OSHRC Docket No. 85-1118


Before: BUCKLEY, Chairman, and AREY, Commissioner.


The issue in this case is whether Connecticut Light & Power Company (CL & P) violated the "general duty clause," section 5(a)(1) [[1/]] of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678, by failing to adequately rain and supervise employees who work in proximity to energized electrical equipment. We conclude that CL & P adequately trained and supervised its employees. Accordingly, we reverse the decision of the administrative law judge and vacate the citation.

This case arises out of a fatal accident that occurred when one of CL & P's lead electricians was electrocuted after contacting an energized lightning arrestor.[[2/]] On May 21, 1985, CL & P sent a crew, consisting of lead electrician Robert Taylor and substation maintenance electrician Peter Theroux, to replace a stand-off insulator[[3/]] and three cut-outs[[4/]] at the Rood Avenue substation[[5/]] in Windsor, Connecticut. Before beginning their task, the crew had to carry out their switching instructions, which made it possible for them to deenergize the areas to be worked upon and to reroute the power to avoid an interruption of service to a nearby shopping mall. Switching instructions are a set of orders that show every step necessary to de-energize and electrically isolate the equipment that will be worked on. Switching instructions are also designed to reroute power to avoid interruptions in service. These instructions are written by system dispatchers, technicians, or engineers and are individually written for each work assignment. Although the instructions are written by employees who may never even have seen the worksite, onsite personnel are involved in implementing the instructions. Thus, every step of the procedure is called into the dispatcher when completed by the onsite maintenance workers. Clearance is then obtained from the dispatcher to go on to the next step.

While the crew was carrying out their switching instructions, they were visited by at least one of the two foremen in charge of the site, Louis Pilver.[[6/]] The foreman engaged in general "shop talk" with the crew, and did not discuss safety matters.

After completing the switching instructions, Theroux attached grounds above and below the cut-outs to be replaced. The crew then placed their ladder on the steel support framework to the right of the stand-off insulators and cut-outs, which were located 15-20 feet above the ground. After replacing the first cut-out, the crew moved the ladder between the middle and extreme left sets of insulators and cut-outs. Taylor climbed the ladder to tie it off. Apparently, he soon came into contact with an energized lightning arrestor and was fatally injured.[[7/]]

Theroux testified that, when he and Taylor arrived at the substation, they looked over the area to assess the job and determine what safety hazards might be encountered. Even though Theroux himself later testified that the lightning arrestors were obvious ("it sticks out like a sore thumb"), the crew never noticed them at the time. Theroux could not explain why the lightning arrestors were overlooked. He testified, however, that before work begins, the electricians construct an imaginary "bubble" around the work area and determine whether anything within that bubble is energized. He speculated that the lightning arrestors were not noticed because they were outside the "bubble."

The lightning arrestors were energized with 23,000 volts. CL & P's "Accident Prevention Manual" requires that employees not place any part of their body, or reach with any conducting object, nearer than 30 inches from equipment energized at that voltage. Here, the lightning arrestors were 30-32 inches from the equipment to be worked on. Therefore, they would have been at or just beyond the periphery of the "bubble" visualized by the crew.

As a result of an OSHA inspection and investigation conducted after the accident, a citation was issued alleging that CL & P had violated section 5(a)(1) of the Act because employees were exposed to the hazard of electrocution by coming into contact with the energized portion of lightning arrestors. The citation emphasized that the employees were working without protection from overhead energized parts, and specified four alternative steps CL & P could have taken to protect the employees:

(1) Deenergize and ground the energized parts at points of work;

(2) Guard or insulate the energized parts from the employees;

(3) Guard or insulate the employees from the energized parts by the wearing of appropriate personal protective equipment or the equivalent; or

(4) Maintain the minimum safe working and clear hot stick distance, as shown in Table V of 29 C.F.R. 1926.950.[[8/]]

A penalty of $1,000 was proposed.

At the hearing, CL & P established that, under its safety program, employees were required to take the protective measures listed in the citation. Accordingly, the hearing focused upon the adequacy of the safety program as a means of eliminating the cited hazard and the adequacy of supervision.

CL & P's "Accident Prevention Manual" requires employees to take the safety measures set forth in the citation. As part of the employees' training, they are expected to undertake a periodic, word-by-word review of the manual. Both Theroux and Taylor had taken part in the most recent review; this occurred in late 1983, approximately one year before the accident. Another review was scheduled for 1986. CL & P also conducts regular monthly safety meetings where attendance is mandatory. The meetings generally last between five minutes and two hours, depending on the topic being discussed. At these meetings, supervisors review accidents that occurred throughout the country, examine "close calls" within the company, and discuss a wide variety of topics, such as protective equipment, switching and tagging, and use of rubber goods. Also, employees are given an opportunity to discuss any safety problems that they might have encountered. Each area within the company has a safety committee composed of employee representatives from each department. These committees evaluate safety by going into the field and visiting work areas.

It is the duty of the supervisors to make sure that jobs are performed safely. To carry out this responsibility, foremen visit the sites, hold safety meetings, and institute safety incentive programs. During a site visit, the supervisor has the responsibility of pointing out hazards that may be encountered.

Although supervisors are ultimately responsible for seeing that work is performed safely, the company also places substantial responsibility on the work crews for assuring their own safety. For example, a crew leader is expected to assess the work site for potential difficulties before beginning a job. It is also up to the crew to determine if safe clearances can be maintained from energized equipment or if the equipment should be de-energized.

To enforce its safety rules, CL & P has a policy of progressive penalties varying with the type of violation. Ordinarily, the first step is a verbal warning, followed with a letter placed permanently in the employee's file. Continuing offenders could be suspended and, ultimately, fired. Fillmore Bain was the Area Superintendent of the Hartford Area Work Center for CL & P at the time of the accident and, at the time of the hearing, was the company's Director of Occupational Safety and Health. He testified that, in his three years with the company, he has made sure that employees received letters of reprimand when this sanction was called for, but he was unaware of any instance where an employee had been either suspended or fired. He also testified that, before the incident, CL & P's Hartford Area Work Center, of which the Windsor facilities are a part, had gone two years without a lost-time accident.

It was undisputed that CL & P's safety program, as reflected by its safety manual and training program, required its employees to follow the precautions set forth in the citation and that, on paper, the company had an excellent safety program. The Secretary contends, however, that the safety program was deficient in two primary areas: training and supervision. That the employees failed to detect and comprehend the hazard posed by the lightning arrestors is strong evidence, in the Secretary's view, that the safety training provided by the company was deficient. Further, the Secretary contends that the failure of the foremen to point out the hazard posed by the arrestors when they visited the site indicates a lack of proper supervision.

In affirming the citation, the judge held that the company had failed to establish, as an affirmative defense, that the accident was the result of unpreventable employee misconduct. Although the Judge found no fault with the safety training given employees, he agreed that the Secretary had established that the hazard would have been both foreseeable and preventable if the company had exercised adequate supervision. In so finding, he agreed with the compliance officer that, while on paper CL & P had an excellent safety program, in practice the program was lacking, primarily because it overemphasized employee compliance with safety requirements at the expense of supervisory responsibility.

We see this case differently. To establish a section 5(a)(1) violation the Secretary must prove (1) that a condition or activity in the employer's workplace presented a hazard to employees, (2) that the cited employer or the employer's industry recognized the hazard, (3) that the hazard was causing or likely to cause death or serious physical harm, and (4) that feasible means existed to eliminate or materially reduce the hazard. Kastalon, Inc., 12 BNA OSHC 1928, 1931, 1986-87 CCH OSHD 27,643 at p. 35,973 (No. 79-3561, 1986); Pelron Corp., 12 BNA OSHC 1833, 1835, 1986-87 CCH OSHD 27,605 at p. 35,871 (No. 82-388, 1986). In this case, there is no dispute that CL & P recognized the hazard posed by the energized lightning arrestors and that the hazard was likely to cause death or serious physical harm. The disputed question is whether the Secretary established that the company's abatement methods were inadequate or that there was a more effective means by which CL & P could have freed the workplace of the hazard.

When elimination of a recognized hazard requires employees to follow safe procedures, an employer is not in violation of section 5(a)(1) if it has established workrules designed to prevent the hazards from occurring, has adequately communicated the workrules to the employees, has taken steps to discover noncompliance with the rules, and has effectively enforced the rules in the event of noncompliance. Inland Steel Co., 12 BNA OSHC 1968, 1976, 1986- 87 CCH OSHD 27,647 at p. 36,003 (No. 79-3286, 1986).

If the Secretary alleges that the employer's work rules or safety program are not adequate to eliminate a recognized hazard, then the burden is on the Secretary to indicate the additional steps the employer should have taken to avoid citation, and to demonstrate the feasibility and likely utility of these measures. National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1267-68 & n.40 (D.C. Cir. 1973); Cerro Metal Products Div., Marmon Group, Inc., 12 BNA OSHC 1821, 1822, 1986-87 CCH OSHD 27,579, at p. 35,829 (No. 78-5159, 1986). In addition, the Secretary must show that knowledgeable persons familiar with the industry would regard these additional measures as necessary and appropriate in the particular circumstances existing at the employer's worksite. Cerro Metal Products. 12 BNA OSHC at 1822-23, 1986 CCH OSHD at p. 35,829.

Thus, the judge's holding that the burden was on the employer to show the adequacy of its safety program and that CL & P had failed to sustain this burden was incorrect. Cerro Metal Products, 12 BNA OSHC at 1823, 1986 CCH OSHD at p. 35,829. See Western Massachusetts Electric Co., 81 OSAHRC 63/B13, 9 BNA OSHC 1940, 1944-45, 1981 CCH OSHD 25,470 at pp. 31,765-66 (No. 76-1174, 1981) (elements of unpreventable employee misconduct defense, which applies to cases under section 5(a)(2) alleging violations of OSHA standards, are part of Secretary's burden of proof in section 5(a)(1) cases). We conclude instead that the Secretary failed to meet her burden of proving the inadequacy of the safety program because she failed to establish either that the accident was the result of inadequate training or that more exact supervision by the foremen would have been both feasible and useful.

The evidence establishes that the employees were trained adequately to recognize the hazard posed by the energized lightning arrestors. Both employees were accomplished electricians with years of experience on the job. Lead electrician Robert Taylor had been with the company for ten years and had a spotless safety record. Peter Theroux had been with CL & P for 14 years, including 4-1/2 years in substation maintenance, and on occasion, he had performed as a lead electrician. Not only was the job routine but, as Theroux testified, it took place at a substation at which he had worked many times before. Theroux further testified that he was fully aware of the hazard posed by energized lightning arrestors and of the need to maintain proper clearance. He claimed that, if he or Taylor had been aware of the arrestors, they would have had them de-energized before proceeding with the job. Theroux also stated that they were not put under any time pressure to complete their job, and that de-energizing the lightning arrestors would have taken only fifteen minutes. Yet, the record conclusively establishes (through witness testimony and photographic exhibits) that the lightning arrestors were plainly visible and obviously energized. Accordingly, neither Theroux nor any of the other witnesses could explain how the crew had failed to notice the lightning arrestors.

The evidence establishes that the crew's failure to observe the arrestors was the result of unpredictable, and thus unforeseeable, employee error: it was not caused by the crew's failure to understand the hazards involved or the precautions that were necessary and was therefore not due to a lack of training. The crew was fully knowledgeable about the hazard presented by the lightning arrestors. There is no evidence that additional training would have made them more cognizant of the hazards posed by the arrestors or more likely to take precautions against the hazard.

The Secretary next argues that, when the foremen visited the site, they should have noted that, because of the proximity of the cut-outs to the lightning arrestors, the work could not be done without violating the clearance requirements. The Secretary faults the foremen for not recognizing that the arrestors would not be de-energized during the switching procedure and for failing to instruct the crew to have the arrestors de-energized. The Secretary contends that the absence of a warning of the hazard presented was due to inadequate supervision and the company's policy of relying too heavily upon the safety consciousness of its employees.

We disagree, and find that the company was justified in relying on this skilled and practiced crew to discover the hazard and take proper precautions. As already noted, both employees were highly experienced and well trained, and both had excellent safety records. Additionally, Theroux had worked at that substation on numerous occasions and could reasonably have been expected to have been familiar with its configuration. Moreover, when foreman Pilver visited the site, the crew was still performing switching procedures. Therefore, he had neither actual nor constructive notice that the crew was unaware of the arrestors.

This was not a situation involving an unusual, hidden, or easily overlooked hazard. Rather, the hazard was open and notorious. The work was considered routine. To hold that, under the circumstances of this case, the foremen should have warned the crew about the arrestors would be tantamount to placing upon supervisors the duty to warn employees about every conceivable hazard that may be encountered at every stage of a job, regardless of how basic and obvious the hazard might be and regardless of how well-trained and experienced the employees might be. As stated by the United States Court of Appeals for the District of Columbia, in vacating a similar section 5(a)(1) citation:

Hazardous conduct is not preventable if it is so idiosyncratic and implausible in motive or means that conscientious experts, familiar with the industry, would not take it into account in prescribing a safety program. Nor is misconduct preventable if its elimination would require methods of hiring, training, monitoring, or sanctioning workers which are either so untested or so expensive that safety experts would substantially concur in thinking the methods infeasible.

National Realty & Construction Co. v. OSHRC, 489 F.2d at 1266.

An employer is justified in placing a great deal of reliance on the judgment of highly experienced and trained employees with good safety records. Cerro Metal Products, 12 BNA OSHC at 1825, 1986-87 CCH OSHD at p. 35,832. There is no evidence that, given the experience and record of these employees and the obvious nature of the hazard, any knowledgeable person familiar with the circumstances would have anticipated that the crew would overlook the lightning arrestors. Moreover, the Secretary has failed to present any evidence that such a level of supervision would be either feasible or reasonable, or that the level of supervision provided by the company fell short of what conscientious persons familiar with the industry would employ.

Accordingly, it is ORDERED that the judge's decision is reversed and the citation is vacated.


Ray H. Darling, Jr.
Executive Secretary

DATED: April 26, 1989






OSHRC Docket No. 85-1118

Decision & Order

Appearances: For the complainant:
Albert H. Ross, Regional Solicitor
U. S. Department of Labor, Boston, MA
BY: David A. Snyder, Esq.

For the respondent:
Dean M. Cordiano, Esq.

Day, Berry & Howard
Hartford, CT

The Issue:

A lead electrician with 10 years' experience suffered fatal injuries at a substation when he, in violation of his employer's safe clearance (distance) rule, came too close and actually contacted an energized lightning arrester. As a result, his employer was charged with a violation of the general duty clause [29 U.S.C. 654(a)(1)[[1/]] because the workplace it provided was not "free" of recognized hazards as that term has been defined.[[2/]] The essential defense is based upon unpreventable employee misconduct.

Since, ultimately, "...effective safety enforcement requires a diligent effort to discover and discourage violations of safety rules by employees,"[[3/]] the factual issues presented, proofs directed to, and argued are:

1) Were respondent's employees sufficiently educated and trained in the company's safety manual; and

2) Were respondent's two supervisors, who visited the substation separately before the electricians there set up the ladder to approach the area where the job was to be done, remiss in their functions (so that, statutorily, the workplace was not "free" of the hazard) by failing to point out the proximity of the lightning arresters to that area and reminding the electricians of the safeguards to be observed.[[4/]]

If the electrician's training was flawed so that he did not comply with the respondent's safety manual; or if the two supervisors should have warned the electrician of the danger, then, in either case, complainant has carried his burden of proving the alleged violation was foreseeable and could have been prevented.[[5/]]

To rebut this, respondent must show that it (1) has established work rules designed to prevent the alleged violation; (2) has adequately communicated these rules to its employees; (3) has taken steps to discover violations; and (4) has effectively enforced the rules in instances of their violation. Secretary v. Marson Corp., 82 OSAHRC 29/C4, 10 BNA OSHC 1660, CCH 23,629 (1982).

Based on my findings and conclusions below, respondent has failed to rebut complainant's proof of inadequate supervision and the citation is affirmed.

Statement of Proceedings:

Two electricians employed by respondent, Connecticut Light & Power Company, a manufacturer and distributor of electricity in Connecticut, were assigned to its Rood Avenue substation in Windsor, Connecticut, to perform routine maintenance work. An accident occurred and over the period of June 10 to July 17, 1985, complainant, the Occupational Safety and Health Administration of the U. S. Department of Labor, conducted an inspection and investigation. As a result, on September 11, 1985, a citation was issued [[6/]] alleging a violation of the general duty clause (note 1, above) in that employees were exposed to the hazard of electrocution by coming in contact with energized portions of lightning arresters of approximately 23,000 volts without protections while replacing stand-off insulators and fused cut-outs. The citation specifies the following methods of abatement available, "among others:"

1. De-energize and ground the energized parts at the points of work;

2. Guard or insulate them from employees;

3. Ground or insulate the employees from the energized parts with personal protective equipment; or

4. Maintain the minimum safe working distance shown at table V-1 of 29 C.F.R. 1926.950.

A civil penalty of $1,000 is proposed and immediate abatement was required. [[7/]]

Respondent's notice of contest is dated September 27, 1985, and brings all aspects of citation into contest. It also broaches the ultimate defense claiming that the incident "was an isolated case of an employee's failure to abide by well established and consistently enforced safety rules."

The matter was heard on March 20 and 21, 1986, with both parties represented by counsel. No employee or his organization claimed party status after due notice (Tr. 5/20, 4). Respondent admitted the jurisdictional facts alleged in the complaint that it is an employer having employees and that it affects interstate commerce (Tr. 5/20, 4-5). Hence the Commission's power to decide this case is established. 29 U.S.C. 652(3), (5) and 653(a). Post-hearing proposals and reply briefs were filed by September 5, 1986.

The Evidence:

On May 21, 1985, lead electrician Robert Taylor and substation maintenance electrician Peter Theroux were assigned with one other electrician to replace three stand-off insulators (which separates a live conductor from the steelwork on a structure) and three cut-outs (or disconnects, a switch and fuse, in this case located on a structure 15 feet up, which opens or closes a circuit) at the Rood Avenue, Windsor, Connecticut, substation. A substation is a large facility containing transformers and breakers on steelwork enclosed by a link fence and kept locked where the equipment will receive power and lower it to a voltage usable by customers. The foreman, Louis Pilver, made the assignment and the other foreman, Edwin Raines (now deceased), was also on duty. (Tr., 5/20, 13-14, 18-19, 21, 22, 23, 32)

Twenty-three thousand volts of electricity entered this substation on three incoming lines (Tr., 5/20, 29, 30). Photo exhibit C-5 shows this substation (Tr., 5/20, 20). The cut-outs, stand-off insulators and lightning arresters are clustered together and depicted close-up and marked on photo exhibit C-6 (Tr., 5/20, 26- 27, 66).

The lightning arresters will take a surge of power from lightning and bring it to ground without blowing the fuse and protects the equipment from these surges. They are about two feet tall, six to eight inches in diameter and are made of porcelain with steel caps. (Tr., 5/20, 27-28)

As shown on photo exhibit C-8, three clearly visible taps (lines) run from the incoming conductors to the lightning arresters (Tr., 5/20, 31). That these are connected from the conductor to the arresters indicate, without doubt, that the arresters are energized (Tr., 5/20, 102, 112).

The distance from the stand-off insulators and cut-outs (equipment which was to be worked on) to the lightning arresters (which were not to be worked on) was approximately 30 inches according to respondent's Director of Occupational Safety and Health Bain. (Tr., 5/20, 236). Complainant's Compliance Officer Yi, from the blueprints, was told that the distance was 32 inches (Tr., 5/21, 154-155). No actual measurements of the distances were taken since to do so, the substation would have to be totally de-energized and this was not deemed necessary (Tr., 5/21, 150-151).

According to the respondent's safety manual (exhibit R-1), a distance of 30 inches or as stated there, a clearance of 2.5 feet, must be maintained from energized parts of 23,000 nominal phase to phase voltage (R-1, page 39, section 27, and Tr., 5/20, 120). No part of the employee or his equipment, including the ladder, may come within that space (Tr., 5/20, 122-123). A sign, stating the required distances for the different voltages, is posted on the substation's gate (Tr., 5/20, 111 and photo exhibit R-9).

Both electrician Theroux and his crew supervisor Pilver testified that the work assignment could not have been accomplished without violating the clearance rule while the lightning arresters remained energized or not otherwise protected against (Tr., 5/20, 105-106, 223-225).

Nonetheless, lead electrician Taylor, with the help of Mr. Theroux, placed the ladder adjacent to the middle insulator and ascended it to tie it off (photo exhibit C-7). No one actually witnessed what next happened (Tr., 5/20, 88), but he contacted an energized part, was severely injured and did not recover (exhibit C-12). Both parties agree that Mr. Taylor came into contact with the lightning arrester (Complainant's Brief, page 6, and respondent's proposed finding no. 25). He was not, when he went up the ladder, wearing protective gloves (Tr., 5/20, 75).

The men had de-energized only the equipment to be repaired following the switching instructions, a process requiring about three hours (exhibit C-14), had so notified the dispatcher, and were cleared to actually perform the work (Tr. 5/20, 49). After attaching grounds above and below the first cut-out (on the right of photo exhibit C-6), Mr. Theroux removed the stand-off insulator, tested the switch (handle) of the cut-out there and removed it and installed a new insulator. He then came down off the ladder. (Tr., 5/20, 65, 76, 77-78, 78-79)

Before ascending, Mr. Theroux studied the area and mentally constructed a "bubble" around the pieces to be worked on. This enveloped his safe area and included the insulator and cut-out. What he had to do would not take him into the clearance area between those pieces and the arrester, i.e., the latter was outside of the bubble. Later he realized he could not have avoided invading the safe clearance distance. (Tr., 5/20, 107-108)

The lightning arrester, close by, never came into his line of vision (Tr., 5/20, 105). But it was obvious; however, he did not notice it (Tr., 5/20, 102-103). He testified that his statement taken and written by the compliance officer, Mr. Yi, was inaccurate insofar as it indicated that both he and Mr. Taylor saw the arresters and thought them to be de-energized (Tr., 5/20, 100-102 and exhibit C-15). He and Mr. Taylor, while planning the work to be done and before doing it, did not mention the arresters, barriers or personal protective equipment (Tr., 5/20, 109-110). Now, with hindsight, the arrester sticks out like a "sore thumb" (Tr., 5/20, 109).

After he came off the ladder, Mr. Theroux and Mr. Taylor moved it to a position between the other two insulators (photo exhibit C-6). Mr. Taylor went up to tie it off while Mr. Theroux prepared the grounds to be attached when the accident occurred. (Tr., 5/20, 68)

The purpose of the switching instructions (Tr., 5/20, 37, exhibit C-14) is to so adjust those switches necessary to de-energize the equipment on which work is to be done (Tr., 5/20, 44). The instructions set forth the steps to be taken by individual number in the order they are to be taken and the sheet is initialed by the electrician doing them and the time done. The accomplishment of each step is called into the dispatcher and then the next step will be assigned. The sequence of the instructions must be strictly followed by each crew involved. They are always written even in the case of emergency and are prepared by the dispatchers or engineers. (Tr., 5/20, 45, 46-47)

Mr. Taylor, being the lead electrician received the switching instructions on the morning of May 21 at the central headquarters (Sheldon Street, Hartford) where all employees first report every day (Tr., 5/20, 15, 45). The instructions, prepared by the dispatcher, had been checked by Mr. Pilver, this crew's supervisor (Tr., 5/20, 125). They are not complicated (Tr., 5/20, 113) and Mr. Taylor, too, checked them thoroughly and made out all of the tags to be attached to the equipment to be sure that no one would improperly energize any circuit (Tr., 5/20, 73-74).

Mr. Taylor read the instructions and Mr. Theroux opened and closed the subject switches (Tr., 5/20, 85-87). After the area was de-energized, the various pieces were tested and partially grounded in case they should become energized (Tr., 5/20, 76-77).

According to respondent's Director Bain, these instructions would not include de-energization of the lightning arresters as part of the job's preparation. Rather, they prepare for the work electrically only. The schematic integrity of the switching has no application to the physical characteristics of the work's environment be it on a pole, in a manhole or out at a substation. (Tr., 5/21, 10-12) As "an industry approach" (Tr., 5/21, 22, lines 24-25) switching instructions refer only to the equipment being worked and takes only that out of service to avoid interrupting other services (Tr., 5/21, 22-23). Other witnesses, all in respondent's employ, testified to the same effect (Kost, Director of OS&H, Tr., 5/21, 110, 138; Pilver, crew supervisor, Tr., 5/20, 140, 146, 169-170, 202)

In fact, however, Director Bain explained, the switching instructions would put the men on notice that the lightning arresters would remain energized unless they took some protective step. By opening a certain switch at the substation (step 14 on C-14, the switching instructions), the 2N17 feeder line (23,000 volts) would bypass the substation to continue its service to a large shopping center. That line then remained under load and was visibly tapped into the lightning arresters. (Tr., 5/21, 25-28)

But, according to Mr. Theroux, he and Mr. Taylor should have spotted the danger of the proximity of the arresters to their work area. He would not expect a foreman to tell them about it unless they saw it, nor would he expect to have them covered by the switching instructions. It is the responsibility of the electricians to examine their areas to be sure they may be worked within safely. (Tr., 5/20, 96-97, 114, 125, 128, 130) And these men did that at this site (Tr., 5/20, 63, 73).

Both crew supervisors, Pilver and Raines, visited the work site separately on May 21, 1985. The former while Mr. Taylor and Mr. Theroux were performing the switching when the ladder had not been put up. (Tr., 5/20 375, 205). Mr. Theroux did not remember when Mr. Raines arrived or what operation was being done. Neither supervisor gave any instruction concerning safety or personal protective equipment or the arresters. (Tr., 5/20, 49, 50, 53)

Mr. Pilver visits all work sites and checks safety. At this site, he discussed only the necessity to replace all three cut-outs and nothing about safety or the arresters which were obvious from the ground. Otherwise he did not check the substation.

Mr. Pilver would have done the job as the men did, that is, with the ladder where they placed it even though there were other options but with the arresters de-energized. (Tr., 5/20, 136, 176-178, 195, 204, 206-207; also Director Bain, Tr., 5/21, 6-7)

The company rule, well-known, is that the arresters were to be treated as energized unless otherwise determined (exhibit R-1, page 30, item 21m). Any line is subject to this, and Mr. Theroux never violated this mandate. (Tr., 5/20, 91, 100) He did not assume these arresters were de-energized; he simply did not notice them (Tr., 5/20, 101-102). In his experience, it is "very" unusual to work within the safe clearance distance without some protection (Tr., 5/20, 118, line 20). It would have required only about 10 minutes to call in the overhead (line) crew to detach the taps and thereby render the arresters dead. No work would have been done until that crew finished. (Tr., 5/20, 72-73, 104-105)

But, to the contrary according to Director Bain, it is not unusual for man to find themselves too close to an energized line. Then, all work Stops until the problem is resolved. (Tr., 5/21, 32-33) A videotape (exhibit R-10) was shown in which Mr. Bain described four lines of defense to avoid the incident of May 21, 1985, none of which were taken then: 1) Before any switching was done, the arresters should be de-energized; 2) After the switching, but before grounding the pieces, de-energize the arresters; 3) Test and verify that both sides of the work area were de-energized; or 4) Identify any lines within the proximity of the work area and barricade them. In assessing their circumstances, the closeness of the arresters is noted and all work would halt until they are without energy. (Tr., 5/21, 35-37, 38)

The training required to achieve the status of electrician covers a four- year period. Essentially, it is on-the-job training. A two-man crew will be headed by a lead electrician and more than that will have a crew chief. The level above that is the foreman then the substation supervisor. (Theroux, Tr., 5/20, 41-42, 95) Of Mr. Theroux's 14 years experience, he, too, had served as lead electrician for about three years (Pilver, Tr., 5/20, 14, 198).

The training program itself, "Planned Progression Program Electrician" (exhibit R-8) indicates that five years are required as training before the level of electrician is reached. For 18 months, the employee helps in all phases of the work and learns to identify tools, equipment and their uses (levels C-1 to C-3); then for 18 months, he assists in specific and detailed work and testing (levels B-1 to B-4); and from his 36th month to 60th, he will perform switching and testing and will do installation, maintenance and repair work (levels A-1 to A-3). In addition, formal electrical and related courses are taken throughout. (See third page of exhibit R-8)

The Employee is rated as he goes along and Mr. Taylor completed this training (Tr., 5/21, 67, 68-69). In fact, Director Bain commented, he performed during his training and as a journeyman "in an exemplary manner" (Tr., 5/21, 69, lines 9-10) being very conscientious, precise and alert. His safety record was spotless. (Tr., 5/21, 69)

All personnel were required to review the respondent's accident prevention manual (exhibit R-1) and sign-off that it had been done. There are no options to avoid this and Mr. Taylor's last completion occurred in 1983. This is a formal and checked procedure. (Tr. 5/21, 57 and exhibit R-3) Particularly, his review of the courses on clearances (exhibit R-2) occurred in March 1982 (Tr., 5/21, 98). Mr. Pilver testified that he took groups of employees, four or five, and reviewed each chapter of the manual word by word about two years before the accident. Both Taylor and Theroux did this. He believes this must be done periodically by company rule (Tr., 5/20, 198- 199). Respondent also conducts incentive programs in which an article from the manual by number only is posted on the board to be reviewed by employees. Mr. Pilver would then approach an employee and if he knew the subject matter, he would be awarded a prize (Tr., 5/20, 197).

Monthly safety meetings are conducted both at corporate and local levels. All types of visual aids are used and all complaints are heard. During the six-month period preceding the accident, among other subjects discussed were all accidents or close-calls, switching and hook-ups. (Director Bain, Tr., 5/21, 58-61) These meetings are held during normal work hours [for one and a half to two hours (Tr., 5/21, 97)] and attendance is mandatory (Director Kost, Tr., 5/21, 132-133).

In addition to these meetings, the safety committees with field employees assigned along with management personnel inspect jobs in progress and these committees also meet monthly (Tr., 5/21, 61). Safety tips or bulletins are posted regularly (Tr., 5/21, 62).

Discipline also follows a set pattern of: 1) a verbal warning, 2) permanent letters to an employee's file, 3) suspension, and on the subsequent offense, 4) discharge. This is not rigid but will be governed by the type of violation (Tr., 5/21, 70).

Mr. Theroux was not disciplined as a result of the accident because 1) he had not been in charge or responsible and 2) such action would have been excessive because he had been close to Mr. Taylor and the message of the event--the purpose of disciplining an employee--was very clear. But he, Director Bain, and Crew Supervisor Pilver were in that their ratings were affected (financial) because safety goals were not met. This will remain in their files for three years. (Director Bain, Tr., 5/21, 72-73, Mr. Pilver, Tr., 5/20, 190, 191, 210)

Both electricians had no prior safety violations and Mr. Theroux was capable of leading this job (Mr. Pilver. Tr., 5/20, 211-212, and Mr. Theroux, 92). The latter testified that no special instructions were given for this job or warnings and the rules concerning protective equipment, barriers, clearances and de-energizing the arresters were standard operating procedures well known to both men (Tr. 5/20, 34-35). He had worked with Mr. Taylor before and never saw him violate a clearance rule (Tr. 5/20, 93). Mr. Theroux had worked at the Rood Street substation many, many times (Tr., 5/20, 96). This job was routine and all of the equipment was familiar (Tr., 5/20, 98, 115).

Mr. Pilver testified that it was the lead electrician's responsibility to assure a safe work area beyond that created by the switching instructions (Tr., 5/20, 201); and Director Bain stated that all men were responsible for safety, to carefully check the area before picking up a tool (Video, exhibit C-16, Tr., 5/20, 241, 242). The crew had to make the judgment or disconnecting the arresters if their work brings them into too close proximity by company rule (Tr., 5/21, 22). The person receiving the clearance must insure a safe work area and identify it to all workers according to the manual, section 2.5, page 5 (Tr., 5/21, 29, 30 and Mr. Pilver, Tr. 5/20, 209, exhibit R-1, sec. I, part I, item B). Actually, Director Bain's investigation of the accident revealed 12 violations by Mr. Taylor of the safety manual (Tr., 5/21, 41-55, respondent's proposed findings 48, 51-61). Although Mr. Theroux did not notice the arresters and assumed that the area was de-energized, company rule forbids such assumptions (Tr., 5/21, 56). Yet, Director Bain admitted that what went wrong was unknown; "we missed a very simple thing" (Tr., 5/20, 240, line 17); it was a simple job and something (lightning arresters) that should have been seen (Tr., 5/20, 242 and 5/21, 5). But he does not consider that the supervisors (Messrs. Pilver and Raines) violated the safety manual in not warning the men about the arresters since neither of them saw the ladder in position and where that would place the electricians (Tr., 5/21, 94).

Missing the obvious was the cause, testified Director Bain, of a couple of close situations encountered in the three months prior to May 1985. But until December 1984, the company enjoyed a two-year period free of any lost time accident. (Tr., 5/20, 241-242)

Robert Kost who had held Director Bain's position on May 21, 1985, and is now Regional Superintendent of Electrical Operations meaning that he has overall responsibility for respondent's entire operation in southwest Connecticut (Tr., 5/21, 105-107), summarized respondent's report of the employee injury (exhibit R-4) by stressing two violations committed by Mr. Taylor and Mr. Theroux. Mr. Taylor failed to insure 1) that the work would be done safely and 2) that the switching did in fact provide a safe work area, both aspects being the lead electrician's responsibility [Manual, I, Part I, Page 1, subsection (b)]. And Mr. Theroux, as the worker, was also responsible for ascertaining the boundary or a safe work area. (Tr., 5/21, 130-131)

Mr. Kost would not expect Mr. Pilver to rely on his memory of the clearances between pieces of equipment at the 40 to 50 substations, each being unique, to warn the electricians; but he is certain Mr. Pilver would have done so had he seen the ladder in position. While he is trained to foresee circumstances, each individual worker is also so taught. (Tr., 5/21, 138, 140)

Mr. Pilver, in the Distribution Clearance Request which he prepared (exhibit C-13), did-as a special instruction-require the placement of grounds on both sides of the subject equipment. The intent of this, according to Mr. Kost, was to establish the work zone. (Tr., 5/21, 110-111)

By state statute, the Connecticut Department of Public Utilities is required to report on this type of accident. The engineer making this report (exhibit R-5) found the following violations: improper grounding; a failure to de-energize the arresters; a failure to wear protective gloves but this was not a contributing factor; and a failure, particularly by the lead electrician, to observe the total area. The accident was not due to any faulty or improper construction or operation or the plant or equipment. (Tr., 5/21, 134-136)

Mr. Kost noted that all of the citation's abatement requirements had already been established by respondent's policy and manual (Tr., 5/21, 129).

Kang S. Yi, as a safety engineer, made the inspection for the complainant leading to the issuance of the citation. He holds degrees in electrical engineering from the University of Hartford and from a university in Korea. (Tr., 5/21, 141-145)

As a result of his opening conference with Mr. Kost, he rated respondent's safety program very highly (Tr., 5/21, 146, 147 and exhibit R-7, OSHA worksheet, page 23. But by the completion of his inspection, Mr. Yi changed his evaluation of the program to inadequate (Tr., 5/21, 147-148).

This change is not reflected on the worksheet but the narrative report of the compliance officer does suggest that the initial impression was mistaken. There, Mr. Yi read, "Company has a good safety program for its employees. However, they rely on the individual for job safety analysis." (Tr., 5/21, 166-167, 168, and 170 at lines 19-22) The program then, to Mr. Yi, is good only on paper (Tr., 5/21, 148-149, 171) But on the worksheet and note sheet. (exhibit R-15 and the note-taking sheet, exhibit R-16) both of which Mr. Yi was cross-examined on point-by-point, do not reveal any part of the program weak enough to support the downgrade (Tr., 5/21, 173-178). And this change was not mentioned at the closing conference (Tr., 5/21, 178)

Nonetheless, Mr. Yi testified on several points to justify his conclusion that the safety program was not adequately communicated to employees:

1) Had Mr. Theroux been adequately trained, he would have noticed the obvious lightning arresters (that he didn't, shocked Mr. Yi), and Mr. Taylor would not have violated all the rules specified by Director Bain;

2) Mr. Pilver did not ensure that the area was safe to work within, i.e., the training was inadequate because the arresters were seen and nothing was done. Even though the ladder was not in position, supervisors knew what had to be done and should have examined the substation with that in mind. Mr. Pilver should have required disconnecting the taps while the electricians were still in the switching process (Tr., 5/21, 201-202, 205, 208, 209, 211-212, 217) When Mr. Pilver visited the site he did not properly investigate or instruct the men; he simply passed the time or "normal job talk" as Mr. Yi paraphrased Mr. Theroux. (Tr., 5/21, 149-150, 180-182); and

3) The job was not well coordinated. While the assignment would be to replace an insulator and three cut-outs, the men took only the former with them and would have to send for the cut-outs had the job been then completed. Too much was left to what the employee should have understood and not enough direct supervision. (Tr., 5/21, 149)

Joseph Barresi, respondent's superintendent of substation construction, testing and maintenance, attended the closing conference on July 17, 1985. According to Mr. Yi, Mr. Barresi stated that--as a result of an incident in 1982 at a substation in which an employee was killed--the company formed a team to inspect every substation for possible clearance problems. That was the main point of the team's objective and the Rood Street facility was one found to have the problem. It was to be corrected during the planned upgrading of the station (to 115 KV) but, due to the cost, that had not been accomplished by May 1985. (Tr., 5/21, 156, 157-158)

Mr. Barresi (called by the respondent), however, denied specifying Rood Street as having a particular clearance problem. It was merely mentioned as one station on a list of many to be reviewed for clearance problems. What was mentioned about that station was its upgrading and the necessity to replace a transformer there and remove metal clad switch gear. (Tr., 5/21, 222, 226-227)

Contentions of the Parties, Findings of Fact and Conclusions:

Complainant argues that respondent failed to provide a workplace free of recognized hazards based on four factors:

1) The men were required to be within the safe-clearance distance of the arresters by the very nature of the physical layout of the work area;

2) Respondent, above the level of lead electrician, took no steps to assure the de-energization of the arresters;

3) No warning was given to the men of the danger before the danger was encountered and;

4) Two crew supervisors inspecting the worksite before the men were actually exposed to the hazard failed to remind or admonish the men of the obvious peril in their work area. (Complainant's Brief, pages 8-9)

The evidence presented supports these elements; respondent does not dispute them; and I find them to be the fact and even though Director Bain indicated that the switching instructions would put the men on notice of the live arresters, they should have known this by obvious and more immediate signs, i.e, the taps connected to them from the three conductors.

These--coupled with respondent's acknowledgment that (1) the arresters with their power and proximity to the work area were a recognized hazard which (2) could cause death or serious physical harm and which (3) could have been avoided by any of the four methods specified in the citation "among others"--complete complainant's proof of his case. Respondent's attempt to rebut this on the grounds of unpreventable employee misconduct has not been factually supported.

That defense--fully tried out[[8/]]--also rests on four factors:

1) the existence of work rules to prevent a violation;

2) adequate communication of these rules to its employees;

3) a system to discover violations; and

4) effective enforcement of the rules when violations are discovered. Secretary v. Marson Corp., above. And the defense must be measured against the statutory principle that " employer has a duty under the Act to anticipate the hazards to which its employees may be exposed and to take the steps necessary to prevent such exposure." Secretary v. Mosites Construction Co., 81 OSAHRC 40/A2, 9 BNA OSHC 1808 at 1812, CCH 25,357 (1981).

In short, the work rules, item (1) of the defense, must be so drawn, complete and understood to effectively protect against a hazard when the rules are properly communicated and enforced.[[9/]]

I find that the understanding of respondent's work rules by its supervisors and electricians to prevent an occurrence such as that of May 21, 1985, are deficient. Specifically, the Accident Prevention Manual, Section 1 (exhibit R-1):

Supervisor's (above the level of lead electrician) Responsibility for Safety:

Item 1(a)1: for safe working conditions;

Item 1(a)4: for properly planned work performed in a safe manner;

Item 1(a)5: for application of the general and specific safety rules by their workmen; and

Item 1(a)7: for immediate steps to correct any violation of safety rules observed....

These rules, I find, impose a positive duty on supervisors to know the hazards to be faced by employees in the routine performance of their jobs and to warn those employees against them.

Since Mr. Pilver testified that the way in which the work was done-- placement of the ladder--was expected and was the way he would have approached the insulators and cut-outs, the closeness of the arresters should have been noted and the men warned of the hazard. That is, planning is anticipation for providing the "safe working conditions" (item 1(a)1), a supervisor's responsibility.

But, according to the testimony of respondent's Messrs. Bain, Kost, Pilver and Theroux, the company relies on the lead electrician and other employees on a particular assignment to finally decide whether their work area was safe. And this I find to be the fact.

That reliance is based on the Safety Manual, section 1, part 1b:

b. Employees assigned to direct or lead a working crew will be held responsible for seeing that job procedures are carried out in a safe manner. They shall make certain that the men understand the following:

1. Work to be done.

2. Hazards that may be encountered.

3. Proper procedure for doing the work safely.

4. They are responsible for making available suitable protective equipment as furnished by the Company and seeing that it is
properly used.

5. They are responsible for proper planning of work and for ascertaining that all involved understand the plan so that each can carry out his job procedure safely.

And, I find as fact, the electrician's violated items 2 through 5. In falling to account for the closeness of the arresters, they did not encompass the hazards to be encountered in their plan of the work (item 2); their procedure in failing to de-energize them was not proper (item 3); protective gloves were not worn (by Mr. Taylor) up in the work area (item 4); and the work was not properly planned before it was attempted to be done insofar as the grounding was not done above the area (item 5).

However, I find, all of these violations--except that of item 4 (protective gloves)--could have been prevented, i.e., were foreseeable, if the meaning of the rules was carried out concerning the role played by the supervisors.

Framing the specifics of their performance set out above in part 1a of the manual is first the statement:

a. Supervisors have the definite responsibility for the following (emphasis mine).

The specifics follow and then the obligations of the employees (part 1b) are set out. After that is section 1c which again refers to supervisors and closes the frame:

c. Frequent periodic Inspections of construction, operation and maintenance equipment, materials, work areas, conditions and methods should be made by supervisors as a part of their routine duty. Such inspections are essential to prevent accidents.

It is clear, then, from the juxtaposition of the employee's obligations between the duties of the supervisors, that the primary safety responsibility is on the supervisor in a certain and set sequence:

a) the supervisor plans the work to be done safely;

b) the employees do the work according to the plan in the safe and proper manner; and

c) the supervisor inspects frequently and periodically to be sure the work is being done correctly to prevent accidents.

Total reliance on b) renders a) and c) nugatory or, at best, peripheral and not "definite" as the manual specifies. To avoid that result, it is incumbent on the supervisor to plan the work--even during an on- site inspection--with all protections against hazards that he can reasonably foresee.[[10/]]

The arresters were obvious from the ground. The crew supervisors visited the site before the men entered the work area 15 feet up. Their work would take them--in the normal and expected course--within the safe clearance distance of the arresters. Yet, no word of instruction or warning was given. Respondent's policy, I find, under its safety manual is to rely on the employee's judgment in this circumstance and its manual is so interpreted.

I base this finding on the testimony of all of respondent's witnesses who, in so many words, stated this interpretation. Additionally, Director Bain refuted Mr. Theroux's comment by stating that it is not unusual for an electrician to find himself too close to an energized part in the course of his work. Further, the Director, in reviewing the company's safety performance, noted that the several close calls occurring in 1985 (in the few months before the accident) resulted from, what he termed, missing the obvious.

Such events are created in large measure by relying on the employee's judgement on the scene as opposed to careful planning.

Thus, I conclude that respondent's safety manual defining the supervisor's responsibility is inadequate insofar as it has been translated into an operative procedure since the supervisor has no obligation to warn against the hazards he knows of or actually sees at a site. His responsibility, as far as this record shows, stops at assuring that the switching instructions do, in fact, take out of service only that equipment which is to be repaired.

Such a work rule may not be considered effective against dangers faced by employees. Respondent's defense of unpreventable employee misconduct fails. Its rule, "Supervisors have the definite responsibility for ... safe working conditions" (Manual, sec. 1, item 1(a)1), has not been effectuated (understood) to prevent violations by its employees, in this instance, of its safe clearance minimums. Secretary v. Marson Corporation, above.

I conclude that complainant has carried Ms burden. The preponderance of the evidence shows that the employee's violation of the clearance rule was foreseeable and could have been prevented but for the inadequacy of the safety precautions and supervision in its failure to take note of and warn against an obvious danger. Capital Electric Line Builders, Inc. v. Marshall, 678 F.2d 128, at 130. This is not a case where a properly conceived work plan is thwarted by the unanticipated act of an employee, albeit a supervisor. Pennsylvania P & L v. OSHRC, above at footnote 5, and Secretary v. Cerro Metal Products, __ OSAHRC __, 12 BNA 1821, CCH 27,57(?) (1986) (relied on by respondent in its reply brief), where the supervisor witnessed the employees conforming to the work rule (shutting down a press before maintenance work) and, in his absence, breaking the rule without the supervisor knowing it. That fact distinguishes that case from the fact pattern shown on this record.

On the contrary, here respondent excuses its supervisor from allowing work to go forward without warning of an obvious danger. Thus, I agree with Compliance Officer Yi's final conclusion, after a first and opposite impression, that the manual is in theory only an excellent safety program. Because respondent relies so heavily on the employee's compliance with his sections in denigration of the supervisor's responsibility, the end purpose of the manual is not accomplished. And that reliance is overemphasized and misplaced. REA Express, above at footnote 8.

I do not find that the record will support complainant's first contention, namely, that the training of the employees was inadequate in any way or so remote in time to account for the event of May 21. Both Mr. Taylor and Mrs. Theroux knew and observed the rule in the past and it was posted on the substation's gate. Rather, I conclude that an employee's violation of a company rule can be foreseen and prevented by stricter and more exact supervision which is certainly required when men are working in a lethal environment. Such prevention is envisioned in the respondent's manual since it imposes on its supervisor's the "definite" responsibility for safety and specifies that his inspections of worksites are "essential to prevent accidents" (Manual, section 1, Items 1a and 1c).

In Brock v. L. E. Myers (No. 86-3215, 6th Cir., 5/13/87), a situation where a supervisor ignored, at best, and contradicted, at worst, the company's safety manual, the court concluded its decision stating:

We emphasize ... that the employer [relying on the defense of' unpreventable employee misconduct] must demonstrate that [safety] program's effectiveness in practice as well as in theory. (Slip Op., page 13)

Here, I find and conclude, that respondent's reliance on its employees to finally determine the boundary of a safe work area nullifies the effectiveness of the all- encompassing safety manual and renders as meaningless the supervisor's duty of ensuring that accidents do not happen. Respondent's defense is deficient and fails. The citation is affirmed in the order below.

The proposed civil penalty[[11/]] of $1,000 appears to be based on the gravity of the violation and the fact that respondent was aware of the clearance problems (history) generally at the substations based on the 1982 incident. It does not seem to take into account respondent's good faith in terms of the effort it has expended and the emphasis it places on safety overall. I find that it is cooperative with safety organizations (like OSHA) and committed to safety. Secretary v. Nacirema Operating Co., 72 OSAHRC 1/B10 (1/33), 1 BNA OSHC 1001, CCH 15,032. Taking this into account, I conclude that a civil penalty of $500 is appropriate.


Based on the findings of fact and conclusions of law reached after considering the evidence and the parties' arguments and proposals, which to the extent shown are adopted or rejected as having insufficient support in the preponderance of the evidence or precedent, it is ORDERED that the citation Issued September 11, 1985, alleging a violation of 29 U.S.C. 654(a)(1) is affirmed and a civil penalty of $500 is assessed therefor.

Judge, OSHRC

Dated: July 1, 1987
Boston, Massachusetts


[[1/]] Section 5(a)(1) of the Act, 29 U.S.C. 654(a)(1), provides:

Each employer...shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees.

[[2/]] Lightning arrestors are devices designed to protect electrical equipment at a power station against overloading by taking a surge of power from lightning and bringing it to the ground. The record does not indicate why the lightning arrestors were energized.

[[3/]] A stand-off insulator is a device that maintains physical separation between an energized electrical line and the steel supporting framework of the substation.

[[4/]] A cut-out is essentially a switch that opens and closes an electrical circuit.

[[5/]] A substation is a large facility containing transformers and breakers on steelwork. The facility is enclosed by a locked link fence. The equipment receives electrical power at high voltage and lowers it to a voltage usable by customers.

[[6/]] The other foreman in charge of the site, Edwin Raines, also may have met with the crew shortly before the fatal accident. Unfortunately, Raines died before the hearing, and Theroux could not recall when Raines had arrived at the site. Theroux did testify, however, that Raines had not warned the crew about the lightning arrestors.

[[7/]] At the time, Taylor was not wearing his protective gloves. Nevertheless, the record indicates that the gloves would not have protected him from the voltage involved.

[[8/]] According to this table, the minimum working and clear hot stick distance for parts energized at 15.1 to 35 kilovolts is 2 ft. 4 in.

[[1/]] 29 U.S.C. 654(a)(1):

Each employer
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

[[2/]] "Congress intended to require [by the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq., and this section in particular] elimination of only preventable hazards." National Realty & Co., Inc. v. OSHRC, 489 F.2d 1257 (1973) at 1266. That is the meaning of "free" and it avoids the imposition of strict liability. Id., at 1266, note 36.

[[3/]] Secretary v. Paul Betty d/b/a Betty Bros., 81 OSAHRC 18/B11, 9 BNA OSHC 1379, 1981 CCH OSHC 25,219 (1981).

[[4/]] Whether the hazard was "recognized" [29 U.S.C. 654(a)(1)] and could cause serious harm or death are admitted and not in issue as detailed below. (Transcript, hereinafter Tr., 5/21, 128)

[[5/]] This is the complainant's burden which remains with him despite respondent's affirmative defense of unpreventable employee misconduct. Complainant does not rely on the fact that supervisors participated to show foreseeability but offered proofs on insufficient training and lax supervision. See Pennsylvania P & L v. OSHRC, 737 F.2d 350, 357-358 (3d Cir. 1984)

[[6/]] Under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., citations are issued after inspection and may be contested within a 15-working-day period. 29 U.S.C. 658 and 659(a).

[[7/]] The citation notes that abatement occurred during the inspection.

[[8/]] So that any procedural difficulty borne of the complaint's failure to allege an ineffective safety program as a specific abatement created no prejudice to respondent or hampered its defense.

[[9/]] Hence the statutory responsibility is far greater than the common law duty of employer to employee. REA Express, Inc. v OSHRC, 495 F.2d 822 (1974) at 825. The employer may not rely on the employee to exercise reasonable care. He must take steps to ensure it.

[[10/]] A spot, visual inspection was deemed inadequate as a diligent effort to determine whether employees wore insulating gloves underneath their protective gloves. Secretary v. New England Telephone Co., 830 OSAHRC 29/DIZ, 11 BNA OSHC 1501, CCH 26,535 (1983) (Chairman Rowland dissenting).

[[11/]] These are finally determined by the Commission based on the violation's gravity and the good faith, history and size of the respondent. 29 U.S.C. 666(i).