Safety Policy: Rules Aren't Enough: Training, and Repetition, Are Critical
Having comprehensive general and project-specific safety manuals and formal safety policies are fine and necessary elements of an effective safety program. However, your workforce isn’t going to stay up nights reading and re-reading your safety manual. And, studies have shown, even engineering students (a group arguably more sophisticated than your labor force) have trouble understanding terms and acronyms as basic as those used in the OSHA 10-hour course. Other studies suggest that workers whose first language is one other than English can sit through the OSHA 10-hour course, and come away having understood almost nothing of what they have been taught.
As an administrative law judge pointed out in Secretary v. David H. Elliot Construction Co., Inc., while rules are essential, “no rule can cover all contingencies. That is the responsibility of a training program.” The repetition of key concepts is critical, as is taking effective steps to discover and to discipline workers who violate safety rules. Both from my firm’s OSHA practice, and from the research that goes into preparing these articles, I frequently see cases in which lapses, often by experienced workers who certainly had been trained to know better, have resulted in serious injury or death. In Elliot Construction. the employer contracted to tear down an old power distribution system, encompassing 4000 poles extending over 226 miles, that had been badly damaged in an ice storm.
To minimize service interruptions, the existing lines were transferred (while still energized) from the old poles to hot rollers on the new poles. The old poles were then torn down, and new lines strung. This required the contractor to clean off everything attached to the old lines, and to reconnect customer connections with temporary jumpers which would then be removed when the new lines were pulled into place.
By the time of the fatal occurrence, the contractor was ready to remove the old lines, and to string new ones. Two four-man crews, headed respectively by foremen Howard Hall and Randy Wood, were combined to form a single crew, with Hall being placed in charge.
The expanded crew removed the old phase and neutral wires, and then strung and sagged the new phase and neutral wires. After sagging, the conductor had to be tied or clipped to the insulators. This was done from a lift bucket or, where the poles were set away from the road, by climbing the pole. Late in the day, Hall, working with part of the crew at Pole 64, sent two linesmen, Morris and Angel, to work on Poles 50 and 51, roughly half a mile away.
Hall directed Morris and Angel to find the groundman, Dixon, and take him to Poles 50 and 51. They were further instructed to inform Wood of their assignment, so that Wood would be able to inform Hall when Morris, Angel and Dixon were clear of the lines prior to energization. Angel and Morris found Dixon at Pole 42, and proceeded to Poles 50 and 51. However — and here occurred the fatal lapse — Angel and Morris disregarded Hall’s order, and failed to tell Wood of their assignment.
When Wood’s group had finished their work, Wood radioed Hall to report that everyone at his end was clear. However, due to Angel’s and Morris’s having neglected to tell Wood that they (and Dixon) would be working at Poles 50 and 51, Wood was not aware that Hall would assume, when he got Wood’s “all-clear,” that Wood’s signal included Angel, Morris and Dixon.
Hall told Wood to remove the ground at Pole 42, install a jumper and energize the line. Morris — who, unbeknownst to Hall, was still working on Pole 50 — was electrocuted when the lines were energized.
The ALJ’s decision (which sustained only two citation items out of seven charged against the employer) had to consider and resolve a number of thorny issues. While space does not permit all of them to be analyzed here, I will remark that the ALJ addressed each of the technical legal issues thoughtfully and painstakingly. Although the ALJ did not accept every argument advanced by the contractor, my reading of Elliott Construction reinforced my long-standing belief that, notwithstanding that the administrative law judges draw paychecks from the Department of Labor, they are (certainly as a general proposition) knowledgeable, conscientious, and fair.
One citation item alleged was that:
At the jobsite, the employer did not ensure that employees performing a stringing operation were trained in procedures, such as but not limited to: placing grounds at all job locations, placing tags on deenergized lines, and accounting for all workers prior to re-energizing lines, thereby exposing employees to an electrical hazard.
The ALJ found persuasive the contractor’s arguments that neither point of work grounding nor tags were required. The generalized standard (requiring that grounds be installed at each work location, where work was being performed at more than one location on the line) was pre-empted, the ALJ found, by standards that apply specifically to stringing operations. These standards, 29 C.F.R. § 1926.955(c)(10) and (d)(9), which provide that transmission clipping crews must work “between grounds” when working on bare conductors, and that grounding at every work location is mandatory only when there is a possibility of “dangerous induced voltage,” had been observed by the contractor. The crew worked between grounds, and there was no danger of a dangerous induced voltage.
Tagging was not necessary, the ALJ agreed, because the cited standard, 29 C.F.R. § 1926.950(d), only requires it when “the means of disconnecting from electric energy is not visibly open or visibly locked out.” Although at Pole 42, where a mechanical jumper had been removed as part of the process of de-energizing the line, no tag had been placed to indicate that men were working on the line section, there was a large visible gap between the energized line on one side of the pole, and the de-energized line on the other.
Tagging is intended to prevent an employee from accidentally turning the switch or disconnector. On Pole 42, there was no switch or connector to attach the tags to. Once the jumper was removed, no one would be working at that pole anyway. As the means of disconnect was visibly open, there was no way that an employee could have inadvertently energized the line. Tagging, therefore, was not required.
This citation item was upheld, and a monetary penalty assessed, however, on the third and final ground: that the contractor had insufficient procedures to account for all employees prior to the re-energization of the lines. While the standard does not specify exactly what instructions must be given for that purpose, an employer must instruct its employees in the recognition and avoidance of those hazards of which a reasonably prudent employer would be aware.
The contractor’s foreman, Hall, simply assumed that Morris and Angel had followed his instruction to inform Wood that they had been assigned to work on Poles 50 and 51. Had Hall been properly trained to avoid the hazards inherent in making such an assumption, the ALJ found, the hazardous condition would likely have been avoided. (I would observe that Morris and Angel might also have been better trained that lives are placed in danger whenever the individual responsible to authorize the re-energization of the line lacks knowledge of where each crew member is, and what he is doing).
The ALJ denied the Secretary’s motion to amend the citation to upgrade to “willful” the item alleging that the designated employee in charge failed to ensure that all employees were clear of the line prior to re-energizing it.
Nevertheless, this item was affirmed as a “serious” violation, as the evidence was undisputed that Hall had failed to determine that all crew members were clear of the lines, and “unpreventable employee misconduct” was rejected as a defense, because of the insufficiency of the employer’s training of its foremen.
Safety training in construction is one of those problems that can’t be solved, but must be wrestled with anyway. It’s no small challenge, and getting the message across, so that potentially lethal employee lapses are minimized, requires persistent effort.
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