Green Mountain Power Corp. v. Commissioner of Labor and Industry, 60-77
| Decision Date | 07 February 1978 |
| Docket Number | No. 60-77,60-77 |
| Parties | , 6 O.S.H. Cas. (BNA) 1499, 1978 O.S.H.D. (CCH) P 22,629 GREEN MOUNTAIN POWER CORP. v. COMMISSIONER OF LABOR AND INDUSTRY. |
| Court | Vermont Supreme Court |
Paul D. Sheehey, Burlington, for plaintiff.
M. Jerome Diamond, Atty. Gen., and James S. Suskin, Asst. Atty. Gen., for defendant.
Before BARNEY, C. J., DALEY, LARROW and BILLINGS, JJ., and SMITH, J. (Ret.), Specially Assigned.
This appeal involves construction of the "general duty clause" of Vermont's Occupational Safety and Health Act (VOSHA). 21 V.S.A. §§ 201-231.
Steven Bagalio, a lineman first class A for Green Mountain Power Corporation (GMP), was killed when, in an attempt to remove a "jumper," he came into contact with a live wire. The day following the accident an inspector from the Department of Labor and Industry conducted an inspection of the work site and, as a result, the Department issued a "serious citation" to GMP under § 210(a) (2) and (b), claiming a violation of VOSHA's general duty clause. 21 V.S.A. § 223(a). In addition, a $600.00 penalty was proposed by the Department for violation of that clause.
GMP contested the citation and proposed penalty pursuant to § 226(a), and the Commissioner of Labor and Industry filed a complaint with the Occupational Safety and Health Review Board. After full evidentiary hearing under § 226(d), the Review Board issued findings of fact and a decision which upheld the citation and penalty. It concluded GMP failed under § 223(a) to provide Bagalio with a place of employment which was free from a recognized hazard that was likely to cause death or significant physical harm in that adequate protective covering was not used on energized wires in the area where he was performing his work.
GMP appealed the Review Board's findings of fact and decision to the Chittenden Superior Court under the provisions of § 227(a). The superior court, acting as an intermediate appellate court, confirmed the findings of the Review Board in toto, but reversed the Board's decision, holding the record did not support the conclusion of a violation of VOSHA. The court reasoned that an uncovered energized line is not a "recognized" hazard for purposes of the general duty clause; rather, the employee's failure to obey the company rule requiring covering of lines within reach constituted the hazard. The court concluded the hazard was an isolated incident of employee misconduct, which was beyond the employer's control and for which the employer could not be held liable under VOSHA.
The Commissioner of Labor and Industry now seeks review of the judgment of the superior court reversing the Review Board's decision. Finding that the superior court's judgment is erroneous and rests on an incorrect construction of § 223(a), we vacate the court's order and reinstate the Review Board's determination.
The findings of the Review Board, which were adopted in their entirety by the superior court and which are largely undisputed, may be summarized. At the time of the accident, Bagalio was one of a crew of five GMP employees, including three linemen first class A, one groundman and a working foreman. The crew, which had begun work at the job site five days before the fatal accident, was engaged in reconductoring (replacing) sections of copper lines with aluminum lines on five poles in a series running approximately 300 feet in length. It is the practice of GMP and of the industry to perform reconductoring work on energized lines to avoid prolonged interruptions of service. Temporary connections are made to the new lines to maintain service, and as permanent connections are made the temporary connections or "jumpers" (short sections of flexible insulated conductor) are removed and the old lines are cut down. Bagalio was working on one pole with another lineman and then descended that pole to climb Pole No. 3 in order to remove a jumper which had been in use on that pole. Before ascending Pole No. 3, Bagalio told the foreman what he intended to do. The foreman took no action except to admonish Bagalio that he should do nothing further without assistance after removing the jumper. With the foreman's authorization, Bagalio proceeded to climb Pole No. 3 and remove the jumper. At that time all three of the linemen were on separate poles, and the foreman was on the ground. Although no one saw Bagalio again before the accident, the Review Board concluded that, after climbing the pole, he "belted in" between the lower cross arm braces, detached one end of the jumper, shifted his body one-quarter of the way around the pole, and pulled the detached end of the jumper over the upper cross arm. In the process of removing the remainder of the jumper, Bagalio leaned backward and the back of his neck made contact with an uncovered wire, resulting in his instantaneous electrocution. There was additional protective equipment situated in the crew's truck at the time.
Bagalio had worked for GMP for over six years, progressing from an apprentice lineman to a lineman first class A. At the time of the accident he was an experienced, able lineman, physically fit and mentally competent for the work of a lineman, and he had given his employer no reason to believe he would not comply with its safety standards. GMP has a continuing safety program that is conducted by an experienced safety supervisor. The safety program consists of meeting at least monthly, distribution of bulletins and literature, and periodic inspection of job sites followed by written reports to supervisors, warnings and disciplinary measures. It was described by the VOSHA compliance inspector as meriting full credit.
GMP's safety policy with respect to the use of rubber cover on conductors during work on poles is to cover whatever is within reach of the lineman. This is a reasonable policy and one generally adopted in the industry. It is also GMP's policy that all safety determinations regarding protective covering are to be made by the lineman first class, even when he is under the immediate supervision of a foreman. At the time of the accident there was insufficient protective covering on Pole No. 3 to minimize the hazard encountered by Bagalio in removing the jumper without assistance, and the foreman on the job was aware of this fact.
The Commissioner agrees with all of the Review Board's findings, but urges reversal of the superior court's judgment, claiming Bagalio's failure to comply with the company's safety policy of covering everything within reach should not be a defense under VOSHA. He contends that GMP's policy of leaving all decisions regarding the covering of wires to the lineman first class runs counter to the very purpose of VOSHA. And he argues vigorously that to allow an employer to shift the burden of safety responsibility to its employees when they are working directly under management is tantamount to absolving employers of any responsibility for providing the safe workplace contemplated by the Legislature.
GMP, on the other hand, claims that failure to recognize employee noncompliance with established company safety policies as a defense is tantamount to imposing an absolute duty on employers to insure the safety of its employees, a duty which is not contemplated under VOSHA. Although GMP contends the superior court's judgment is supportable under the facts as found by the Review Board, it claims that findings 38 and 39 are erroneous in that they are unsupported by the evidence.
The standard of appellate review in VOSHA cases is expressly set out in the Act itself:
The findings of the review board with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. (21 V.S.A. § 227(a)).
The somewhat imprecise "substantial evidence" standard has received elucidation in several United States Supreme Court cases. " " Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951). It differs little, if at all, from the "clearly erroneous" test of V.R.C.P. 52(a). See Seaway Shopping Center Corp. v. Grand Union Stores, Inc., 132 Vt. 111, 117, 315 A.2d 483 (1974). With that standard and its definition in mind, we proceed to appellee's claim that findings 38 and 39 are unsupported by the evidence.
Finding 38 states: "The foreman on the job was aware of the fact that the pole did not have sufficient protective covering to permit an employee to remove the jumper without assistance." It is clear from the record that the foreman was aware of the fact that the pole did not have sufficient protective covering to permit an employee to remove the entire jumper, i. e. both ends of the jumper. It is equally clear, however, that the foreman felt there was adequate protective covering to de-energize the old wire, i. e. to remove only one end of the jumper. By "remove the jumper" did the Review Board mean removal of both ends of the jumper or removal of one end of the jumper? The Court is of the view that the plain and ordinary meaning of finding 38 is that the foreman was aware of the fact that the pole did not have sufficient protective covering to permit an employee to remove the jumper in its entirety without assistance. This construction is buttressed by the fact that the Review Board coupled the words "remove the jumper" with the words "without assistance," since there was considerable testimony to the effect that the foreman felt Bagalio could not have...
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