was inserting a guy wire to the pole. Employer's argument that Mr. Rowe may have been facing Mr. Flores while inserting a guy wire is unpersuasive in that the Board finds that at best that would cause Mr. Rowe to have had a divided attention and would not have allowed him to have been primarily observing Mr. Flores performing his task. We find that the facts do not establish that Mr. Rowe was observing Mr. Flores at any time during the performance of the act of scratching the wire.

DECISION AFTER RECONSIDERATION

The ALJ's decision is reinstated and affirmed. A serious violation of section 2940(d) is established and a civil penalty of $1,225 is assessed.

MARCY V. SAUNDERS, Member
GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA - April 2, 2001

1 Unless otherwise indicated, all section references are to Title 8, California Code of Regulations.