“SECRETARY OF LABOR,Complainant,v.NEW ENGLAND TELEPHONE ANDTELEGRAPH COMPANY,Respondent.INTERNATIONAL BROTHERHOOD OFELECTRICAL WORKERS, LOCAL 2222,Authorized EmployeeRepresentative.0SHRC Docket No. 80-6519DECISIONBefore: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:The Secretary of Labor issued a citation to New England Telephone andTelegraph Company (\”N.E.T.&T.\”) alleging violations of twotelecommunications standards, 29 C.F.R. ?1910.268(n)(11)(iii)(A)–involving pole guards–and 29 C.F.R. ?1910.268(n)(11)(iv)–involving insulating gloves. [[1\/]] A penalty of$550 was pro posed for each of the two alleged violations, which werecharacterized as serious. After a hearing, Administrative Law JudgeFoster Furcolo affirmed the pole guard item and vacated the glove item.Both parties petitioned for review. Commissioner Cottine granted bothpetitions. We reverse the judge’s decision; we vacate the pole guarditem and affirm the glove item.I. FactsThis case involves the replacement of a damaged utility pole that wasjointly used by N.E.T.&T. and the local electric power company. AN.E.T.&T. foreman, Lemmo, met with two experienced linemen, Hanson andScott, at the N.E.T.&T. garage and assigned them the task of erecting anew pole. He instructed them to erect the new pole about 3′-4′ from thedamaged pole. Lemmo described the types and voltages of the wires thatthey would encounter at the site and told then that he had contacted theelectric company to get its assistance. Lemmo also told them that it hadbeen raining overnight and that they should not set the new pole if itwere still raining. Lemmo did not discuss with Hanson and Scott the useof a pole guard, which is an orange, cylindrical cover, approximately 6feet long, that slides over a pole to insulate it from electrical wires.However, Lemmo testified that as Scott left, he told Lemmo that he(Scott) \”had better get a pole guard.\” At the hearing, Scott testifiedthat although there were pole guards available at the garage thatmorning, he did not take one with him because Lemmo had told them thatthe electric company would be present and would insulate the wires.At 10 a.m., Lemmo visited the site and found Scott and Hanson waitingfor the electric company’s crew to finish \”rubbering up\” the electriccompany’s lines. \”Rubbering up\” means to cover a power conductor withrubber insulating material known as \”line hose.\” Scott testified that hewas satisfied that the power conductors in the area where the new polewas to be erected had been completely covered with rubber. However,Scott was aware that the electric company crew had not placed a largerubber cover called a \”pig\” over each round insulator on the old pole. Apig has two purposes: to insulate the electric power conductor that iswrapped around the insulator and to hold adjacent line hose in place.When the electric company crew had completed rubbering up the powerconductors, Lemmo left the site and accompanied an electric companysupervisor to inspect another worksite. When Lemmo departed, Scott andHanson were not yet ready to erect the new pole or to put a pole guardon it.Once the conductors were rubbered up, Scott and Hanson resumed working.Because they encountered rock, they dug the hole for the new pole about2-1\/2 feet closer to the old pole than they had been instructed byLemmo. Thus, Scott and Hanson set the new pole about 1-1\/2 feet from thedamaged pole. Hanson then ascended in a bucket lift to secure the twopoles together with wire, a process known as \”lashing.\” Scott latertestified that the purpose of lashing is to hold the old pole steady\”because you’re going to cut about a foot above ground level on the oldpole and take the bottom of that pole out of the ground.\” He also statedthat the two poles usually are brought together no closer than one footduring the lashing procedure.Although the normal procedure is to slip a pole guard over the top ofthe new pole before it is raised into position, Scott testified that theold and new poles were not protected by a pole guard, insulating blanket[[2\/]] or box guard, [[3\/]] either when Scott and Hanson set the newpole or when Hanson ascended in the bucket to lash the poles together.During the lashing, Hanson was wearing a hardhat, safety glasses andleather work gloves, but not rubber insulating gloves. While in thebucket, Hanson sustained an electrical shock and was seriously injured.N.E.T.&T.’s internal report of its post-accident investigation states:[[4\/]]It was concluded by the committee that Mr. Hanson, working on lashingwire between the new and the old pole, created an electrical circuitthrough his body. As he proceeded with the tensioning operation the oldand the new pole were probably brought together. The exposed bracket onthe old pole, which contained one single phase circuit of 7620 volts toground, was brought into contact with the new pole by his tensioning.His body then conducted electrical current to an electrical ground. Mr.Hanson’s side was probably leaning against a CATV strand and he was notwearing rubber gloves. Contact was made at his left side, atapproximately the height of the CATV strand and also in his right handwhich probably was gripping the lineman’s wrench on the lashing wire.Testimony at the hearing also focused on the nature, effectiveness andenforcement of N.E.T.&T.’s safety program with respect to the use ofpole guards and rubber insulating gloves. N.E.T.&T.’s written safetyprocedures for placing, or removing poles near electric power wiresexplicitly require the use of both pole insulation and insulatinggloves. [[5\/]] Scott and Hanson attended a safety meeting and slidepresentation concerning pole replacement more than two years before theaccident. The accompanying narrative for the presentation states that:[I]t will be the policy of the Central Division to require that allconstruction line crews . . . use B pole guards and rubber gloves whenplacing or removing poles on or near joint owned poles, or on or nearnon joint owned poles where there is any possibility of contact with aforeign voltage . . . All poles placed or removed near power wires mustbe insulated . . . All employees handling the pole either with theirhands, pike poles or other tools shall wear the appropriate insulatinggloves with protectors.Scott and Hanson also attended a safety meeting, film presentation anddemonstration on electrical shock, hazards for linemen and use of rubberinsulating gloves two months before the alleged violations occurred. Inresponse to N.E.T.&T.’s request for admissions, the Secretary hasadmitted that N.E.T.&T. adequately trained employees on using poleguards on new poles when placing, new poles for joint use. The Secretaryalso responded as follows to two other requests for admissions:Request: The rubber insulating line hose covering the 13.8kV primaryconductors on pole No. 1095 was equivalent to a pole guard on the newpole in preventing contact between that pole and the 13.8kV conductors.Answer: Yes; not equivalent respecting protection of workers in allcircumstances.Request: The rubber insulating line hose covering the 13.8kV primaryconductors on pole No. 1095 on June 30, 1980 was one of the alternativetypes of protective equipment which meets the requirements of 29 C.F.R.1926.950(c)(1)(ii).Answer: Admitted due to wording.W.C. Cronin, N.E.T.&T.’s construction manager responsible forsupervising foremen such as Lemmo, testified that the companyrequirement to use pole covers when working on or near joint poles didnot contain an exception for instances in which the electric company hadrubbered up power lines. He also described N.E.T.&T.’s accidentprevention plan, under which foremen make three observations of eachemployee per month. Cronin himself makes five field observations permonth, noting positive and negative safety observations on craftemployees, including linemen replacing and setting poles. Moreover, inhis role as area manager, Cronin has had occasion to take disciplinaryactions–including suspension–against employees who commit safetyviolations. Cronin conceded that linemen do not follow all ofN.E.T.&T.’s practices letter-for-letter, but he insisted that he insuresthat safety-related items are followed generally. Cronin stated that hehad never observed an employee working without his gloves where therewas a possibility of shock and had never observed an employee placing awet pole without using a pole guard.Lemmo, the N.E.T.&T. foreman, testified that a team like Scott andHanson would replace on average about 2 poles per day, about 600 peryear. Lemmo estimated that he would observe them at least three timesper month, although not for the entire duration of a pole-replacingassignment. Referring to a company document known as a safety knowledgereview and observation card, he noted that Hanson had been observed in1979 regarding electrical hazards–including use of rubber insulatinggloves and pole guards–on three occasions and had not been cited forany deviations from N.E.T.&T.’s safe practice standards. Hanson alsosuccessfully completed an oral, on-the-job review regarding electricalhazards. Similar safety knowledge review and observation cards wereadmitted into evidence covering Hanson in 1980 and Scott in 1979 and1980. No deviations from prescribed safe practices were noted regardingelectrical hazards.Lemmo also testified that he had observed these employees setting polesbefore this accident; that he had never observed them not wearing theirgloves when there was a possibility of contact with electrical wire;that he had never observed them. not using a pole guard on a wet polecarrying 13.8kV, except where a pole had broken and all the wires weredown and out of the way; that he had directed Scott and Hanson on prioroccasions to use pole guards; and that he had never instructed them,that it was unnecessary to use pole guards in cases where the electriccompany had rubbered up its lines.Scott testified that he had been a construction head lineman forthirteen years. He stated that he had set new poles with Hanson 20times, that it was not his practice to use pole guards, guardingblankets or box guards when tile electric company had rubbered up itspower lines, that he had set 50-100 poles — about 15 to 20 during thesix months he worked with Hanson— without insulating them when theelectric company had rubbered up its lines, and that it was not hispractice to use pole guards except at night. Scott also testified thathe had believed before the incident that it was proper not to use a poleguard if the electric company had rubbered up its lines.As to gloves, Scott stated that he and Hanson wore insulating gloveswhen they placed the new pole in position; that Lemmo did not remind himto do that; that he would have been insulted if Lemmo had done so; thathe used insulating gloves \”any time there is, in my mind, any chance orpossibility that there could be shock, or voltage or anything likethat\”; that it was not his practice to use rubber gloves during thelashing operation; that, in determining whether there was a possibilityof shock during the lashing operation, he would watch to see if the polewould be pulled into any wires and that, if the pole came within onefoot of the wires, he would either stop lashing or put on insulatedrubber gloves before resuming lashing. He also indicated that once thepole was fixed in place, he would not need insulating gloves and that hebelieved that it was proper not to use insulating gloves during a polereplacement operation once the pole had been secured because he had inthe past performed that operation without gloves. He also stated that aforeman usually is not present during the pole replacement job, althoughforemen do come around and watch from time to time, and that he had onlybeen disciplined or reprimanded once in the past for a safetyviolation–not wearing a safety belt in the bucket.II. _The Pole Guard Item _A. _The Judge’s Decision_Judge Furcolo affirmed the pole guard item. He found that both the oldand new poles were wet and that the failure of the electric company touse a pig prevented the rubbering up from being \”equivalent protectiveequipment\” within the meaning of section 1910.268(n)(11)(iii)(A). Healso found that foreman Lemmo knew or should have known that both poleswere wet, that he knew \”how close together (3-4 feet) he expected thetwo poles would be\” and that he know \”that the new pole would have to be’nosed up’ through the wires.\” Judge Furcolo further found that \”carefulobservation\” by Lemmo of the open back of the truck would \”easily\” haveshown him that no pole guard had been brought to the worksite. It couldalso easily be seen that no pigs had been installed. The judge rejectedN.E.T.&T.’s argument that section 1910.268(n)(11)(iii)(A) is vague. Heheld that \”equivalent\” has a meaning \”easily and readily understood bythe average layman\” and that \”in the context in which it is used in thestandard, there is little or no chance that it will be misunderstood ormisinterpreted.\”Commissioners Cleary and Cottine agree for the reasons stated in PartII.B that N.E.T.&T. violated the standard. For the reasons stated inPart II.C., however, Commissioner Cottine agrees with Chairman Rowlandthat the item should be vacated on another ground.B. _Was the pole guard standard violated?_Under the working conditions involved here, the standard states that wetpoles \”shall be insulated with either a rubber insulating blanket, afiberglass box guide, or equivalent protective equipment.\” There is nodispute that the pole was wet, [[6\/]] or that it lacked an insulatingblanket and a fiberglass guard. Inasmuch as there was no insulation onthe pole but there was some insulation on the power conductors, thefirst issue before us is whether such insulation can be considered\”equivalent protective equipment\” within the meaning of the standard.The Secretary contends that the pole guard standard unequivocallyrequires the wet pole to be insulated with \”equivalent protectiveequipment.\” In his view, using insulation on the line is contrary to thestandard and is not equivalent to pole insulation; line hose differs inlocation, placement, function, and effect. The Secretary argues that thestandard is not vague because the standard says that insulation must beon the wet pole, and \”equivalent\” is a well understood term. TheSecretary maintains, in this regard, that N.E.T.&T. correctly understoodthe standard, for N.E.T.&T.’s own rules require that the poles beinsulated regardless of the presence of line hose.N.E.T.&T.’s argument that line hose is \”equivalent protective equipment\”relies heavily on the Secretary’s responses to requests for admissionsand the provisions of section 1926.950(c), the construction standard forpower transmission and distribution work. N.E.T.&T. maintains thatinasmuch as the Secretary admitted that the rubber insulating line hosewas equivalent to a pole guard in preventing contact between the poleand the conductors and that rubber insulating line hose alone issufficient to protect electric company workers under section1926.950(c)(1)(ii), [[7\/]] the line hose was \”equivalent protectiveequipment.\”N.E.T.&T. also argues that if rubber line hose is not \”equivalentprotective equipment,\” then the meaning of the term is so unclear thatit is unenforceably vague. It maintains that inasmuch as line hose is aseffective an insulator as equipment placed on the pole, aninterpretation of the standard that did not treat them as equivalentwould be so unpredictable as to deprive it of notice of what thestandard requires.Commissioners Cleary and Cottine interpret the term \”equivalentprotective equipment\” as equipment that is placed on the wet pole.[[8\/]] First, the sense of the standard is that insulation must beplaced on the wet pole, not elsewhere. Second, the record shows andN.E.T.&T. acknowledges that the two methods of protection specified inthe standard– rubber insulating blankets and fiberglass box guards–arefitted on the wet pole. This strongly suggests that the term \”equivalentprotective equipment\” also refers to equipment placed on the wet pole.Third, section 1910.268(n)(11)(iii)(C), a closely-related provisionwhich provides an exception to section 1910.268(n)(11)(iii)(A), refersto \”insulation of the pole …..\”The parties have argued the relative merits of placing insulation on thewet pole or on the lines, and the Secretary’s admissions seem toindicate that line insulation is equivalent under certain circumstances.However, the reasonable reading of the standard and the reading mostconsistent with its remedial purpose is that insulation must he placedon the pole under these working conditions. OSHA regulations are to beliberally construed to effectuate the remedial purposes of theOccupational Safety and Health Act, 29 U.S.C. ?? 651-678. WhirlpoolCorp. v. Marshall,445 U.S. 1 (1980); Bristol Steel & Iron-Works v. OSHRC601 F.2d 717 (4th Cir. 1979); Brennan v. OSHRC (Gerosa, Inc.), 491 F.2d1340 (2d Cir. 1974). N.E.T.&T. also argues that because section1926.950(c)(1) permits electric company employees to be protected byline hose alone, the telecommunications standard before us should beinterpreted to yield the same result. The telecommunications standardcited in this case is specifically applicable to wet poles and containsrequirements concerning wet poles that are more stringent than therequirements in section 1926.950(c)(1). It is not the Commission’s roleto reweigh the practical concerns underlying the Secretary’s regulatorychoice in prescribing the additional requirements fortelecommunications.[[9\/]] Moreover, we note that the Respondent’s ownsafety rules recognize a need to place insulation on the polesthemselves, whether wet or dry.Commissioners Cleary and Cottine also reject N.E.T.&T.’s argument thatthe standard is unenforceably vague as construed. The Commission hasconstrued the standard consistent with its plain meaning and itsremedial purpose. Indeed, N.E.T.&T.’s own work rules show that it had nodifficulty understanding the Secretary’s standard. N.E.T.&T.’s statedpolicy requires that all construction line crews use B pole guards whenplacing or removing poles on or near joint owned poles. The N.E.T.&T.rule makes no exception for instances in which the conductors arerubbered up. Under these circumstances, N.E.T.&T.’s vagueness argumentlacks merit.[[10\/]]C. _Conduct of Employees_Nevertheless, Chairman Rowland and Commissioner Cottine conclude thatthe citation item should be vacated.The Secretary argues that N.E.T.&T. had knowledge of the violationbecause supervisor Lemmo knew the conditions at the scene, including thefact that the pole was wet. He argues that if reasonable diligence hadbeen exercised, Lemmo would have known that Scott and Hanson did notplan to use a pole guard and would have discovered the absence of a poleguard at the worksite simply by looking in the back of the truck or byasking the employees. The Secretary also maintains that the affirmativedefense of employee misconduct was not established because the twoexperienced linemen often did not use pole guards or other equivalentprotective equipment when the electric company’s lines were rubbered up;a properly trained employee would have known to insulate the wet poleunder the circumstances of this case. Moreover, the record does notcontain any examples of disciplinary action being taken to enforce thework rule prescribing pole guards despite Scott’s assertion that hehimself had replaced poles more than 50 times without using pole guards.Chairman Rowland notes that the Secretary has the burden of proving thatN.E.T.&T. knew or, with the exercise of reasonable diligence, could haveknown of the violative condition. Prestressed Systems, Inc., 81 OSAHRC43\/D5, 9 BNA OSHC 1864, 1981 CCH OSHD ? 25,358 (No. 16147, 1981).Chairman Rowland concludes that N.E.T.&T. lacked actual knowledge of theviolation because the supervisor, Lemmo, was not present during anyphase of the actual pole-setting procedure, and neither Scott nor Hansonwas a supervisory employee whose actual knowledge can be imputed toN.E.T.&T. See H.E. Weise, Inc., 82 OSAHRC 18\/A2, 10 BNA OSHC 1499, 1982CCH OSHD ? 25,985 (Nos. 78-204 & 78-205, 1982). Chairman Rowland wouldalso hold that N.E.T.&T. lacked constructive knowledge because itexercised reasonable diligence. Lemmo personally visited the worksiteand took, notes regarding the conditions his repair crew wouldencounter. He personally communicated instructions to the repair crew,including specific directions about digging the hole for the new pole ata distance of 3′-4′ from the old pole. He arranged for the electriccompany to rubber up its lines and also understood that a pole guardwould be used because Scott indicated to Lemmo that he would get a poleguard. Lemmo had never observed Scott or Hanson fail to use a pole guardwhen replacing a pole under similar circumstances, and Scott and Hansonhad 15 years and 25 years of experience respectively at N.E.T.&T.N.E.T.&T.’s work rules clearly required that pole covers be used andmade no exception for instances in which the lines were rubbered up.Indeed, the Secretary conceded that N.E.T.&T. adequately trainedemployees on using pole guards. N.E.T.&T. also had a commendable safetyprogram in which employees are observed performing work, and aredisciplined for infractions of safety rules. [[11\/]] The duty toexercise reasonable diligence does not require that a supervisor beassigned to remain and watch a crew’s every move. See Capital ElectricLine Builders, Inc. v. Marshall, 678 F.2d 128, 131 (10th Cir. 1982);Cape & Vineyard Div. of New Bedford Gas v. OSHRC, 512 F.2d 1148, 1155(1st Cir. 1975); B-G Maintenance Management, 76 OSAHRC 60\/A2, 4 BNA OSHC1282, 1976-77 CCH OSHD ? 20,744 (No. 4713, 1976). This duty also doesnot require that the employer prevent every instance of employeenoncompliance with a workrule. Jones & Laughlin Steel Corp., 82 OSAHRC34\/A2, 10 BNA OSHC 1778, 1982 CCH OSHD ? 26,128 (No. 76-2636).Accordingly, Chairman Rowland would vacate this item on the ground thatthe Secretary failed to establish that N.E.T.&T. knew or, through theexercise of reasonable diligence, could have known of the violation.Commissioner Cottine joins Chairman Rowland in vacating the pole guarditem, but for different reasons. He concludes that N.E.T.&T. hasestablished its unpreventable employee misconduct defense. In order toestablish this defense, an employer must show that: (1) work rulesdesigned to prevent the violation have been established; (2) these ruleshave been adequately communicated to its employees; and (3) adequatesteps have been taken to discover violations, and these rules have beeneffectively enforced when violations have been discovered. E.g., JensenConstruction Co., 79 OSAHRC 49\/D3, 7 BNA OSHC 1477, 1479, 1979 CCH OSHD?23,664, p. 28,695 (No. 76-1538, 1979). Employees must be properlytrained and supervised and must be made aware that the work rules willbe enforced. See Danco Construction Co. v. OSHRC, 586 F.2d 1243, 1247(8th Cir. 1978). N.E.T.&T. has established a work rule designed toprevent the violation. This rule requires the use of pole guards whenreplacing poles. The Secretary has agreed that N.E.T.&T. adequatelycommunicated the rule to its employees. N.E.T.&T. has taken steps todiscover violations; Lemmo observed Hanson and Scott replacing polesabout three times per month. The record supports a finding thatN.E.T.&T. has effectively enforced its work rules when violations havebeen discovered; each of these employees had had deviations from safepractice brought to his attention in the past. Employees have beendisciplined for violations by measures including suspension. Moreover,Scott’s statement to Lemmo that Scott \”had better get a pole guard\”obviated a need for further instruction or inquiry about the need to usea pole guard on this assignment. On these facts, Commissioner Cottinefinds that N.E.T.&T. provided supervision adequate to detectnoncompliance with the rules and discipline sufficient to discouragesuch noncompliance. Accordingly, Commissioner Cottine concludes thatN.E.T.&T. has successfully proven its defense of unpreventable employeemisconduct. [[12\/]] Accordingly, he joins with Chairman Rowland invacating this item of the citation. [[13\/]]III. The Glove ItemA. The Judge’s DecisionJudge Furcolo vacated the item alleging the failure to use insulatinggloves. He rejected N.E.T.&T.’s unpreventable employee misconductdefense, finding that employees not only often did not use insulatinggloves, but apparently were never disciplined for such failure.Nevertheless, the judge found that N.E.T.&T. had no knowledge of theemployer’s failure to wear insulating gloves and, thus, he vacated thisitem on that basis.B. N.E.T.&T.’s ContentionsN.E.T.&T. maintains that the Secretary failed to show noncompliance.First, N.E.T.&T. disputes the Secretary’s implicit interpretation of thestandard for-bidding employees to undertake any part of the pole-settingprocedure without using insulating gloves. N.E.T.&T. observes that thestandard, see note I supra, speaks in terms of \”a possibility\” ofcontact. It therefore argues that the item should be vacated becausethere is no direct evidence that Hanson was handling the pole witheither his hands or tools at the same time that it was possible for thepole to contact a power conductor. N.E.T.&T. maintains that theSecretary’s only evidence to support his allegation of noncompliance isN.E.T.&T.’s post- accident investigation report. It objected at thehearing to the admission of the report on the sole ground that it washearsay. It apparently renews this argument on review and also arguesthat because the report contains only conclusions of N.E.T.&T.’scommittee, the report is insufficient evidence of a violation.N.E.T.&T. argues that the Commission should adopt the judge’s findingthat it lacked knowledge of the violative condition. Scott, anexperienced telecommunications worker, testified that, during thelashing operation, a possibility of contact between the pole andconductor exists once the pole comes within one foot of the conductor.At that point, Scott stated, he would either stop lashing or put oninsulating gloves before continuing. N.E.T.&T. argues that the standardpermits the judgment which Scott expressed in his testimony. N. E. T.&T. argues that inasmuch as Scott wore insulating gloves whenever hereasonably judged that there was a possibility of electrical shock,N.E.T.&T. could not, with reasonable diligence, have known that Hanson(an even more experienced employee than Scott and similarly trained)would have failed to wear insulating gloves when required to do so underthe standard.As to the employee misconduct defense itself, N.E.T.&T. points to JudgeFurcolo’s finding that N.E.T.&T. had a very thorough and detailed safetyprogram which included regular observations of employees in the field.NET.&T. asserts that the record indicates that employees weredisciplined; there was no testimony that work rules were not enforced.N.E.T.&T. also argues that, since the glove standard governs employeeconduct and does not specify employer conduct for compliance, theSecretary has the burden of establishing \”what the employer couldfeasibly have done to change the employee’s behavior.\”C. Was a violation of the glove standard established?As with the pole guard item, the key questions are whether N.E.T.&T. wasin compliance with the standard, whether it had knowledge of theviolative condition, and whether it made out its unpreventable employeemisconduct defense. Commissioners Cleary and Cottine concur in finding aviolation. They agree, first, that the Secretary established N.E.T.&T.’snoncompliance because gloves were not worn while Hanson was handling thenew pole and while there was a possibility of contact with a powerconductor. Inasmuch as there is no doubt that gloves were not worn whileHanson was handling the new pole during the lashing operation, the onlyquestion relating to noncompliance is whether there was a \”possibility\”of contact between the pole and a power conductor during the operation.The record establishes that this lashing operation brought the poleswithin 1 1 1\/2 feet of each other, that some of the power conductors onthe old pole were uninsulated, and that the wet, new pole wasuninsulated. The possibility of contact under these circumstances ismanifest. By requiring its employees to wear insulating gloves whenhandling the pole with hands or tools, N.E.T.&T. clearly recognized thata possibility of contacting power lines is often present in a joint usepole-replacement situation. The testimony of supervisors Cronin andLemmo regarding the company policy requiring pole covers furtherdemonstrates that N.E.T.&T. assumed the existence of a possibility ofcontact whenever this replacement task was undertaken. Indeed, theexistence of a possibility of contact between pole and conductor underthe circumstances is graphically demonstrated by the strongcircumstantial evidence indicating that Hanson sustained his injury hereas a direct result of such contact. [[14\/]] The circumstances of theaccident are probative of the possibility of contact. See ConcreteConstruction Corp., 76 OSAHRC 47\/A2, 1 BNA OSHC 1133, 1135 n.3, 1975-76CCH OSHD ? 20,610, p. 24,664 n.3 (No. 2490, 1976). Thus, the factssupport a finding that contact between the electric company’s energizedequipment on the old pole and tile wet, uninsulated new pole was at thevery least possible, if not probable. Accordingly, the standard was notcomplied with.Commissioner Cleary also finds that the Secretary established thatN.E.T.&T., with the exercise of reasonable diligence, could have knownof the employee’s failure to use rubber insulating gloves during thelashing operation. [[15\/]] Commissioner Cleary rejects N.E.T.&T. ‘sargument that it exercised reasonably diligence in relying onexperienced employees to make reasonable judgments based on a one-foot\”rule\” about whether contact was possible. He notes, first, that theone-foot rule was not a rule at all, but merely a statement of personalpractice uttered by the same employee who, as a matter of personalpractice, routinely neglected to use pole covers. The assertedreasonableness of this \”rule\” belied both by N.E.T.&T.’s own work rulewhich requires that a supervisor be notified if a new pole will comewithin 3 feet–not 1 foot–of the nearest electric primary wire and atemporary connection between the new and old poles cannot be placed andalso by its safety instruction that insulating gloves worn when handlingthe pole with hands or tools. Commissioner Cleary also notes that anemployer cannot claim that it is reasonably diligent in relying on anexperienced employee’s judgment when the rule of thumb that the employeeuses is contrary to the Secretary’s standards. A related provision ofsection 1910.268 provides that, for power lines with a voltage rangebetween 2kV and 15kV, a separation of 24 inches must be maintainedbetween an employee and power lines, energized parts, and conductiveobjects he handles unless either the employee is wearing gloves, or thepower lines, energized parts, or conductive objects are insulated, orthe power lines and equipment are deenergized. 29 C.F.R. ?1910.268(b)(7) and Table R-2.[[16\/]] The power line here carried 13.8kV,the energized power lines wrapped around insulators were not guarded bypigs, and the wet pole–a conductive object–was not insulated with apole cover. The employee’s failure to wear gloves when the pole waswithin one foot of energized lines and parts was therefor inconsistentwith section 1910.268. Although there may be room for debate whether apole is close enough to an energized line or part to warrant the wearingof gloves under section 1910.268(n)(11)(iv), the debate must end whensection 1910.268 specifically requires gloves.[[17\/]] CommissionerCleary also finds a failure to exercise reasonable diligence byN.E.T.&T. for the reasons stated below regarding its unpreventableemployee misconduct defense.Commissioners Cleary and Cottine reject N.E.T.&T.’s unpreventableemployee misconduct defense. It had established a workrule whichencompassed the requirements of the cited standard (see note 17 supra),and had adequately communicated that workrule to its employees. However,there must also be effective enforcement of the workrule. JensenConstruction Co., supra; see Danco Construction Co. v. OSHRC, supra. Inparticular, \”[e]ffective safety enforcement requires a diligent effortto discover and discourage violations of safety rules by employees.\”Paul Betty d\/b\/a Betty Bros., 81 OSAHRC 18\/B11, 9 BNA OSHC 1379, 1981CCH OSHD ? 25,219 (No. 76- 4271, 1981). Here, insulating gloves are wornunder other work gloves when employees work in the aerial bucket. It isundisputed that it is therefore difficult, if not impossible, todetermine whether an employee in an aerial bucket is wearing insulatinggloves. N.E.T.&T. was or should have been aware that its visual safetyinspections were inadequate to detect employees’ failure to wearinsulating gloves while working in aerial buckets. Because N.E.T.&T.’spractice of making cursory, visual spot checks was not an effectivemeans of detecting this type of violation, [[18\/]] Commissioners Clearyand Cottine conclude that a violation was established.[[19\/]]Commissioners Cleary and Cottine agree with the Secretary that theviolation was serious. For a violation to be characterized as seriousunder section 17(k) of the Act, 29 U.S.C. ? 666(j), [[20\/]] there mustbe a substantial probability that death or serious physical harm couldresult if an incident occurred; the probability that an incident willoccur is irrelevant. See Wright & Lopez, Inc., 81 OSAHRC 92\/D1O, 10 BNAOSHC 1103, 1114, 1981 CCH OSHD ? 25,728, p. 32,079 (No. 76-256, 1981).It is clear that, in the event of an accident, death or serious harmwould have been substantially probable, as is indicated by the incidentoccurring in this case.Commissioners Cleary and Cottine now turn to theassessment of a penalty.[[21\/]] The parties have stipulated thatN.E.T.&T. employs approximately 41,500 persons. As to gravity, thefollowing elements must be considered: the number of employees subjectedto the hazard (one); the duration of exposure (less than two hours); theprecautions taken against injury (N.E.T.&T. arranged for the electriccompany crew to come and rubber up the lines); and the degree ofprobability that an injury would occur (N.E.T.&T. stipulated at trialthat there was a \”possibility\” of serious injury or death here).N.E.T.&T. is entitled to some credit for good faith on account of itssafety program, which the judge commended. Under the circumstances,Commissioners Cleary and Cottine conclude that a penalty of $550 isappropriate.Accordingly, the judge’s decision is reversed. The citation iteminvolving the pole guard is vacated. The citation item involving theinsulating gloves is affirmed; a penalty of $550 is assessed.SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 27 1983————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ) , telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386) FOOTNOTES:[[1\/]] The standards provide:? 1910.268 Telecommunications.(n) Overhead lines.(11) Handling poles near energized power conductors.(iii) (A) In joint lines where the power voltage is greater than 750volts but less than 34.5kV phase to phase (20 kV to ground), wet polesbeing placed, moved or removed shall be insulated with either a rubberinsulating blanket, a fiber-glass box guide, or equivalent protectiveequipment.(iv) Insulating gloves shall be worn when handling the pole with eitherhands or tools, when there exists a possibility that the pole maycontact a power conductor. Where the voltage to ground of the powerconductor exceeds 15kV to ground, Class II gloves (as defined in ANSIJ6.6-1971) shall be used. For voltages not exceeding l5kV to ground,insulating gloves shall have a breakdown voltage of at least 17kV,[[2\/]] An \”insulating blanket\” is a rubber blanket, approximately 3 feetsquare, that is wrapped around a pole and secured with twine in order toinsulate the pole.[[3\/]] A \”box guard\” is a square, fiberglass covering, approximately 6feet long, that fits over the top of a pole to insulate the pole.[[4\/]] N.E.T.&T.’s investigative report is property admitted in evidenceas anadmission by a party opponent and is not hearsay. Rule 801(d)(2),Federal Rules of Evidence.[[5\/]] N.E.T.&T.’s safety practices for placing or removing poles nearelectric power lines provide in part:2.03 Poles being placed or removed where power voltages are over 5000volts but not over 20,000 volts to ground must be insulated.2.06 All employees handling the pole, either with their hands, pikepoles,or other tools, shall wear the appropriate insulating gloves (withprotectors) as outlined in table A throughout the time that there is apossibility that the pole may contact the power conductors. All parts ofthe body, other than the insulating glove-protectedhands, shall be kept free from contact with the pole or with tools usedin handling the pole (including pole derrick and truck) during theperiod that the pole may contact the power conductors.7.10 If the new pole will be within 3 feet of the nearest electricprimary wire and a temporary connection between the new and the oldpoles cannot be placed, notify your supervisor.[[6\/]] N.E.T.&T. argued before the judge that the Secretary had failedto establishthat the new pole was wet. The judge found otherwise. The correctness ofthe finding was not raised in either the petition for review or thedirection for review. We therefore do not review the finding. CommissionRule 92(c), 29 C.F.R. ? 2200.92(c).[[7\/]] The standard provides:Subpart V — Power Transmission and Distribution? 1926.950 General requirements.(c) Clearances. The provisions of paragraph (c)(1) or (2) of thissection shall he observed.(1) No employee shall be permitted to approach or take any conductiveobject without an approved insulating handle closer to exposed energizedparts than shown in Table V-1, unless:(ii) The energized part is insulated or guarded from him and any otherconductive object at a different potential,….[[8\/]] For this reason, it is not necessary to consider the correctnessof the judge’s view that the absence of pigs rendered the line hose non-equivalent.[[9\/]] With respect to the admissions of the Secretary’s counselregarding interpretation of the cited standard, we note that we are notbound by the legal views of the Secretary’s attorneys. See United StatesSteel Corp., 77 OSAHRC 64\/C8, 5 BNA OSHC 1289, l977-78 CCH OSHD ? 21,795(Nos. 10825 & 10849, 1977).[[10\/]] Chairman Rowland does not agree that ? 1910.268(n)(11)(iii)(A)requires equivalent protective equipment to be placed on the pole andnowhere else. The majority relies on its appraisal of the \”sense\” of thestandard and a related provision. The standards, however, say only thatthe pole must be \”insulated.\” \”Insulated\” is defined at ?1910.268(s)(22) as:Separated from other conducting surfaces by a dielectric substance(including air space) offering a high resistance to the passage ofcurrent. Note: When any object is said to be insulated, it is understoodto be insulated in suitable manner for the conditions to which it issubjected. Otherwise, it is, within the purpose of these rules,uninsulated. Insulating coverings of conductors is one means of makingthe conductor insulated.Nothing in the definition of \”insulated\” specifies the location of theinsulation. Indeed, the language of the standard on which the majorityrelies, ? 1910.268(n)(11)(iii)(C), supports my conclusion that the citedstandard does not require insulation to be placed on the pole itself.Rather that standard refers to insulation \”of\”–not \”on\”–the pole.Moreover, the purpose of ? 1910.263(n)(11)(iii)(A) is to prevent contactbetween wet poles and live conductors. It is therefore entirelyconsistent with the words and purpose of the standard to hold that apole may be \”insulated in a suitable manner\” from electric power linesif the lines are shielded by an insulating cover. The Secretary hasacknowledged as much by admitting that insulating line hose is a type ofprotective equipment used by electric company employees when working inproximity to power lines, that line hose is equivalent to a pole guardfor purposes of preventing contact between the pole and live conductors,and that line hose is one of the alternative types of protectiveequipment which meets the requirements of a standard designed to protectelectric company workers, 29 C.F.R. ? 1926.950(c)(1)(ii).Contrary to the majority’s assertion, its construction of the standardis not \”most consistent with its remedial purpose.\” Insulation notplaced on the pole may well afford equally adequate protection againstcontact with energized lines. Indeed, it is conceivable that, at leastin some instances, insulation on the live conductors would affordsuperior protection for employees engaged in a pole-setting operation.The majority states no reasons why a \”liberal\” interpretation isnecessary to achieve the statutory objective of protecting employeeswhen the interpretation it rejects appears equally to effectuate thatpurpose.Nevertheless, Chairman Rowland concludes that N.E.T.&T. failed tosatisfy ? 1910.268(n)(11)(iii)(A) because he agrees with the judge that,under the circumstances of this case, the absence of pigs from part ofthe energized lines prevented the line insulation from qualifying as\”equivalent protective equipment\” within the meaning of the standard.However, Chairman Rowland would vacate this item. of the citation in anyevent; for the reasons stated in Part II-C infra, he finds that theSecretary failed to show that N.E.T.&T. had knowledge that poleguards–a permissible alternative–were not used.[[11\/]] Chairman Rowland does not, however, express an opinion onwhether an employer is required to do more than communicate work rulesto non-supervisory employees, as here. See Marson Corp., 82 OSAHRC29\/C4, 10 BNA OSHC 1660, 1666 n.16, 1982 CCH OSHD ? 26,075 p. 32,808n.16 (No. 78-3491, 1982) (Rowland, Chairman, dissenting).[[12\/]] Commissioner Cottine notes that the mere fact that two employeesof this large company had violated the workrule on numerous occasionsdoes not rebut the overwhelming evidence that N.E.T.&T. took adequatesteps to enforce the workrule in this case. See Jones & Laughlin SteelCorp.82 OSAHRC 34\/A2, 10 BNA OSHC 1778, 1982 CCH OSHD ? 26,128(No.76-2636,1982); cf. Daniel Int’l Corp., Brown & Williamson Project 81OSAHRC 57\/A2, 9 BNA OSHC 1980,1983, 1981 CCH OSHD ? 25,492, pp.31,789-90 (No. 15960, 1981), rev’d, 638 F.2d 361 (11th Cir. 1982). Thefact that one of those employees did not properly understand theworkrule also does not rebut the overwhelming evidence that the workrulewas adequately communicated. Though Commissioner Cottine concluded inJones & Laughlin that neither the case law nor the facts supported thevacation of the citation, the Commission majority found that theemployer could not have discovered the violations of its safety rulesregarding crane boarding, even though 1O% of the hundreds of employees,who board its many cranes each day violated the rules.[[13\/]] Commissioner Cleary dissents from the majority’s dispositionbecause he concludes that N.E.T.&T. could have known of the violationhad it been reasonably diligent and because N.E.T.&T. failed toestablish its unpreventable employee misconduct defense. Despite theexistence of N. E.T. &T.’s workrule and despite the Secretary’sadmission that N.E.T.&T. adequately trained employees to use pole guardswhen replacing poles, the record evidence shows that Scott neverthelessbelieved that it was proper not to use pole guards where the electriccompany had rubbered up its lines. Cf. Jones & Laughlin Steel Corp.,n.12 supra (employees knowingly violated company safety rules on craneboarding solely for convenience). This asserted belief, together withScott’s evident, persistent failure to use pole guards under suchcircumstances, belies N.E.T.&T.’s claim–and the Secretary’sadmission–that employees were adequately trained. See New EnglandTelephone and Telegraph Co., 80 OSAHRC 54\/A2, 8 BNA OSHC 1478, 1980 CCHOSHD ? 24,523 (No. 76-3010, 1980). In addition, the fact that Scott, ata minimum, violated the pole-guard rule 15-20 times (with Hanson), andwas never disciplined for these violations shows that N.E.T.&T.’senforcement policy under the pole guard standard was ineffective. Simpleobservation by supervisors would have detected violations of the poleguard workrule.Cf. Jones & Laughlin Steel Corp., supra, (employer’smonitoring of employee crane boarding was not shown to be inadequateunder circumstances where observation of employees’ violations wasdifficult).Commissioner Cleary would also draw on the evidence that neither Scottnor Hanson wore gloves, as required, during lashing operations. The twoemployees also performed the whole task of the pole-setting without theprotection required from the live power lines. Even under N.E.T.&T’sreading of the standard, the insulation of the wires by the electriccompany cannot be considered equivalent protection because, as JudgeFurcolo noted, conductors were not insulated with pigs. The fact that anemployee was injured is persuasive evidence of the point. Moreover,there was no attempt to ascertain whether the pigs had been placed onthe lines by the electric company.In sum, while there is testimony that N.E.T.&T. had a comprehensivesafety program, the picture that emerges from this case is that Scottand Hanson had insufficient protection throughout this whole operation.The \”protection\” afforded by insulation installed by the electriccompany was illusory, and the employees were left to their own judgmentas to whether, and under what circumstances they should use otherprotective measures. The evidence as to what actually occurred shows anoperation that was hazardous in the extreme, in the light of which thetestimony indicating a safety program is unpersuasive. Any one of threesafety precautions (use of gloves, pigs, or pole guards) would haveprevented Hanson’s injury. It is very doubtful that all three of thesesafety failures could have coincided had there been an effective safetyprogram.[[14\/]] As noted above, N.E.T.&T.’s investigative report qualifies as anadmission by a party-opponent and is not hearsay. See n.4, supra. Thereport states that \”the old and new pole[s] were probably broughttogether. . . [and tile] exposed bracket on the old pole… was broughtinto contact with the new pole. . . . \” N.E.T.&T. argues that the reportcontains merely speculative, conclusionary statements by persons lackingfirst-hand knowledge and is therefore insufficient, even if it isadmissible. While Commissioners Cleary and Cottine agree that the reportwas prepared by persons lacking first-hand knowledge, they do not agreethat the report is insufficient or unreliable. N.E.T.&T. overlooks thatthe report represents the conclusions of a group of highly responsibleN.E.T.&T. officials who are presumably experienced and knowledgeable inthese matters. N.E.T.&T. does not suggest that its committee’sinferences are implausible and it does not suggest any other plausiblemanner by which Mr. Hanson suffered injury. Direct evidence establishedthat, at a time when it was possible for the uninsulated, wet new poleto contact a power conductor on the old pole, Hanson was alone in theaerial bucket performing a task which tends to bring the two polescloser together immediately before being electrocuted. It is areasonable inference–and N.E.T.&T.’s committee concluded–that Hansoncreated an electrical circuit through his body while working on lashingwires between the new and old poles.[[15\/]] See supra n.13.[[16\/]]This provision is very similar to ? 1926.950(c)(1), upon whichN.E.T.&T. relies.[[17\/]]N.E.T.&T. also implies that the cited standard may beconstitutionally defective on grounds of vagueness if the standard isnot read to permit the type of employee judgment expressed by Scottregarding when the possibility of contact exists between the pole andthe conductor. Commissioners Cleary and Cottine reject this suggestion.The company’s safety instruction tracks the cited standard by requiringthe wearing of insulating gloves whenever there is a possibility that apole may contact a power conductor while the pole is being handled. Thecited standard is not unenforceably vague as applied to N.E.T.&T.[[18\/]] Commissioners Cleary and Cottine reject N.E.T.&T.’s argumentthat the Secretary must establish through expert testimony thefeasibility of specific measures to prevent alleged employee misconduct.It is well-settled that unpreventable employee misconduct is anaffirmative defense, Marson Corp., supra, whereby the employer endeavorsto show that it did everything it could reasonably have done to preventthe violation. Accordingly, the Secretary was not obliged to prove thefeasibility of specific measures to correct the misconduct of N.E.T.&T.employees.[[19\/]] Chairman Rowland dissents from his colleagues’ disposition ofthis item. He would hold that the Secretary failed to establish thatN.E.T.&T., through the exercise of reasonable diligence, could haveknown of the violation. Such proof is an essential element of theSecretary’s case, Marson Corp., 10 BNA OSHC at 1663, 1982 CCH OSHD at p.32,805. N.E.T.&T. to expect Hanson not to use insulating gloves wherethere was a possibility of contact. Both Scott and Hanson were veryexperienced employees. Supervisor Cronin and for. an Lemmo had neverknown of an instance when Scott and Hanson failed to use insulatinggloves while setting poles when there was a possibility of contact withthe electrical wires. Scott testified that he would have been insultedif Lemmo had reminded him that morning to wear his gloves. Without beingreminded, Scott and Hanson wore their insulating gloves while settingthe pole. In Chairman Rowland’s view, these facts established thatN.E.T.&T.’s workrule regarding gloves was adequately communicated toemployees. The only possible additional measure which N.E.T.&T.’sforeman could have taken would have been to remain at that worksite forthe duration of the entire assignment, rather than leaving for two hoursto inspect other worksites. Under the circumstances, it cannot be saidthat this additional step was called for or that N.E.T.&T., throughLemmo, otherwise failed to exercise reasonable diligence.Chairman Rowland also would not rely on the requirements of ?1910.268(b)(7). Paragraph (b) contains requirements fortelecommunications work generally, whereas the provision at issue here,? 1910.268(n)(1)(iv), is a more specific provision directed at theparticular work operation of moving poles.[[20\/]] Section 17(k), 29 U.S.C. ? 666(j), states:For purposes of this section, a serious violation shall be deemed toexist in a place of employment if there is a substantial probabilitythat death or serious physical harm could result from a condition whichexists, or from one or more practices, means, methods, operations, orprocesses which have been adopted or are in use, in such place ofemployment unless the employer did not, and could not with the exerciseof reasonable diligence, know of the presence of the violation.[[21\/]] Section 17(j), 29 U.S.C. ? 666(1), provides:The Commission shall have authority to assess all civil penaltiesprovided in this section, giving due consideration to theappropriateness of the penalty with respect to the size of the businessof the employer being charged, the gravity of the violation, the goodfaith of the employer, and the history of previous violations.”